United States District Court, M.D. Alabama, Southern Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
F. MOORER UNITED STATES MAGISTRATE JUDGE.
matter is pending before the Court on Defendants' Motion
to Dismiss (Doc. 16), Brief in Support (Doc. 17),
Plaintiff's Response (Doc. 22) and Defendants' Reply
(Doc. 24). Pursuant to 28 U.S.C. § 636(b) (1)
this case was referred to the undersigned United States
Magistrate Judge for consideration and disposition or
recommendation on all pretrial matters. (Doc. 5).
who is proceeding pro se, filed this action alleging
Defendants violated section 1681m of the Fair Credit Report
Act (“the FCRA”) 15 U.S.C. § 1681 et seq.,
by failing to give Plaintiff notice of adverse action. (Doc.
1 at p.1). The Complaint seeks money damages. (Doc. 1 p. 3).
Plaintiff filed multiple motions to proceed in forma
pauperis. Thereafter, this Court entered an Order
granting Plaintiff's applications to proceed in forma
pauperis. (Doc. 10). In forma pauperis
proceedings are governed by 28 U.S.C. § 1915 which
requires this court to conduct a preliminary review of the
complaint to ensure the action is not ''frivolous or
malicious, '' ''fails to state a claim on
which relief can be granted, '' or ''seeks
monetary relief against a defendant who is immune from such
relief.'' See 28 U.S.C.' 1915(e)(2)(B).
before the Court is Defendants' Motion to Dismiss
pursuant to 12(b)(6) of the Federal Rules of Civil Procedure
based upon the Plaintiff's failure to state a claim upon
which relief can be granted. (Doc. 16). Defendant argues that
Plaintiff's complaint is due to be dismissed since
Plaintiff's claims are predicated on a statute for which
no private right of action is available. McDonald v. So.
Farm Bureau Life Ins. Col., 291 F.3d718, 726 (11th Cir.
2002) (Granting the defendant's motion to dismiss where
statute under which the plaintiff brought suit provided no
private right of action). (Doc. 17 at p. 2). With these
standards in mind, the Court will address Defendants'
Motions to Dismiss.
Discussion and Analysis
Plaintiff proceeds pro se, the court will liberally
construe the allegations of his complaint. See Alba v.
Montford, 517 F.3d 1249, 1252 (11th Cir. 2008).
Plaintiff alleges Defendants violated section 1681m of the
Fair Credit Report Act (“the FCRA”) 15 U.S.C.
§ 1681 et seq., by failing to give Plaintiff notice of
adverse action. (Doc. 1 at p.1). Defendant argues that
Plaintiff cannot state a claim because there is no private
right of action under that statute. (Doc. 17 at p. 2).
1681m provides in relevant part:
(h) Duties of users in certain credit transactions (8)
(A) No civil actions. Sections 1681n and 1681o of this title
shall not apply to any failure by any person to comply with
(B) Administrative enforcement. This section shall be
enforced exclusively under section 1681s of this title by
the Federal agencies and officials identified in that
15 U.S.C. § 1681m(h)(8). The language of the statute
provides under the title “(A) No. civil actions”
that “Sections 1681n and 1681o . . . shall not apply to any
failure by any person to comply with this section.”
Thus, the Court is persuaded the plain language of the
statute demonstrates that noncompliance with the provisions
of Section 1681m cannot be remedied by a private action by
the consumer, but only by enforcement by federal agencies.
See Lamie v. United States, 540 U.S. 526, 534 (2004)
(citations omitted) (“[i]t is well established that
‘when the statute's language is plain, the sole
function of the courts - at least where the disposition
required by the text is not absurd -is to enforce it
according to its terms.”)
courts have applied the unambiguous language of section 1681m
and held that no private right of action exists to remedy
violations under section 1681m. See Floyd-Keith v.
Homecomings Financial, LLC, 2010 WL 3927596 at *8 (M.D.
Ala. 2010) adopted by Floyd-Keith v. Homecomings
Financial, LLC, 2010 WL 3943646 (M.D. Ala. 2010)
(summary judgment entered against Plaintiff on her claims
under § 1681m because Plaintiff “does not have a
private right of action concerning her claim that she was not
provided with the Notice of Adverse Action under the
FCRA.”); Crowder v. PMI Mort. Ins. Co., 2006
WL 1528608 at *2 (M.D. Ala. 2006) (“On 4 December 2003,
in enacting the FACTA, Congress amended section 1681m to
eliminate private enforcement.”); Perry v. First
Nat'l Bank, 459 F.3d 816, 813 (7th Cir.
2006)(holding that the “unambiguous language of §
1681m(h)(8) demonstrates that Congress intended to preempt
private causes of action to enforce § 1681m”);
Soroka v. JP Morgan Chase & Co., 500 F.Supp.2d
217 (S.D.N.Y. 2007)(“[t]he unambiguous plain language
of the FCRA makes it clear that Congress intended for this
section to be enforced only by Federal administrative
agencies.”); Putlowski v. Irwin Home Equity
Corp., 423 F.Supp.2d 1053, 1061-1062 (N.D. Cal.
2006)(“§ 1681m(h)(8) . . . expressly provides that
there is no private right of action for violations of §
1681m.); Howard v. DirectTV Group, Inc., 2012 WL
1850922 at *5 (S.D. Ga. 2012)(dismissing Plaintiff's
claims under section 1681m on the basis that “there is
no private right of action to enforce §1681m”);
Bourdelais v. J.P. Morgan Chase, 2011 WL 1306311 at
*6 (E.D. Va. 2011)(“[v]irtually every federal district
court and the only federal court of appeals to interpret
§ 1681m(h)(8) has found it to be clear and unambiguous;
the word “section” means “section”,
and thus no private right of action exists for violations of
section 1681m in its entirety.”)
however, points to a footnote in Crowder, 2006 WL
1528608 at *6, fn. 4, which references a case from the
Eastern District of Virginia, Barnette v. Brook Road,
Inc.,429 F.Supp.2d 741 (E.D. Va. 2006), for the
proposition that a private right of action exists under parts
of § 1681m. In Barnette, the Eastern District
of Virginia correctly recognized that prior to the 2003
amendments, FCRA authorized a private right of action under
§ 1681m. Id. at 747. The Court concluded that
Congress, however, did not intend by amendment to eliminate
the private right of action of § 1681m. Id. at
748-49. Rather, the Court concluded that due to a
scrivener's error, “the limitation in §
1681m(h)(8) should read ...