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Balboa v. Bell Atlantic Mobile Systems, Inc.

United States District Court, M.D. Tennessee, Nashville Division

August 7, 2017

CAREY JAMES BALBOA, Plaintiff,
v.
BELL ATLANTIC MOBILE SYSTEMS, INC., et al., Defendants.

          REPORT AND RECOMMENDATION

          JEFFERY S. FRENSLEY, JUDGE

         This 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.

         I. BACKGROUND AND FACTUAL ALLEGATIONS

         A. BACKGROUND

         Plaintiff 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).

         B. PLAINTIFF'S COMPLAINT

         In h is Complaint, Plaintiff maintains:

         On 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 .

         The 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.

         Defendants 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 negatively affected.

         Defendant's 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.

         Once 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 debts.

         At 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.

         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.

         As a 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).

         C. Verizon's Motion to Dismiss

          The 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. at 6.

         With 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 open.” Id.

         Verizon 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.

         Additionally, 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 ...


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