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Clarke v. Trans Union, LLC

United States District Court, Southern District of New York

November 3, 2014


For Ralston Clarke, Plaintiff: Osita Emmanuel Okocha, New York, N.Y. USA.

For Trans Union, LLC, Defendant: Camille Renee Nicodemus, Justin T. Walton, Schuckit & Associates, P.C., Zionsville, IN USA.

For Experian Information Solutions Inc., Defendant: Jennifer Kathleen Messina, Vanessa Adriana Nadal, LEAD ATTORNEYS, NY-Jones Day, New York, N.Y. USA.

For Equifax Credit Information Services LLC, Defendant: Christina Marie Conroy, LEAD ATTORNEY, King & Spalding LLP (NYC), New York, N.Y. USA.

For Lvnv Funding, LLC, Defendant: Concepcion A. Montoya, Theresa Concepcion, Hinshaw & Culbertson LLP, New York, N.Y. USA.

For Midland Funding, LLC, Defendant: Richard David Lane, Marshall Dennehey Warner Coleman & Goggin, New York, N.Y. USA.


Colleen McMahon, United States District Judge.

Plaintiff Ralston Clarke (" Clarke"), brings this action against Defendants Trans Union, LLC (" Trans Union"), Experian Information Solutions Inc. (" Experian"), Equifax Credit Information Services LLC (" Equifax"), HSBC Bank, N.A. (" HSBC"), Bank of America (" BOA"), [1] LVNV Funding, LLC (" LVNV"), Midland Funding, LLC (" Midland"), Sears aka Citibank CBNA (" Sears"), Shell aka CBNA (" Shell"), and Verizon Wireless (" Verizon, " and together with Trans Union, Experian, Equifax, HSBC, BOA, LVNV, Midland, Sears and Shell, the " Defendants"). Clarkes seeks declaratory and injunctive relief, and actual, statutory and punitive damages, as well as attorney's fees, pursuant to the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq . (" FCRA"), the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq . (" FDCPA"), and the New York Fair Credit Reporting Act, N.Y. Gen. Bus. L. § § 380 (" NYFCRA"). Clarke also seeks actual and punitive damages for defamation, and negligent and intentional infliction of emotional distress.

Currently before the Court is Defendant LVNV's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) and Fed.R.Civ.P. 12(c). For the following reasons, LVNV's motion is granted in part and denied in part.


For the purposes of this motion, I am setting forth Clarke's version of events, which at this point I presume to be true.

Clarke's name closely resembles his son's. Compl. ¶ 2. Flowever, Clarke and his son have two separate and distinct credit histories. See id. ¶ 2-3. Accordingly, when Clarke discovered that his credit report contained inaccurate information, he suspected that his credit files were mixed with those of his son's. Id. ¶ 3.

The inaccurate information contained on Clarke's credit report caused his credit score to suffer. Clarke has since felt the (unsurprising) consequences of a low credit score: he cannot obtain credit, he cannot obtain loans or make investments to increase his wealth, and his reputation has been tarnished. Id. ¶ 4.

Clarke notified the Defendants about the inaccurate information contained in his credit report on several occasions, but no corrections were made. Id. ¶ 6. Clarke alleges that the Defendants " failed to follow reasonable procedures to assure maximum possible accuracy when furnishing credit reports purportedly concerning [Clarke], " and " repeatedly issu[ed] credit reports to various third parties, purportedly pertaining to [Clarke], which contained an erroneous tradeline entry which did not legitimately belong to [Clarke], despite having received actual notices, on repeated occasions, that such entry was not his or was otherwise inaccurate." Id. ¶ ¶ 7-8.

On May 3, 2013, Clarke filed a ten-count Complaint against the Defendants. In this opinion, however, I address only those claims asserted against LVNV, as LVNV is the only moving party.

LVNV is a debt collection agency, authorized to do business in New York as a foreign corporation. Id. ¶ 59. It engages in the business of debt collection, and reports consumer credit information to credit reporting agencies. Id. According to Clarke, in the section of his Complaint titled " Facts Relating to LVNV, LLC, " LVNV " reported inaccurate information about [Clarke] of a purported debt of about $3, 054 after it had been notified of mixed files and attempted to collect the false and non-existent debt." [2] Id. ¶ 41.

Clarke alleges that LVNV violated certain provisions of the FCRA (Count One and Two) and the FDCPA (Count Seven). He also asserts claims against LVNV for defamation (Count Eight), and intentional and negligent infliction of emotional distress (Count Nine). Finally, he seeks a declaratory judgment pursuant to 28 U.S.C. § 2201 (Count Ten).

LVNV moved to dismiss Clarke's Complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted, and Rule 12(c) for judgment on the pleadings.


" The standard for evaluating a motion to dismiss pursuant to Rule 12(c) is the same as that under Rule 12(b)(6)." Scaglione v. Chappaqua Cent. Sch. Dist., 209 F.Supp.2d 311, 312 (S.D.N.Y. 2002); see Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998). In evaluating a motion to dismiss pursuant to Rule 12(b)(6) (and hence Rule 12(c)), the Court must liberally construe all claims, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Cargo Partner AG v. Albatrans, Inc., 352 F.3d 41, 44 (2d Cir. 2003); Roth v. Jennings, 489 F.3d 499, 510 (2d Cir. 2007).

However, to survive a motion to dismiss pursuant to Rule 12(b)(6), " a complaint must contain sufficient factual 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929, (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." Id. (citing Twombly, 550 U.S. at 556). " While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief requires 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 (internal quotations, citations, and alterations omitted). Thus, unless a plaintiff's well-pleaded allegations have " nudged [its] claims across the line from conceivable to plausible, [the plaintiff's] complaint must be dismissed." Id. at 570; see also Iqbal, 556 U.S. at 680.


I. Clarke stated cognizable FCRA claims against LVNV.

In Counts One and Two. Clarke asserts claims against LVNV under FCRA § 1681s-2(b). Compl. ¶ ¶ 68. 72. LVNV's motion to dismiss Clarke's FCRA claims is denied.

The FCRA was enacted " to require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information." 15 U.S.C. § 1681b. The FCRA " places distinct obligations on three types of entities: consumer reporting agencies, users of consumer reports, and furnishers of information to consumer reporting agencies." Redhead v. Winston & Winston, P.C., No. 01-CV-11475, 2002 WL 31106934, at *3 (S.D.N.Y. Sep. 20, 2002); see 15 U.S.C. § 1681 et seq .

Clarke alleges in his complaint that LVNV is a " furnisher of information" under the FCRA. Compl. ΒΆ 17. LVNV does not dispute this. Def.'s Mem. at 4. Thus, LVNV must comply with those duties imposed upon " furnishers of ...

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