United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE, UNITED STATES DISTRICT JUDGE
Elizabeth Wingerter filed a three count Complaint asserting
claims against Defendant Todd Dunn. In Count I, she alleges
that Dunn acquired her consumer credit reports under false
pretenses, knowingly, and without her permission, in
violation of the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. § 1681, et seq.
In Count II, she alleges Dunn committed fraud in order to
perpetuate identity theft. Finally, in Count III, she asserts
a claim for intentional infliction of emotional distress as a
result of his cyberstalking. The case is before the Court for
consideration of Dunn's Motion to Dismiss (Doc. 11),
filed pursuant to F.R.C.P. 12(b)(6), and
Wingerter's response (Doc. 14). For the following
reasons, the Motion is GRANTED in part and DENIED in
considering a Rule 12(b)(6) motion to dismiss, the Court
accepts all allegations in the Complaint as true.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). The federal system of notice pleading requires only
that a plaintiff provide a “short and plain statement
of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). However, the allegations
must be “more than labels and conclusions.”
Pugh v. Tribune Co., 521 F.3d 686, 699 (7th Cir.
2008). This requirement is satisfied if the Complaint (1)
describes the claim in sufficient detail to give the
defendant fair notice of what the claim is and the grounds
upon which it rests and (2) plausibly suggests that the
plaintiff has a right to relief above a speculative level.
Twombly, 550 U.S. at 555; see Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949 (2009). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 129 S.Ct. at 1949 (citing Twombly,
550 U.S. at 556).
first argues that Wingerter failed to plead sufficient facts
to support her claim under the FCRA. Under the FCRA, a
natural person who obtains “a consumer report under
false pretenses or knowingly without a permissible
purpose” is liable for “actual damages sustained
by the consumer . . . or $1, 000, whichever is
greater.” 15 U.S.C. § 1681n(a)(1)(B); See
Pappas v. City of Calumet City, 9 F.Supp.2d 943, 946
(N.D. Ill. 1998). Wingerter alleges that from January 12,
2015 to April 14, 2017, Dunn acquired her consumer credit
report over 200 times under false pretenses. She further
alleges that she learned about this on April 17, 2017 when
she was informed by CreditKarma.com that she was registered
for a credit report despite never having registered herself.
These allegations are sufficient to state a colorable claim
under the FCRA against Dunn.
next argues that Wingerter failed to allege sufficient facts
or law to state a fraud claim in Count II. F.R.C.P.
9(b) requires fraud to be plead with particularity, namely,
setting forth the “who, what, when, where, and how: the
first paragraph of any newspaper story.” DeLeo v.
Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990).
The elements of common law fraud are: “(1) false
statement of material fact; (2) defendant's knowledge
that the statement was false; (3) defendant's intent that
the statement induce the plaintiff to act; (4)
plaintiff's reliance on the statement; and (5)
plaintiff's damages resulting from reliance on the
statement.” Miller v. William Chevrolet/GEO,
Inc., 762 N.E.2d 1, 7 (Ill.App.Ct. 2001).
alleges that Dunn “by fraud and deceit, made false
representations to credit authorities so as to perpetuate
identity theft upon Plaintiff in order to cyberstalk her by
monitoring her private financial transactions.” She
does not however allege or claim that Dunn intended any false
statement to induce her to act, that she relied on a false
statement or that she suffered damages as a result.
Therefore, she has failed to state a fraud claim and Count II
must be dismissed without prejudice.
as to Count III, Dunn argues that Wingerter has not alleged
any facts to support her intentional infliction of emotional
distress claim. Under Illinois law, a plaintiff claiming
intentional infliction of emotional distress must demonstrate
that (1) the defendant engaged in extreme and outrageous
conduct; (2) the defendant either intended to inflict severe
emotional distress or knew there was a high probability that
his conduct would cause severe emotional distress; and (3)
the defendant's conduct in fact caused severe emotional
distress. McGreal v. Village Orland Park, 850 F.3d
308 (7th Cir. 2017) (citations and quotation marks omitted).
In the Complaint, Wingerter alleges that Dunn's
“cyberstalking Plaintiff was intentional and inflicted
severe distress upon Plaintiff.” This allegation is
sufficient to give Dunn fair notice of the claim against him;
nothing more is required at the pleading stage.
foregoing reasons, Defendant's Motion is Dismiss is
GRANTED as to Count II and
DENIED in all other respects. Count II is
DISMISSED without prejudice.