ZIMMERMAN v. BANK OF AMERICA (N.D.Miss. 7-10-2008)


CASE NO. 1:07CV294.United States District Court, N.D. Mississippi, Eastern Division.
July 10, 2008

MICHAEL MILLS, District Judge

This cause comes before the court on Bank of America’s motion to dismiss for failure to state a claim upon which relief can be granted [6]. While a complaint attacked by a Rule 12(b)(6) motion does not need detailed factual allegations, a plaintiff’s obligation to provide the “grounds” of his “entitlement to relief” requires more than labels and conclusions. Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1964-65, 167 L.Ed. 2d 929 (2007) (internal citations omitted). In order to survive a motion to dismiss, the plaintiff, while not required to provide a heightened fact pleading of specifics, must plead enough facts in the complaint to state a claim for relief that is plausible on its face. Id. at 1974. . . . [O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint Id. at 1969.

Donald Zimmerman’s complaint alleging a violation of the Fair Credit Reporting Act (“FCRA”) codified at 15 U.S.C. § 1681, et seq. was removed to this court on November 11, 2007. Zimmerman alleges that through a consumer credit reporting agency he began an investigation of a Bank of America account in his name reporting as a “charge off.” He further states that Bank of America continues to incorrectly report the existence of this account following the investigation. Bank of America’s motion to dismiss rests on two grounds: that

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Zimmerman (1) does not have a private right of action under the FCRA and (2) failed to allege prerequisites required by the FCRA.[1]
Section 1681s-2(b) imposes duties on furnishers of informationto investigate disputed information and report the results of anysuch investigation to the consumer reporting agency.15 U.S.C. § 1681s-2(b). The plain language of the FCRA imposes civilliability on “any person” violating a FCRA duty unless someexception applies. Section 1681s-2(c) provides exceptions tocivil liability for failure to comply with 15 U.S.C § 1681s2(a)and 15 U.S.C. § 1681s-2(c). Nothing in this section precludes aprivate right of action for violation of the investigation andreporting requirements of 15 U.S.C. § 1681s-2(b). Additionally,Fifth Circuit courts have consistently held that15 U.S.C. § 1681s-2(b) allows for a private cause of action against”furnishers of information.” See e.g. Kennedy v. Victoria SecretStore’s Inc., 2004 WL 2186613 at *3 (E.D. La. September 29,2004); Thompson v. Electronic Transaction Corp., 2000 WL 33907674at *5-6 (N.D. Miss. March 30, 2000). This court finds that aprivate right of action exists under 15 U.S.C. § 1681s-2(b).
Bank of America’s second contention is that Zimmerman failed toallege prerequisites necessary for liability under the FCRA.Specifically, Bank of America states that Zimmerman’s complaintlacks an allegation that the bank received notice from a consumerreporting agency triggering its duties under the statute.
The Rules of Civil Procedure require that a complaint and itsallegations be construed “to do substantial justice.”Fed.R.Civ.P. 8(f). A court must accept as true all

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well plead non-conclusory allegations and must liberallyconstrue the complaint in favor of the plaintiff. Lowrey v. TexasA M Univ. Sys., 117 F.3d 242, 246-247 (5th Cir. 1997). However,conclusory allegations, unwarranted deductions of fact, or legalconclusions masquerading as factual allegations will not preventthe granting of a motion to dismiss. See Fernandez-Montes v.Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993). Underthis system, it is the duty of the pleador to put an opposingparty on notice of the claims against them. This notice can begiven by explicitly setting out the type of claim asserted or byputting forth each element of a claim. Patterson v. Spellings,249 Fed. Appx. 993, 996 (5th Cir. 2007).
Courts are divided as to the pleading requirements with respectto 15 U.S.C. § 1681s-2(b). There is authority that an action canbe maintained only if a plaintiff pleads the element ofnotification with certainty. See e.g. Howard v. Blue Ridge Bank,371 F. Supp. 2d 1139 (N.D. Cal. 2005); Densmore v. General MotorsAcceptance Corp., 2003 WL 22220177 (N.D. Ill. September 25,2003). Alternatively some courts hold that a plaintiff is notrequired to plead with certainty that such notification wasgiven. See e.g. Varnado v. Trans Union, LLC, 2004 WL 1093488(N.D. Ill. April 29, 2004); Jaramillo v. Experian InformationSolution, Inc., 155 F. Supp. 2d 356 (E.D. Pa. 2001). However,each of these courts has held that the element of notice must beincluded within the complaint.
Bank of America owed no duty to Zimmerman unless they receivednotice. Zimmerman fails to allege notice in his complaint. Hesimply assumes this prerequisite element. Additionally, Zimmermanfails to state which section of the FCRA serves as the basis ofhis complaint. The court finds nothing in the FCRA which requiresa heightened pleading standard. However, all complaints must putthe opposing party on notice of the

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specific cause of action they must defend. By neither statingthe specific provision under which he moves or stating theelements of that provision, Zimmerman’s complaint fails toprovide sufficient notice and is defective.
While the complaint in this case is defective, it can be curedwith only a minimum of additional facts. Federal Rule of CivilProcedure 15(a)(2) allows a party to amend its pleading with thecourt’s leave. The rule states that courts “should freely giveleave when justice so requires.” Fed.R.Civ.P. 15(a)(2). As theparties have spent more than eight months moving through casepreparation and discovery it would be burdensome to theplaintiff, economically inefficient for both parties, and a wasteof judicial resources to dismiss the case at this juncture. Thiscourt will give Zimmerman leave to cure the deficiencies in hiscomplaint. Failure to do so in a timely manner will ripen amotion to dismiss.
Bank of America’s motion to dismiss is DENIED and Zimmerman’srequest for fifteen days to file an amended complaint is GRANTED.

[1] Bank of America also raises the issue that their investigation was reasonable as a matter of law. This issue is improper in a Rule 12(b)(6) motion and should be dealt with at the summary judgment stage.