United States District Court, M.D. Florida, Orlando Division
G. BYRON JUDGE
cause comes before the Court without oral argument on
Defendant Continental Service Group, Inc.'s Motion to
Dismiss (Doc. 18), filed March 19, 2018. Plaintiff responded
in opposition on March 29, 2018 (Doc. 22), and Defendant
filed a Reply on April 16, 2018 (Doc. 25). With briefing
complete, the matter is ripe. Upon consideration,
Defendant's motion is due to be denied.
action springs from Defendant Continental Service Group's
(“ConServe”) inquiries into
Plaintiff Tim Foote's credit report. After receiving his
credit report from Trans Union LLC (“Trans
Union”)-a credit reporting agency-on August
14, 2017, Plaintiff discovered an “Account Review
Inquiry” on his credit report by Defendant ConServe.
(Doc. 1, ¶ 17). At the time, Plaintiff knew nothing
about, and had no prior communications with, ConServe.
(Id. ¶¶ 17-19).
August 25, 2017, Plaintiff sent ConServe an “initial
notice of formal dispute letter.” (Id. ¶
24). On September 1, 2017, Plaintiff received ConServe's
reply letter, which identified (i) “Deutsche Bank/Peaks
LN” as the original creditor, and (ii)
“ConServe-Dept of Education” as the requesting
party. (Id. ¶ 26). Plaintiff exchanged several
additional communications with ConServe and Trans Union,
culminating with letters from Plaintiff entitled
“NOTICE OF PENDING LAWSUIT, NOTICE OF OPPORTUNITY TO
CURE, ” sent to both entities on November 20, 2017.
(Id. ¶¶ 27-35). Plaintiff received a reply
letter dated December 7, 2017, from ConServe identifying
itself as a debt collection agency and identifying two of
Plaintiff's alleged creditors (U.S. Department of
Education (ED) and Deutsche Bank/Peaks LN). (Id.
¶ 36, Doc. 18-1, p. 3).
Plaintiff initiated this action against Trans Union and
ConServe on January 16, 2018. (Doc. 1). Plaintiff and Trans
Union settled their dispute and Plaintiff's claims
against Trans Union were dismissed on April 20, 2018. (Doc.
28). Plaintiff's claims against ConServe-for violations
of the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. § 1681
et seq.-remain. ConServe moves to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6).
STANDARD OF REVIEW
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief,
” set forth in “numbered paragraphs each limited
as far as practicable to a single set of
circumstances.” Fed.R.Civ.P. 8(a), 10(b). Thus, to
survive a Rule 12(b)(6) motion to dismiss, the complaint
“must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A claim is plausible on its face
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.
a complaint need not contain detailed factual allegations,
mere legal conclusions or recitation of the elements of a
claim are not enough. Twombly, 550 U.S. at 555.
Moreover, courts are “not bound to accept as true a
legal conclusion couched as a factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286 (1986).
“While legal conclusions can provide the framework of a
complaint, they must be supported by factual
allegations.” Iqbal, 556 U.S. at 679. Courts
must also view the complaint in the light most favorable to
the plaintiff and resolve any doubts as to the sufficiency of
the complaint in the plaintiff's favor. Hunnings v.
Texaco, Inc., 29 F.3d 1480, 1483 (11th Cir. 1994) (per
curiam). In sum, courts must (1) ignore conclusory
allegations, bald legal assertions, and formulaic recitations
of the elements of a claim; (2) accept well-pled factual
allegations as true; and (3) view well-pled allegations in
the light most favorable to the plaintiff. Iqbal,
556 U.S. at 679.
FCRA prohibits third parties from using or obtaining a
consumer credit report unless: “(1) the consumer report
is obtained for a purpose for which the consumer report is
authorized to be furnished under this section; and (2) the
purpose is certified in accordance with section 1681e of this
title by a prospective user of the report through a general
or specific certification.” 15 U.S.C. § 1681b(f).
Plaintiff alleges that Defendant violated both subsections of
§ 1681b(f) when it accessed Plaintiff's consumer
credit report. (Doc. 1).
Violation of 15 U.S.C. § 1681b(f)(1)
brings a cause of action against ConServe accessing his consumer
credit information without consent and without a § 1681b
permissible purpose, in violation of the FCRA. (Id.
¶¶ 43-46). Defendant moves to dismiss this claim,
asserting that it had a permissible purpose-as a debt
collector-to access Plaintiff's credit information. (Doc.
18). Because Defendant fails to establish it acted with a
permissible purpose, its motion to dismiss Plaintiff's
§ 1681b(f)(1) claims is due to be denied.
state a claim for violation of the FCRA in connection with
the misuse or acquisition of a consumer report, a plaintiff
must adequately allege: “(i) that there was a consumer
report, (ii) that defendants used or obtained it, (iii) that
they did so without a permissible statutory purpose, and (iv)
that they acted with the specified culpable mental