United States District Court, D. Maryland
K. Bredar Chief Judge
Cimon Lovess, proceeding pro se, filed a complaint
on May 31, 2017 against twenty-seven Defendants, mostly banks
and mortgage lenders, in the Circuit Court of Baltimore
County, alleging violations of the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. § 1681b. (Compl., ECF
No. 2.) Two of the Defendants, Discovery Financial Services
and Discover Bank (the “Discover Defendants”),
removed the case to this Court on August 4. (Notice of
Removal, ECF No. 1.) The Discover Defendants then moved to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
for failure to state a claim on August 11, 2017. (ECF No. 9.)
Defendants Bank of America, N.A. (“BANA”) and
Paramount Equity Mortgage (“Paramount”) moved to
dismiss on the same grounds on August 25 and September 28,
respectively. (ECF Nos. 14, 23.) Plaintiff was granted
additional time to respond to the Discover Defendants'
Motion (see ECF No. 20) but has not responded to the
Discover Defendants' Motion, BANA's Motion, or
Paramount's motion and therefore all three motions are
ripe for decision. It is not necessary to have a hearing to
resolve the matter. See Local Rule 105.6 (D. Md.
2016). Plaintiff's claim against the Discover Defendants
is not barred by the doctrine of res judicata, but
Plaintiff has failed to comply with the requirements of
Federal Rule of Civil Procedure 8 and has therefore failed to
state a claim upon which relief can be granted. Therefore,
Discover Defendants' motion to dismiss, BANA's motion
to dismiss, and Paramount's motion to dismiss will be
granted by accompanying order.
2015, Plaintiff filed a complaint against nine defendants
including Discover Products, Inc. (improperly named in the
action as “Discover Financial Services,
Inc.”) in the Circuit Court for Baltimore County,
alleging inter alia violations of the Fair Credit
Reporting Act (“FCRA”). (Compl. in Lovess v.
Discover Financial Servs., Inc., et al., Discover
Defs.' Mot. Dismiss Ex. A, ECF No. 9-3.) The only claim
in that case (“Lovess I”) against
Discover Products was that it, along with several other
companies, “knowingly and willfully used deception and
false pretenses to obtain Plaintiff's consumer report, by
falsely representing or certifying that the report was being
obtained for a permissible purpose.” (Id.
¶ 29.) Somewhat more specifically, Discover Products
allegedly “obtained Plaintiff's credit report on
12/05/2014 [but] Plaintiff did not receive a firm offer of
credit from Discover and therefore it did not access
Plaintiff's credit report for a permissible
purpose.” (Id. ¶ 20.) That case was
removed to this court on May 29, 2015, and on July 23, 2015
Plaintiff, by stipulation, dismissed her claims against
Discover Products Inc. with prejudice, and the court approved
that dismissal with prejudice by paperless
order. (See Notice of Removal in
Cimon Lovess v. Discover Financial Servs. Inc., Civ.
No. 15-1487 (D. Md.) (“Lovess I”),
docketed in that matter as ECF No. 1; Stipulation of
Dismissal of Pl.'s Claims Against Discover Prods., Inc.
in Lovess I, docketed in that matter as ECF No. 46,
hereinafter “Stipulation of Dismissal”; Paperless
Order approving Stipulation of Dismissal in Lovess
I, docketed in that matter as ECF No. 48.)
facts of the present case are similar, and few. In 2016
Plaintiff checked herTransUnion and Experian credit reports.
(Compl. ¶ 29.) On her Experian report, she noticed
“several credit inquiries by entities that [she] had no
credit account or business relationship” with.
(Id. ¶ 35.) Among these “entities”
were “Discover” and “BOA” (presumably
referring to Bank of America) and “Paramount.”
(Id. ¶ 36.) Plaintiff attempted to contact
these organizations to determine why they had inquired as to
her credit report but was unable to get an answer.
(Id. ¶ 37-38.) Plaintiff asserts, “upon
information and belief” that all of the companies that
inquired into her credit report, including Discover
Defendants, BANA, and Paramount “knew, or should have
known, that they were not obtaining Plaintiff's report
for a permissible purpose.” (Id. ¶ 43.)
