Opinion
C. A. 2:22-cv-03595-BHH-MHC
10-23-2023
Juanita D. Wilson, Plaintiff, v. Carrington Mortgage, S.E., Defendant.
ORDER AND REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Plaintiff, proceeding pro se, filed this action, alleging that Defendant Carrington Mortgage, S.E., (“Carrington”) violated her rights under the Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681-1681x. ECF No. 1. Before this Court is a Motion to Dismiss (“Motion”) filed by Carrington pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 18. As Plaintiff is proceeding pro se, the Court entered a Roseboro Order, which was mailed to Plaintiff, advising her of the importance of a dispositive motion and of the need to file an adequate response. ECF Nos. 20, 21. Plaintiff was specifically advised that if she failed to file a properly supported response, Carrington's Motion may be granted, thereby ending her case. ECF No. 20. Thereafter, Plaintiff filed a Response, ECF No. 22, and Carrington filed a Reply, ECF No. 23. The Motion is ripe for review.
The clerk of court docketed Plaintiff's response filing as a Response in Opposition to the Motion to Dismiss. ECF No. 22. However, Plaintiff did not title her filing, and it is written in a format typically used for complaints, not response memoranda. Because the filing does not have a title, it is unclear whether Plaintiff intended for it to be an Amended Complaint, a Response in Opposition to the Motion to Dismiss or a Motion to Amend the Complaint. To the extent Plaintiff intended the document as an Amended Complaint, as set forth below in section IV, the filing was untimely, such that she must file a motion to amend. In its Reply, Defendant alternatively treats the filing as a Response in Opposition and a Motion to Amend the Complaint. ECF No. 23. For purposes of evaluating the Motion to Dismiss, the undersigned will also consider Plaintiff's filing as both a Response in Opposition to the Motion to Dismiss and a Motion to Amend.
All pretrial proceedings in this case were referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(g), D.S.C. This Report and Recommendation is entered for review by the District Judge.
The facts, and all inferences therefrom, are construed in the light most favorable to Plaintiff for purposes of ruling on Defendant's Motion to Dismiss. See E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011).
Plaintiff, a resident of Moncks Corner, South Carolina, alleges that she is a “consumer” as defined in 15 U.S.C. § 1681a(c). ECF No. 1 at ¶¶ 4-5. She alleges that Carrington furnishes information to consumer reporting agencies (CRAs) under 15 U.S.C. § 1681s-2. Id. at ¶ 12.
Plaintiff alleges that Carrington issued inaccurate and misleading information to the CRAs about Plaintiff's Carrington Mortgage SE account #700028xxxx. Id. at ¶ 14. She alleges the information furnished by Carrington and published by the CRAs was inaccurate and misleading because “the account contains an incorrect payment status of 30 days past due, incorrect balance, and incorrect past due amount.” Id. at ¶ 15. She alleges that the account was closed and Plaintiff no longer had an obligation to Carrington. Id. at ¶¶ 16-17. Nonetheless, the CRAs continued to report Plaintiff's incorrect payment status of 30 days past due, incorrect balance, and incorrect past due amount. Id. at ¶ 17.
According to Plaintiff, the pay status is significant because credit scoring algorithms are designed to take this data field into account when generating a credit score, and a negative pay status would create a lower credit score than a closed status would create. Id. at ¶ 18. She alleges that credit lending decisions are based on the automatically generated credit scores, such that false information can harm a credit score. Id. at ¶¶ 19-20.
