United States District Court, M.D. Tennessee, Nashville Division
SHERI L. BAKER
JP MORGAN CHASE BANK, N.A.
Honorable Aleta A. Trauger, District Judge.
REPORT AND RECOMMENDATION
BARBARA D. HOLMES United States Magistrate Judge.
Order entered February 2016 (Docket Entry No. 2), the Court
referred this pro se action to the Magistrate Judge,
pursuant to 28 U.S.C. § 636 and Rule 72 of the Federal
Rules of Civil Procedure, for entry of a scheduling order,
decision on all pretrial, nondispositive motions, and a
report and recommendation on any dispositive motions.
pending before the Court is the motion to dismiss (Docket
Entry No. 19) of Defendant JPMorgan Chase Bank, N.A.
Plaintiff has filed a response in opposition (Docket Entry
No. 22), as well as two motions for leave to amend her
complaint. See Docket Entry Nos. 32 and 34. As set
out below, the undersigned Magistrate Judge respectfully
recommends that: (i) the motion to dismiss (Docket No. 19) be
GRANTED IN PART AND DENIED IN PART; (ii) Plaintiff's
first motion (Docket Entry No. 32) for leave to amend be
DENIED; and, (iii) Plaintiff's second motion (Docket
Entry No. 34) for leave to amend be GRANTED
L. Baker (“Plaintiff”) is a resident of
Nashville, Tennessee. In 2012, she was a plaintiff in a prior
federal lawsuit, Baker, et al. v. JP Morgan Chase Bank,
N.A., et al., M.D. Tenn No. 3:12-1222 (“the 2012
Lawsuit”), in which she and her husband unsuccessfully
sued four institutional defendants and one person, claiming
that the defendants had conspired to violate Plaintiff's
legal rights arising from Plaintiff's residential
mortgage and had wrongfully sought to foreclose upon her
home. The 2012 Lawsuit asserted claims under the Fair Debt
Collection Practices Act, 42 U.S.C. §§ 1982 and
1983, the Fourteenth Amendment, principles of usury and
contract law, and the Racketeer Influenced and Corrupt
Organizations Act. On June 9, 2014, the 2012 Lawsuit was
dismissed upon the motions to dismiss of the defendants in
that action. The dismissal of the lawsuit was later
upheld upon appeal.
February 1, 2016, Plaintiff filed the instant pro se
action against JPMorgan Chase Bank, N.A. (“Chase”
or “Defendant”), which had also been sued in the
2012 Lawsuit. Plaintiff seeks actual, statutory, and punitive
damages based on alleged violation of the Fair Credit
Reporting Act, 15 U.S.C. §§ 1681 et seq.
(“FCRA”). Plaintiff asserts that she discovered
in March 2015 that her credit report contains information
about a delinquent mortgage account, Account # 465188098
****, for which Chase reports that it is the creditor.
See Complaint (Docket Entry No. 1) at ¶¶
12-15. Plaintiff contends that this information is not
accurate because: 1) Chase was not the creditor for the loan
account, but was merely a “take-out investor;”
and, 2) the loan has been paid in full because Plaintiff
gifted the promissory note for the loan to the United States
Secretary of Treasury pursuant to 31 U.S.C. § 3113(a).
Id. at ¶¶ 16 and 20. Plaintiff asserts
that she contacted the three major credit reporting agencies
to dispute this information, id. at ¶¶ 22
and at Exhibit C, and subsequently received a letter from
Equifax, one of the credit reporting agencies, stating that
Chase had verified the correctness of the account balance.
Id. at ¶ 23, and Exhibit D. Plaintiff also
asserts that she contacted Chase directly about the purported
inaccurate information but that Chase has failed to correct
the information. Id. at ¶¶ 21 and 24.
Based upon these allegations, Plaintiff contends that Chase
violated 15 U.S.C. § 1681s-2(b) by failing to conduct a
reasonable investigation into the accuracy of the disputed
information in her credit report. Id. at
¶¶ 33 and 37. She further contends that Chase
violated 15 U.S.C. § 1681e(b) and 15 U.S.C. §
1681i(a)(1). Id. at p. 8.
