Ritchie v. Northern Leasing Systems, Inc.
Ritchie v. Northern Leasing Systems, Inc.
Opinion of the Court
OPINION AND ORDER
Patricia J. Ritchie (“Plaintiff’) filed the instant Complaint against Ricardo Brown (“Brown”); Robert Taylor (“Taylor”); John Does 1-50 (“John Doe Defendants”) (collectively, “Individual Defendants”); Lease Finance Group, LLC (“LFG”); and Northern Leasing Systems, Inc. (“NLS”) (collectively, “Corporate Defendants”) (collectively, “Defendants”), alleging four counts of violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., and four counts of violations of a related New York state law, the New York Fair Credit Reporting Act (“NYFCRA”), N.Y. Gen. Bus. Law § 380 et seq. (See Am. Compl. (“Compl.”) (Dkt. No. 8).) Before the Court is Defendants’ Motion To Dismiss the Complaint pursuant to Federal Rules of Civil Procedure 8(a), 9(b), and 12(b)(6). (See Notice of Mot. To Dismiss the First Am. Compl. (“Mot.”) (Dkt. No. 13).) For the following reasons, Defendants’ Motion is granted in part.
I. Background
A. Factual Background
The following facts are drawn from Plaintiffs’ Complaint and are taken as true for the purposes of resolving the instant Motion. Defendant NLS is a New York
Beginning in 2007, Plaintiff operated a “legal document preparation service.” (Id. ¶ 12.) In October 2008, Plaintiff’s business “leased a point-of-sale machine from a company called ‘Merchant Made Easy.’ ” (Id. ¶ 13.) In doing so, she “submitted a voided check[] and a signed Merchant Processing Application” to that company. (Id.) She “did not sign any other agreements, contracts, guarantees or other commitments in connection with that transaction.” (Id.)
In 2009, Plaintiff “closed the business and returned the machine to Merchant Made Easy.” (Id. ¶ 14.) Then, in April 2010, Defendants — none of whom is “Merchant Made Easy” — “commenced harassing [Plaintiff]” by “calling] her repeatedly” and “rudely demanding payments under an alleged lease.” (Id. ¶ 15.) In response to these phone calls, Plaintiff “categorically informed Defendants that she had never signed any lease with them, and demanded that they stop the harassment.” (Id.) But Defendants “mercilessly” continued making these “abusive calls.” (Id.)
Defendants then took a number of actions relating to Plaintiffs consumer credit report, all “under the name of Defendant [LFG].” (Id. ¶¶ 16-17.) First, Defendants “accessed” Plaintiffs consumer credit report “on or about August 20, 2010.” (Id. ¶ 17.) Second, Defendants “made an adverse entry on [Plaintiffs] consumer credit report with the credit reporting agency Experian,” which entry reflected that Defendants “had ‘charged off $1,836” in money that Plaintiff allegedly owed. (Id. ¶ 16.) Third, Defendants again “accessed” Plaintiffs consumer credit report “on or about ... December 8, 2010.” (Id. ¶ 17.) With regard to the August 20 and December 8 incidents, Defendants “never provide[d] any advance or written notice to [Plaintiff] that they intended to pull her consumer credit report, or that such pulling was even a possibility.” (Id.) Fourth, Defendants “commenced a lawsuit against [Plaintiff] in the New York City Civil Court” on February 16, 2011, which lawsuit is “pending.” (Id. ¶¶ 18, 19 n. 2.) Fifth, after Plaintiff “disputed th[e] adverse entry with the credit reporting agency Experian[] and demanded that Defendants investigate and rectify the inaccurate entry,” “Defendants willfully failed and refused to conduct any investigation.” (Id. ¶ 20-21.) Instead of “communicating with [Plaintiff]” about the dispute, “they summarily — and falsely— reported back to Experian that they had Verified’ the alleged loan to [Plaintiff],” allowing the adverse entry “to continue on [Plaintiffs] consumer credit report for at least seven years.” (Id. ¶ 21.)