Essentially, Plaintiff appears to have arrived at this
conclusion of impropriety through deduction: because
“[n]one of the defendants offered the Plaintiff
preapproved credit or employment” or were potential
investors, or creditors of the Plaintiff, or “were
completing a mortgage loan application” - all
permissible purposes for inquiries under FCRA, see
15 U.S.C. § 1681b(a)(3) - they must have been accessing
Plaintiff's credit report for an impermissible purpose.
(See Id. ¶42.)
the Defendants' actions, Plaintiff “has suffered
and will continue to suffer considerable harm, ” to
wit: mental anguish and emotional distress resulting from the
invasion of her privacy, the “risk of additional
instances of identity theft, ” and the hassle of
determining whether Defendants acted improperly when they
accessed her credit report. (Id. ¶ 49.) As a
result, Plaintiff requests $100, 000 in actual damages, as
well as $200, 000 in punitive damages “for violations
of the FCRA” and $30, 000 “or more” in
“statutory damages.” (Id. ¶ 50.)
Defendants raise the argument that Plaintiff lacks standing
to litigate this claim (they bury this argument in a footnote
on the final page of their memorandum). In order for a
Plaintiff to have standing in Federal Court she “must
have (1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3)
that is likely to be redressed by a favorable judicial
decision.” Spokeo, Inc. v. Robins, 136 S.Ct.
1540, 1547 (2016). This question of standing in this case,
like Spokeo, “primarily concerns injury in
Spokeo, the plaintiff alleged that the defendant had
provided incorrect information about the plaintiff to a third
party, in violation of FCRA Section 1681e and 1681b.
Id. at 1545. The Plaintiff did not, however, allege
any actual injury; only that “Defendant [was] in
violation of a statute that grants individuals a private
right of action, ” and that plaintiff was
“concerned that the inaccuracies in his report will
affect his ability to obtain credit, employment,
insurance, and the like.” Robins v. Spokeo,
Inc., No. CV10-05306 ODW (AGRx), 2011 WL 597867 *1 (C.D.
Cal. January 27, 2011) (quotations omitted) (alterations
omitted) (emphasis in the original). The Supreme Court held
that the plaintiff “cannot satisfy the demands of
Article III by alleging a bare procedural violation [and] [a]
violation of one of FCRA's procedural requirements may
result in no harm.” Spokeo, 136 S.Ct. at 1550.
Essentially, the defendant may have produced an inaccurate
report about the plaintiff, in violation of FCRA, but
plaintiff failed to allege that this inaccuracy caused him
any harm, and therefore he did not have standing to sue the
defendant. See id.
case is very close to Spokeo, but not quite there.
Plaintiff is similarly alleging a procedural violation of
FCRA and claiming that she is harmed by potential future
consequences. But she has also alleged actual damages in the
amount of $100, 000 stemming from emotional distress and
mental anguish, and therefore this is not a
“bare” procedural violation of the type at issue
in Spokeo. To be sure, Plaintiff's conclusory
allegations as to the amount of damage that she has suffered
due to Defendants' allegedly improper credit inquiries
are not strong indication of an injury in fact, as they are
mostly based on emotional and mental distress and conjecture.
But the Court finds that they are sufficient to establish
Article III standing, even if the overall conclusory nature
of Plaintiff's complaint is not sufficient to withstand
the Defendants' motions to dismiss, as will be discussed
Standard of Dismissal under Rule 12(b)(6)
Rule of Civil Procedure 8 requires that a complaint must
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.” This
rule does not require highly technical pleadings or
“precise or magical words, ” Stevenson v.
City of Seat Pleasant, Md., 743 F.3d 411, 418 (4th Cir.
2014), but it must be enough to put defendants on notice of
the nature of the claim that is being brought against them,
see Barbee v. Coble, 208 F.R.D. 549, 551 (M.D. N.C.
[r]ule 8(a)(2) still requires a “showing, ”
rather than a blanket assertion, of entitlement to relief.
Without some factual allegation in the complaint, it is hard
to see how a claimant could satisfy the requirement of
providing not only “fair notice” of the nature of
the claim, but also “grounds” on which the claim
Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555
n.3 (2007). “[V]ague and conclusory allegations are
insufficient to satisfy the notice pleading requirements of
the Federal Rules of Civil Procedure.” MedImmune,
Inc. v. ...