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Davis v. Equifax Information Services LLC

United States District Court, W.D. Louisiana, Alexandria Division

March 1, 2019

NICHOLAS DAVIS, Plaintiff
v.
EQUIFAX INFORMATION SERVICES LLC, Defendant

          DRELL, JUDGE

          REPORT AND RECOMMENDATION

          JOSEPH H.L. PEREZ-MONTES, UNITED STATES MAGISTRATE JUDGE

         Before the Court is a Motion to Dismiss (Doc. 7) filed by Defendant, Equifax Information Services, LLC (“Equifax”). Equifax seeks dismissal of: (1) Plaintiff Nicholas Davis's (“Davis's”) defamation claim as “preempted” under the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. (the “FCRA”); and (2) Davis's claim under “Section 623” of the FCRA as (a) inapplicable to Equifax, and (b) because it seeks recovery of damages for lost business credit or revenue, which are not recoverable under the FCRA. Davis did not respond to the motion.

         Davis's allegations that Equifax acted with malice or willful intent are broad and brief, but adequate to satisfy the threshold for dismissal under Fed.R.Civ.P. 12(b)(6). Because Davis sufficiently alleges that Equifax acted with malice or willful intent, the FCRA does not preclude Davis's defamation claim. However, Section 623 of the FCRA does not apply to Equifax. And Davis may not recover damages under the FCRA for an inability to obtain business revenue or credit. Therefore, Equifax's Motion to Dismiss (Doc. 7) should be GRANTED IN PART AND DENIED IN PART, and Davis should be ordered to AMEND his complaint to clarify his allegations and remaining claims.

         I. Background

         Equifax is a “consumer reporting agency” (“CRA”) under the FCRA. See 15 U.S.C. § 1681a(f). Davis is an individual resident of Rapides Parish, Louisiana.

         Davis initially sued Equifax in Alexandria City Court. (Doc. 1-2, p. 3). In summary, Davis claims that Equifax willfully refused to remove a fraudulent account from his credit report. (Id.). Because of that alleged refusal, Davis claims that he was damaged, at least in part because he was denied funding from one or more banks for his business. (Id.). Davis's brief petition includes various phrases relating to the FCRA and his alleged injuries, including “defamation, financial injury, willful injury, failure to verify account, ” and “Section 623” of the FCRA. (Id.).

         Equifax maintains - and the Court agrees - that, reasonably interpreted, Davis asserts at least two claims against Equifax, one for defamation and another for violation of Section 623 of the FCRA. Whether Davis's allegations raise other claims, however, is a different matter addressed more fully below. At present, Davis's allegations are limited to a few sentences contained in a one-page handwritten petition filed in Alexandria City Court. Davis has not requested leave to amend.

         Equifax removed (Doc. 1), and then moved to dismiss Davis's claims (Doc. 7). Equifax argues that Davis's defamation claim is “expressly preempted” by the FCRA, and that Davis's FCRA claim does not apply to Equifax as a CRA. Equifax also argues that Davis may not recover damages for lost business loans under the FCRA.

         II. Law and Analysis

         A. Standards governing the Motion to Dismiss.

         A court may grant a motion to dismiss for “failure to state a claim upon which relief can be granted” under Fed.R.Civ.P. 12(b)(6). A pleading states a claim for relief when, inter alia, it contains a “short and plain statement . . . showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).

         “[A] complaint will survive dismissal for failure to state a claim if it contains ‘sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'” Legate v. Livingston, 822 F.3d 207, 210 (5th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)) (internal citation and quotation omitted). “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.” Iqbal, 556 U.S. at 678. The court must view all well-pleaded facts in the light most favorable to the plaintiff. Yumilicious Franchise, L.L.C. v. Barrie, 819 F.3d 170, 174 (5th Cir. 2016).

         Although the court must accept as true all factual allegations set forth in the complaint, the same presumption does not extend to legal conclusions. Iqbal, 556 U.S. at 678. A pleading comprised of labels and conclusions, a formulaic recitation of the elements of a cause of action, or naked assertions devoid of further factual enhancement, will not stand. Id. Similarly, where the well-pleaded facts do not permit the Court to infer more than the mere ...


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