Plaintiff filed the initial Complaint in June 2012. (See Dkt. No. 1.) The Court held a premotion conference in October 2012, at which it granted Plaintiff leave to amend the Complaint. (See Dkt. (minute entry for Oct. 17, 2012).) Plaintiff thereafter filed an Amended Complaint in November 2012, alleging the same eight counts she had alleged in the original Complaint against the same Defendants. (See Dkt. No. 8.) The Court then held another pre-motion conference in March 2018 to discuss Defendants’ renewed request to file a motion to dismiss. (See Dkt. (minute entry for Mar. 19, 2013).) Pursuant to the scheduling order entered after that conference, (see Dkt. No. 12), Defendants filed their Motion To Dismiss on May 17, 2013, (see Dkt. No. 13), Plaintiff filed a response on June 24, 2013, (see Dkt. No. 18), and Defendants filed a reply on July 15, 2013, (see Dkt. No. 21).
II. Discussion
A. Standard of Review
The Supreme Court has held that although a complaint “does not need detailed factual allegations” to survive a motion to dismiss, “a plaintiffs obligation to provide the ‘grounds’ of his [or her] ‘entitle[ment] to relief 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) (second alteration in original) (citations omitted). Instead, the Court has emphasized that “[f]actual allegations must be enough to raise a right to relief above the speculative level,” id., and that “once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint,” id. at 563, 127 S.Ct. 1955. A plaintiff must allege “only enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955. But if a plaintiff has “not nudged [his or her] claims across the line from conceivable to plausible, the[] complaint must be dismissed.” Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (“Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’ — ‘that the pleader is entitled to relief.’ ” (alteration in original) (citation omitted) (quoting Fed.R.Civ.P. 8(a)(2))).
In considering Defendants’ Motion To Dismiss, the Court is required to accept as true all factual allegations contained in the Complaint. See Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (“We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint and drawing all reasonable inferences in the plaintiffs favor.” (internal quotation marks omitted)); Gonzalez v. Caballero, 572 F.Supp.2d 463, 466 (S.D.N.Y. 2008) (same). Moreover, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (internal quotation marks omitted).
B. Analysis
In general, the FCRA provides a cause of action against “[a]ny person who willfully fails to comply” or who “is negli
Plaintiff brings multiple FCRA causes of action based on these two requirements and these two categories of violations, alleging that Defendants willfully (Count I) and, in the alternative, negligently (Count II) accessed her credit report without a permissible purpose, and that Defendants willfully (Count III) and, in the alternative, negligently (Count IV) failed to resolve a dispute over the adverse entry Defendants added to her consumer credit report pursuant to statutory requirements. (See Compl. ¶¶ 28-52.) Plaintiff also brings essentially the same four claims under analogous state-law provisions in the NYFCRA. (See id. ¶¶ 53-74 (citing N.Y. Gen. Bus. Law §§ 380-b, 380-1, 380-m, 380-o).)