Plaintiff alleges that the CRAs have been reporting this false and inaccurate information through consumer reports that they have disseminated to various persons and credit grantors. Id. at ¶ 21. She alleges that she notified the CRAs that she disputed the accuracy of the information they were reporting. Id. at ¶ 22. Plaintiff alleges that “[i]t is believed and therefore averred that the CRA[s] notified Carrington Mortgage SE of the Plaintiff's disputes,” but Carrington “failed to conduct a reasonable investigation and continued to report false and inaccurate adverse information on Plaintiff's consumer report with respect to the disputed account.” Id. at ¶¶ 23-24. She alleges that had Carrington done a proper investigation, it would have found that the current payment status was improperly listed as 30 days past due, with an incorrect balance and incorrect past due amount. Id. at ¶ 25. She alleges that the CRAs also did not evaluate or consider any of the information, claims, or evidence provided by Plaintiff and did not make a reasonable attempt to verify whether the information in the disputed account was inaccurate. Id. at ¶ 26.
Plaintiff alleges that notwithstanding her efforts, the inaccurate information continued to be published and disseminated to third parties, as evidenced by the inquiries on Plaintiff's credit report in the form of hard and soft pulls. Id. at ¶ 28. She further alleges that as a result of Carrington's failure to comply with the FCRA, she suffered concrete harm in the form of loss of credit, loss of the ability to purchase and benefit from credit, a chilling effect on applications for future credit, and “the mental and emotional pain, anguish, humiliation and embarrassment of credit denial.” Id. at ¶ 29.
LEGAL STANDARD
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014); see Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”). Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), such that the defendant will have “fair notice of what the claim is and the grounds upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'” Robinson v. Am. Honda Motor Co., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
When considering a Rule 12(b)(6) motion, the court is required to accept the allegations in the pleading as true and draw all reasonable factual inferences in favor of the party opposing the motion. E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011). Moreover, the court must evaluate “the complaint in its entirety, as well as documents attached or incorporated into the complaint.” Id. at 448. The court may consider a document not attached to the complaint, so long as the document “was integral to and explicitly relied on in the complaint,” and there is no authenticity challenge. Id. (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)). “A complaint should not be dismissed as long as it provides sufficient detail about the claim to show that the plaintiff has a more-than-conceivable chance of success on the merits.” Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 511 (4th Cir. 2015) (internal quotation marks and brackets omitted).
Pro se pleadings are given liberal construction and are held to a less stringent standard than formal pleadings drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, principles requiring generous construction of pro se complaints do “not require courts to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). Giving liberal construction does not mean that the court can ignore a pro se plaintiff's clear failure to allege facts that set forth a cognizable claim. See Weller v. Dept. of Soc. Servs., City of Baltimore, 901 F.2d 387, 391 (4th Cir. 1990) (“Only those questions which are squarely presented to a court may properly be addressed.”). Thus, even under this less stringent standard, a pro se complaint is still subject to summary dismissal. Estelle, 429 U.S. at 106-07.
DISCUSSION
Plaintiff filed her Complaint on October 18, 2022, alleging two causes of action under the FCRA: (1) a claim that Carrington willfully violated 15 U.S.C. § 1681 by “the publishing of inaccurate information; by failing to fully and properly investigate the dispute of the Plaintiff with respect to the inaccurate information; by failing to review all relevant information regarding the same by failing to correctly report results of an accurate investigation to the [CRAs],” ECF No. 1 at ¶ 63; and (2) a claim that Carrington negligently violated 15 U.S.C. § 1681 by “negligently fail[ing] to conduct its reinvestigation in good faith,” id. at ¶ 74.
Carrington moves to dismiss Plaintiff's Complaint in its entirety for failure to state a claim upon which relief can be granted, arguing that Plaintiff has failed to plead a cognizable injury in fact-as opposed to a purely technical violation of the FCRA. ECF No. 18. Upon review of the Complaint and the attachment thereto, the undersigned agrees that the Complaint is subject to dismissal pursuant to Rule 12(b)(6) for failure to state a claim but also finds that Plaintiff should be granted leave to amend.
Plaintiff attached a one-page Experian report generated on September 17, 2022, as an Exhibit to the Complaint. ECF No. 1-1.
