United States District Court, N.D. Alabama, Western Division
DAVID PRO'CTOR UNITED STATES DISTRICT JUDGE
case is before the court on Defendants' Motion to Dismiss
Plaintiff's Complaint and Amended
Complaint. (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.
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).
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
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.).
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.).
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.
Standard of Review
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.
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.
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.
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.
Plaintiff's Negligence and Emotional Distress Claims Are
Preempted by the FCRA
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.
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. § 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 ...