Muhammad v. Lockhart, Morris & Montgomery, Inc., No. 316CV00194TCBRGV, 2017 WL 8181020, at *1–5 (N.D. Ga. Jan. 11, 2017)

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Muhammad v. Lockhart, Morris & Montgomery, Inc., No. 316CV00194TCBRGV, 2017 WL 8181020, at *1–5 (N.D. Ga. Jan. 11, 2017)

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Muhammad v. Lockhart, Morris & Montgomery, Inc., No. 316CV00194TCBRGV, 2017 WL 8181020, at *1–5 (N.D. Ga. Jan. 11, 2017)

ORDER
RUSSELL G. VINEYARD, UNITED STATES MAGISTRATE JUDGE

*1 Plaintiff Kareem Ali Muhammad (“plaintiff”), proceeding pro se, seeks to file his complaint without prepayment of fees and costs or security therefor pursuant to 28 U.S.C. § 1915(a). [Doc. 1].1 After consideration by the Court of the affidavit of indigency, it is ORDERED that plaintiff's request to proceed in forma pauperis be GRANTED pursuant to 28 U.S.C. § 1915(a). However, the Court must also determine whether plaintiff's proposed complaint is frivolous and, if so, must dismiss it without prejudice. See 28 U.S.C. § 1915(e)(2); Neitzke v. Williams, 490 U.S. 319, 324 (1989).



I. LEGAL STANDARD


Under 28 U.S.C. § 1915(e), the Court must dismiss a complaint if it determines that it “(1) 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 complaint is frivolous if “it lacks an arguable basis either in law or in fact[,]” Neitzke, 490 U.S. at 325, 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) ); see also Neitzke, 490 U.S. at 327 (noting that 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”); 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.


Furthermore, a complaint fails to state a claim on which relief may be granted if it does not 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 (2007). To state a plausible claim under the federal pleading standards, “[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 *1.2 “While a complaint need only contain a short and plain statement of the claim showing that the plaintiff is entitled to relief, the complaint must contain sufficient facts to show that a plaintiff's claims are plausible.” Henriquez v. Fed. Home Loan Mortg. Corp., Civil Action No. 1:10–CV–3825–TWT–CCH, 2010 WL 5463120, at *2 (N.D. Ga. Nov. 22, 2010), adopted by 2010 WL 5463255, at *1 (N.D. Ga. Dec. 29, 2010) (citation omitted).



II. DISCUSSION


*2 Plaintiff brings this action against defendants Lockhart, Morris & Montgomery, Inc. (“LMM”), and Berry Slusher, John Hickman (“Hickman”), and Martin Ronald, all of whom plaintiff identifies as “d/b/a LMM,”3 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 [Doc. 1-1]. Specifically, plaintiff alleges that on February 26, 2016, defendants “attempted to collect a debt and created an unauthorized trade line on [his] credit report” and “performed an [i]mpermissible ‘hard pull’ on [the] credit reports without a firm credit offer,” [id. at 3 ¶¶ 14-15]; that on June 2, 2016, defendants “attempted to collect a debt and created an unauthorized trade line on [his] credit reports” and “performed an unauthorized ‘hard pull’ on [the] credit reports without a firm credit offer,” [id. at 3-4 ¶¶ 16-17]; that on June 3, 2016, defendants “decreased [his] credit worthiness and [caused him] emotional distress,” [id. at 3 ¶ 13]; that on July 30, 2016, he “checked his credit report and sent a dispute letter ... to LMM about the unauthorized use of his credit report,” [id. at 4 ¶ 20]; that on August 15, 2016, he “checked his credit report and sent a dispute and Intent to Sue letter ... to LMM about the unauthorized use of his credit report,” [id. at 4 ¶ 21]; and that on August 20, 2016, he “called LMM ... and spoke with [Hickman] ... [who] stated that he would [ ] forward Intent to Sue letter to Compliance department,” but that on August 22, 2016, the Compliance Manager told him that he would “continue pulling [his] credit and adding trade lines, because he had [his] consent to do so,” [id. at 5 ¶¶ 24-25 (internal marks omitted) ]; see also [id. at 6 ¶ 28]. Based on these few factual allegations, plaintiff has asserted two counts of violations of §§ 1681b and 1681q of the FCRA, [id. at 6-7 ¶¶ 29-32]; three counts of violations of §§ 1692e and 1692e(8) of the FDCPA, [id. at 7-8 ¶¶ 33-38]; and one count for defamation of character pursuant to 28 U.S.C. § 4101(1), [id. at 8 ¶¶ 39-40]. The Court will address each of plaintiff's claims in turn.



A. FCRA Claims


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,4 and that they obtained this information under false pretenses, in violation of § 1681q. [Id. at 3 ¶¶ 14-16, 4 ¶ 17, 6 ¶¶ 29-32].