I. The FCRA Framework
The FCRA seeks to “ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy.” Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52 (2007) (citing 15 U.S.C. § 1681). The FCRA “regulates the creation and the use of ‘consumer report[s]' by ‘consumer reporting agenc[ies]' for certain specified purposes, including credit transactions[.]” Spokeo v. Robins, 136 S.Ct. 1540, 1545 (2016) (citing 15 U.S.C. §§ 1681a(d)(1)(A)-(C) and 1681b). “To achieve its purpose, the FCRA places distinct obligations on three types of entities: consumer reporting agencies, users of consumer reports, and furnishers of information to consumer reporting agencies.” Chipka v. Bank of America, 355 Fed.Appx. 380, 382 (11th Cir. 2009) (citing 15 U.S.C. §§ 1681b, 1681m, and 1681s-2); see Branch v. Fed. Home Loan Mortg., No. 5:04-CV-859-BO, 2005 WL 8159344, at *3 (E.D. N.C. July 28, 2005).
The FCRA defines a consumer reporting agency as “any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports.” 15 U.S.C. § 1681a(f). Although the FCRA does not define “furnisher” of information, “the term is understood as including any entity . . . that provides information about its customers to credit reporting agencies (CRAs), including information about a customer's payments on their accounts.” Saunders v. Equifax Info. Servs., L.L.C., No. 3:05 CV 731, 2006 WL 2850647, at *1 (E.D. Va. Oct. 3, 2006), aff'd sub nom. Saunders v. Branch Banking & Tr. Co. of VA, 526 F.3d 142 (4th Cir. 2008).
“The term ‘consumer report' means any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for (A) credit or insurance . . .; (B) employment purposes; or (C) and other purpose authorized under section 1681b of this title.” 15 U.S.C. § 1681a(d)(1).
Under the FCRA, when a debtor disputes the completeness or accuracy of a credit report with a CRA, the CRA must promptly notify the furnisher of information of the dispute. 15 U.S.C. § 1681i(a)(2). Pursuant to section 1681s-2(b), furnishers of information are required to investigate and promptly respond to notices of consumer disputes. Upon receiving notice of a dispute, the furnisher of information has an affirmative duty to conduct an investigation with respect to the disputed information. Id. § 1681s-2(b)(1)(A)-(C). If the investigation finds that any information is incomplete or inaccurate, the furnisher must report those results to all CRAs possessing that incomplete or inaccurate information and make any necessary modifications. Id. § 1681s-2(b)(1)(D)-(E).
II. Plaintiff's allegations are sufficient to establish injury in fact, as required for Article III standing.
Carrington argues that Plaintiff's minimal allegations about damages cannot establish that she has suffered a cognizable injury, such that she has not shown she has standing to bring these claims. ECF No. 18 at 8-10. Carrington contends that Plaintiff merely “alleges hypothetical ‘credit damage' that is just the type of ‘bare procedural violation, divorced from any concrete harm, that the Fourth Circuit rejected in Dreher.” Id. at 9 (citing Dreher v. Experian Info. Sols., Inc., 856 F.3d 337, 343 (4th Cir. 2017)). Carrington further argues that even assuming Plaintiff has standing based on an intangible injury, her factual allegations supporting that claim are insufficient to establish a cause of action because the FCRA only permits a claimant to recover “actual damages,” not nominal damages. Id. at 9-10. Carrington thus argues that Plaintiff's “boilerplate recitations of hypothetical harm [are] not factual allegations that she has suffered actual harm” and are insufficient to sustain a cause of action under the FCRA. Id. at 10.
To determine if Plaintiff has Article III standing, the Court must decide whether Plaintiff “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Dreher, 856 F.3d at 343 (citing Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016)). “The burden of establishing these elements falls on the party invoking federal jurisdiction, and all three elements are necessary prerequisites to establish standing.” Id.
