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Frazier v. Experian Info. Sols., Inc.

United States District Court, D. Maryland

August 6, 2018

EXPERIAN INFO. SOLS., INC., et al., Defendants


          James K. Bredar Chief Judge.

         I. Background

         Plaintiff Joahn Barron Frazier filed an Amended Complaint alleging violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681-1681x (2012). (BCF No. 15.) Plaintiff contends that Defendants[1] failed to disclose Plaintiffs full consumer file pursuant to § 1681g(a)(1).[2] Defendant Equifax Inc. ("Equifax") and putative defendant. Equifax Information Services. LLC ("EIS"), filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) asserting two grounds for dismissal, first. Equifax contends that it is not a consumer reporting agency ("CRA") and. therefore, cannot be held liable under the FCRA. Mot. Dismiss First Am. Compl. 1, Apr. 5. 2018, ECF No. 18. Second. Defendants allege that Plaintiff failed to provide facts sufficient to support her claim for relief by offering "merely speculative and conclusory allegations" that she did not receive a full consumer file disclosure. Mot. Dismiss First Am. Compl. 1. No hearing is required. Local Rule 105.6 (D. Md. 2016). The motion will be granted.[3]

         II. Standard of Dismissal for Failure to State a Claim

         Federal Rule of Civil Procedure 8(a) requires "[a] pleading that states a claim for relief [to] contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). This standard "does not require "detailed factual allegations.' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. lqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (2009) (quoting Twombly, 550 U.S. at 570). Facial plausibility exists "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. An inference of a mere possibility of misconduct is not sufficient to support a plausible claim. Id. at 679. As the Twombly opinion stated. "Factual allegations must be enough to raise a right to relief above the speculative level." 550 U.S. at 555. "A pleading that offers "labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do." . . . Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of "further factual enhancement."" lqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555. 557). Although when considering a motion to dismiss a court must accept as true all factual allegations in the complaint, this principle does not apply to legal conclusions couched as factual allegations. Twombly. 550 U.S. at 555.

         III. Allegations of the Complaint

         On September 19. 2017. Plaintiff made a written request for "all information in [her] consumer file" to Equifax.[4] Compl. Ex. B. Jan. 9. 2018. ECF No. 1 (emphasis omitted); see First Am. Compl. ¶ 19. Mar. 22, 2018, ECF No. 15. In response, EIS sent Plaintiff a letter that Plaintiff contends "was not responsive to her request." First Am. Compl. ¶ 20; see Compl. Ex. C. Unsatisfied with Defendants" response. Plaintiff made a "second and final request for a full consumer file disclosure" to Equifax. First Am. Compl. ¶ 25 (emphasis omitted); see Compl. Ex. G. In response to her second request, Equifax allegedly sent Plaintiff a "credit report" that was also "not responsive to her request." First Am. Compl. ¶ 28; Pl.'s Opp'n Ex. A. Apr. 20. 2018, ECF No. 21.

         On January 9, 2018. Plaintiff filed a Complaint against Defendants alleging violations of the FCRA. citing 15 U.S.C. § 1681g(a)(1). First Am. Compl. ¶¶19. 20, 21. Equifax filed a Motion to Dismiss the original complaint. Mot. Dismiss. Mar. 6, 2018, ECF 11. and Plaintiff filed her First Amended Complaint. Based "upon information and belief." Plaintiff contends that "there is substantial information relating to [her] that is contained in all Defendants' files that has not been disclosed to her."[5]" First Am. Compl. ¶ 34.

         IV. Analysis

         A. The Court may plausibly infer that Equifax is a CRA

         Equifax argues that it is not a CRA.[6] Equifax relies on three district court summary judgment decisions[7] and the fact that EIS. not Equifax, prepared Plaintiffs disclosure.[8] Mot. Dismiss First Am. Compl. 3. Plaintiff contends that Equifax is a CRA. First Am. Compl. ¶ 7. Plaintiff asserts that Equifax has "held itself out repeatedly ... as the actual operating entity" that "freely transfer[s]... consumer information and data... for commercial purposes" and claims that Equifax sent her the report because it had a bolded "EQUIFAX"' label on the first page. First Am. Compl. ¶ 7-8: Pl.'s Opp'n 3. Ex. A. Plaintiff suggests, however, that the issue of whether Equifax is a CRA should be resolved at the summary judgment stage. Pl."s Opp"n 5. As a preliminary matter, the Court first addresses whether it can make such a determination when considering a motion to dismiss.