Defendants move to dismiss the Complaint for multiple reasons. First, they argue that the Complaint generally fails to meet the notice-pleading requirements of Rule 8(a) because it “lump[s] defendants together,” and thereby fails “to distinguish between the conduct of each of the defendants.” (Defs.’ Mem. of Law in Supp. of Mot. To Dismiss the First Am. Compl. (“Mem”) (Dkt. No. 16) 4-7 (some alterations omitted).) Second, they argue that the Complaint fails to state a claim under the FCRA because “all of the transactions at issue were business transactions, and not consumer transactions,” and therefore “the FCRA does not apply.” (Id. at 8.) Third, they argue that the Complaint “does not adequately allege that Plaintiff has sustained damages cognizable under the FCRA.” (Id. at 11.) Fourth, they ar-' gue that the Complaint fails to state any “plausible allegations from which the Court could conclude that [NLS] violated
1. Rule 8(a)
Defendants first argue that the Complaint fails to meet Rule 8(a)’s notice-pleading standard, which requires, inter alia, that a complaint “must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Defendants cite a number of cases standing for the proposition that, “[wjhere a complaint names multiple defendants, that complaint must provide a plausible factual basis to distinguish between the conduct of each of the defendants.” (Mem. 5-6 (citing Marcilis v. Twp. of Redford, 693 F.3d 589 (6th Cir. 2012); Atuahene v. City of Hartford, 10 Fed.Appx. 33, 34 (2d Cir. 2001); Ochre LLC v. Rockwell Architecture Planning & Design, P.C., No. 12-CV-2837, 2012 WL 6082387 (S.D.N.Y. Dec. 3, 2012); Elias v. City of New York, No. 10-CV-5495, 2010 WL 5475809 (E.D.N.Y. Dec. 30, 2010); Southerland v. N.Y.C. Housing Auth., No. 10-CV-5243, 2010 WL 4916935 (E.D.N.Y. Nov. 23, 2010); Medina v. Bauer, No. 02-CV-8837, 2004 WL 136636 (S.D.N.Y. Jan. 27, 2004)).)
Defendants argue that, like the courts in those cases, this Court should dismiss the Complaint because it fails to “provide a plausible factual basis to distinguish between the conduct of each of the defendants.” (Mem. 5-6.) But Defendants, for the most part, mischaracterize the Complaint. Unlike the complaints in each of the cases Defendants cite, this Complaint contains numerous allegations specific to each of Defendants LFG, Brown, Taylor, and NLS. For example, it specifically alleges that Defendant LFG made the adverse entry in Plaintiffs credit report and accessed that credit report twice without a permissible purpose. (See Compl. ¶¶ 16-17.) The Complaint further alleges that Defendant Taylor served as a “Legal Collections Manager” for Defendants, and that he was “actually or constructively responsible for the impermissible access” of Plaintiffs consumer credit report. (Id. ¶24.) The Complaint also alleges that Taylor had knowledge of Plaintiffs adverse-entry dispute from his involvement in the lawsuit against Plaintiff and that he was responsible for the “wrongful refusal to remove [that] entry from [Plaintiffs] credit report.” (Id.) Furthermore, the Complaint alleges that Defendant Brown served as a “Legal Recovery Manager” for Defendants, that he was “responsible for Defendant’s impermissible access as well as wilful failure/refusal to investigate [Plaintiffs] dispute raised with Experian,” and that he “confirmed the false information that Defendants had provided to the credit reporting agency about [Plaintiff].” (Id. ¶ 25.) Finally, the Complaint alleges that Defendant NLS “exercised complete domination of [LFG], and used such domination to commit the fraud and/or wrongs against [Plaintiff] which resulted in [her] injuries at issue.” (Id. ¶ 4; see also id. ¶ 5 (“[LFG] is one of the shell entities managed and operated by [NLS] and/or [its] principals.... It is a ‘pass through’ entity with no assets or employees of its own, and is managed, operated, serviced, controlled and dominated by [NLS].”).)
