Comunale v. Home Depot, U.S.A., Inc.
Comunale v. Home Depot, U.S.A., Inc.
Opinion of the Court
INTRODUCTION
Plaintiff Anthony F. Comunale ("Plaintiff") filed this action in New York State Supreme Court on October 13, 2017, alleging damages resulting from the "willful[ ] and reckless[ ]" conduct of Defendants Home Depot, U.S.A., Inc. ("Home Depot") and Citibank, N.A. ("Citibank") (collectively, "Defendants"). (Dkt. 1-2). Specifically, Plaintiff alleges that Defendants disregarded evidence of fraudulent credit activity in his name, and have continued to demand payment for expenses accrued without his consent. (Id. at 5-6). As a result, Plaintiff claims that he has "suffered economic loss" and that his "credit has been damaged." (Id. at 6). On January 22, 2018, pursuant to
Presently before the Court is Defendants' motion to dismiss Plaintiff's complaint for failure to state a claim. (Dkt. 4). For the following reasons, Defendants' motion is granted, and Plaintiff's complaint is dismissed.
FACTUAL BACKGROUND
On or about June 16, 2013, one or more persons applied for a credit account in Plaintiff's name at Home Depot without Plaintiff's knowledge or consent. (Dkt. 1-2 at ¶ 4). Citibank services Home Depot's credit accounts. (Id. at ¶ 3). The unidentified individual or individuals used Plaintiff's Social Security Number and other personal information to establish the credit account in Plaintiff's name. (Id. at ¶¶ 4-5). Unbeknownst to Plaintiff, the unidentified party or parties also charged various items to the account. (Id. at ¶ 6). Someone other than Plaintiff made installment payments to this account for about a year, at which time all such payments ceased. (Id. at ¶ 7).
Sometime within or about the month of September 2014, Plaintiff's former wife showed Plaintiff a statement for the above account, which indicated that a balance of $6,541.25 was due. (Id. at ¶ 8). Plaintiff then contacted "one or both" Defendants to notify them that he had no knowledge of this account, that it was fraudulently established, and that the charges were incurred without his consent or knowledge. (Id. at ¶ 9). Since September 2014, Plaintiff has provided additional information to "one or both" Defendants, allegedly demonstrating that the account was not established by him. (Id. at ¶ 10). Plaintiff has also complied with all information requests solicited by either Home Depot or Citibank regarding a fraud investigation related to this credit account. (Id. at ¶ 11).
Nevertheless, "one or both" Defendants have repeatedly told Plaintiff that he owes *73the entire balance due on the account. (Id. at ¶ 12). Plaintiff alleges that in doing so, "one or both Defendants have willfully and recklessly disregarded the evidence of fraud provided to Defendants by Plaintiff." (Id. at ¶ 13). Plaintiff further alleges that, since September 2014, "one or both" Defendants have repeatedly reported Plaintiff as delinquent to multiple credit reporting agencies. (Id. at ¶ 14). Even after Plaintiff "advised credit reporting agencies that the account had been fraudulently established in his name and that he was not responsible for any portion of the account," Defendants informed "credit report agencies that in fact the account was Plaintiff's obligation," even though "they knew or should have known that it was not." (Id. at ¶ 15). Defendants have also continued to request that Plaintiff pay the deficiencies on the account. (Id. at ¶ 16).
Plaintiff asserts that his credit has been damaged, and that he has suffered economic loss as a result of Defendants' actions. (Id. at ¶ 17). Plaintiff claims that because Defendants have provisioned erroneous information to the credit reporting agencies, he has been unable to secure any credit, which has cost him various business opportunities. (Id. ).
PROCEDURAL HISTORY
On January 26, 2018, Defendants moved to dismiss Plaintiff's complaint for failure to state a claim. (Dkt. 4). Plaintiff opposed Defendants' motion. (Dkt. 10). Defendants argue that Plaintiff fails to specify a "cognizable theory of liability," and therefore, he does not satisfy the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. (Dkt. 4-4 at 7-8); see Fed. R. Civ. P. 8(a). Defendants also assert that even if Plaintiff properly articulated common law claims against them, such claims are preempted by the federal Fair Credit Reporting Act,
On July 10, 2018, the Court heard argument on Defendants' motion to dismiss. The Court sua sponte raised the issue of its subject matter jurisdiction by informing the parties of an error in the notice of removal. The Court permitted Defendants to file supplemental papers to cure the defect. The Court otherwise reserved decision on Defendants' motion. On July 16, 2018, Defendants submitted a declaration in further support of their motion. (Dkt. 14).
