The opinion of the court was delivered by: JAMES J. BRADY, District Judge
Before the court is defendant's motion to dismiss the amended
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the
following reasons, the motion is granted.
The following facts, taken from plaintiffs' amended complaint, are
accepted as true for purposes of this motion. Plaintiff's Robert J.
Schaffner and Nancy A. Schaffner own the corporate co-plaintiff
Imaginative Graphics, Inc. ("Imaginative"). Plaintiff's obtained a
business loan from Amalgamated Bank of Chicago ("Amalgamated Bank"),
which is not a party to this action. In the summer of 2001, plaintiffs
applied for additional financing from Amalgamated Bank. The financing was
delayed and ultimately denied, in part because of adverse credit
information reported by defendant
U.S. Bank N.A. ("U.S. Bank") to one or more of the major credit
bureaus. Attached to the amended complaint as Exhibit A is a document
titled "Underwriting Findings," which lists the adverse information as
one of the reasons for the denial of additional financing.
The adverse credit information related to a residential mortgage loan
that the Schaffners had obtained from U.S. Bank's predecessor. Payments
were made on time, and the loan was paid in full on April 16, 1999. U.S.
Bank, however, reported that the Schaffners had made late payments and
that the loan had been placed in collection or foreclosure. U.S. Bank
sent this misinformation to the major credit bureaus electronically; the
bureaus then sent the misinformation to Amalgamated Bank.
On September 9, 2002, shortly after the Underwriting Findings were
issued, U.S. Bank acknowledged its error and sent the credit bureaus a
"Universal Data Form" requesting that the bureaus "[r]emove all late
payments and the `collection' remarks" and indicating that the
residential mortgage loan had been paid in full in April 1999. (Amended
Complaint, Ex. B, Universal Data Form.)
As a result of the denial of their application for additional business
financing, plaintiffs were unable to pay Imaginative's bills during its
slow season. In addition, the Schaffners suffered distress and were
unable to pay their own salaries.
In November 2002, plaintiffs filed the instant action against U.S.
Bank. The complaint later was amended to cure a defect in its
jurisdictional allegations. Count I of the amended complaint alleges that
U.S. Bank's publication of false credit information defamed the
Schaffners. Count II, which is asserted by all plaintiffs, is a tortious
interference with economic advantage claim.
Defendant now moves to dismiss the complaint.
The purpose of a 12(b)(6) motion to dismiss is to test the sufficiency
of the complaint, not to resolve the case on the merits. 5A Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure
§ 1356, at 294 (2d ed. 1990). Dismissal is appropriate only if "`it
is clear that no relief could be granted under any set of facts that
could be proved consistent with the allegations.'" Ledford v.
Sullivan, 105 F.3d 354, 356 (7th Cir. 1997) (quoting Hishon v.
King & Spalding, 467 U.S. 69, 73 (1984)).
One of U.S. Bank's arguments is that plaintiffs' defamation claim is
preempted by § 1681h(e) of the Fair Credit Reporting Act ("FCRA"),
which provides in relevant part:
Except as provided in sections 1681n and 1681o of
this title, no consumer may bring any action or
proceeding in the nature of defamation, invasion
of privacy, or negligence with respect to the
reporting of information against . . . any person
who furnishes information to a
consumer reporting agency . . . based on
information disclosed by a user of a consumer
report to or for a consumer against whom the user
has taken adverse action, based in whole or ...