Plaintiffs Complaint therefore does not simply “lump” these Defendants together, as Defendants argue. Instead, it “satisfies the requirements of Rule 8(a) because it gives [these Defendants] fair notice of the basis for [Plaintiffs] claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); see also Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (“[Rule 8(a)(2) ] requires only a short and plain statement of the claim showing that the pleader is entitled to relief. Specific facts are not necessary; the statement need only give the defendant fair notice of what the claim is and the grounds upon which it rests.” (internal quotation marks and alterations omitted)); Wynder v. McMahon, 360 F.3d 73, 79 (2d Cir. 2004) (noting that “[t]he key to Rule 8(a)’s requirements is whether adequate notice is given,” and that “fair notice” is “that which will enable the adverse party to answer and prepare for trial, allow the application
But Defendants are correct that the Complaint fails to give fair notice to John Doe Defendants. With respect to those defendants, the Complaint vaguely alleges that they are “either individuals or corporate entities”; that they are “affiliated with the other Defendants”; that they are “joint tortfeasors, conspirators, general or specific agents and/or ‘alter egos’ of Defendants”; that they “have wilfully or negligently engaged in the same wrongful conduct as alleged against Defendants”; and that they “were familiar with and authorized the unlawful policies and practices complained of’ in the Complaint. (Compl. ¶ 9.) Although courts sometimes allow plaintiffs to plead causes of action against a “John Doe” defendant where a plaintiff does not know the defendant’s identity, they ultimately require plaintiffs, under Rule 8(a), to allege specific facts that would aid in identifying the defendant and thereby allow defendants to prepare a defense. See, e.g., Regeda v. City of New York, No. 09-CV-5427, 2012 WL 7157703, at *8 (E.D.N.Y. Sept. 7, 2012) (noting that a plaintiff, in an amended complaint, must either “identify each [defendant] by name, or else identify them as the ‘John Doe defendants’ and provide sufficient factual basis to allow the defendants to successfully identify the John Doe defendants and prepare for a defense”), adopted by 2013 WL 619567 (S.D.N.Y. Feb. 19, 2013); Barreto v. Cnty. of Suffolk, 762 F.Supp.2d 482, 487-88 (E.D.N.Y. 2010) (holding that a complaint against John Doe defendants satisfied Rule 8(a), as liberally applied to pro se complaints, where the plaintiff “identified the specific [jobs] that the John Doe defendants were assigned to, as well as their presence (or lack thereof) at a specified time and place” related to the cause of action, and “provided the grounds for liability with regards to each of the [defendants,” such that those defendants had “ample notice as to the nature of the claims brought against them [and] also the opportunity to prepare an intelligent defense”); Gabriel Capital, L.P. v. Natwest Fin., Inc., 137 F.Supp.2d 251, 269 (S.D.N.Y. 2000) (holding that a complaint
2. Business Transactions
Defendants next argue that the Complaint fails to state an FCRA or NYF-CRA claim because “the reports at issue were obtained in connection with a business transaction,” (Mem. 7), but the FCRA and NYFCRA “do[] not apply to credit reports used in connection with a loan for a consumer’s business,” (id. at 10). The Court need not address the substance of this argument, however, because it is based on a factual dispute that the Court, at this stage in the proceedings, is required to resolve in Plaintiffs favor. See Ruotolo, 514 F.3d at 188 (noting that a court reviewing a Rule 12(b)(6) motion must “aecept[ ] all factual allegations in the complaint and draw[ ] all reasonable inferences in the plaintiffs favor” (internal quotation marks omitted)).
Defendants contend that “it is apparent [from the Complaint] that any credit reports Defendants obtained relating to Plaintiff were obtained in connection with a business transaction involving the lease of a credit card swiping machine which was to be used in connection with Plaintiffs business.” (Mem. 7.) They read the Complaint to allege, first, that Plaintiff leased a machine in October 2008 from “Merchant Made Easy,” (id.); and, second, that Defendants undertook the alleged actions giving rise to Plaintiffs claims as part of their effort “to collect payments due under that lease,” (id. at 7-8). Defendants also ask the Court to consider the complaint and associated exhibits filed in the New York City Civil Action referenced in the Complaint, (id. at 7 & n. 4), which exhibits include a copy of the alleged lease, indicating that Plaintiff entered into a lease with LFG, not Merchant Made Easy, (see Decl. of Robert D. Lillienstein in Supp. of Mot. To Dismiss the First Am. Compl. (“Deck”) (Dkt. No. 15), Ex. A (“NYC Compk”) at unnumbered 5-7 (“Lease”)).