DISCUSSION
I. Subject Matter Jurisdiction
A. General Principles
"Federal courts have a duty to inquire into their subject matter jurisdiction sua sponte, even when the parties do not contest the issue." D'Amico Dry Ltd. v. Primera Mar. (Hellas) Ltd. ,
*74B. Diversity Jurisdiction
"Diversity jurisdiction exists where the parties are citizens of different states and the amount in controversy exceeds $75,000." Ceglia v. Zuckerberg ,
C. The Court Has Subject Matter Jurisdiction Over This Action
Defendants sought to remove this action to federal court based upon diversity jurisdiction. (Dkt. 1 at ¶¶ 2-5). In doing so, Defendants alleged that Plaintiff is domiciled in the State of New York, and that neither Citibank nor Home Depot are citizens of New York State for diversity purposes. (Id. at ¶¶ 3-4). Defendants sufficiently alleged that Citibank, a national banking association, has its "main office" located in the State of South Dakota, and thus, it is a citizen of that State for diversity purposes. (Id. at ¶ 5). Home Depot, on the other hand, is a corporation. As such, it is a citizen of the State "by which it has been incorporated and of the State where it has its principal place of business." Sty-Lite Co. ,
Nevertheless, the Court granted Defendants leave to file additional papers in support of this Court's subject matter jurisdiction because "[w]hen diversity is not absent from a notice of removal but is defectively alleged, courts typically permit the removing party to amend its notice of removal." Linium, LLC v. Bernhoit , No. 17-CV-0200 (LEK)(CFH),
*75Accordingly, the Court finds that because there is complete diversity between the parties, and since the amount in controversy is allegedly over $75,000,
II. Defendants' Motion to Dismiss for Failure to State a Claim
A. Legal Standard Under Rule 12(b)(6)
"In considering a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference." Newman & Schwartz v. Asplundh Tree Expert Co. ,
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his 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." Twombly ,
B. Federal Preemption
The Supremacy Clause of the United States Constitution instructs that the Constitution and laws of the United States are "the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI cl. 2. "[S]tate and local laws that conflict with federal law are 'without effect.' " N.Y. SMSA Ltd. P'ship v. Town of Clarkstown ,
In general, three types of preemption exist-(1) express preemption, where Congress has expressly preempted local *76law; (2) field preemption, "where Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law"; and (3) conflict preemption, where local law conflicts with federal law such that it is impossible for a party to comply with both or the local law is an obstacle to the achievement of federal objectives.
Express preemption exists when Congress "define[s] explicitly the extent to which its enactments pre-empt state law." English v. Gen. Elec. Co. ,
C. The Federal Fair Credit Reporting Act
1. Claims Preempted by the FCRA
The FCRA contains two preemption clauses that are relevant to this action. See 15 U.S.C. §§ 1681h(e), 1681t(b). Section 1681h(e) provides, in pertinent part:
[N]o 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 consumer reporting agency, any user of information, or any person who furnishes information to a consumer reporting agency , based on information disclosed pursuant to section 1681g, or 1681m of this title ....
The Second Circuit has held that § 1681t(b)'s preemptory language is broad, and that it encompasses both state statutory and common law causes of action. See Premium Mortg. Corp, v. Equifax, Inc. ,
"The FCRA 'was enacted to ensure that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer ....' " Dickman v. Verizon Commc'ns, Inc. ,
Section 1681s-2(a)"relates to the furnishers' duty to report accurate information and their ongoing duty to correct inaccurate information." Redhead ,
Subsection (a) forbids providing any information to a credit reporting agency if the furnisher of information is informed by the consumer that the information is inaccurate. Moreover, if a person learns that any reported information is inaccurate, Subsection (a) obligates that person to notify the credit reporting agency of the inaccuracies, and to provide corrections for any incomplete or inaccurate information.
Kane v. Guar. Residential Lending, Inc. , No. 04-CV-4847 (ERK),
Section 1681s-2(b)"governs the furnishers' duty once notice is received from a credit reporting agency that there *78is a dispute as to the completeness or accuracy of the information provided to that reporting agency." Redhead ,
Consistent with the language of § 1681t(b)(1)(F), courts have found that any state law claims that relate to the "subject matter" of § 1681s-2 are preempted by the FCRA. See, e.g., Okocha v. HSBC Bank USA, N.A. ,
(1) fail[ure] to maintain and follow reasonable procedures to ensure the accurate reporting of information, (2) fail[ure] to delete inaccurate information after notification, (3) fail[ure] to conduct proper investigations, and (4) reporting to third parties information affecting the plaintiff's reputation for credit worthiness, with knowledge or reason to know that such information was false.
Here, Plaintiff alleges that Defendants were "willful[ ] and reckless[ ]" in reporting the account as delinquent to multiple credit reporting agencies, despite having been aware of evidence indicating that it was fraudulently established. (Dkt. 1-2 at ¶¶ 13-14; see id. at ¶ 13 (alleging that "one or both Defendants have willfully and recklessly disregarded the evidence of fraud provided to Defendants by Plaintiff " (emphasis added) ) ). Plaintiff also alleges that Defendants' continued statements to these credit reporting agencies have damaged his credit and have caused him economic loss. (Id. at ¶ 17). Plaintiff's relatively sparse allegations are primarily focused upon Defendants' conduct after he provided them with notice and materials regarding *79the disputed nature of the account. (See id. at ¶¶ 9-14).