MOTION TO DISMISS AND PLAINTIFFS RESPONSE
of an answer, Chase filed the pending motion seeking
dismissal of the action under Rule 12(b)(6) of the Federal
Rules of Civil Procedure. Chase first argues that this
lawsuit is barred by res judicata because
Plaintiff's FCRA claims are simply a rehashing of the
issues involved in the 2012 Lawsuit. See
Defendant's Memorandum in Support (Docket Entry No. 20)
at 5-6. Chase next argues that neither 15 U.S.C. §
1681e(b) nor 15 U.S.C. § 1681i(a)(1) impose any duties
upon furnishers of information to credit reporting agencies
and that Plaintiff's allegations do not support a claim
that Chase failed to meet the reasonable investigation duties
required by 15 U.S.C. § 1681s-2(b). Id. at
7-10. Chase contends that Plaintiff's own allegations
show that Chase verified the disputed information with the
credit reporting agency and that what Plaintiff is
essentially complaining about is not a violation of the FCRA
by Chase, but Chase's refusal to give credence to
Plaintiff's assertion that her mortgage loan has been
paid in full and that Chase was never a creditor for the
response to the motion to dismiss is twofold. First,
Plaintiff directly responds to the motion by, 1) disputing
that res judicata bars her current FCRA claims, and,
2) arguing that her allegations are sufficient to support her
FCRA claims. See Plaintiff's Response (Docket
Entry No. 22). Chase has filed a reply to the response
challenging Plaintiff's arguments, see Docket
Entry No. 25, and Plaintiff has filed a sur-reply.
See Docket Entry No. 30. Second, Plaintiff has filed
motions for leave to amend her complaint. See Docket
Entry Nos. 32 and 34. By the proposed amendments, Plaintiff
seeks to amend her original complaint to revise the specific
FCRA statutory provision under which she sues Chase. In her
first proposed amended complaint, Plaintiff drops her
previous FCRA claims for violations of 15 U.S.C. §
1681s-2(b), 15 U.S.C. § 1681e(b), and 15 U.S.C. §
1681i(a)(1), and assert only a claim for a violation of 15
U.S.C. § 1681s-2(8)(E) based on allegations that Chase
failed to report to Plaintiff the results of Chase's
investigation into the accuracy of the disputed information.
See Proposed First Amended Complaint (Docket Entry
No. 32-1) at ¶¶ 23-28. In her second proposed
amended complaint, Plaintiff maintains the claim set out in
her first amended complaint and reasserts a claim under 15
U.S.C. § 1681s-2(b)(1). See Proposed Second
Amended Complaint (Docket Entry No. 34-1) at ¶¶
argues that the proposed amendments are futile because, 1)
the new claim for a violation of 15 U.S.C. §
1681s-2(a)(8)(E) is not a legally cognizable claim, and 2)
the reasserted claim under 15 U.S.C. § 1681s-2(b)(1) is
unsupported by factual allegations that are sufficient to
support the claim. See Docket Entry Nos. 33 and 35.
Plaintiff has filed a reply in support of her proposed second
amended complaint. See Docket Entry No. 36.
STANDARDS OF REVIEW
purposes of a motion to dismiss, the Court must take all the
factual allegations in the complaint as true. Ashcroft v.
Iqbal, 556 U.S. 662, 677, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009). To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state
a claim for relief that is plausible on its face.
Id. 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. Id. Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice. Id. When
there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief. Id.
at 679. A legal conclusion couched as a factual allegation
need not be accepted as true on a motion to dismiss, nor are
recitations of the elements of a cause of action sufficient.
Fritz v. Charter Township of Comstock, 592 F.3d 718,
722 (6th Cir. 2010).
motions for leave to amend were filed outside the time that
would have permitted her to amend her complaint as a matter
of course under Rule 15(a)(1) of the Federal Rules of Civil
Procedure, and she has not obtained the opposing party's
written consent for the proposed amendments. Accordingly, she
must obtain leave of the Court to file an amendment to her
complaint. See Rule 15(a)(2). Although Rule 15(a)(2)
provides that leave to amend should be freely given
“when justice so requires, ” leave to amend may
be denied for an “apparent or declared reason, ”
Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9
L.Ed.2d 222 (1962), including the futility of the proposed
amendment. Kottmyer v. Maas, 436 F.3d 684, 692 (6th
Cir. 2006); Miller v. Calhoun Cnty., 408 F.3d 803,
817 (6th Cir. 2005); Thiokol ...