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Young v. Augusta Collection Agency, SD Ga. 2011

Posted: Mon Nov 10, 2014 8:47 pm
by Administrator
Young v. Augusta Collection Agency, Inc.
Not Reported in F.Supp.2d, 2011 WL 2462065
S.D.Ga.,2011.
May 16, 2011


MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

W. LEON BARFIELD, United States Magistrate Judge.

*1 Plaintiff filed the above-captioned case pro se, attempting to assert claims under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681 et seq., as well as various state law claims. Because she is proceeding in forma pauperis, Plaintiff's complaint must be screened to protect potential defendants. Phillips v. Mashburn, 746 F.2d 782, 785 (11th Cir.1984). Pleadings drafted by pro se litigants must be liberally construed, Haines v. Kerner, 404 U.S. 519, 520–21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) ( per curiam ), but the Court may dismiss a complaint, or any part thereof, that is frivolous or malicious or that fails to state a claim upon which relief may be granted. 28 U.S.C. §§ 1915(e)(2) (B)(i) & (ii).


I. BACKGROUND

At the outset, the Court notes that Plaintiff's complaint sets forth a very few specific facts amidst a number of conclusory allegations. Nevertheless, the allegations set forth in the complaint, liberally construed, are summed up as follows. Plaintiff names Augusta Collection Agency, Inc., as the sole Defendant in this action. Plaintiff alleges that she viewed a copy of her consumer report in March of 2011, and thereby discovered that Defendant had obtained her consumer report from the credit reporting agency Experian on June 24, 2009. (Doc. no. 1, p. 2.) According to Plaintiff, Defendant obtained her consumer report without any permissible purpose. ( Id.)


Plaintiff further asserts, without explanation, that Defendant failed to comport with “reinvestigation procedures,” refused to properly update Plaintiff's accounts, failed to show that these accounts were “disputed,” and reported an invalid debt on Plaintiff's consumer reports. ( Id. at 3.) Regarding these assertions, Plaintiff does not specify any particular reinvestigation procedures with which Defendant allegedly failed to comply; nor does she specifically identify the accounts or invalid debt referred to. ( See id.) In addition, Plaintiff attempts to assert a number of state law claims, which include harassment, invasion of privacy, defamation, intentional misrepresentation, and “negligent, reckless and wanton conduct.” ( See id. at 4–7.) However, Plaintiff fails to allege any specific facts in support of her state law claims. ( See id.) Plaintiff alleges that she has suffered “emotional distress, humiliation and embarrassment” as a result of Defendant's actions. ( Id. at 1.)


II. DISCUSSION

A. No Valid FCRA Claim Under 15 U.S.C. § 1681s–2(b)

Plaintiff asserts that Defendant violated the FCRA by failing to comport with reinvestigation procedures, refusing to properly update Plaintiff's accounts, failing to show that these accounts are “disputed,” and reporting an invalid debt on Plaintiff's consumer reports. (Doc. no. 1, p. 3.)


The FCRA provides procedures for consumers to dispute the accuracy of information in their file at a consumer reporting agency (“CRA”). If a consumer initiates such a dispute with a CRA, the CRA must “conduct a reasonable reinvestigation to determine whether the disputed information is inaccurate.” 15 U.S.C. § 1681i(a)(1) (A). In addition, the CRA must notify the furnisher of the disputed information of the consumer's dispute. Id. § 1681i(a)(2). After receiving notice of such a dispute, the furnisher of the information must also conduct an investigation of the disputed information. Id. § 1681s–2(b)(1). The furnisher of the disputed information must report the results of its investigation to the CRA who notified it of the dispute, and it must take additional ameliorative actions if the disputed information is found to be inaccurate or incomplete. See id. “Consumers may pursue claims for both willful and negligent violations of these requirements [pursuant to 15 U.S.C. §§ 1681n & 1681o].” King v. Asset Acceptance, LLC, 452 F.Supp.2d 1272, 1278 (N.D.Ga.2006).


*2 Here, Defendant qualifies as a furnisher of information for the purposes of the FCRA. However, Plaintiff's conclusory allegations regarding Defendant's failure to follow unspecified “reinvestigation procedures” are insufficient to state a claim for failure to comply with the provisions of 1681s–2(b)(1). First, a furnisher's duty to conduct an investigation only arises if it is notified by a CRA that Plaintiff has disputed information that it furnished regarding the consumer. See 15 U.S.C. § 1681s–2(b) (1). Here, the only CRA mentioned in Plaintiff's complaint is Experian, and Plaintiff does not state that she disputed the accuracy of any information on her consumer report with Experian, or that Defendant had any notification regarding the possible inaccuracy of information that it provided to Experian. Plaintiff's allegations therefore fail to establish that Defendant had any duty to conduct an investigation, meaning that Plaintiff has failed to state a claim for Defendant's failure to comply with the FCRA's reinvestigation procedures. Plaintiff's allegations that Defendant did not “properly update” her accounts and wrongfully reported an invalid debt likewise fail to state a claim, as such allegations refer to actions that Defendant would only have to take upon completion of an investigation that revealed inaccurate information. See id. Finally, Plaintiff's assertion that Defendant failed to show that her account is disputed totally misses the mark, as Plaintiff has not alleged that she disputed the accuracy of any information; moreover, the duty to indicate that an account is disputed only applies to CRAs, and Defendant is not a CRA. See 15 U.S.C.A. §§ 1681a(f) (defining CRA) & 1681i(c) (setting forth circumstances under which CRA must note the disputed nature of an account on a consumer report), In sum, Plaintiff has failed to state a claim against Defendant for violating § 1681s–2(b).


