The opinion of the court was delivered by: ASPEN
MARVIN E. ASPEN, Chief Judge:
"What's in a name?"
Unluckily for Plaintiff Michael Stevenson, he shares the same name with a three-time convicted felon. According to the First Amended Complaint, when the plaintiff's employer, Northwestern Memorial Hospital, asked credit reporting agency Employers Mutual Association (EMA) to do criminal background checks on the hospital's employees, Stevenson was wrongly identified as the felon and suspended from his job. Now, the plaintiff brings this action against Northwestern, two hospital executives, and EMA and its president, David Schlack. In the amended complaint, Counts 1 and 2 allege that EMA and Schlack violated the Fair Credit Reporting Act (FRCA), 15 U.S.C. §§ 1681 n, 1681 o, Count 3 maintains that EMA and Schlack committed libel, and Count 4 alleges that Northwestern and its executives slandered the plaintiff. Presently before this court is EMA and Schlack's motion to dismiss.
For the reasons set forth below, we deny the motion, and furthermore order EMA and Schlack's attorney to show cause why sanctions should not be imposed.
1. Count I of the Plaintiff's submitted complaint alleges negligent non-compliance with the Fair Credit Reporting Act, under § 1681 of the Fair Credit Reporting Act. Since Count I does not allege malice or willful noncompliance it must be stricken.
2. § 1681 h.(2)(e) provides that no consumer may bring an action or 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, based on information disclosed pursuant to § 609, § 610, or § 615, except as to false information furnished with malice or willful intent to injure such consumer.
Defs.' Reply at 1 (emphasis in original). That is the entirety of the reply brief's discussion. Similarly, in the defendants' opening brief, 15 U.S.C. § 1681 h (e) is block quoted, beginning with "No consumer may bring. . . ." Defs.' Br. at 1 (purporting to block quote § 1681 h (e)).
The paraphrase and quotation omit the critical opening clause of the preemption provision: "Except as provided in sections 1681 n and 1681 o of this title, no consumer may bring any action. . . ." § 1681 h (e). Both the original complaint and the First Amended Complaint expressly ground Count 1 in § 1681 o. Compl. P 75; First Am. Compl. P 75. Section 1681 o provides in pertinent part:
§ 1681 o. Civil liability for negligent noncompliance
Any consumer reporting agency or user of information which is negligent in failing to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of . . . .
EMA and Schlack fail to proffer any reasoning or legal authority explaining how § 1681 h (e) could form the basis for dismissing a § 1681 o claim in light of the opening clause of § 1681 h (e). Indeed, the only case cited in the defendants' briefing actually refers to the statutory negligence claim. Watson v. Credit Bureau, Inc., 660 F. Supp. 48, 50 (S.D. Miss. 1986). At the risk of stating the obvious, no allegation of malice or willfulness is required for a statutory negligence claim under § 1681 o.
As for the defendants' arguments that were made in the opening brief but are absent from the reply brief, we would reject those arguments even if not abandoned. A motion to dismiss should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). We must also take as true the well-pleaded factual allegations of the complaint and attached exhibits, and view the allegations as well as reasonable inferences drawn from them, in the light most favorable to the plaintiff. Cornfield v. Consolidated High Sch. Dist. 230, 991 F.2d 1316, 1324 (7th Cir. 1993); Webster v. New Lenox Sch. Dist. 122, 917 F.2d 1004, 1005 (7th Cir. 1990). First, EMA and Schlack challenged ...