For the injury in fact requirement at issue in this case, the injury must be “particular and concrete.” Spokeo 136 S.Ct. at 1548. An injury in fact is not required to be tangible, though a litigant cannot “allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement.'” Dreher, 856 F.3d at 343-44 (citing Spokeo, 136 S.Ct. at 1547). Carrington claims Plaintiff pleads insufficient facts to show she suffered concrete harm and, therefore, cannot establish the injury in fact requirement. The undersigned is not persuaded.
For an injury to be “concrete,” the “injury must be ‘de facto'; that is, it must actually exist.” Spokeo, 136 S.Ct. at 1548. Additionally, the pleading should “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]” Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
In Plaintiff's Complaint, she claims she suffered concrete harm in the form of loss of credit, loss of the ability to purchase and benefit from credit, a chilling effect on applications for future credit, and “the mental and emotional pain, anguish, humiliation and embarrassment of credit denial.” ECF No. 1 at ¶ 29. Carrington contends that Plaintiff failed to allege “that she has sought credit elsewhere and been denied credit or been forced to pay a higher interest rate as a result of Carrington's acts or omissions,” and it asserts that Plaintiff's claims of credit and emotional damages stem merely from a “bare procedural violation, divorced from any concrete harm.” ECF No. 18 at 9 (quoting Dreher, 856 F.3d at 343).
Upon review and construing the allegations in the Complaint liberally, the undersigned concludes that Plaintiff has alleged sufficient facts to show she suffered harm that, “although not tangible in nature, is nonetheless de facto and is more significant than the ‘bare procedural violation' [Carrington] alleges because it is more than a ‘technical violation of the FCRA.'” See Burns v. Trans Union, LLC, No. CV 4:18-03120-MGL, 2019 WL 3890833, at *2 (D.S.C. Aug. 19, 2019). Moreover, courts both within and outside of this district have found that “[e]ven when there are no out-of-pocket expenses, humiliation and mental distress do constitute recoverable elements and damages under the [FCRA].” Id. (second alteration in original) (quoting Thompson v. San Antonio Retail Merchs. Ass'n, 682 F.2d 509, 513 (5th Cir. 1982)). Therefore, the undersigned finds that Plaintiff satisfies the injury-in-fact requirement and does have standing. See id. at 2-3 (collecting cases addressing similar claims that have found “the threat of harm bad credit imposes is cognizable and does actually exist”). Accordingly, the undersigned recommends that Carrington's Motion be denied on this ground.
III. Plaintiff has failed to state a claim under Section 1681s-2(b) of the FCRA.
After accepting the allegations in the Complaint as true and drawing all reasonable factual inferences from those allegations in favor of Plaintiff, the undersigned concludes that Plaintiff has failed to plead facts sufficient to state a claim under the FCRA upon which relief can be granted. Plaintiff does not identify the specific section of the FCRA under which she brings her claims against Carrington. However, she alleges that Carrington is a “furnisher” of credit information under the FCRA. Thus, the Complaint, liberally construed, may be attempting to assert a claim under Section 1681s-2(b) of the FCRA, which relates to furnishers of information. So construed, the Complaint nonetheless fails to state a plausible claim.
The FCRA provides no “private right of action for a credit furnisher's alleged failure to report accurate information.” Harrell v. Caliber Home Loans, Inc., 995 F.Supp.2d 548, 554 n.4 (E.D. Va. 2014) (citation omitted). However, there is a private cause of action under § 1681s-2(b), which imposes duties on furnishers, upon receiving a dispute of accuracy from a consumer reporting agency, to conduct a reasonable investigation of the dispute, report its results to the consumer reporting agency, and modify or delete incorrect information. See Akalwadi v. Risk Mgmt. Alternatives, Inc., 336 F.Supp.2d 492, 509 (D. Md. 2004); see also 15 U.S.C. § 1681s-2(b); White v. Fannie Mae, No. CIV.A. 1:13-29923, 2014 WL 5442970, at *6 n.4 (S.D. W.Va. Oct. 24, 2014).