B. No Valid State Law Claim

As noted above, Plaintiff attempts to assert state law claims for harassment, invasion of privacy, defamation, intentional misrepresentation, and “negligent, reckless and wanton conduct.” (Doc. no. 1, pp. 4–6.) However, Plaintiff fails to state a claim for any of these causes of action because she has pled them in an entirely conclusory fashion.


Federal Rule of Civil Procedure 8(a)(2) provides that, to state a claim for relief, a pleading must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” The Supreme Court has clarified that this standard does not demand “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.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Ashcroft v. Iqbal, 550 U.S. ––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (“[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.” (quoting Twombly, 550 U.S. at 555)). Moreover, to state a viable claim, the pleader must provide “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, 129 S.Ct. at 1949.


*3 Here, aside from incorporating by reference her allegation regarding Defendant improperly obtaining her consumer report, Plaintiff fails to allege any specific facts in support of her state law claims. ( See doc. no. 1, pp. 4–6.) Moreover, while Defendant's allegedly improper obtainment of Plaintiff's consumer report may be unlawful under the FCRA, such an allegation, standing alone, does not state a claim for any of the state law causes of action that Plaintiff attempts to assert. For example, in the section of her complaint dealing with her ostensible “harassment” claim, Plaintiff sets forth the conclusory allegation that Defendant's “harassing collection tactics ... created a hostile environment for Plaintiff.” ( Id. at 4.) However, the only specific factual allegation—that Defendant improperly obtained Plaintiff's consumer report from Experian—provides insufficient factual support for the assertion that Defendant engaged in “harassing collection tactics.” The allegedly improper obtention of Plaitniff's consumer report similarly provides no support whatsoever for the conclusory assertion offered in support of her ostensible defamation claim that “Defendants [sic] published false information about Plaintiff by reporting to one or more of the CRAs, or other third parties, namely failing to notate the disputed nature of the account.” ( Id. at 5.) The Court need not exhaustively discuss all of Plaintiff's inadequately pled state law claims; it is the case with each of them that Plaintiff has provided nothing beyond “threadbare recitals of [their] elements ..., supported by mere conclusory statements,” which is plainly insufficient to state a claim for relief Iqbal, 129 S.Ct. at 1949.


Furthermore, the Court notes that under the FCRA, “no consumer may bring any action or proceeding in the nature of defamation, invasion of privacy, or negligence with respect to the reporting of information against any ... person who furnishes information to a[CRA] ... except as to false information furnished with malice or willful intent to injure such consumer.” 15 U.S.C. § 1681h(e); see also Brewer v. Transunion, L.L.C., Civil Action No. 05–0493, 2006 U.S. Dist. LEXIS 70292, at *15 (S.D.Ala. Sept. 27, 2006) (“ § 1681h(e) preempts state tort actions which do not allege malice or willful intent to injure.”). Because all of the state law claims that Plaintiff attempts to assert are state tort causes of action that are either specified in § 1681h(e) or are “in the nature of” such causes of action, Plaintiff cannot bring such claims unless she sufficiently pleads that Defendant acted with “malice or willful intent to injure” Plaintiff. See Brewer, 2006 U.S. Dist. LEXIS 70292, at *18 (holding that, in order to avoid the bar on state tort claims in § 1681h(e), “plaintiff's complaint must sufficiently plead that [the defendants] furnished false information with malice or willful intent to injure”). Here, Plaintiff has averred in a conclusory manner that Defendant acted willfully and with an intent to injure her. (Doc. no. 1, p. 2.) However, she has set forth no factual allegations suggesting that Defendant acted with such intent. It may not be reasonably inferred from Plaintiff's allegation that Defendant improperly obtained her consumer report that Defendant acted with malice or intent to injure. Accordingly, Plaintiff has not sufficiently pled that Defendant acted with malice or willful intent to injure, and her state law claims are barred by § 1681h(e).


IV. CONCLUSION

*4 For the reasons set forth above, this Court REPORTS and RECOMMENDS that Plaintiff's FCRA claims for alleged violations of 15 U.S.C. § 1681s–2(b), as well as Plaintiff's state law claims, be DISMISSED.FN1


FN1. In a simultaneously issued Order, the Court has directed that service of process be effected on Defendant based on Plaintiff's claim that it improperly obtained her consumer report without a permissible purpose in violation of § 1681b(f) of the FCRA.




SO REPORTED and RECOMMENDED this 16th day of May, 2011, at Augusta, Georgia.

S.D.Ga.,2011.
Young v. Augusta Collection Agency, Inc.
Not Reported in F.Supp.2d, 2011 WL 2462065 (S.D.Ga.)