Muhammad v. Lockhart, Morris & Montgomery, Inc., No. 316CV00194TCBRGV, 2017 WL 3836119, at *1–3 (N.D. Ga. Mar. 3, 2017),

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Muhammad v. Lockhart, Morris & Montgomery, Inc., No. 316CV00194TCBRGV, 2017 WL 3836119, at *1–3 (N.D. Ga. Mar. 3, 2017),

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Muhammad v. Lockhart, Morris & Montgomery, Inc., No. 316CV00194TCBRGV, 2017 WL 3836119, at *1–3 (N.D. Ga. Mar. 3, 2017), report and recommendation adopted, No. 3:16-CV-194-TCB, 2017 WL 3836120 (N.D. Ga. Apr. 10, 2017)

FINAL REPORT AND RECOMMENDATION
RUSSELL G. VINEYARD, UNITED STATES MAGISTRATE JUDGE

*1 On December 12, 2016, plaintiff Kareem Ali Muhammad (“plaintiff”), proceeding pro se, sought leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) and filed a complaint against defendants Lockhart, Morris & Montgomery, Inc. (“LMM”), and Berry Slusher, John Hickman, and Martin Ronald, all of whom plaintiff identifies as “d/b/a LMM,”1 alleging violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., and the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and asserting a claim for defamation of character under 28 U.S.C. § 4101(1). See [Docs. 1 & 1-1]; see also [Doc. 3]. On January 11, 2017, the Court issued an Order granting plaintiff's request to proceed in forma pauperis, but ordered him to replead his complaint within fourteen (14) days to address the deficiencies noted within that Order, including setting forth sufficient allegations to support his claims under the FCRA and FDCPA, and to comply with the Federal Rules of Civil Procedure. See [Doc. 2].2 The Order also cautioned plaintiff that failure to comply with the Order and to timely file the amended complaint “will result in a recommendation that this action be dismissed.” [Id. at 12-13]. On January 25, 2017, plaintiff filed a motion for an extension of time to file his amended complaint, [Doc. 4], which the Court granted the following day, allowing plaintiff thirty days from the date of that order to file his amended complaint, [Doc. 5]. Plaintiff has failed to file an amended complaint and the time to do so has now passed, and he therefore has not complied with the Court's previous Orders. Thus, for the reasons that follow, it is RECOMMENDED that plaintiff's complaint, [Doc. 3], be DISMISSED for failure to obey the Court's Orders and failure to state a claim.


*2 “Pursuant to Fed.R.Civ.P. 41(b), a district court may sua sponte dismiss a plaintiff's action for failure to comply with the rules or any order of the court.” Owens v. Pinellas Cty. Sheriff's Dep't, 331 Fed.Appx. 654, 656 (11th Cir. 2009) (per curiam) (unpublished) (citation omitted) (citing Lopez v. Aransas Cty. Indep. Sch. Dist., 570 F.2d 541, 544 (5th Cir. 1978)).3 “The Supreme Court also has held that ‘[t]he authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an inherent power, governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs....’ ” Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005) (alterations in original) (internal marks omitted) (quoting Link v. Wabash R.R., 370 U.S. 626, 630 (1962)). Additionally, Local Rule 41.3A(2) provides in pertinent part that “[t]he court may, with or without notice to the parties, dismiss a civil case for want of prosecution if ... [a] plaintiff ... shall, after notice, ... fail or refuse to obey a lawful order of the court in the case[.]” LR 41.3A(2), NDGa.; see also Hall v. Crestmark Club, No. 1:07-cv-0715-WSD-JFK, 2008 WL 187517, at *2 (N.D. Ga. Jan. 18, 2008), adopted at *1 (dismissing pro se plaintiff's complaint where he failed to obey court orders as well as comply with the local rules and was warned that such failure could result in sanctions, including dismissal). Since plaintiff has not filed an amended complaint as ordered, this action is due to be dismissed for failure to comply with the Court's Orders entered on January 11, 2017, and January 26, 2017. See [Docs. 2 & 5].


