United States District Court, E.D. Tennessee, Knoxville
W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE
Kamala Shardul Strohmeyer has asserted federal and state law
claims against defendant Chase Bank USA, N.A.
(“Chase”) and defendant Equifax, Inc. related to
disputed information on her credit report. Defendant Chase
has now filed a motion to dismiss [Doc. 5] all of the claims
against it. The Court has carefully considered the pending
motion and related pleadings [Docs. 6, 8, 9].
contends that Chase, as a “furnisher of
information” under the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. 1681, et seq.,
reported “derogatory remarks” to credit reporting
agencies Equifax and its subsidiary, Equifax Information
Services, LLC [Doc. 1 at p. 8]. Plaintiff claims she sent
Chase a “Notice of Dispute, demanding validation of an
alleged account” on July 23, 2016, August 17, 2016, and
June 16, 2017 [Doc. 1 at ¶¶ 9- 11]. Plaintiff
further claims that Chase “reported inaccurate
derogatory information” about her to consumer reporting
agencies, failed to report her disputes, and continues to
report inaccurate information [Id. at ¶¶
14-15]. Plaintiff also alleges that Chase has not responded
to her letters of dispute by providing evidence of the
alleged debt to her or to the consumer reporting agencies
[Id. at ¶ 20]. Finally, plaintiff claims that
Chase has not provided notice of this dispute to the credit
bureaus [Id. at ¶ 21].
Standard of Review
Rule of Civil Procedure 8(a)(2) sets out a liberal pleading
standard, Smith v. City of Salem, 378 F.3d 566, 576
n.1 (6th Cir. 2004), requiring only “‘a short and
plain statement of the claim showing that the pleader is
entitled to relief, ' in order to ‘give the
[opposing party] 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) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). Detailed
factual allegations are not required, but a party's
“obligation to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions.” Twombly, 550 U.S. at 555.
“[A] formulaic recitation of the elements of a cause of
action will not do, ” nor will “an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
deciding a Rule 12(b)(6) motion to dismiss, a court must
construe the complaint in the light most favorable to the
plaintiff, accept all factual allegations as true, draw all
reasonable inferences in favor of the plaintiff, and
determine whether the complaint contains “enough facts
to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570; Directv,
Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)
(citation omitted). “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, 556
U.S. at 678. “Determining whether a complaint states a
plausible claim for relief will [ultimately] . . . be a
context-specific task that requires th[is Court] to draw on
its judicial experience and common sense.” Id.
noted by Chase in its reply brief [Doc. 9 at pp. 1-2],
plaintiff's response to the motion to dismiss was not
timely filed. Pursuant to E.D. Tenn. L.R. 7.1(a), plaintiff
had 21 days to respond to the motion plus an additional three
days for mailing pursuant to Fed.R.Civ.P. 6(d). Chase filed
the instant motion on November 9, 2017 [Doc. 5], and
plaintiff did not respond until December 12, 2017 [Doc. 8],
33 days later. Chase argues that plaintiff's untimely
response “should be disregarded” [Doc. 9 at p.
correct that pro se parties are expected to comply with the
rules of procedure just as parties represented by counsel
must do. See Branham v. Micro Computer Analysts, 350
Fed.Appx. 35, 38 (6th Cir. 2009) (“federal courts
‘have never suggested that procedural rules in ordinary
civil litigation should be interpreted so as to excuse
mistakes by those who proceed without counsel'”)
(quoting McNeil v. United States, 508 U.S. 106, 113
(1993)); Looper v. Educ. Credit Mgmt. Corp., No.
3:07-cv-306, 2008 WL 2965887, at *3 (E.D. Tenn. July 30,
2008) (“appellant's pro se status does not exempt
him from complying with the rules of procedure”).
Indeed, our Local Rules specify that pro se parties
“shall be expected to be familiar with and follow the
Federal Rules of Civil Procedure and these rules.” E.D.
Tenn. L.R. 83.13.
plaintiff's response was not timely filed, the Court
finds this case distinguishable from others where a pro se
party repeatedly engaged in dilatory tactics or repeatedly
failed to comply with court orders. See Jourdan v.
Jabe, 951 F.2d 108, 110 (6th Cir. 1991) (pro se
plaintiff's case was dismissed for repeatedly failing to
comply with court deadlines). Nor does the Court find that
plaintiff's untimely response is evidence of
“negligence or complete indifference” to her
case. Cf. Looper, 2008 WL 2965887 at *3 (failure to
file bankruptcy appeal nearly eight months late demonstrates
negligence and indifference to his appeal). Chase has not
pointed to any prejudice that it will suffer if the Court
considers the plaintiff's response to the pending motion.
Therefore, for these reasons and in the interests of justice,
the Court will not disregard plaintiff's response.
Whether Plaintiff Can State an FCRA Claim Against
“The FCRA was enacted to regulate credit reports,
provide guidelines for credit reporting agencies and entities
that furnish consumer information to credit reporting
agencies, and provide protection to consumers.”
Lufkin v. Capital One Bank (USA), N.A., No.
3:10-CV-18, 2010 WL 2813437, at *2 (E.D. Tenn. July 16,
2010). The FCRA imposes obligations on three entities: (1)
credit reporting agencies; (2) users of consumer reports; and
(3) furnishers of information to consumer reporting agencies.
Id. As a “furnisher of information”
under the FCRA, Chase is obligated to provide accurate
information and to investigate upon receiving notice of a
dispute from a credit reporting agency. Id.; 15
U.S.C. §§ 1681s-2(a)-(b).
first argues that plaintiff cannot state a claim under §
1681s-2(a) of the FCRA because there is no private right of
action under that subsection [Doc. 6 at p. 11], a point that
plaintiff seems to concede [see Doc. 8 at p. 7].
Subsection (a) of § 1681s-2 imposes a duty upon
furnishers of information “to provide accurate
information” about consumers. 15 U.S.C. §
1681s-2(a). If a furnisher of information receives notice
that its information is inaccurate, it then has a duty to
correct and update the information and provide notice of the
dispute. 15 U.S.C. § 1681s-2(a)(2)-(3). There is no
private right of action under subsection (a) of §
1681s-2 because “the duties imposed by subsection (a)
can only be enforced by government agencies and
officials.” Roberts v. U.S. Bank N.A., No.
4:14-CV-41, 2015 WL 11108910, at *7 (E.D. Tenn. Feb. 3,
2015); Westbrooks v. ...