United States District Court, D. Maryland
K. Bredar Chief Judge.
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 failed to disclose Plaintiffs full
consumer file pursuant to § 1681g(a)(1). 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
Standard of Dismissal for Failure to State a
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,
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.
Allegations of the Complaint
September 19. 2017. Plaintiff made a written request for
"all information in [her] consumer file" to
Equifax. 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.
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."" First Am. Compl. ¶ 34.
The Court may plausibly infer that Equifax is a
argues that it is not a CRA. Equifax relies on three district
court summary judgment decisions and the fact that EIS. not
Equifax, prepared Plaintiffs disclosure. 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
have held that a defendant's status as a CRA should he
decided on a motion for summary judgment,  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).
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)).
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.
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,