Plaintiff's complaint also is due to be dismissed upon frivolity review for failure to state any plausible claim. A complaint is frivolous if “it lacks an arguable basis either in law or in fact,” Neitzke v. Williams, 490 U.S. 319, 325 (1989), or “if the ‘plaintiff's realistic chances of ultimate success are slight,’ ” Clark v. State of Ga. Pardons & Paroles Bd., 915 F.2d 636, 639 (11th Cir. 1990) (quoting Moreland v. Wharton, 899 F.2d 1168, 1170 (11th Cir. 1990) (per curiam)). Under 28 U.S.C. § 1915(e), the Court must dismiss the case if it determines that it “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). A claim is frivolous when it appears from the face of the complaint that the factual allegations are “clearly baseless” or that the legal theories are “indisputably meritless.” Neitzke, 490 U.S. at 327; Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001). “Unsupported conclusory factual allegations also may be ‘clearly baseless.’ ” Craven v. Florida, No. 6:08-cv-80-Orl-19GJK, 2008 WL 1994976, at *4 (M.D. Fla. May 8, 2008), adopted at *2.


Moreover, in order to state a claim on which relief can be granted, plaintiff's allegations must comply with Rule 8 of the Federal Rules of Civil Procedure, which provides in relevant part: “A pleading ... must contain: (1) a short and plain statement of the grounds for the court's jurisdiction ...; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.” Fed. R. Civ. P. 8(a). A complaint should not consist of vague and conclusory allegations, but must clearly state a cause of action. See Ransom v. Colonial Counseling Assocs., No. 6:08-cv-2056-Orl-31KRS, 2009 WL 88490, at *2 (M.D. Fla. Jan. 12, 2009), adopted at *1. Plaintiff must clearly state what rights under the Constitution, laws, or treaties of the United States have been violated and how they support the allegations set forth in the complaint. See 28 U.S.C. § 1331. However, because plaintiff is proceeding pro se, his “pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (citations and internal marks omitted).4


*3 Plaintiff's complaint names LMM and the individual defendants doing business as LMM, and asserts that defendants obtained his consumer credit report in February and June of 2016 without his consent and without any permissible purpose and created unauthorized trade lines on his report, in violation of 15 U.S.C. § 1681b,5 and that they obtained this information under false pretenses, in violation of § 1681q. [Doc. 3 at 3 ¶¶ 14-16, 4 ¶ 17, 6 ¶¶ 29-32]. “Under [the FCRA,] civil liability for improper use and dissemination of credit information may be imposed only on a consumer reporting agency or user of reported information who willfully or negligently violates the FCRA.” Rush v. Macy's N.Y., Inc., 775 F.2d 1554, 1557 (11th Cir. 1985) (citations omitted). As the Court discussed in its January 11, 2017, Order, “while plaintiff has attempted to assert a claim under the FCRA, the allegations contained in plaintiff's complaint do not adequately state a claim under the FCRA that is plausible on its face.” [Doc. 2 at 7]. Indeed, “[w]hile plaintiff asserts that defendants accessed his consumer credit report in an attempt to collect a debt, he has failed to provide any specific facts to support willful or negligent noncompliance with the FCRA,” and “[i]n fact, plaintiff has alleged that defendants' attempted to collect a debt, and one of the permissible purposes enumerated in the FCRA for obtaining a consumer report is to use the information in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the ... collection of an account of[ ] the consumer,” [Id. at 8 (footnote, citations and internal marks omitted) ]. Therefore, “if a collection agency is retained by a creditor to collect a debt owed by a consumer, then it typically has a permissible purpose for obtaining a consumer report in conjunction with its collection activities, so long as they relate to a transaction that the consumer initiated with the creditor.” [Id. (footnote omitted) ]. So, “to the extent plaintiff's FCRA claims are premised on the unauthorized trade line on [his] credit reports, which he requested defendants to remove, [s]ection 1681b does not permit users of credit reports to remove credit inquiries from consumers' credit reports, since the consumer reporting agencies and not users of credit reports maintain records of credit inquiries, and [they] control those records.” [Id. at 9 n.6 (alterations in original) (citation and internal marks omitted) (quoting Glanton v. DirecTV, LLC, 172 F. Supp. 3d 890, 897 (D.S.C. 2016)) ]. Finally, “the scant factual matter offered by [p]laintiff in [his] complaint establishe[d] nothing beyond speculation as to the mere possibility of an FCRA violation, without presenting enough fact[s] to raise a reasonable expectation that discovery will reveal unlawful conduct,” and that he had therefore failed to “meet the requirements of Rule 8 of the Federal Rules of Civil Procedure.” [Id. at 9 (all but third alteration in original) (footnote, citations, and internal marks omitted) ].


