Bleynat v. Trans Union, LLC et al

Filing 47

ORDER accepting 44 Memorandum and Recommendations; granting 34 Defendant's Motion to Dismiss, and the request for injunctive relief set forth in the Prayer for Relief of the Plaintiff's Amended Complaint is hereby DISMISSED WITH PREJUDICE. Signed by District Judge Martin Reidinger on 07/02/2012. (thh)

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:11cv218

EDWARD L. BLEYNAT, JR.

)
)
)
Plaintiff,
)
)
vs.
)
)
TRANS UNION, LLC; EQUIFAX )
INFORMATION SERVICES,
)
INC., EXPERIAN INFORMATION )
SOLUTIONS, INC.
)
)
Defendants.
)
___________________________ )

MEMORANDUM OF DECISION
AND ORDER

THIS MATTER is before the Court on the Defendant Trans Union, LLC’s
Partial Motion to Dismiss [Doc. 34]; the Magistrate Judge’s Memorandum and
Recommendation [Doc. 44] regarding the disposition of said motion; the
Plaintiff’s Objection to the Memorandum and Recommendation [Doc. 45]; and
the Defendant Trans Union, LLC’s Response to Plaintiff’s Objection to the
Memorandum and Recommendation [Doc. 46].
I.

PROCEDURAL AND FACTUAL BACKGROUND
The Plaintiff brought this action against Trans Union, LLC (“Trans

Union”) and other credit reporting agencies seeking monetary damages and

declaratory and injunctive relief under the Fair Credit Reporting Act, 15 U.S.C.
§ 1681, et seq. (“FCRA”). [Doc. 30]. The Defendant Trans Union moved for
dismissal of the Plaintiff’s claim for declaratory and injunctive relief, arguing
that individual plaintiffs do not have the right to seek such relief under the
FCRA. [Doc. 34].
Pursuant to 28 U.S.C. § 636(b) and the Standing Orders of Designation
of this Court, the Honorable Dennis L. Howell, United States Magistrate
Judge, was designated to consider the Defendant’s Motion to Dismiss and to
submit a recommendation for its disposition.

On March 19, 2012, the

Magistrate Judge entered a Memorandum and Recommendation in which he
recommended that the Motion to Dismiss be granted. [Doc. 44]. The Plaintiff
timely filed an Objection to the Memorandum and Recommendation. [Doc.
45]. The Defendant has responded to the Plaintiff’s Objection, urging the
Court to adopt the Magistrate Judge’s Recommendation. [Doc. 46].
Having been fully briefed, this matter is now ripe for disposition.
II.

STANDARD OF REVIEW
A.

Standard of Review Applicable to Objections to Magistrate
Judge’s Memorandum and Recommendation

The Federal Magistrate Act requires a district court to “make a de novo
determination of those portions of the report or specific proposed findings or
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recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). In
order “to preserve for appeal an issue in a magistrate judge’s report, a party
must object to the finding or recommendation on that issue with sufficient
specificity so as reasonably to alert the district court of the true ground for the
objection.” United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007). The
Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge to which no objections
have been raised. Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88
L.Ed.2d 435 (1985). Additionally, the Court need not conduct a de novo
review where a party makes only “general and conclusory objections that do
not direct the court to a specific error in the magistrate's proposed findings
and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
B.

Rule 12(b)(6) Standard of Review

In order to survive a motion to dismiss pursuant to Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). To
be “plausible on its face,” a plaintiff must demonstrate more than “a sheer

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possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678, 129
S.Ct. 1937.
[T]he Supreme Court has held that a complaint must
contain “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of
action will not do.” To discount such unadorned
conclusory allegations, “a court considering a motion
to dismiss can choose to begin by identifying
pleadings that, because they are not more than
conclusions, are not entitled to the assumption of
truth.”
This approach recognizes that “naked
assertions” of wrongdoing necessitate some “factual
enhancement” within the complaint to cross “the line
between possibility and plausibility of entitlement to
relief.”
At bottom, determining whether a complaint states on
its face a plausible claim for relief and therefore can
survive a Rule 12(b)(6) motion will “be a contextspecific task that requires the reviewing court to draw
on its judicial experience and common sense. But
where the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct,
the complaint has alleged – but it has not ‘show[n]’ –
‘that the pleader is entitled to relief,’” as required by
Rule 8. ... [E]ven though Rule 8 “marks a notable and
generous departure from the hyper-technical,
codepleading regime of a prior era, ... it does not
unlock the doors of discovery for a plaintiff armed with
nothing more than conclusions.”
Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly,
550 U.S. at 555, 557, 127 S.Ct. 1955 and Iqbal, 129 S.Ct. at 1950, 129 S.Ct.
1937).
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III.