To prevail on a claim under § 1681s-2(b), a plaintiff must demonstrate that (1) she notified a consumer reporting agency of the disputed information, (2) the consumer reporting agency notified the furnisher of the dispute, and (3) the furnisher failed to investigate and modify the inaccurate information. See Alston v. Branch Banking & Tr. Co., No. GJH-15-3100, 2016 WL 4521651, at *6 (D. Md. Aug. 26, 2016); see also Hoback v. Synchrony Bank, No. 6:19-cv-18, 2019 WL 2438794, at *2 (W.D. Va. June 11, 2019) (“The private right of action available to a consumer under the FCRA arises under § 1681s-2(b) once that consumer disputes incorrect information with a [consumer reporting agency] and that [consumer reporting agency ] informs the furnisher.”) (emphasis added). As the Fourth Circuit has explained, “a furnisher's duty to investigate is not triggered until it receives notification of a dispute from a consumer reporting agency.” Mavilla v. Absolute Collection Serv., Inc., 539 Fed.Appx. 202, 208 (4th Cir. 2013) (citing 15 U.S.C. § 1681s-2(b)(1)); Stafford v. Cross Country Bank, 262 F.Supp.2d 776, 784 (W.D. Ky. 2003) (“This means that a furnisher of credit information, such as the Bank, has no responsibility to investigate a credit dispute until after it receives notice from a consumer reporting agency.”) (emphasis in original)).
In its Motion, Carrington contends that Plaintiff has failed to allege specific facts necessary to state a cause of action under a § 1681s-2(b). ECF No. 18 at 6. Specifically, Carrington argues that “Plaintiff's Complaint generically alleges that she disputed her account with the CRAs, but fails to plead what information she disputed, or to which CRAs she submitted disputes.” Id. Carrington also argues that she failed to plead facts sufficient to show that a CRA forwarded the dispute to Carrington. Id. Rather, Carrington contends, Plaintiff only pleads that “[i]t is believed and therefore averred” that the unidentified CRAs notified Carrington of the dispute, id. (quoting ECF No. 1 at ¶ 23), but because Plaintiff “has identified no CRA to which she submitted a dispute specifically detailing the inaccurate reporting over which she now sues, she has failed to plead facts sufficient to establish that Carrington ever received any dispute about the particular inaccuracy that would trigger its obligations under the FCRA,” id. Carrington also argues that Plaintiff's failure to specifically detail the information she disputed to the CRA makes it impossible for her to show that Carrington failed to conduct a reasonable investigation based on the information provided by the CRA. Id. at 6-7.
Carrington maintains that even if Plaintiff reported to the CRA the inaccuracies she now claims in her Complaint, and the CRA submitted the dispute to Carrington, Plaintiff has failed to plead facts sufficient to show that any reporting by Carrington was inaccurate such that the result would have been different had Carrington investigated. Id. at 7. According to Carrington, “Plaintiff has alleged no facts showing, at the time her account was closed and foreclosure proceedings were initiated, that she was not delinquent in her payments or that her account had a past-due balance and remaining balance,” such that her contentions “that her account was closed and she no longer had any obligations to Carrington are not allegations of factual inaccuracy in credit reporting, but are instead disputed legal questions which cannot serve as a basis for her claims against Carrington.” Id. Carrington thus argues that “Plaintiff's Complaint is no more than a mere recitation of the elements of a FCRA claim without any specific factual allegations[,] which is insufficient to adequately state a claim.” Id.
Plaintiff does not respond in any meaningful way to Carrington's arguments. Instead, she filed an untitled document in the format of a complaint in which she re-asserts that Carrington violated § 1681s-2(b) “by failing to fully and properly investigate the Plaintiff's dispute of the reporting of inaccurate information about Plaintiff to [CRAs] and by failing to review all relevant information about same, by failing to accurately respond,” which caused Plaintiff to suffer damages including “loss of credit, loss of the ability to purchase and benefit from credit, and the mental and emotional pain and anguish and the humiliation and embarrassment of credit denials.” ECF No. 22 at 5 ¶¶ 31-32. In her new filing, Plaintiff also asserts that Carrington violated other sections of the FCRA, including § 1681e(b) and § 1681i. Id. at 2-5.