With respect to plaintiff's FDCPA claims, plaintiff alleged that defendants used false, deceptive, or misleading representations in connection with attempting to collect a debt and that they failed to provide him with written validation of the alleged debt upon request. [Doc. 3 at 7-8 ¶¶ 33-38]. However, the Court previously explained in its January 11, 2017, Order that the FDCPA applied only to debt collectors as defined by the FDCPA, and that plaintiff had “failed even to allege that defendants are debt collectors, much less that the principal purpose of defendants' business [was] the collection of [ ] debts.” [Doc. 2 at 10-11 (citations and internal marks omitted) ]; see also [Doc. 3 at 2 ¶ 9 (only alleging that LMM is a “Texas corporation, authorized to do business in Georgia”) ]. “A complaint that fails to include factual allegations for an essential element of the cause of action does not state a claim to relief that is plausible,” and “under the FDCPA the critical element is whether the defendant is a debt collector as defined under the statute.” [Doc. 2 at 11 (citations and internal marks omitted) ]. Therefore, plaintiff, by failing to address the essential element of his FDCPA claim, failed to state a plausible claim under the FDCPA. [Id. at 11-12 (citations omitted) ].


For all of these reasons previously discussed in the Court's January 11, 2017, Order, see [Doc. 2], plaintiff's complaint, is due to be dismissed as frivolous for failure to state a claim under the FCRA or the FDCPA. Quite simply, the allegations of plaintiff's complaint do not adequately state a claim under either of these Acts. See generally [Doc. 3]. For the foregoing reasons, it is RECOMMENDED that plaintiff's complaint, [Doc. 3], be DISMISSED WITHOUT PREJUDICE for failure to obey the Court's Orders and failure to state a claim.


The Clerk is DIRECTED to terminate this reference.


IT IS SO RECOMMENDED, this 3rd day of March, 2017.


All Citations
Not Reported in Fed. Supp., 2017 WL 3836119

Footnotes


1
LMM and the individual defendants are hereinafter referred to collectively as “defendants.” However, plaintiff merely identified the individual defendants as “d/b/a LMM,” see [Doc. 1-1 at 2-3 ¶¶ 10-12], and did not allege that they were partners in the firm or otherwise identify their roles in the firm or describe their actions with respect to the allegations asserted in his complaint, and if they were, in fact, partners in LMM, “[p]laintiff's decision to name the firm and its partners separately [was] arguably surplusage,” Wilkerson v. Bowman, 200 F.R.D. 605, 611 (N.D. Ill. 2001). The document and page numbers in citations to the record refer to the document and page numbers listed in the Adobe file reader linked to this Court's electronic filing database, CM/ECF.


2
Plaintiff also alleged that LMM caused him “emotional distress and defamation of character by pulling his credit report without a firm offer and placing two trade lines” on his credit reports, see [Doc. 1-1 at 8 ¶ 40]; however, the Court noted that plaintiff merely cited a definition of “defamation” from the federal statute dealing with foreign judgments, see [Doc. 2 at 9 n.7 (citing 28 U.S.C. § 4101) ], and that “to the extent plaintiff intended to assert a state law claim for defamation, ‘where the alleged defamation arises out of defendant[s'] acts pursuant to the FCRA, the defamation claim is preempted unless the plaintiff also [sufficiently] pleads malice or willful intent to injure,’ which plaintiff ha[d] not done,” [id. (first and second alterations in original) (quoting Calloway v. Green Tree Servicing, LLC, 607 F. Supp. 2d 669, 675 (D. Del. 2009)) ].


3
Decisions of the Fifth Circuit rendered before October 1, 1981, are binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).


4
Although pro se pleadings are governed by less stringent standards than pleadings prepared by attorneys, see Haines v. Kerner, 404 U.S. 519, 520 (1972); Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam) (citation omitted), pro se parties are still required to comply with minimum pleading standards set forth in the Federal Rules of Civil Procedure and this district's Local Rules, Grew v. Hopper, No. 2:07-cv-550-FtM-34SPC, 2008 WL 114915, at *2 (M.D. Fla. Jan. 9, 2008) (citations omitted).


5


Pursuant to 15 U.S.C. § 1681b(f):
A person shall not use or obtain a consumer report for any purpose unless—
(1) the consumer report is obtained for a purpose for which the consumer report is authorized to be furnished under this section; and
(2) the purpose is certified in accordance with section 1681e of this title by a prospective user of the report through a general or specific certification.
David A. Szwak
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