United States District Court, W.D. Arkansas, Hot Springs Division
WILMINGTON O. CHARLES, SR. PLAINTIFF
v.
LEXISNEXIS[1] DEFENDANT
ORDER
SUSAN
O. HICKEY, CHIEF UNITED STATES DISTRICT JUDGE
Before
the Court is Defendant Lexisnexis' Motion to Dismiss.
(ECF No. 10). Plaintiff Wilmington O. Charles, Sr. has not
filed a response and the time to do so has
passed.[2] The Court finds this matter ripe for
consideration.
BACKGROUND
This is
an action brought under the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. § 1681i.[3] Defendant
Lexisnexis is a data aggregation company in the business of
collecting and selling the information that commercial
organizations, government agencies and nonprofits use to
profile individuals and businesses. Plaintiff alleges that a
credit report that he received from Lexisnexis contains
“a Bankruptcy Chapter 7 discharge in the files under
[his] social security number and case number 0976082.”
(ECF No. 5). Further, Plaintiff alleges that
Lexisnexis has reported the bankruptcy to the three national
credit reporting bureaus resulting in damages to his
reputation and credit score. Id.
Plaintiff
commenced this action pro se in the District Court
of Garland County, Arkansas on December 10, 2018. The case
was removed to this Court on January 9, 2019. On February 6,
2019, Lexisnexis filed the instant Motion to Dismiss (ECF No.
10), arguing that Plaintiff has failed to state a claim on
which relief can be granted because Plaintiff has not alleged
that the bankruptcy and credit information Lexisnexis
reported was inaccurate. Plaintiff has not responded to the
motion.
LEGAL
STANDARD
To
survive a motion to dismiss under Rule 12(b)(6), a pleading
must provide “a short and plain statement of the claim
that the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). The Court must accept as true all factual
allegations set forth in the complaint, drawing all
reasonable inferences in the plaintiff's favor. See
Ashley Cnty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665
(8th Cir. 2009). However, the complaint “must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility 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.
“The
plausibility standard is not akin to a ‘probability
requirement,' but it asks for more than a sheer
possibility that a defendant has acted unlawfully. Where a
complaint pleads facts that are ‘merely consistent
with' a defendant's liability, it ‘stops short
of the line between possibility and plausibility of
entitlement to relief.'” Id. (quoting
Twombly, 550 U.S. at 557). “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.” Id. at 679. In considering a motion to
dismiss under Rule 12(b)(6), “the complaint should be
read as a whole, not parsed piece by piece to determine
whether each allegation, in isolation, is plausible.”
Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594
(8th Cir. 2009).
“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 assertions' devoid of ‘further
factual enhancement.'” Id. (internal
citations and alterations omitted) (quoting Twombly,
550 U.S. at 555, 557). In other words, “the pleading
standard Rule 8 announces does not require ‘detailed
factual allegations,' but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me
accusation.” Id. (quoting Twombly,
550 U.S. at 555).
As
noted above, Plaintiff, proceeds pro se. “In
evaluating whether a pro se plaintiff has asserted
sufficient facts to state a claim, we hold ‘a pro
se complaint, however inartfully pleaded . . . to less
stringent standards than formal pleadings drafted by
lawyers.'” Jackson v. Nixon, 747 F.3d 537,
541 (8th Cir. 2014) (quoting Erickson v. Pardus, 551
U.S. 89, 94 (2007)). However, even a pro se
plaintiff must allege specific facts sufficient to support a
claim. Martin v. Sargent, 780 F.2d 1334, 1337 (8th
Cir. 1985).
DISCUSSION
Lexisnexis
argues that Plaintiff's FCRA claim should be dismissed
because Plaintiff has not alleged that Lexisnexis reported
inaccurate information in his credit report. Plaintiff has
failed to respond to this argument.
It
appears that neither the Eighth Circuit Court of Appeals nor
this Court have addressed the issue of what is required to
state a claim under 15 U.S.C. § 1681i. However, several
district courts in the Eighth Circuit have found that
“without a showing that the reported information was in
fact inaccurate, a claim brought under § 1681i must
fail.” Paul v. Experian Info. Solutions, Inc.,
793 F.Supp.2d 1098, 1102 (D. Minn. 2011); see also Fahey
v. Experian Info. Sols., Inc., 571 F.Supp.2d 1082, 1088
(E.D. Mo. 2008) (holding that accurate reporting is a
complete defense to a section 1681i claim). Moreover, it
appears that the prevailing view among the Circuit Courts of
Appeal is that a plaintiff must sufficiently allege that his
credit report contains inaccurate information in order to
state a claim under section 1681i. See DeAndrade v. Trans
Union LLC, 523 F.3d 61, 67 (1st Cir. 2008) (discussing
that a plaintiff must allege inaccurate reporting to bring a
section 1681i claim in the Fourth, Sixth, and Eleventh
Circuit Courts of Appeal); Edeh v. Equifax Info. Servs.,
LLC, 919 F.Supp.2d 1006, 1012 (D. Minn. 2013)
(discussing that a plaintiff must allege inaccurate reporting
to bring a section 1681i claim in the First, Third, Seventh,
and Ninth Circuit Courts of Appeal).
Upon
consideration, the Court agrees with Lexisnexis. The
overwhelming weight of authority indicates that a plaintiff
must allege that his credit report contains inaccurate
information to state a claim under section 1681i. In the
present case, Plaintiff alleges that he was damaged when
Lexisnexis reported his bankruptcy to national credit
reporting bureaus, but he has not alleged that any of the
bankruptcy or credit information reported by ...