If the Complaint alleged that Plaintiff entered into a lease with LFG, the Court might be able to evaluate Defendants’ argument that Plaintiff has not stated a claim under the FCRA or NYFCRA. However, the Complaint explicitly disputes the premise underlying Defendants’ argument. First, the Complaint alleges that Plaintiff signed a “Merchant Processing Application” with “Merchant Made Easy” and “did not sign any other agreements, contracts, guarantees or other commitments in connection with that transaction.” (Compk ¶ 13.) Second, it alleges that Plaintiff “had no account with [Defendants], and did not owe [them] anything.” (Id. ¶ 23.) Third, it alleges that Plaintiff has stated, “under penalties of perjury, that she never had any business or any dealings with [LFG].” (Id. ¶ 19.) Finally, the Complaint alleges that, to the extent Defendants claim Plaintiff signed a lease, her signature was forged. (Id. ¶¶ 19, 21, 24-25.) In other words, the Complaint alleges that Plaintiff never completed any kind of transaction with Defendants, and that Defendants violated her rights under the FCRA and NYFCRA when they “made an adverse entry on [her] consumer credit report” without a permissible purpose. (Id. ¶ 16.) See 15 U.S.C. § 1681b(f) (prohibiting the “use” of a “consumer report” unless, inter alia, “the consumer report is obtained for a purpose for which
3. FCRA Damages
Defendants next argue that the Complaint “does not adequately allege that Plaintiff has sustained damages cognizable under the FCRA.” (Mem. 11.) As discussed, a plaintiff may recover actual, statutory, and punitive damages for a willful violation of the FCRA, but may recover only actual damages for a negligent violation. See 15 U.S.C. § 1681n(a)(l) (allowing the victim of a willful FCRA violation to recover “any actual damages sustained by the consumer as a result of the failure [to comply with the FCRA] or damages of not less than $100 and not more than $1,000,” or, specifically for a claim alleging access of a credit report “without a permissible purpose, actual damages sustained by the consumer ... or $1,000, whichever is greater”); id. § 1681n(a)(2) (allowing the victim of a willful FCRA violation to recover “such amount of punitive damages as the court may allow”); id. § 1681o(a)(l) (allowing the victim of a negligent FCRA violation to recover “any actual damages sustained by the consumer as a result of the failure [to comply with the FCRA]”); see also Long v. Tommy Hilfiger U.S.A., Inc., 671 F.3d 371, 374 (3d Cir. 2012) (“[The FCRA] imposes civil liability for violations of [FCRA provisions], with the available remedies dependent upon whether the violation was negligent or willful. If a [defendant’s] violation was merely negligent, a plaintiff may recover only actual damages, and statutory damages are not available. If the violation was willful, however, [the FCRA] allows a plaintiff to elect to recover either actual damages or statutory damages between $100 and $1,000. A court may also award punitive damages in cases involving willful violations.” (citations omitted)).
But a complaint alleging a claim for negligent violations of the FCRA under § 1681o must allege actual damages. See Morse v. USAA Fed. Sav. Bank, No. 12-CV381, 2012 WL 6020090, at *3 (D.Nev. Dec. 3, 2012) (“[AJctual damages ... are a required element” of a claim for negligent violation of § 1681s — 2(b)); Buechler v. Keyco, Inc., No. 09-CV-2948, 2010 WL 1664226, at *2 (D.Md. Apr. 22, 2010) (“[Plaintiff] [did] not allege actual damages; to recover, he must prove that [defendant’s] violation of [the FCRA] was willful.”); cf. Zaun v. Al Vento Inc., No. 11-CV-2024, 2013 WL 268930, at *1 (D.Minn. Jan. 24, 2013) (noting that a complaint “was required” to allege that “[an FCRA] violation was willful ... in light of the fact that there were no actual damages suffered”). To do so, the Complaint need allege only enough facts demonstrating that Plaintiff suffered an injury entitling her to actual damages. See Nowlin v. Avis Budget Grp., No. 11-CV-511, 2011 WL 7087108, at *2 (M.D.N.C. Dec. 22, 2011) (“[A] [p]laintiff [alleging an FCRA claim] bears the burden of establishing that he is entitled to damages. To satisfy the Iqbal pleading standard, [a] [p]laintiff must allege facts that plausibly suggest that he is entitled to damages.” (citation omitted)), adopted by 2012 WL 204162 (M.D.N.C. Jan. 24, 2012); Johnson v. CGR Servs., Inc., No. 04-CV-2587, 2005 WL 991770, at *2 (N.D.Ill. Apr. 7, 2005) (“The FCRA does not explicitly limit the ‘actual damages’ recoverable under the statute and [a] [p]laintiff does not need to plead her damages with heightened particularity. However, the Complaint needs at least to give the other party some notice as to what her actual damages could possibly be.”).
