Shaunfield v. Bank of America, ND Texas 2013

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Shaunfield v. Bank of America, ND Texas 2013

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Shaunfield v. Bank of America
Not Reported in F.Supp.2d, 2013 WL 1846885
April 24, 2013


JANE J. BOYLE, District Judge.

*1 Before the Court is a Motion to Dismiss Plaintiff's First Amended Complaint (doc. 57), filed on March 18, 2013 by Defendant Bank of America. For the reasons that follow, the Court GRANTS the Motion.



FN1. The Court draws its factual account from the allegations contained in the operative pleading, Shaunfield's Amended Complaint (doc. 47). See Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 725 (5th Cir.2002) (noting that, when considering a motion to dismiss pursuant to Rule 12(b)(6), “all facts pleaded in the complaint must be taken as true”).

In this action involving credit reporting practices, pro se Plaintiff John E. Shaunfield has sued Defendants Bank of America (“FIA”), Discover Financial Services (“Discover”), and Transunion (“Trans Union”).FN2 Shaunfield alleges that each of the named defendants were informed that Shaunfield disputed items on his credit report, that the named defendants failed to conduct a reasonable investigation of Shaunfield's dispute, and that the named defendants continue to provide inaccurate information on Shaunfield's credit report. Doc. 47, Am. Compl. ¶¶ 3.1–3.5. Shaunfield alleges causes of action under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. ; the Texas Business & Commerce Code, chapters 17 and 20; and common law defamation. Id. ¶¶ 4.1–4.10. Shaunfield seeks various damages, attorney's fees, and costs.

FN2. Bank of America maintains that its proper name is FIA Card Services, N.A. Doc. 57, Mot. at 1. Discover clarifies that its proper name is Discover Products Inc. Doc. 48–1, Br. at 1. Transunion also states that its proper name is Trans Union LLC. Doc. 50, Mot. at 1. American Express Company was originally named a defendant, but was dismissed from this action at Shaunfield's notice and is no longer a party. Doc. 20, Notice. The Court denied Shaunfield's request to add additional defendants. Doc. 41, Order at 2.

On March 18, 2013, FIA filed a Motion to Dismiss (doc. 57), seeking dismissal of all causes of action in the Amended Complaint against it. The other defendants do not join FIA's Motion, but have filed separate motions seeking dismissal, which the Court addresses in separate orders. FIA's Motion has been fully briefed and is ripe for review.

This Court has original jurisdiction over Shaunfield's federal claims pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over the state claims pursuant to 28 U.S.C. § 1367(a).



Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) authorizes the court to dismiss a plaintiff's complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In considering a Rule 12(b)(6) motion to dismiss, “[t]he court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007) (quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir.2004)). To survive such a motion, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. When wellpleaded facts fail to achieve this plausibility standard, “the complaint has alleged—but it has not shown—that the pleader is entitled to relief.” Id. at 679 (internal quotation marks and alterations omitted).



*2 Defendant FIA moves to dismiss Shaunfield's FCRA claim, Texas Business & Commerce Code claims, and defamation claim. The Court addresses each claim, in turn, below.

A. FCRA Claim

Shaunfield's Amended Complaint first alleges causes of action under the FCRA. Doc. 47, Am. Compl. 1f1f 4.1–4.6. Shaunfield specifically alleges that FIA violated 15 U.S.C. § 1681s–2(b) by failing to conduct a reasonable investigation of disputed information in his credit report FN3 Id. 1f4.5. FIA moves to dismiss this claim on the basis that it contains mere conclusory allegations and does not enable FIA to discern how it is alleged to have violated the statute. Doc. 57–1, Br. at 6–8.

FN3. The pleadings raise several other causes of action under the FCRA, but those claims are raised against Trans Union only and therefore are not relevant to FIA's Motion to Dismiss.

The relevant pleadings claim that FIA was made aware of a dispute of incorrect information that it provided to Trans Union for Shaunfield's credit report, that FIA failed to conduct a reasonable investigation into the dispute, that FIA failed to follow the procedures of § 1681s–2(b) outlining the duties of furnishers of information, and that FIA did not correct at least some of the false information. Doc. 47, Am. Compl. 1f1f 3.2, 3.3, 3.5, 4.2, 4.5. The Court agrees that the pleadings fall short of the standard of Iqbal and Twombly in providing adequate information to inform FIA as to the conduct it is alleged to have wrongfully taken, namely, what false information it is alleged to have provided. The pleadings merely recite the elements of a § 1681s–2(b) violation, rather than supporting those allegations with adequate factual content. Accordingly, the Court GRANTS FIA's Motion to Dismiss the FCRA claim against it.