The undersigned agrees with Carrington that Plaintiff has failed to allege sufficient facts to state a plausible claim for relief under § 1681s-2(b) of the FCRA. Although Plaintiff states the legal elements of her claim-i.e., that (1) she notified a CRA of disputed information, (2) the CRA notified the furnisher of the dispute, and (3) the furnisher failed to investigate and modify the inaccurate information-she does not provide factual information to show that the claim is plausible. She does not identify which CRA or CRAs she contacted, how or when she contacted them, and what information she specifically reported to them as being disputed. Cf. Burns, 2019 WL 3890833, at *1 (finding plaintiff alleged sufficient facts to state a § 1681s-2(b) claim where plaintiff alleged that she learned of an error on her credit report in May 2018, that she sent letters to Trans Union and Equifax disputing a $70.00 monthly payment from furnisher's account, that the two CRAs forwarded her letters to the furnisher, and that she received investigation reports from Trans Union and Equifax around September 2018 showing that they and furnisher failed or refused to correct the monthly payment so it said $0.00).
Upon review of the Complaint and the Exhibit attached thereto, it is not clear to the undersigned what the allegedly inaccurate information is. In her Complaint, Plaintiff alleges that while her Carrington Mortgage SE account #700028xxxx was closed, her reports showed “an incorrect payment status of 30 days past due, incorrect balance, and incorrect past due amount.” ECF No. 1 at ¶¶ 15-17. However, the document attached to her Complaint shows that her account is closed, that foreclosure proceedings had started, and that her account was 120+ days late, not 30 days late. It is not clear from Plaintiff's allegations what the correct payment status, balance, and past due amount should be, nor is it apparent what information she reported to a CRA, how she reported the information, and to which CRA(s) she made the report. It also is unclear to the undersigned when any of the events giving rise to Plaintiff's claims occurred. Even construing the Complaint liberally, the undersigned agrees with Carrington that Plaintiff has failed to allege sufficient facts to state a plausible claim for relief under the FCRA.
These shortcomings may be corrected, however, in an Amended Complaint containing more factual details to support the elements of Plaintiff's claim. Accordingly, while the undersigned finds that Plaintiff has failed to state a claim under the FCRA, the undersigned also finds that Plaintiff should be granted leave to amend her Complaint.
IV. Plaintiff should be granted leave to file a new Amended Complaint.
As stated above, in response to the Motion to Dismiss, Plaintiff filed an untitled document that resembles a complaint. As Carrington points out in its Reply, although Plaintiff had twenty-one days to amend as a matter of course after Carrington served her with its Motion to Dismiss, Fed.R.Civ.P. 15(a)(1), Plaintiff's filing was not signed, mailed, or docketed until after this deadline. See ECF No. 18 (Motion to Dismiss served on March 14, 2023); ECF No. 22 (Plaintiff's response signed April 15, 2023). Consequently, to the extent Plaintiff intended for her filing to be an Amended Complaint, she had to file a Motion to Amend and be granted leave of the Court to amend her Complaint.
Granting or denying a motion to amend is within the discretion of the Court, and leave to amend should be freely given in the interest of justice. Woods v. Boeing Co., 841 F.Supp.2d 925, 930 (D.S.C. 2012) (citing Fed.R.Civ.P. 15(a)(2)). Leave to amend should be denied only under certain circumstances, including where the amendment would be futile. Id. An amended pleading is futile if it would fail to withstand a motion to dismiss; thus, where the well-pled facts in a new complaint do not show that the plaintiff is entitled to relief, the court should deny a motion for leave to amend. Id.