DISCUSSION
At issue in this case is whether an individual plaintiff, rather than the

Federal Trade Commission (“FTC”), can seek declaratory and injunctive relief
under the FCRA.
Although the Fourth Circuit has not yet addressed the issue, the Fifth
Circuit has held that private litigants do not have a right to declaratory and
injunctive relief under the FCRA. See Washington v. CSC Credit Services,
Inc., 199 F.3d 263 (5th Cir. 2000) (holding that “the affirmative grant of power
to the FTC to pursue injunctive relief, coupled with the absence of a similar
grant to private litigants when they are expressly granted the right to obtain
damages and other relief, persuasively demonstrates that Congress vested
the power to obtain injunctive relief solely with the FTC”). As the Magistrate
Judge correctly noted [Doc. 44 at 3-4], Washington has been widely followed
by the federal district courts, in this District as well as elsewhere in the Fourth
Circuit. See, e.g. Domonoske v. Bank of Am., 705 F.Supp.2d 515, 518 (W.D.
Va. 2010); Jarrett v. Bank of Am., 421 F.Supp.2d 1350, 1353 (D. Kan. 2006);
White v. First Am. Registry, Inc., 378 F.Supp.2d 419, 424 (S.D.N.Y. 2005);
Kaplan v. Experian, Inc., No. 09-10047, 2010 WL 2163824, at *4 (E.D. Mich.
May 26, 2010); Pugh v. Gen. Elec. Co., No. 2:10cv221-ID, 2010 WL 2629511,

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at *3-4 (M.D. Ala. Jun. 29, 2010); Daniels v. Experian Info. Solutions, Inc., No.
109-017, 2009 WL 1811548, at *4 (S.D. Ga. Jun. 24, 2009); McCullough v.
Trans Union LLC, No. 3:06cv432-W, 2006 WL 3780536, at *3 (W.D.N.C. Dec.
21, 2006) (Whitney, J.).
The Plaintiff argues that Washington was wrongly decided, relying
principally on Beaudry v. Telecheck Services, Inc. 579 F.3d 702 (6th Cir.
2009), cert. denied, 130 S.Ct. 2379, 176 L.Ed.2d 768 (2010). In Beaudry, the
Sixth Circuit declined to resolve the issue of whether injunctive relief is
available to individual litigants under the FCRA, instead choosing to “save its
resolution for another day.” Beaudry, 579 F.3d at 709. As such, the opinions
expressed by the Sixth Circuit on this issue are merely dicta. Although it
declined to rule on the issue directly, the Beaudry court expressed doubt as
to the Fifth Circuit’s conclusion that injunctive relief is not available to
individual litigants under the FCRA. See id. (“Washington may be right, and
the district court thus may have been right to rely on it. But the answer is not
free from doubt.”). Specifically, the Beaudry court noted that the Supreme
Court in Califano v. Yamasaki, 442 U.S. 682, 705, 99 S.Ct. 2545, 61 L.Ed.2d
176 (1979), had held that absent “the clearest command to the contrary from
Congress,” district courts are assumed to have authority to issue injunctions

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in cases over which they have jurisdiction. Beaudry, 579 F.3d at 709 (citation
omitted). The W ashington court, however, expressly considered Califano
and, upon examining the language of the FCRA, concluded that “Congress
clearly and unambiguously limited the court’s equity jurisdiction under the
FCRA” so as to preclude injunctive relief for private litigants. Washington, 199
F.3d at 268. For these reasons, the Court concludes that the dicta of Beaudry
is not persuasive.

The Plaintiff’s objections on this point are, therefore,

overruled.1
The Plaintiff further urges the Court to allow injunctions on policy
grounds in order to give FCRA plaintiffs an efficient and effective way of
pursuing their claims and avoiding further damages. [Doc. 45 at 9]. The
Plaintiff’s policy arguments, however, are foreclosed by the statutory language
of the FCRA, which evidences a clear intention on the part of Congress to

1

The Plaintiff also highlights the Beaudry court’s criticism that Washington relies
mostly on cases decided before the FCRA was amended in 1996. [Doc. 45 at 6].
Beaudry’s criticism of Washington on this point, however, concerned the latter court’s
conclusions regarding the availability of statutory damages under the FCRA, not
injunctive relief. See Beaudry, 579 F.3d at 707. Because the present case involves
only the issue of injunctive relief, the Plaintiff fails to show how this criticism is relevant
to the instant case.
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preclude private litigants to seek injunctive and other equitable relief under the
FCRA.2 Accordingly, the Plaintiff’s objection is without merit.
IV.

CONCLUSION
Having conducted a de novo review of those portions of the

Memorandum and Recommendation to which objections were filed, the Court
concludes that the Magistrate Judge’s proposed conclusions of law are
supported by and are consistent with current case law.3 Accordingly, for the
reasons

stated

in

the

Magistrate

Judge’s

Memorandum

and

Recommendation, the Court will dismiss with prejudice the request for
injunctive relief set forth in the Prayer for Relief of the Plaintiff’s Amended
Complaint.
Accordingly, IT IS, THEREFORE, ORDERED that the Plaintiff’s
Objection to the Memorandum and Recommendation of the Magistrate Judge
[Doc. 45] is OVERRULED, and the Recommendation of the Magistrate Judge
[Doc. 44] is ACCEPTED.

2

Even without the availability of injunctive relief, however, such litigants are not
left without any redress for their injuries, as an injured party may still pursue actual and
punitive monetary damages under the FCRA.
3

While Trans Union was the only Defendant to formally move for dismissal of
Plaintiff’s request for injunctive relief, this dismissal applies equally to the other
defendants in this case.
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IT IS FURTHER ORDERED that the Defendant’s Motion to Dismiss
[Doc. 34] is GRANTED, and the request for injunctive relief set forth in the
Prayer for Relief of the Plaintiff’s Amended Complaint is hereby DISMISSED
WITH PREJUDICE.
IT IS SO ORDERED.
Signed: July 2, 2012

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