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James Novak v. Experian Information Solutions

February 25, 2011


The opinion of the court was delivered by: Judge Robert M. Dow, Jr.


Before the Court is Defendant American Electric Power Service Corporation's ("AEP") motion to dismiss Counts I and IV of Plaintiff's complaint for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). [7] For the reasons stated below, AEP's motion to dismiss [7] is granted, but the dismissal is without prejudice.

I. Background*fn1

In 2007, Plaintiff James Novak ("Plaintiff") became aware that his credit file prepared and maintained by Defendant Experian ("Experian") -- a consumer reporting agency -- and the file of another consumer, "James Smith," had been "mixed." Plaintiff spoke with an Experian agent by phone and informed the agent that Plaintiff's and James Smith's files had been conflated. The agent informed Plaintiff that Experian would correct the error and issue a new credit report in 30-45 days. Experian then sent Plaintiff an updated credit report in which the information pertaining to James Smith's file had been deleted. However, in 2009, Experian once again mixed Plaintiff's and James Smith's files. A fraud alert was then placed on Plaintiff's credit file.

Plaintiff alleges that Experian permitted Defendant AEP -- a utility company -- to access Plaintiff's credit information three times on October 20, 2009.*fn2 Plaintiff alleges that on October 21, 2009, an AEP agent telephoned Plaintiff to tell him that AEP had accessed Plaintiff's information and received the fraud alert associated with his credit report. Plaintiff later contacted AEP to request a copy of the application and records for the account for which AEP requested the report. This AEP account belonged to James Smith. On December 21, 2009, AEP informed Plaintiff that it would not provide the requested information because AEP did not have an account associated with Plaintiff's social security number and indeed did not provide utility service in Illinois. On December 27, 2009, Plaintiff contacted AEP with a renewed request for the documentation regarding James Smith's AEP account. On January 14, 2010, upon receipt of Plaintiff's second request and of notice from Experian of the fraud alert and a discrepancy of address (presumably between Plaintiff's and James Smith's addresses) in the credit report, AEP accessed Plaintiff's credit report for a fourth time. AEP then sent Plaintiff a letter stating that it found no evidence of fraudulent activity and that James Smith had not obtained or attempted to obtain credit based on Plaintiff's information. Plaintiff's attorney made a third request that AEP provide the Plaintiff with James Smith's account information, and AEP again refused to do so.

On June 29, 2010, Plaintiff filed a complaint against Experian and AEP alleging various violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq. Only Counts I and IV of the complaint pertain to AEP. In Count I, Plaintiff alleges that AEP violated § 1681b of the FCRA because AEP did not have a permissible purpose for accessing Plaintiff's credit report and AEP knew or should have known that the information it accessed from Experian did not pertain to James Smith. Plaintiff alleges that, as a result of the violation, AEP is liable to Plaintiff for actual and punitive damages under §§ 1681n and 1681o of the FCRA. In Count IV, Plaintiff alleges that AEP violated § 1681g(e) by failing to provide Plaintiff with a copy of James Smith's AEP account information despite Plaintiff's repeated requests. Plaintiff seeks a permanent injunction requiring AEP to comply with § 1681g. AEP filed a motion to dismiss Counts I and IV under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. [7]

II. Legal Standard on a Rule 12(b)(6) Motion

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests thesufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[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." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007). The factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 569 n.14). In other words, the pleading must allege facts that plausibly suggest the claim asserted. Twombly, 550 570. "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555). However, "[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the * * * claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007)(citing Twombly, 550 U.S. at 555) (omission in original).

The Court accepts as true all of the well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).

III. Analysis

Congress designed the FCRA to safeguard the privacy of consumer's credit information that is maintained by consumer reporting agencies. See 15 U.S.C. § 1681(a)(4); see also Cole v. U.S. Capital, 389 F.3d 719, 725 (7th Cir. 2004). Accordingly, the FCRA provides that consumer reporting agencies may release customer information for only specifically enumerated "permissible purposes." 15 U.S.C. § 1681b(a), (c). The FCRA makes it punishable for non-consumer reporting agencies to use or obtain a consumer report for impermissible purposes. 15 U.S.C. § 1681b(f). A person who allegedly used or accessed the report for impermissible purposes may be liable for actual damages if they did so negligently, 15 U.S.C. § 1681o, or for punitive damages if they did so willfully, 15 U.S.C. § 1961n.

A. Count I

Plaintiff alleges in Count I of his complaint that AEP violated § 1681b of the FCRA by accessing Plaintiff's credit information from Experian for an impermissible purpose. Plaintiff alleges that AEP knew or should have known that the information did not belong to AEP's account-holder, James Smith (with whom Plaintiff's credit information was conflated in Experian's files) because it received a fraud alert and discrepancy of address notification from Experian.

AEP contends in support of its motion to dismiss that it cannot be held liable under § 1681b of the FCRA for several reasons. First, AEP submits that § 1681b(c) applies only to consumer reporting agencies. 15 U.S.C. § 1681b(c). AEP is not a consumer reporting agency as defined in the statute. See 15 U.S.C. § 1681a(f).*fn3 Indeed, Plaintiff's complaint identifies AEP as a utility company, and nowhere alleges that AEP meets the definition of a consumer ...

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