Here, the Complaint contains nothing more than conclusory allegations that Plaintiff is entitled to actual damages from Defendants’ alleged negligent FCRA violations. (See Compl. ¶ 27 (“[Plaintiff] suffered, and continues to suffer, actual and real monetary injury as a direct result of Defendants’ aforesaid misconduct.”), ¶ 39 (“As a result of Defendants’ aforesaid
4. Claims Against Defendant NLS
Defendants next argue that the Complaint “lacks any plausible allegations to buttress the conclusion that [NLS] was responsible for either investigating or responding to the dispute,” and therefore that the Complaint “should be dismissed in its entirety as against [NLS].” (Mem. 14.) The Complaint specifically alleges that NLS “has managed and operated, and continues to manage and operate, itself and [LFG] from the same offices in the same business using the same personnel with the same forms working with the same systems and employing the same modus operandi, ” such that NLS “exercised complete domination of [LFG], and used such domination to commit the fraud and/or wrongs against [Plaintiff].” (Compl. ¶ 4; see also id. ¶ 5 (“[LFG] is one of the shell entities managed and operated by [NLS] and/or [NLS’s] principals.... It is a ‘pass through’ entity with no assets or employees of its own, and is managed, operated, serviced, controlled and dominated by [NLS].”).) Defendants nevertheless contend that these allegations are “purely conclusory” and that they are insufficient to make NLS liable under a corporate-veil-piercing theory. (Mem. 13-14.)
5. Claims Against Individual Defendants
Defendants next argue that the Complaint fails to allege claims against Defendants Brown and Taylor because it does not allege that these Defendants “did anything for personal purposes, or for any purpose outside the ordinary course of their employment.” (Mem. 15.) They base their argument on two cases, one from the Second Circuit and one from this district. In Northrop v. Hoffman of Simsbury, Inc., 134 F.3d 41 (2d Cir. 1997), abrogated on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), as recognized in Oneida Indian Nation of N.Y. v. Cnty. of Oneida, 617 F.3d 114 (2d Cir. 2010), the Second Circuit held that “[w]hether an employee may be held liable as a ‘user of information’ under § 1681n for violating [ an FCRA provision] depends on whether the employee impermissibly obtained credit information for personal purposes, or merely in the ordinary course of employment.” Id. at 49. Similarly, in Woodell v. United Way of Dutchess County, 357 F.Supp.2d 761 (S.D.N.Y. 2005), the district court relied on Northrop in granting summary judgment against a plaintiff alleging an FCRA claim against an individual employee where the plaintiff “[did] not allege[] any facts that could support a finding that [the individual defendant] requested or used [the plaintiffs] credit report for anything other than the performance of his duties as an employee.” Id. at 774. Defendants argue that this Court should dismiss the claims against Individual Defendants pursuant to these cases, because the Complaint does not allege that either defendant acted for personal purposes. (See Mem. 15-16.)