B. Texas Business & Commerce Code Claims

The Amended Complaint also alleges causes of action against the defendants for violating the Texas Business & Commerce Code § 20.06(d) by failing to follow credit reporting dispute procedures. Doc. 47, Am. Compl. 1f 4.7. The pleadings also allege that a violation of Chapter 20 of the Code is a violation of Chapter 17, the Texas Deceptive Trade Practices Act. Id. 1f 4.8. FIA moves to dismiss Shaunfield's Texas statutory claims, arguing that the FCRA preempts theses causes of action. Doc. 57–1, Br. at 8–11.

As noted above, Shaunfield's FCRA claim against FIA explicitly lies in § 1681 s–2. FCRA § 1681t(b)(1)(F) states that “[n]o requirement or prohibition may be imposed under the laws of any State ... with respect to any subject matter regulated under ... section 1681s–2 of this title, relating to the responsibilities of persons who furnish information to consumer reporting agencies.” 15 U.S.C. § 1681t(b)(1)(F) (listing exceptions not relevant here). Section 1681t therefore preempts state law to the extent it seeks to impose additional requirements on entities such as FIA related to conduct that is a violation of § 1681s–2. See Meisel v. USA Shade & Fabric Structures Inc., 795 F.Supp.2d 481 (N.D.Tex.2011) (examining FCRA preemption in detail). Because Shaunfield bases his § 1681s–2 and Texas statutory claims on the same allegedly wrongful conduct taken by FIA as a furnisher of information to a credit reporting agency, Shaunfield's Texas statutory claims are preempted by the FCRA. Accordingly, FIA's Motion to Dismiss is GRANTED on this matter.

C. Defamation Claim

*3 The Amended Complaint includes a cause of action for defamation against all defendants. Doc. 47, Am. Compl. ¶¶ 4.9–4.10. FIA moves to dismiss Shaunfield's defamation claim against it on the basis that the FCRA preempts common law defamation. Doc. 57–1, Br. at 8–11.

Ultimately, the Court need not reach the issue of preemption under the FCRA, as the pleadings are insufficient to withstand a Rule 12(b)(6) motion under Iqbal and Twombly. Under Texas law, a defamation claim requires the plaintiff to prove that the defendant “(1) published a statement; (2) that was defamatory concerning the plaintiff; (3) while acting with ... negligence, if the plaintiff was a private individual, regarding the truth of the statement.” WFAA–TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998); Grand Champion Film Prod., L.L.C. v. Cinemark USA, Inc., 257 S.W.3d 478, 481 (Tex.App.-Dallas 2008, no pet.). A statement is published if it is communicated to a “third person who is capable of understanding its defamatory meaning and in such a way that the person did understand its defamatory meaning.” Thomas–Smith v. Mackin, 238 S.W.3d 503, 507 (Tex.App.-Houston [14th Dist.] 2007, no. pet.). “A statement is defamatory if it exposes a person to ‘public hatred, contempt or ridicule, or financial injury or if it impeaches any person's honesty, integrity, virtue, or reputation.’ “ Double Diamond, Inc. v. Van Tyne, 109 S.W.3d 848, 854 (Tex.App.-Dallas 2003, no pet.) (citing Tex. Civ. Prac. & Rem.Code Ann. § 73.001 (Vernon 1997)) (internal alterations omitted). “Whether a publication is capable of the defamatory meaning alleged by the plaintiff is a question of law to be determined by the court.” Clemens v. McNamee, 608 F.Supp.2d 811, 826 (S.D.Tex.2009) aff'd, 615 F.3d 374 (5th Cir.2010).

The Amended Complaint fails to even hint at the substance of the false and defamatory statements made by FIA. It does state that Shaunfield's credit report incorrectly listed his addresses, doc. 47, Am. Compl. ¶ 3.3, but listing a wrong address ordinarily would not constitute a “defamatory” statement because there is no indication from the pleadings that such a statement weighs on Shaunfield's honesty or integrity or otherwise subjects Shaunfield to the type of ridicule contemplated in defamation. See Double Diamond, 109 S.W.3d at 854. Other than the address, the Amended Complaint merely alleges that other “wrong” or “incorrect” or “false” information is listed on the credit report. Doc. 47, Am. Compl. ¶¶ 3.3, 3.5, 4.10. Shaunfield has not made sufficient allegations as to the substance of the allegedly defamatory statements and, therefore, has failed to adequately allege that he is entitled to relief from FIA on his defamation claim. Iqbal, 556 U.S. at 678. The Court therefore DISMISSES the defamation claim as to FIA.



For the aforementioned reasons, the Court GRANTS Defendant FIA's Motion to Dismiss Plaintiff's First Amended Complaint (doc. 57).


Shaunfield v. Bank of America
Not Reported in F.Supp.2d, 2013 WL 1846885 (N.D.Tex.)
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

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