To the extent that Plaintiff's filing can be construed as a Motion to Amend (with a proposed Amended Complaint), the Court agrees with Carrington that the proposed amendment would be futile. First, the caption of the filing omits Carrington as a defendant but lists instead Experian Information Solutions, Transunion LLC, and Equifax, Inc. as defendants. ECF No. 22 at 1. However, in the body of the filing, she refers only to Carrington as a Defendant and alleges claims against only Carrington. Thus, she has not actually alleged any claims against any of the parties listed in the case caption.
As for the claims against Carrington, she does not allege additional facts in support of her § 1681s-2(b) claim, such that she has not cured the deficiencies discussed above. Moreover, she appears to allege new claims against Carrington under §§ 1681e(b) and 1681i; however, these sections of the FCRA apply only to consumer reporting agencies. See 15 U.S.C. § 1681e (“Every consumer reporting agency shall ....”); 15 U.S.C. § 1681i(a)(1) (“[I]f the completeness or accuracy of any item of information contained in a consumer's file at a consumer reporting agency is disputed by the consumer . . . the agency shall . . . conduct a reasonable investigation to determine whether the disputed information is inaccurate . . . or delete the item from the file.”) (emphasis added). As Plaintiff has alleged that Carrington is a furnisher, not a CRA, such claims would be subject to dismissal. See, e.g., Rich v. Stern & Assocs., P.A., No. 3:15CV451, 2016 WL 4480695, at *1 (W.D. N.C. Aug. 24, 2016) (“As [defendant furnisher's] duties pursuant to the FCRA are limited to § 1681s-2, Plaintiff's claims pursuant to §§ 1681b, 1681c, and 1681i must be dismissed.”); Craighead v. Nissan Motor Acceptance Corp., No. 1:10CV981 JCC JFA, 2010 WL 5178831, at *5 (E.D. Va. Dec. 14, 2010), (“As to Plaintiff's claim pursuant to section 1681i(a)(1), that section applies to credit reporting agencies, not furnishers of information, such as Defendant.”), aff'd, 425 Fed.Appx. 197 (4th Cir. 2011).
For the foregoing reasons, even if Plaintiff intended for her filing in response to Carrington's Motion to be treated as a Motion to Amend the Complaint, the undersigned finds that the proposed amendment is clearly insufficient and, therefore, would be futile. See Johnson v. Oroweat Foods Co., 785 F.2d 503, 510 (4th Cir. 1986) (“Leave to amend . . . should only be denied on the ground of futility when the proposed amendment is clearly insufficient or frivolous on its face.”).
Nonetheless, because the deficiencies in Plaintiff's Complaint may be cured in an amended pleading with more factual allegations to support the legal elements of her claims, the undersigned finds that Plaintiff should be given an opportunity to file another proposed amended Complaint to cure the defects discussed herein. Accordingly, the undersigned will grant Plaintiff leave to amend her Complaint. See Fed.R.Civ.P. 15(a)(2); Scott v. Fam. Dollar Stores, Inc., 733 F.3d 105, 118 (4th Cir. 2013) (finding that plaintiffs “should have been granted leave to amend to cure the defect, more especially because this was the first time they sought to amend their complaint”).
ORDER
It is ORDERED that Plaintiff shall have fourteen (14) days from the date of this Order to file a complete Amended Complaint on the docket.
RECOMMENDATION
If Plaintiff files an Amended Complaint within the time limit set in the Order above, then it is RECOMMENDED that Carrington's Motion to Dismiss (ECF No. 18) be DENIED, without prejudice, as moot. However, if Plaintiff does not file an Amended Complaint within the time limit set in the Order above, then it is RECOMMENDED that Carrington's Motion to Dismiss (ECF No. 18) be GRANTED and that Plaintiff's Complaint be DISMISSED without prejudice.
The parties are referred to the Notice Page attached hereto.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).