United States District Court, M.D. Tennessee, Nashville Division
REPORT AND RECOMMENDATION
JEFFERY S. FRENSLEY, JUDGE
matter is before the Court upon a “Motion to Dismiss
Complaint and Alternative Motion for More Definite
Statement” filed by Defendant Bell Atlantic Mobile
Systems, Inc. (d/b/a Verizon Wireless)
(“Verizon”). Docket No. 42. Verizon has also
filed a Supporting Memorandum of Law. Docket No. 43.
Plaintiff has not filed a response.
BACKGROUND AND FACTUAL ALLEGATIONS
file d this case in Davidson County Circuit Court on March
16, 2016, alleging, inter alia, that Defendant Bell
Atlantic Mobile Systems, Inc., d/b/a/ Verizon Wireless
(“Verizon”) “reported fraudulently to all
major credit bureaus that the plaintiff had opened an account
with Verizon . . .” and that “Verizon turned over
this debt collection to Pinnacle Credit Services.”
Docket No. 1-2, p.1. Plaintiff maintains that he never opened
an account or had any kind of relationship with Verizon, and
that he “could not have opened an account on the
alleged date of May 3rd 2010 as that was on the
day of one of the greatest flood events in Nashville
history.” Id. at 2. Citing 28 U.S.C.
§§ 1332, 1441, and 1446, both Defendants joined to
remove the case to this Court on April 18, 2016. Docket No.
1. Plaintiff moved to remand to state court (Docket No. 4),
and that Motion was ultimately denied (Docket No. 29).
In h is
Complaint, Plaintiff maintains:
10/1/2013, defendant Verizon reported fraudulently to all
major credit bureaus that the plaintiff had opened an
account with Verizon on May 3rd 2010. At this
time Verizon turned over this debt collection to Pinnacle
Credit Services. This wrongful, tortuous [sic] act
has negatively affected plaintiff's ability to live a
normal life .
plaintiff has never opened any account or had any kind of
business relationship with Verizon and could not have
opened an account on the alleged date of May 3rd
2010 as that was on the day of one of the greatest flood
events in Nashville history.
made no attempt to contact the plaintiff to let him know he
owed money or to let him know his credit was going to be
acts and omissions as aforesaid were fraudulent. Defendant
knew that they had no authority to turn the plaintiff over
to any collections agency and that they made no attempt to
inform the plaintiff of any delinquent.
made aware of any claims of this supposed debt, Plaintiff
has represented both verbally and in writing to the
defendant c la ims of fraudulent reporting. Defendant has
refused to provide details of where or what account,
service or product was fraudulently purchase [sic]
in the Plaintiff's name and the Defendants have failed
and refused to give any details. Defendants have called,
written and continue to attempt to collect these fraudulent
the time the wrongful, fraudulent, defamatory, and tortuous
acts and omissions described herein occurred, defendant
knew their representations to be untrue and knew that same
would damage plaintiff and damage his reputation and credit
scores. Defendant's wrongful, defamatory, fraudulent,
and tortuous [sic] acts and omissions were
intended to injure plaintiff.
made all attempts to contact both Verizon and Pinnacle and
offered any requested details to attempt to absolve any
notion of his involvement in the fraudulent transaction
once he was made aware.
direct and proximate result of defendant's wrongful,
defamatory, fraudulent, and tortuous [sic] acts
and omissions, plaintiff has been damaged in the amount of
approximately $500, 000.00, and additional damages are
accruing on a daily basis as defendant continues their
wrongful, defamatory, fraudulent, and tortuous
[sic] acts and omissions. Further, plaintiff's
reputation has been and continues to be damaged and as a
consequence he has suffered and continues to suffer
humiliation, embarrassment, and other mental damage and is
unable to get any kind of loan due to his damaged credit.
Docket No. 1-2, p. 1-3 (paragraph numbering omitted).
Verizon's Motion to Dismiss
crux of Verizon's argument is that “Plaintiff's
Complaint is so fraught with factual inadequacies that it
leaves Defendant to guess as [sic] potential causes
of action.” Docket No. 43, p. 8. Verizon argues that
“Plaintiff's Complaint does not contain enough
facts to determine what claims are being brought, what
actions or omissions Plaintiff considers relevant to each
claim, or which defendant allegedly performed the action or
omissions contemplated in the Complaint.” Id.
regard to Plaintiff's allegations of fraudulent acts (or
omissions), Verizon argues that Plaintiff has failed to
identify any material fact that was misrepresented by any
party or identify a specific party that made a
misrepresentation, and has not alleged with particularity
which statements were fraudulent, when such statements were
made, or to whom. Id. at 6-7. Verizon argues that
Plaintiff has failed to comply with the Federal Rules of
Civil Procedure, which require that fraud be pled with
particularity. Id. Further, Verizon contends that
“Plaintiff presents no evidence that Verizon knew or
should have known that facts reported to the credit bureaus
on October 1, 2013 were a misrepresentation or false.”
Id. at 9. Verizon maintains that Plaintiff's own
statements and beliefs that he could not have opened a
Verizon account on May 3, 2010 because Nashville experienced
a severe flood that day are not sufficient to allege fraud.
Id. at 10. Verizon contends that despite the
severity of the flood, “the flood did not shut down the
entire city, and multiple Verizon stores remained
also contends that “Plaintiff implies, without ever
specifically stating, that Defendants used unfair or
deceptive practices in violation of Tenn. Code Ann.
§47-18-101 et seq. by turning the delinquent account
over to collections and by contacting Defendant to collect
such monies” and that “Plaintiff implies, without
directly stating, that Defendant violated the Federal Debts
Collection Practices Act by turning the delinquent account
over to collections without proper notice and by contacting
Defendant to collect such monies.” Id. at 7.
Verizon argues that Plaintiff does not plead these claims
with the particularity or reference to statute required by
the Tennessee Rules of Civil Procedure. Id. Further,
Verizon argues that Plaintiff has not referenced “any
facts supporting the claim [Verizon] engaged in deceptive or
unfair practices or actions” as required by
Fed.R.Civ.P. 9(b). Id.
Verizon contends that “Plaintiff's claims are
barred by the applicable Tennessee statute of
limitations.” Id. at 8. Verizon argues that to
the extent Plaintiff intended to state a claim for libel or
slander, the statutory periods have expired as of October 1,
2014 and April 1, 2014, respectively. Id. Similarly,
Verizon argues that the statutory periods for any potential