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COLE v. U.S. CAPITAL

April 30, 2003

ONETA S. COLE, PLAINTIFF,
v.
U.S. CAPITAL, INC.; AUTONATION USA CORPORATION; AND JERRY GLEASON CHEVROLET, INC., DEFENDANTS.



The opinion of the court was delivered by: John W. Darrah, United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Oneta S. Cole ("Plaintiff"), filed a single-count second-amended complaint against Defendants, U.S. Capital, Inc.("U.S. Capital"); AutoNation USA Corporation ("AutoNation"); and Jerry Gleason Chevrolet, Inc. ("Gleason"), alleging violation of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681. U.S. Capital, AutoNation and Gleason (collectively "Defendants") move, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the second-amended complaint for failure to state a claim upon which relief may be granted. For the reasons that follow, Defendants' Motion to Dismiss is granted.

LEGAL STANDARD

When considering a motion to dismiss, well-pleaded allegations in tbe complaint are accepted as true. Turner/Ozanne v. Hyman/Power, 111 F.3d 1312, 1319 (7th Cir. 1997). Any ambiguities in the complaint are construed in favor of the plaintiff Kelly v. Crosfield Catalysts, 135 F.3d 1202, 1205 (7th Cir. 1998). Dismissal is proper only when it appears beyond doubt that plaintiff can prove no set of facts to support the allegations in his or her claim. Strasburger v. Board of Education, 143 F.3d 351, 359 (7th Cir. 1998).

"Although the Federal Rules of Civil Procedure do not require a plaintiff `to set out in detail the facts upon which he bases his claim,'. . . he must `set out sufficient factual matter to outline the elements of his cause of action or claim, proof of which is essential to his recovery.'" Benson v. Cady, 761 F.2d 335, 338 (7th Cir. 1985) (internal citation omitted). A complaint will not avoid dismissal if it contains "bare legal conclusions" absent facts outlining the basis of the claims. Perkins v. Silverstein, 939 F.2d 463, 467 (7th Cir. 1991).

BACKGROUND

Plaintiff previously filed a single count amended complaint against Defendants, alleging Defendants violated the FCRA by accessing her credit report without her consent in early December 2001. Defendants moved to dismiss the amended complaint for failure to state a claim upon which relief may granted. The Court granted Defendants' Motions to Dismiss, holding that Defendants had obtained Plaintiffs credit report for a permissible purpose under the FCRA, namely the extension of a "firm offer of credit." Cole v. U.S. Capital, Inc., (Cole I), No. 02 C 1858, 2002 WL 31415736, at *4 (N.D. Ill. Oct. 24, 2002). The Court further noted that "Plaintiffs argument that a $300.00 credit line is too paltry a sum to he a `firm offer of credit' is unpersuasive. The complaint does not allege the $300.00 credit line to be a sham nor is any such inference present in the mailing." Cole I, 2002 WL 31415736, at *4,

Plaintiff then moved for reconsideration of the Court's Order, arguing that (1) the Court failed to address her principal argument that no offer was made because the terms were insufficient to permit acceptance and that the offer was inherently ambiguous, (2) the offer was not "clear and conspicuous", and (3) the offer of a credit line of $300.00 or more was too small to constitute a "firm offer of credit". The Court denied Plaintiff's Motion for Reconsideration because it "merely restate[d] arguments previously rejected by the Court" and granted Plaintiff leave to file a second amended complaint instanter. Cole v. U.S. Capital, Inc., (Cole II), No. 02 C 1858, 2003 WL 151946, at *1 (N.D. Ill. Jan. 21, 2003).

The second-amended complaint contains the following allegations which are taken as true for purposes of consideration of this Motion to Dismiss.

Plaintiff is a citizen of Illinois. U.S. Capital is a corporation located in Huntington Beach, California. AutoNation is a Florida corporation that directly or indirectly owns or is affiliated with car dealerships throughout the United States, including Illinois. Gleason is an Illinois corporation that operates a car dealership in Forest Park, Illinois, and is an affiliate of AutoNation.

In early December 2001, Plaintiff received a promotional credit card, a flyer, and an envelope in the mail. Plaintiff had not requested a credit card, and it was not a replacement for arty other credit card Plaintiff had. The flyer stated that the sender had accessed Plaintiff's credit report. Plaintiff had not authorized anyone to access her credit report.

The flyer that was mailed to Plaintiff is attached as Exhibit A to the amended complaint.*fn1 The flyer states, in part:

Due to recent improvements in your credit history, you have been pre-approved to participate in an exclusive offer from U.S. Capital and Jerry Gleason Chevrolet. This is your opportunity to receive a Visa or MasterCard with limits up to $2,000 as well as up to $19,500 in AUTOMOTIVE CREDIT! Due to the nature of this offer you must respond before Saturday, December 8, 2001! ACTIVATE NOW IN TIME FOR HOLIDAY SHOPPING!
MAKE NO PAYMENTS UNTIL 2002!
PLUS . . . your pre-approved auto loan status allows you to CHOOSE FROM A NEW OR PRE-OWNED VEHICLE . . . the choice is yours! Jerry Gleason Chevrolet, part of a national automotive retail chain, has THOUSANDS OF VEHICLES TO CHOOSE FROM. Nearly EVERY MAKE & MODEL is available to you! And as part of this promotion you can ...

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