During oral argument, Plaintiff's counsel conceded that he was unaware of whether Defendants received any notice from the credit reporting agencies. Instead, he explained that the Complaint alleges that Plaintiff advised Defendants of the contested nature of the account, and yet Defendants continued to report an inaccurate credit claim against him. Accordingly, Plaintiff's allegations fall squarely within the provisions of § 1681s-2(a)(1)(B), and not § 1681s-2(b). See Weich-Pulaski ,
"[O]nce a furnisher of information has notice from any source and provides inaccurate information , the conduct is 'subject matter regulated under ... section 1681s-2' of the FCRA." Kane ,
2. Plaintiff Cannot Enforce § 1681s-2(a) of the FCRA
To the extent that Plaintiff's complaint could be construed as asserting a federal cause of action under § 1681s-2(a), any such claim is not viable because "[t]here is no private cause of action under Section 1681s-2(a), for the FCRA limits the enforcement of this subsection to government agencies and officials." Redhead ,
At oral argument, Plaintiff argued that if his state law claims were preempted, and if he had no private right to action under § 1681s-2(a), then he was absent any recourse for his alleged injury. Courts have acknowledged that the FCRA's "statutory framework may seem troubling" in this regard because a furnisher of information may "continue[ ] to report information regarding [an] account at a time when it knew, the account was disputed." See, e.g., Aklagi ,
Furthermore, the FCRA does provide for a private cause of action pursuant to § 1681s-2(b). See Williams v. Bayview Loan Servicing, LLC , No. 14-CV-7427 (KAM) (LB),
While the Court is sympathetic to Plaintiff's circumstances, the FCRA's statutory framework clearly reserves the exclusive right to enforce a violation of § 1681s-2(a) with governmental authorities and contemplates other mechanisms for consumers to take action to protect themselves. In sum, Plaintiff's state law causes of action, which are based upon Defendants' alleged "willful," "negligent," or "reckless" reporting of inaccurate information to the credit reporting agencies, are preempted by the FCRA, and insofar as Plaintiff's allegations could be construed as asserting a cause of action to enforce § 1681s-2(a), any such claim must be dismissed for lack of legal standing.
CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss (Dkt. 4) is granted, and Plaintiff's complaint (Dkt. 1-2) is dismissed with prejudice. The Clerk of Court is directed to close this case.
SO ORDERED.
The following facts are taken from Plaintiff's complaint unless otherwise indicated. (Dkt. 1-2).
Although Plaintiff's complaint alleges that the allegedly fraudulent account contained a balance of only $6,541.25 as of September 2014, (Dkt. 1-2 at ¶ 8), Plaintiff also alleges that he has suffered "lost business opportunities because he has been unable to obtain credit as a result of the erroneous information provided to credit reporting agencies by one or both Defendants" (id. at ¶ 17). Defendants' counsel alleges that the amount in controversy exceeds $75,000 because Plaintiff made a subsequent demand for $100,000 to compensate for those lost business opportunities and other economic losses. (Dkt. 1 at ¶ 2; see Dkt. 1-1 at 2). That demand is attached as Exhibit A to Defendants' notice of removal. (Dkt. 1-1).
Although Plaintiff uses the term "credit reporting agencies," and the FCRA defines the term "consumer reporting agency," there does not appear to be a material difference between these terms for purposes of this motion. See 15 U.S.C. § 1681a(f) (defining a "consumer reporting agency" as "any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports"); see also Longman v. Wachovia Bank, N.A. ,
Congress added § 1681t(b)(1)(F) as an amendment to the FCRA in 1996, 26 years after § 1681h(e) and the original legislation was enacted. Macpherson ,
"The term 'furnishers of information' is not defined in the statute, but it has been interpreted to mean 'entities that transmit, to credit reporting agencies, information relating to debts owed by consumers.' " Barberan v. Nationpoint ,
Section 1681s-2(b) provides that "[a]fter receiving notice pursuant to section 1681i(a)(2) of this title of a dispute with regard to the completeness or accuracy of any information provided by a person to a consumer reporting agency," a furnisher of information has a duty to investigate the dispute, review the materials provided by the consumer reporting agency, report the result of the investigation to the consumer reporting agency-as well as to all other consumer reporting agencies that the furnisher had provided the information to should it confirm the existence of an inaccuracy-and modify, delete, or otherwise block the inaccurate information from being reported. See 15 U.S.C. § 1681s-2(b)(1).
Reference
- Full Case Name
- Anthony F. COMUNALE v. HOME DEPOT, U.S.A., INC., and Citibank, N.A.
- Cited By
- 19 cases
- Status
- Published