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Ahmed v. Bank of America

September 24, 2010


The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge


Plaintiff Mukta Ahmed brings this action against FIA Card Services, N.A. s/h/a Bank of America ("FIA") for what appear to be claims of negligence and defamation. Defendant moves to dismiss this action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, the motion is granted.

I. Background

The following allegations are taken from the Verified Complaint and are assumed to be true for the purposes of the current motion. Plaintiff maintained various credit cards with defendant FIA. (Compl. ¶ 3.) In September 2007, plaintiff received a credit card statement for account number 4888 9310 3693 0589, which displayed allegedly fraudulent charges. Plaintiff contends that he did not make these charges, nor did his family or any other authorized users. (Id. ¶ 4.) Plaintiff notified defendant of the alleged fraud and filed a report with the New York City Police Department in compliance with instructions from defendant. Plaintiff contends that, while he was at the police station, he lost the credit card on which the disputed charges were allegedly made. (Id. ¶¶ 5-6, 8.) Plaintiff also "made an affidavit regarding these fraudulent charges on defendant's form for fraudulent activity." (Id. ¶ 7.) Plaintiff noted that he remained in possession of the credit card the entire period of fraudulent activity. (Id.)

Defendant issued a replacement credit card, which according to plaintiff's complaint carried the card number 4888 9310 3693 0589-the same number as the credit card allegedly lost at the police station. (Id. ¶ 9.) Plaintiff contends that, in December 2007, he received a statement for card number 4888 9310 3618 0623.*fn1 (Id. ¶ 10.) The December statement gave fraud adjustment credits for all the alleged fraudulent charges appearing on the September 2007 statement. (Id.) However, the alleged fraudulent charges reappeared on plaintiff's January 2008 statement along with notice of an interest rate increase. (Id. ¶ 11.) The charges continue to appear on all subsequent statements with accumulated interest. (Id. ¶¶ 11-12.) Despite numerous communications with the defendant regarding these charges, plaintiff has been unsuccessful in his efforts to have them removed, and it appears that plaintiff has refused to pay the amount due. (Id. ¶ 14.) Plaintiff claims that, as a result of the fraudulent charges, defendant reported his payment delinquency to various credit reporting agencies. Plaintiff alleges that Citibank, N.A., which is not party to this action, received reports regarding plaintiff from two credit reporting agencies, and, as a result, has stopped all further credit on an account maintained by plaintiff. (Id. ¶¶ 15-16.)

Plaintiff filed the instant action on May 14, 2009. Plaintiff's complaint does not set forth within any reasonable bounds of specificity any immediately recognizable claims. Indeed, plaintiff fails to provide the name of any causes of action he is intending to assert. The court construes his allegations as claims of negligence and defamation, even though plaintiff is represented by counsel and, thus, his pleadings are not entitled to the "less stringent standards than formal pleadings drafted by lawyers." Ericson v. Pardus, 551 U.S. 89, 94 (2007).

II. Discussion

A. Standard of Review

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The pleading standard under Rule 8 does not require "detailed factual allegations," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), "but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). A complaint does not "suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557). A plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do. Twombly, 550 U.S. at 555. On a Rule 12(b)(6) motion, the court must accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the nonmoving party. Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 776 (2d Cir. 2002).

B. The Fair Credit Reporting Act Preempts Plaintiff's Claims

The Fair Credit Reporting Act ("FCRA") is designed in part to promote and ensure the accuracy and privacy of the information used in consumer credit reports by furnishers of information and credit reporting agencies.*fn2 See 15 U.S.C § 1681(a). The FCRA contains two provisions providing for the preemption of state law claims. First, 15 U.S.C. § 1681h(e) provides:

Except as provided in sections 1681n and 1681o, no consumer may bring any action for proceeding in the nature of defamation, invasion of privacy, or negligence with respect to the reporting of information against any consumer reporting agency, any user of information, or any person who furnishes information to a consumer reporting agency... except as to false information furnished with malice or willful intent to injure such customer.

15 U.S.C. § 1681h(e). Second, 15 U.S.C. § 1681t(b)(1)(F) provides: No requirement or prohibition may be imposed under the laws of any State... with respect to any subject matter regulated under... section 1681s-2, relating to the responsibilities of persons who furnish information to consumer reporting agencies, except that this paragraph shall not apply [to specific sections of the Massachusetts Annotated Laws and the California Civil Code].

15 U.S.C. § 1681t(b)(1)(F). It would appear that § 1681t(b)(1)(F), enacted in 1996, swallows whole any exception provided for in § 1681h(e). Indeed, the former seems to stand for total preemption of any state law claim stemming from a dispute between consumers and furnishers of information. See Fashakin v. Nextel Communs., 2006 WL 1875341, at *6 (E.D.N.Y. July 5, 2006). Therefore, "[d]etermining whether plaintiffs can proceed with any common law claims requires examining the two 'overlapping and potentially contradictory preemption provisions... which limit the circumstances under which [plaintiffs] may bring [their] state common law claims.'" Kane, 2005 WL 1153623, at *6 (quoting Stafford v. Cross Country Bank, 262 F. Supp. 2d 776, 784 (W.D. Ky. 2003)). The Second Circuit has not yet addressed the effect of these provisions on the FCRA's preemption of ...

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