In Northrop, the Second Circuit analyzed claims arising under the FCRA as it existed in 1995. See 134 F.3d at 43-44 (analyzing claims arising out of events that occurred in 1995). In that version,
6. Permissible Purpose
Defendants finally argue that Count I of the Complaint fails to state a claim for impermissible access under both the FCRA and the NYCRA because, if Defendants did access Plaintiffs credit report, they did so for a “permissible purpose.” (See Mem. 16-20.) To state her claim under Count I, Plaintiff “must show that [her] credit information was obtained for an impermissible purpose, and, thus, a showing of a permissible purpose is a complete defense.” Thomas v. RJM Acquisition LLC, No. 12-CV-5294, 2014 WL 723676, at *3 (E.D.N.Y. Feb. 24, 2014) (internal quotation marks omitted); see also Stonehart, 2001 WL 910771, at *5 (“[W]here a permissible purpose for obtaining a credit report is demonstrated, then, as a matter of law, the information cannot have been obtained under false pretenses.”). “ ‘Permissible purposes’ for obtaining credit information are set forth in 15 U.S.C. § 1681b.” Caldwell v. Gutman, Mintz, Baker & Sonnenfeldt, P.C., No. 08-CV-4207, 2012 WL 1038804, at *5 (E.D.N.Y. Mar. 28, 2012). As relevant here, that section includes a provision that allows
any consumer reporting agency [to] furnish a consumer report ... [t]o a person which it has reason to believe ... intends to use the information in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to, or review or collection of an account of, the consumer.
15 U.S.C. § 1681b(a)(3)(A). Defendants contend that, under this provision, they had a permissible purpose for accessing Plaintiffs credit report because “the pertinent credit transaction involve[d] an equipment finance lease,” and they intended to access Plaintiffs credit report “for the purpose of reviewing or collecting an account.” (Mem. 17, 19 (emphasis removed).) They further contend that whether Plaintiff “actually had an account with LFG and whether ... she disputed her account ... have no bearing on the issue of whether LFG had a permissible purpose,” (id. at 20), because “[t]he critical issue ... is whether the person obtaining the credit report intends to use the report for one of the specified purposes,” (id. at 18).
Defendants cite a number of cases in support of their position. In Stonehart v. Rosenthal, No. 01-CV-651, 2001 WL 910771 (S.D.N.Y. Aug. 13, 2001), the court granted summary judgment against a plaintiff after holding that the owner of a debt and a third-party agency he “enlist[ed] ... [to] aid in his collection effort” had a permissible purpose under § 1681b(a)(3)(A) in obtaining a credit report for debt-collection purposes where the plaintiff disputed the amount, but not the existence, of the debt. Id. at *4; see also Anderson v. Frederick Ford Mercury, Inc., 694 F.Supp.2d 324, 332 (D.Del. 2010) (granting summary judgment to defendant where “it [was] clear from the record that [the] plaintiff initiated the transaction and authorized credit inquiries,” and therefore there were “no genuine issues of material fact as to whether the credit inquiries were made in connection with [the plaintiff’s] credit application”)-, Alexander v. Textron Fin. Corp., No. 08-CV-553, 2009 WL 169076, at *3 (S.D.Miss. Jan. 26, 2009) (granting summary judgment and dismissing FCRA claim where the plaintiff “d[id] not contest the validity of [an agreement] authorizing [the defendant] to continually review his account” and “there [was] no dispute that [the plaintiffs company]
Defendants’ argument is unavailing, as it depends on the resolution of a disputed factual issue in their favor at the motion-to-dismiss stage. The Complaint specifically alleges that Plaintiff did not complete a credit transaction with Defendants, (see Compl. ¶¶ 1, 13, 15), and it also alleges that Defendants knowingly did not intend to collect on a valid debt, (see id. ¶¶ 1, 8, 11, 21, 23-25 (alleging that Defendants knowingly acted pursuant to a fraudulent scheme involving “wilful attempts to intimidate ... [and] bully [Plaintiff] into paying Defendants monies to which [they] were never entitled”)). And although Defendants dispute both of these allegations, the Court must accept the Complaint’s allegations as true in resolving this Motion. See Iowa Pub. Emps. Ret. Sys. v. MF Global, Ltd., 620 F.3d 137, 139 n. 1 (2d Cir. 2010). The cases Defendants cite, therefore, are inapposite. In most of the cases, the courts granted summary judgment or a motion for a judgment on the pleadings after finding no dispute over the existence of a debt or credit transaction, which finding allowed the courts to con-
III. Conclusion
In light of the foregoing .analysis, the Court grants Defendants’ Motion To Dismiss in part, without prejudice, with respect to Counts II and IV, alleging negligent violations of the FCRA, and with respect to all Counts against John Doe Defendants, and denies it in part, with respect to Counts I and III (alleging willful FCRA violations) and Counts V-VIII (alleging NYFCRA violations), as alleged against Defendants Brown, Taylor, NLS, and LFG. The Clerk of Court is respectfully requested to terminate the pending Motion. (Dkt. No. 13.)