         Courts have held that a defendant's status as a CRA should he decided on a motion for summary judgment, [9] not through a motion to dismiss. See Scott v. Experian Info. Sols.. Inc., No. 18-CV-60178-ALTONAGA/Seltzer, 2018 WL 3360754, at *4-5 (S.D. Fla. June 29, 2018) (finding that Equifax's contention that it is not a CRA is "more appropriately presented and resolved at summary judgment"); see also Jones v. Equifax, Inc., No. 3;14cv678. 2015 WL 5092514, at *4 n.11 (E.D. Va. Aug. 27, 2015) (noting that the cases cited by Equifax to support a finding that it was not a CRA were unpersuasive for a motion to dismiss because "every decision . .. was rendered at the summary judgment stage"); Wikert v. Wells Fargo Bank, No. 3:11-cv-00786-J-37JRK. 2012 WL 333787. at *3 (M.D. Fla. Feb. 1. 2012) (making a "reasonable inference" while considering the defendant's motion to dismiss that the defendant is a CRA and recognizing that "[s]hould [the] [d]efendant have evidence that fit] is not a CRA, it may present it at a later stage of this litigation"). Accordingly, to survive Equifax's motion to dismiss and proceed to discovery, Plaintiff need only plead sufficient facts to allow this Court to make a reasonable inference that the defendant is a CRA. Scott, 2018 WL 3360754. at *5; see Marricone v. Experian Info. Sols.. Inc.. No. 09-CV-1123. 2009 WL 3245417. at *1 (E.D. Pa. Oct. 6. 2009) (concluding that without binding case law that the defendant is not a CRA, a plaintiffs well-pleaded allegations that the defendant acted as a CRA under the circumstances of the case should survive a Rule 12(b)(6) motion to dismiss).

         In Scott v. Experian Information Solutions, Inc., a case concerning an analogous motion to dismiss, the District Court for the Southern District of Florida found that the plaintiff pled "facts sufficient to show Equifax is a CRA at this phase of the litigation." Scott, 2018 WL 3360754, at *4. In its reasoning, the court emphasized three items in the plaintiffs complaint that it used to reach its decision. First, the plaintiff alleged that "he submitted two requests for his full consumer file disclosures to Equifax and received responses from Equifax." Id. (citing Am. Compl. ¶¶ 22-23. 28, 31). Second, the plaintiff stated that "Equifax operate[d] as a seller of credit report information." Id. (citing Am. Compl. ¶¶ 7-8). Lastly, the complaint included a letter from Equifax sent in response to the plaintiffs request. Id. at *5 (citing Am. Compl. ¶¶ 23, 31). The court concluded that the letter alone provided "a reasonable inference that Equifax is a CRA." Id; see Wikert, 2012 WL 333787, at *3 (finding that the "Credit Reports" attached to the complaint "at the very least[] support a 'reasonable inference' that [defendant] is a CRA" and recognizing other district court decisions that have reached the same conclusion (quoting Iqbal, 556 U.S. at 1949)).

         As in Scott, Plaintiff contends that she sent two requests to Equifax and, in response to her second request, received a "credit report" with "the name 'EQUIFAX' in big bold letters on the first page" of the report. Pl."s Opp'n 3, Ex. A; First Am. Compl. ¶ 28. Plaintiff, however, only provided a portion of the report attached to her Opposition. She redacted the entire body of the report, leaving only Equifax's logo (as described above). Equifax's URL, the date. Plaintiffs name and address, an identification number, and "Page 1 of 18" at the bottom. Pl.'s Opp"n Ex. A. Nonetheless, based on the parts of the report provided, supported by Plaintiffs factual allegation that she received a credit report from Equifax, it is reasonable to infer that the exhibit is the first page of Equifax's disclosure to Plaintiff. Accordingly, as in Scott, the report, paired with Plaintiffs factual allegations, is enough to overcome Defendants" motion to dismiss with respect to Equifax's contention that it is not a CRA. If Equifax has evidence that would refute the Court's conclusion, it may file a motion for summary judgment and present its evidence to the Court. See Wikert, 2012 WL 333787, at *3.

         Although the Court draws the inference from the First Amended Complaint that Equifax Inc. is a CRA. the Court offers no opinion as to whether Plaintiff can succeed at the evidentiary stage in establishing proof of such. Given the cases in which Equifax Inc. was not found to be a CRA when evidence was presented in summary-judgment motions, the Court is doubtful Plaintiff would be able to prove otherwise. However. Plaintiffs contention survives Equifax's motion to dismiss. Because the Court so holds, ...

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