Plaintiff's complaint fails to 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.” See Fed. R. Civ. P. 8(a)(2). A complaint should not consist of vague and conclusory allegations, but must clearly state a cause of action. See Ransom, 2009 WL 88490, at *2. The Supreme Court has clarified that this standard does not mandate “detailed factual allegations,” but “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555) (“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”). Additionally, to state a viable claim, plaintiff must provide “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, 556 U.S. at 678 (citation omitted).


*3 “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). In the present case, 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. Indeed, courts faced with nearly identical allegations have held that claims similar to those made by plaintiff here are insufficient to state a claim under the FCRA to survive a frivolity determination under 28 U.S.C. § 1915(e)(2)(B). See Hinkle v. CBE Grp., No. CV 311–091, 2012 WL 681468, at *3-4 (S.D. Ga. Feb. 3, 2012), adopted by 2012 WL 676267, at *1 (S.D. Ga. Feb. 29, 2012); Hinkle v. CBE Grp., Civil Action No. 3:11-cv-00065-DHB-WLB, at [Doc. 4] (S.D. Ga. July 26, 2011), adopted by [Doc. 7] (S.D. Ga. Aug. 18, 2011).


While 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.5 See Hinkle, Civil Action No. 3:11-cv-00065-DHB-WLB, at [Doc. 4 at 4]. “Moreover, not all of the permissible purposes for a user of information to access a consumer report under § 1681b involve the consumer directly entering into an interaction with the user.” Id. In fact, plaintiff has alleged that defendants' “attempted to collect a debt,” [Doc. 1-1 at 3 ¶¶ 14-16, 4 ¶ 17], 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,’ ” Hinkle, Civil Action No. 3:11-cv-00065-DHB-WLB, at [Doc. 4 at 4] (alterations in original) (quoting 15 U.S.C. § 1681b(a)(3)(A) ). “Thus, 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. (citations omitted).6 In sum, “the scant factual matter offered by [p]laintiff in [his] complaint establishes 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.” Id. (citation omitted). Therefore, plaintiff's complaint does not meet the requirements of Rule 8 of the Federal Rules of Civil Procedure. See Hinkle, 2012 WL 681468, at *3.7



B. FDCPA Claims


*4 Plaintiff alleges that defendants violated the FDCPA by using false, deceptive or misleading representations in connection with attempting to collect a debt and by failing to provide him with written validation of the alleged debt upon request. [Doc. 1-1 at 7-8 ¶¶ 33-38]. It is “well established that the FDCPA applies only to ‘debt collectors[.]’ ” Hines v. MidFirst Bank, Civil Action No. 1:12–CV–2527–TWT–JSA, 2013 WL 609401, at *10 (N.D. Ga. Jan. 8, 2013), adopted by 2013 WL 603883, at *1 (N.D. Ga. Feb 19, 2013) (citation omitted) (citing 15 U.S.C. § 1692a(6) ). To prevail on an FDCPA claim, plaintiff must therefore establish, among other things, that defendants are “debt collector[s] as defined by the FDCPA[.]” Santiago v. Century 21/PHH Mortg., No. 1:12–CV–02792–KOB, 2013 WL 1281776, at *2 (N.D. Ala. Mar. 27, 2013) (citations and internal marks omitted); see also Birster v. Am. Home Mortg. Servicing, Inc., 481 F. App'x 579, 582 (11th Cir. 2012) (per curiam) (unpublished) (“[W]hether an individual or entity is a ‘debt collector’ is determinative of liability under the FDCPA.”); Humphrey v. Wash. Mut. Bank, F.A., Civil Action No. 1:06-CV-1367-JOF, 2007 WL 1630639, at *2 (N.D. Ga. June 1, 2007) (citation omitted).


The FDCPA defines “debt collector” as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). However, plaintiff has failed even to allege that defendants are debt collectors, much less that the “principal purpose” of defendants' business “is the collection of [ ] debts[.]” Id.; see generally [Doc. 1-1]. Indeed, the only fact alleged by plaintiff concerning the identity of LMM is that it is a “Texas corporation, authorized to do business in Georgia.” [Doc. 1-1 at 2 ¶ 9]; see also [id. at 2-3 ¶¶ 10-12].


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[,]” Mr. Elec. Corp. v. Khalil, No. 06–2414–CM–GLR, 2011 WL 5900810, at *1 (D. Kan. Nov. 23, 2011) (citing Ellis ex rel. Estate of Ellis v. Ogden City, 589 F.3d 1099, 1102 (10th Cir. 2009) ), and under the FDCPA the “ ‘critical element is whether the defendant is a debt collector’ as defined under the statute[,]” Hines, 2013 WL 609401, at *10 (quoting Correa v. BAC Home Loans Servicing LP, No. 6:11-cv-1197-Orl-22DAB, 2012 WL 1176701, at *11 (M.D. Fla. April 9, 2012) ). Accordingly, as plaintiff has not addressed this essential element of his claim, he has failed to state a plausible claim under the FDCPA. See id. at *11 (dismissing FDCPA claims where plaintiff “failed to allege sufficient facts to establish a plausible claim that [defendant] [was] a debt collector under the terms of the FDCPA”); Hennington v. Bank of Am., Civil Action File No. 1:10–CV–1350–WSD, 2010 WL 5860296, at *7 (N.D. Ga. Dec. 21, 2010), adopted by 2011 WL 705173, at *5 (N.D. Ga. Feb. 18, 2011) (FDCPA claims dismissed where plaintiff failed to show that defendant was a “debt collector as defined by the FDCPA”).8