SO ORDERED.
. In their Motion and accompanying Memo-randa of Law, Defendants request dismissal of all eight claims, but they cite only to cases addressing the FCRA, and do not otherwise identify any distinctions between the FCRA and NYFCRA claims. Keeping in mind the Second Circuit's recognition that "the[se] two statutes must be construed in the same way” in light of the similarities between many of their provisions, Scott v. Real Estate Fin. Grp., 183 F.3d 97, 100 (2d Cir. 1999), the Court does not find it necessary to discuss separately the provisions of the NYFCRA referenced in the Complaint.
. Defendants cite Atuahene v. City of Hartford, a Second Circuit summary order from 2001. The Court notes that, under the Local Rules for the Court of Appeals for the Second Circuit, summary orders do not have prece-dential effect, and parties may not cite a summary order issued prior to January 1, 2007, except in two circumstances, neither of which is present here. See 2d Cir. R. 32.1.1(a), (b)(2).
. Defendants also cite Lippe v. Bairnco Corp., 225 B.R. 846 (S.D.N.Y. 1998), where the court dismissed a civil RICO claim against certain defendants because the complaint " 'lump[ed]’ all the defendants together and allege[d] that the purported acts of every defendant [could] be imputed to every other defendant.” Id. at 860. However, the court dismissed the claim not under Rule 8(a) for failing to provide fair notice, but under Rule 12(b)(6) for failing to allege a civil RICO claim under 18 U.S.C. § 1962(c). See id. at 860-61.
. Although courts, in deciding a Rule 12(b)(6) motion, may consider "documents ... incorporated in the complaint by reference, and ... matters of which judicial notice may be taken,” Leonard F., 199 F.3d at 107, the Court would still refuse to consider Defendants’ argument at this stage in the litigation even if it did consider the New York City Civil Court complaint and the copy of the lease attached thereto. Those documents prove only that Defendants have alleged, in a different court, that Plaintiff signed a lease with LFG. But Plaintiff disputes that allegation in the Complaint, creating the type of factual dispute that this Court may not resolve in a Rule 12(b)(6) motion, which tests only whether the Complaint has stated a valid claim, not a true one. See Trs. of Empire State Carpenters Annuity, Apprenticeship, Labor-Mgmt., Cooperation, Pension & Welfare Funds v. Dykeman Carpentry, Inc., No. 13-CV-1508, 2014 WL 976822, at *5 (E.D.N.Y. Mar. 12, 2014) ("[T]he resolution of a factual dispute, in the absence of any discovery or evidentiary hearing, is not appropriate on a motion to dismiss.” (internal quotation marks omitted)).
Reference
- Full Case Name
- Patricia J. RITCHIE v. NORTHERN LEASING SYSTEMS, INC., Lease Finance Group, LLC, Ricardo Brown, Robert Taylor, and John Does 1-50
- Cited By
- 30 cases
- Status
- Published