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Strohmeyer v. Chase Bank USA, N.A.

United States District Court, E.D. Tennessee, Knoxville

June 4, 2018

KAMALA SHARDUL STROHMEYER, Plaintiff,
v.
CHASE BANK USA, N.A., EQUIFAX, INC. a.k.a. EQUIFAX INFORMATION SERVICES, LLC, and DOES 1-10, Defendants.

          MEMORANDUM OPINION

          THOMAS W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff 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].

         I. Relevant Facts[1]

         Plaintiff 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].

         II. Standard of Review

         Federal 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, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         In 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. at 679.

         III. Timeliness

         As 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. 2].

         It is 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.

         Although 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.

         IV. Whether Plaintiff Can State an FCRA Claim Against Chase

          “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).

         A. Section 1681s-2(a)

         Chase 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. ...


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