III. CONCLUSION


*5 For the foregoing reasons, plaintiff's request to proceed in forma pauperis, [Doc. 1], is GRANTED, but the Court will reserve ruling on the frivolity determination and permit plaintiff an opportunity to replead his claims. Accordingly, plaintiff shall file an amended complaint with the Clerk of Court within fourteen (14) days of the date of this Order to address the deficiencies discussed herein and to set forth sufficient factual allegations that state a plausible claim under the Federal Rules of Civil Procedure.9 Plaintiff is admonished that failure to comply with any of the instructions within this Order and failure to timely file the amended complaint will result in a recommendation that this action be dismissed.


The Clerk is further DIRECTED to resubmit this matter to the undersigned Magistrate Judge upon plaintiff's filing of an amended complaint or the expiration of fourteen (14) days from the date of this Order, whichever first occurs.


IT IS SO ORDERED, this 11th day of January, 2017.


All Citations
Slip Copy, 2017 WL 8181020

Footnotes


1
The document and page numbers listed 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
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) (citation and internal marks omitted). However, pro se parties are still required to comply with the 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); see also Beckwith v. Bellsouth Telecomms., Inc., 146 F. App'x 368, 371 (11th Cir. 2005) (per curiam) (unpublished) (citation omitted) (“Although we construe them liberally, pro se complaints also must comply with the procedural rules that govern pleadings.”).


3
LMM and the individual defendants are hereinafter referred to collectively as “defendants.” However, the Court notes that plaintiff merely identifies the individual defendants as “d/b/a LMM,” see [Doc. 1-1 at 2-3 ¶¶ 10-12], and does not allege that they are partners in the firm or otherwise identify their roles in the firm or describe their actions with respect to the allegations in the complaint, and if they are, in fact, partners in LMM, “[p]laintiff's decision to name the firm and its partners separately is arguably surplusage,” Wilkerson v. Bowman, 200 F.R.D. 605, 611 (N.D. Ill. 2001).


4
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.


5
Indeed, “[m]erely stating that the violation was ‘willfull’ or ‘negligent’ is insufficient.” Braun v. Client Servs. Inc., 14 F. Supp. 3d 391, 397 (S.D.N.Y. 2014) (citations omitted).


6
Additionally, to the extent plaintiff's FCRA claims are premised on the “unauthorized trade line on [his] credit reports,” which he requested defendants to remove, see [Doc. 1-1 at 3 ¶¶ 14, 16, 4 ¶¶ 20-21], “[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.” Glanton v. DirecTV, LLC, 172 F. Supp. 3d 890, 897 (D.S.C. 2016).


7
Furthermore, plaintiff alleges 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, [Doc. 1-1 at 8 ¶ 40]; however, plaintiff cites a definition of “defamation” from the federal statute dealing with foreign judgments, see 28 U.S.C. § 4101. 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,” Calloway v. Green Tree Servicing, LLC, 607 F. Supp. 2d 669, 675 (D. Del. 2009) (citations and internal marks omitted), which plaintiff has not done.


8
See also Dayhoff v. Wells Fargo Home Mortg., Inc., No. 6:13–cv–1132–Orl–37KRS, 2013 WL 6283583, at *3 (M.D. Fla. Dec. 4, 2013) (citations omitted) (dismissing FDCPA claims where complaint failed to allege that “the ‘principal purpose’ of [d]efendant's business is ‘the collection of [ ] debts’ ” or that “[d]efendant ‘regularly collects or attempts to collect ... debts owed or due ... another’ ”); Acosta v. Gustino, No. 6:11–cv–1266–Orl–31GJK, 2013 WL 6069862, at *2-4 (M.D. Fla. Nov. 18, 2013) (same); Foxx v. Ocwen Loan Servicing, LLC, No. 8:11-CV-1766-T-17EAK, 2012 WL 2048252, at *3-4 (M.D. Fla. June 6, 2012) (citations omitted) (dismissing FDCPA claims where plaintiff “failed to properly allege that any of the defendants are debt collectors within the meaning of the FDCPA”).


9
The amended complaint shall supersede and replace in its entirety the previous complaint filed by plaintiff. See Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1345 n.1 (11th Cir. 1999) (citation omitted). If plaintiff fails to file a timely amended complaint, the Court will presume that he desires to have this case voluntarily dismissed and will recommend dismissal of this action, without prejudice.
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