United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. PEREZ-MONTES, UNITED STATES MAGISTRATE JUDGE
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.
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
is a “consumer reporting agency”
(“CRA”) under the FCRA. See 15 U.S.C.
§ 1681a(f). Davis is an individual resident of Rapides
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.).
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.
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.
Law and Analysis
Standards governing the Motion to Dismiss.
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).
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).
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