United States District Court, N.D. Alabama, Southern Division
AMENDED MEMORANDUM OPINION AND ORDER
ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE.
matter is before the court on Credit Bureau Systems,
Inc.'s ("CBS") motion to dismiss. (Doc. 34).
Plaintiff Kaori Scherer brings this action under the Fair
Credit Reporting Act ("FCRA"), the Fair Debt
Collection Practices Act ("FDCPA"), and various
state law theories. (Doc. 32). Ms. Scherer's claims arise
out of CBS's alleged reporting of inaccurate information,
related to her delinquent water and sewer services account
with the Water Works Board of the City of Birmingham
("BWWB"). (Id. at 3-5). In its motion to
dismiss, CBS argues that Counts I, II, III, IV, and VII of
Ms. Scherer's amended complaint should be dismissed
because they fail to state a claim under Rule 12(b)(6). (Doc.
34 at 1). The motion has been fully briefed and the issues
are ripe for review. (Doc. 37; Doc. 39). For the reasons
explained below, the court WILL GRANT the
motion and WILL DISMISS Counts I, II, III,
IV, and VII against CBS.
STANDARD OF REVIEW
to Rule 8(a)(2), a complaint must contain "a short and
plain statement of the claim showing that the pleader is
entitled to relief." Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6)
enables a defendant to move to dismiss a complaint for
"failure to state a claim upon which relief can be
granted." Fed.R.Civ.P. 12(b)(6).
survive a motion to dismiss, a complaint must "state a
claim to relief that is plausible on its face."
BellAtl. 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." Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). 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. A complaint need not
contain detailed factual allegations, but a complaint must
contain "more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do." Twombly, 550 U.S. at 555.
resolving a motion to dismiss, the court must "accept
the allegations in the complaint as true and constru[e] them
in the light most favorable to the plaintiff."
Miljkovic v. Shafritz & Dinkin, P.A., 791 F.3d
1291, 1297 (11th Cir. 2015) (quoting Hill v. White,
321 F.3d 1334, 1335 (11th Cir. 2003) (per curiam)).
facts of this case are relatively simple. In the light most
favorable to Ms. Scherer, they are as follows. In April 2014,
Ms. Scherer was in the process of purchasing a home in
Vestavia, Alabama. (Doc. 32 at 3). Ms. Scherer established a
water and sewer services account with BWWB to inspect the
property prior to closing. (Id.). This was Ms.
Scherer's first and only account with BWWB as to this
property. (Id.). Upon purchasing the home in June
2014, Ms. Scherer claims that she continued to pay her
monthly bill as each invoice became due. (Id.).
However, sometime after purchasing the home, Ms.
Scherer's account was referred by BWWB to CBS for
collection of an outstanding balance. (Id.).
2016, CBS began collection activities against Ms. Scherer by
reporting the debt to various credit bureaus, including
Equifax and Experian Information Services, Inc.
("Experian"). (Id. at 3-4). Ms. Scherer
maintains that BWWB incorrectly attributed the balance to her
account because the account became delinquent in April
2014-two months before she purchased the property.
(Id. at 2-3). Despite attempting to resolve the
dispute with CBS, Equifax, and Experian, respectively, Ms.
Scherer's efforts ultimately proved unsuccessful.
(Id. at 3-5). On October 20, 2016, IberiaBank
informed Ms. Scherer that the disputed debt remained on her
credit file and negatively affected her ability to secure a
favorable financing offer. (Id. at 4-5). Ms. Scherer
claims that as a result of CBS's wrongful conduct,
"[she] suffered damage[s] including but not limited to
loss of credit, loss of the ability to purchase and benefit
from credit as well as mental and emotional pain and anguish,
humiliation and embarrassment." (Id. at 10).
to resolve the disputed debt, Ms. Scherer filed this action
against Defendants CBS, Equifax, and BWWB on January 24,
2018. (Doc. 1 at 1-2). In the complaint, Ms. Scherer asserts
state law claims including negligent, reckless, and wanton
debt collection activities; and negligent, reckless, and
wanton training and supervision. (Doc. 1 at 5-11). Ms.
Scherer also presents claims for violations of the FDCPA, 15
U.S.C. §§ 1692 et seq., and the FCRA, 15
U.S.C. §§ 1681 et seq. (Doc. 1 at 9-11).
On August 22, 2018, Ms. Scherer amended the complaint to
include additional facts with respect to the same allegations
and claims in the initial complaint, but in all other
respects the two are identical. (Doc. 1; Doc. 32).
motion, CBS argues that Ms. Scherer's state law claims
for negligent debt collection activities (Count I), reckless
and wanton debt collection activities (Count II), negligent
training and supervision (Count III), and reckless and wanton
training and supervision (Count IV) are due to be dismissed
because they are preempted by the FCRA (Count VII). (Doc. 34
at 6-11). Ms. Scherer agrees and "concedes to the
dismissal of her state law claims against Defendant
CBS." (Doc. 37 at 2-3). Accordingly, the court finds
that Ms. Scherer has abandoned these claims and WILL
DISMISS Counts I-IV of the amended complaint against
also argues that Ms. Scherer's claim for violations of
the FDCPA (Count VII) should be dismissed as time-barred.
(Doc. 34 at 5-6). The court agrees. Dismissal based on a
statute of limitations defense "may be raised in a
motion to dismiss for failure to state a claim for which
relief can be granted under Fed. R. Civ. P, 12(b)(6), when
failure to comply with the statute of limitations is plain on
the face of the complaint." Foster v. Savannah
Comm., 140 Fed.Appx. 905, 907 (11th Cir. 2005) (citing
AVCO Corp. v. Precision Air Parts, Inc., 676 F.2d
494, 495 (11th Cir. 1982)). Under the FDCPA, Ms.
Scherer's claim is subject to a one-year statute of
limitations. 15 U.S.C. § l692k(d) (An action to enforce
any liability under the FDCPA "may be brought. . .
within one year from the date on which the violation
Scherer alleges that her injury occurred sometime after the
BWWB account became delinquent in April 2014. (Doc. 32 at
3-4). And she acknowledges that the limitations period ran on
January 24, 2018. (Doc. 37 at 6-7). Therefore, the court
finds that any claims arising from: (1) CBS's reporting
of the alleged debt on Ms. Scherer's credit file with
Equifax and Experian in June 2016 (doc. 32 at 3-4), and (2)
the resulting unfavorable financing ...