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Russell v. Synchrony Financial

United States District Court, N.D. Alabama, Western Division

April 4, 2018

MELISSA A RUSSELL, Plaintiff,
v.
SYNCHRONY FINANCIAL, et al., Defendants.

          MEMORANDUM OPINION

          R. DAVID PRO'CTOR UNITED STATES DISTRICT JUDGE

         This case is before the court on Defendants' Motion to Dismiss Plaintiff's Complaint and Amended Complaint.[1] (Doc. # 14). Plaintiff Melissa A Russell (“Plaintiff”) opposes the Motion. (Doc. # 19). For the reasons explained below, Defendants' Motion to Dismiss (Doc. # 14) is due to be granted in part.

         I. Relevant Background[2]

         Between November 2015 and March 2017, Plaintiff asserts that she applied for and was approved for six different Synchrony-branded credit card accounts for Credit Care, Lowe's, Wal-Mart, Belk, Chevron, and BP Gas. (Doc. # 1-1 at p. 4). Plaintiff's credit limit on her Chevron credit card and Lowe's credit card were lowered in August 2016 and September 2016. (Id.). Plaintiff claims that she was timely paying these accounts and that she never received an explanation as to why her credit limits were lowered. (Id.). Plaintiff alleges that she later realized that her Lowe's credit card account had been closed “for no explained reason” and that Synchrony had attached “a false negative statement . . . to her credit file.” (Id. at p. 4-5).

         On September 13, 2016, Plaintiff called Synchrony, and Synchrony allegedly gave her “several different phone numbers to contact each of [Synchrony's] creditors to kindly ask that no reviews of [her] accounts be done to either increase or decrease the set credit balance.” (Id. at p. 5). Plaintiff claims that she called each of these creditors and they agreed to these requests. (Id.). Nevertheless, she alleges that, on April 22, 2017, she was embarrassed at Belk because her Belk credit card had been closed without her having received notice. (Id.). On April 24, 2017, Plaintiff looked at her online Synchrony accounts and realized that Synchrony had closed two credit card accounts and lowered the credit limit on one of her other credit card accounts. (Id.). Plaintiff contends that, at this point, she also realized that Synchrony had negatively reported these events to a credit bureau. (Id.).

         Plaintiff claims that as a result she “was very distraught and felt unworthy, worthless and depressed” and was prescribed medicine by a psychiatrist for anxiety and depression. (Id.). On April 30, 2017, Plaintiff received a letter of explanation regarding her Wal-Mart credit card account. (Id.). After writing to Synchrony and contacting some of its employees, Plaintiff received a letter from Synchrony stating that her requests for non-monetary action had been denied. (Id.).

         On July 12, 2017, Plaintiff filed a complaint against Synchrony in the Circuit Court of Tuscaloosa County, Alabama. (Doc. # 1-1 at p. 2-8). The Complaint asserts claims of (1) negligence, (2) defamation of character, (3) discrimination, (4) privacy violation, and (5) emotional distress. (Id. at p. 4-8). Plaintiff's negligence, defamation of character, and emotional distress claims are all based on Synchrony's reporting of information to Credit Reporting Agencies (“CRAs”). (Id. at p. 6-7). Plaintiff's discrimination claim appears to be based on the Equal Credit Opportunity Act, and her privacy violation claim centers on Synchrony “repeatedly pull[ing] information and records about the plaintiff without her express consent and without reason.” (Id.).

         Plaintiff amended her pleadings on July 17, 2017 and added Lowe's, Wal-Mart, and Belk as defendants. (Id. at p. 10-13). The First Amended Complaint seeks to hold these added defendants “Vicariously Liable (Respondeat Superior) and responsible for the malicious, negligent actions of its third party as its employee or independent contractor.” (Id. at p. 10). On August 18, 2017, Defendants removed this action to federal court. (Doc. # 1). The court now has before it the pending Motion to Dismiss.

         II. Standard of Review

         The Federal Rules of Civil Procedure require that a complaint provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). However, the complaint must include enough facts “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that contain nothing more than “a formulaic recitation of the elements of a cause of action” do not meet Rule 8 standards, nor do pleadings suffice that are based merely upon “labels and conclusions” or “naked assertion[s]” without supporting factual allegations. Id. at 555, 557. In deciding a Rule 12(b)(6) motion to dismiss, courts view the allegations in the complaint in the light most favorable to the non-moving party. Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007). Additionally, courts must liberally construe documents filed pro se. Erickson, 551 U.S. at 94.

         To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although “[t]he plausibility standard is not akin to a ‘probability requirement, '” the complaint must demonstrate “more than a sheer possibility that a defendant has acted unlawfully.” Id. A plausible claim for relief requires “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence” to support the claim. Twombly, 550 U.S. at 556.

         In considering a motion to dismiss, a court should “1) eliminate any allegations in the complaint that are merely legal conclusions; and 2) where there are well-pleaded factual allegations, ‘assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.'” Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 Fed.Appx.. 136, 138 (11th Cir. 2011) (unpublished) (quoting Am. Dental Assn. v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)). That task is context specific and, to survive the motion, the allegations must permit the court based on its “judicial experience and common sense . . . to infer more than the mere possibility of misconduct.” Iqbal, 556 U.S. at 679. If the court determines that well-pleaded facts, accepted as true, do not state a claim that is plausible, the claims are due to be dismissed. Twombly, 550 U.S. at 570.

         III. Analysis

         Defendants argue that Plaintiff's Complaint and First Amended Complaint are due to be dismissed because (1) the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681 et seq., preempts any claims arising under state law that are based on allegedly inaccurate or erroneous reporting of information and (2) Plaintiff has failed to state any claims on which relief can be grated. (Doc. # 14). Plaintiff does not directly address the preemption issue but counters that her Complaint and First Amended Complaint sufficiently state claims against Defendants. (Doc.# 19). The court explores these different arguments, in turn.

         A. Plaintiff's Negligence and Emotional Distress Claims Are Preempted by the FCRA

         Defendants claim that all of Plaintiff's claims are preempted by the FCRA because “the allegedly inaccurate reporting is the sole basis for all of Plaintiff's claims.” (Doc. # 14 at p. 3-4). Although Plaintiff's negligence, defamation, and emotional distress claims are premised on Synchrony's reporting of information to CRAs, that cannot be said of Plaintiff's discrimination and privacy violation claims. (See Doc. # 1-1 at p. 6-7). Therefore, the court only addresses the potential preemption (based on Synchrony's status as a furnisher of information) of Plaintiff's negligence, defamation, and emotional distress claims.

         As a provider of information to CRAs, Synchrony acts as a furnisher under the FCRA. The FCRA places two main duties on furnishers: (1) a duty to provide accurate information; and (2) a duty to investigate after receiving a notice of dispute. See 15 U.S.C. § 1681s-2. Section 1681s-2(a)(1) of the FCRA prohibits a furnisher of information from providing information to a CRA if it knows or has reasonable cause to believe that the information is inaccurate. Id. ยง 1681s-2(a)(1)(A). Section 1681s-2(a)(1) also prohibits a furnisher of information from reporting information after it has been informed by a consumer that the information is inaccurate (so long as the information is actually ...


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