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PODELL v. CITICORP DINERS CLUB

July 26, 1994

GARY A. PODELL, Plaintiff,
v.
CITICORP DINERS CLUB, INC.; CITICORP CREDIT SERVICES, INC.; NISSAN MOTOR ACCEPTANCE CORPORATION; SALON FURNITURE CO.; TRW, INC.; TRANS UNION CORPORATION; EQUIFAX, INC., Defendants.


HAIGHT, JR.


The opinion of the court was delivered by: CHARLES S. HAIGHT, JR.

HAIGHT, District Judge:

 Plaintiff, Gary A. Podell ("Podell"), brought this action against defendants Citicorp Diners Club, Inc. ("Diners Club"), Citicorp Credit Services, Inc. "Credit Services"), Nissan Motor Acceptance Corporation ("Nissan"), Salon Furniture Co. ("Salon"), TRW, Inc. ("TRW"), Trans Union Corporation ("Trans Union"), and Equifax, Inc. ("Equifax"), seeking damages under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and additionally under state statutory and common law. Podell alleges that this Court has supplemental jurisdiction over his state claims.

 Diners Club and Credit Services have moved to dismiss, asserting that all the claims in the complaint fail to state a claim for which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6) and that this Court lacks subject matter jurisdiction over the state claims pursuant to Fed.R.Civ.P. 12 (b)(1) *fn1"

 For the reasons discussed below, defendants' motion to dismiss is granted.

 I. THE COMPLAINT

 Podell's complaint alleges that on or about March, 1992, an unknown third party illegally obtained credit cards in his name from Diners Club and Credit Services, made purchases with these cards from Nissan and Salon, and never paid the ensuing debts. During this time, the complaint alleges, Diners Club, Credit Services, Nissan, and Salon reported this payment failure to three credit reporting agencies, TRW, Inc., Trans Union Corp., and Equifax, Inc. Podell's complaint further alleges that on or about March, 1992, Diners Club sued him to collect the debt and gave notice of the suit to the three credit reporting agencies.

 Podell's complaint contends that all three credit reporting agencies published reports that he had failed to pay the debt and that Diners Club had commenced a suit against him. On or about April, 1992, the complaint alleges, Podell notified Diners Club, Credit Services, Nissan, and Salon that he did not accumulate the debt; Diners Club discontinued its lawsuit; and all four companies agreed to request that the credit reporting agencies remove the derogatory reports. The complaint lastly alleges that the agencies have not yet removed the reports.

 Podell's complaint contains eight causes of action. Podell first claims that all defendants violated the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681. He asserts that by willfully and negligently failing to comply with the requirements of FCRA, defendants are liable under § 1681n (first cause of action) and § 16810 (second cause of action), respectively.

 The remainder of the complaint states six state law causes of action. Podell contends that all defendants violated N.Y.S. General Business Law § 349, which prohibits deceptive acts and practices by businesses. Podell also asserts the following state common law claims: negligent infliction of emotional distress; intentional infliction of emotional distress; defamation; prima facie tort; and negligence.

 Diners Club and Credit Services argue that this Court should dismiss Podell's § 1681 claims as lacking legal sufficiency pursuant to Fed.R.Civ.P. 12(b)(6) and; consequently, dismiss his supplemental state claims as lacking subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). For the reasons discussed below, I agree.

 II. THE FAILURE OF PODELL'S FEDERAL CLAIMS

 1. The Rule 12(b)(6) motion

 A lineal descendent of the common law general demurrer, Curacao Trading Co., Inc., v. William Stake & Co., Inc., 61 F. Supp. 181, 184 (S.D.N.Y., 1945), the Rule 12(b)(6) motion to dismiss for "failure to state a claim upon which relief can be granted" illustrates the evolution of modern federal practice away from burdensome, technical pleadings toward adjudication of cases on their merits. In considering Rule 12(b)(6) motions, courts should remain faithful to the liberal nature of the modern federal rules of procedure and guard against the use of the ...


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