United States District Court, M.D. Florida, Tampa Division
MICHELE MALVERTY, individually, and as successor-in-interest of JAMES C. RENNICK, Sr., Plaintiff,
EQUIFAX INFORMATION SERVICES, LLC, Defendant.
D. Whittemore United States District Judge
THE COURT are Defendant Equifax Information
Services, LLC's Partial Motion to Dismiss (Dkt. 85),
Plaintiff Malverty's response (Dkt. 97), Plaintiff's
Motion Seeking Leave to Amend Complaint (Dkt. 99) and
Defendant's response (Dkt. 102). Upon consideration,
Defendant's partial motion to dismiss is
GRANTED. Plaintiff's motion to amend is
Michele Malverty, on her own behalf and as
successor-in-interest to the estate of her father, James C.
Rennick, Sr., alleges that Equifax mixed Rennick's credit
report with that of another individual, James Palmer, who had
a similar social security number and was deceased. (Dkt. 84
¶¶ 17, 25). As a result, Rennick's credit
report inaccurately showed that he was deceased and owed a
mortgage with a large balance and delinquent payments.
(Id.). Due to these inaccuracies, Rennick was unable
to obtain a home equity loan and a car loan. (Id.
¶¶ 15, 29).
time, Rennick had a heart condition, and his wife, Angela
Rennick, had Stage IV lung, kidney, bone, and brain cancer.
(Id. ¶¶ 9-10). These conditions limited
the Rennicks' activities and abilities, and they wanted
to renovate their home to accommodate their health needs.
(Id. ¶¶ 9-11). Rennick and Malverty
approached a mortgage broker for a home equity loan to make
the necessary repairs and provide funds to pay Mrs.
Rennick's anticipated funeral expenses. (Id.
¶¶ 12-14). The broker, however, told Rennick he was
unable to obtain the loan because his Equifax and Experian
credit reports indicated he was deceased. (Id.
Malverty and Rennick provided Equifax a letter from the
Social Security Administration to prove Rennick was alive,
Equifax did not remove the deceased notation. (Id.
¶¶19-20). In response to a second dispute, Equifax
temporarily removed the deceased notation. (Id.
¶ 21). In February 2017, Rennick again attempted to
obtain a home equity loan, but was declined because his
credit report erroneously showed that he owed a mortgage with
a large balance and delinquent payments to M&T Bank.
(Id. ¶ 22). Malverty and Rennick spent the next
few months calling Equifax to remove the mortgage from the
report, but were unsuccessful. (Id. ¶ 23).
Rennick's behalf, M&T Bank called Equifax to inform
it that Rennick did not have an M&T mortgage.
(Id.¶ 25). The bank also provided Rennick a
letter indicating that he did not have a mortgage and his
file was being mixed with another customer's.
(Id.). Rennick provided the letter to Equifax by fax
at least four times. (Id.¶ 26). Universal
Credit Services (“UCS”), another credit reporting
agency, also received notice that Equifax was not reporting
Rennick's credit report correctly and informed Equifax.
(Id. ¶ 28). Equifax refused to investigate the
disputes and continued to report the erroneous information on
Rennick's credit report. (Id. ¶¶
2017, Mrs. Rennick passed away. (Id. ¶ 33).
Because they had been unable to obtain the loan, Malverty and
Mr. Rennick could not pay for Mrs. Rennick's funeral
expenses and had to cremate her. (Id. ¶ 34).
September 2017, Rennick purchased an automobile from a Kia
dealership with a loan from the dealership. (Id.
¶ 29). Approximately two weeks later, the dealership
informed Rennick that it could not complete the loan because
Rennick's credit report indicated that he was deceased.
(Id.). The dealership repossessed the car.
the pendency of this case, on May 1, 2018, Mr. Rennick passed
away, and Malverty had to cremate him. (Id.
¶¶ 37-40). Malverty pursues Rennick's claims as
successor-in-interest to his estate. She also brings her own
claims because she cared for her father and assisted him with
his disputes with Equifax. As Rennick's
successor-in-interest, she seeks actual and punitive damages
for violations of the Fair Credit Reporting Act (FCRA) (Count
I). Malverty also brings state law claims on her own and on
Rennick's behalf for intentional infliction of emotional
distress (Count II), intrusion upon seclusion (Count III),
negligence (Count IV), negligent infliction of emotional
distress (Count V), defamation (Count VI), gross negligence
(Count VII), and slander of credit (Count
MOTION TO DISMISS
moves to dismiss Malverty's individual claims, contending
that she fails to allege that there was any inaccurate
information on her Equifax credit report, that she was never
denied credit, and that she does not otherwise state a claim
on her state law claims. (Dkt. 85). Equifax also moves to
dismiss Counts II, III, & V and the claim for punitive
damages under the FCRA, arguing that Rennick's claim for
punitive damages does not survive his death.
complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). The complaint must
“plead all facts establishing an entitlement to relief
with more than ‘labels and conclusions' or a
‘formulaic recitation of the elements of a cause of
action.'” Resnick v. AvMed, Inc., 693 F.3d
1317, 1324 (11th Cir. 2012) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 554, 555 (2007)).
a complaint that states a plausible claim for relief survives
a motion to dismiss.” Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009) (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.”
Id. at 678 (citation omitted). “Determining
whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Id. at 679 (citation omitted). Where
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
not shown that the pleader is entitled to relief.
complaint's factual allegations must be accepted as true
for purposes of a motion to dismiss, but this tenet is
“inapplicable to legal conclusions.” Id.
at 678. “While legal conclusions can provide the
framework of a complaint, they must be supported by factual
allegations.” Id. at 679. And all reasonable
inferences must be drawn in the plaintiff's favor.
St. George v. Pinellas Cty., 285 F.3d 1334, 1337
(11th Cir. 2002).
generally argues that Malverty's claims are merely
derivative of Rennick's and that these claims are not
authorized under the FCRA. (Dkt. 85 at 5). But Malverty does
not bring an FCRA claim on her own behalf. And this
contention does not relate to her state law claims.
II - Intentional Infliction of Emotional
Equifax argues that its alleged conduct does not rise to the
requisite level of outrageousness under Florida law. (Dkt. 85
at 5-8). Malverty disagrees, noting that Equifax “was
made aware that Mrs. Rennick was dying of cancer and the
Rennicks needed the money so that James Rennick could afford
to bury his wife.” (Dkt. 97 at 15). She contends that
“[t]he burial of one's parent or spouse is of such
a personal and permanent nature that knowingly and
intentionally preventing someone from being able to bury
their loved one must be considered extreme and
outrageous.” (Id.). Malverty adds that
Equifax's failure to correct the report resulted in the
repossession of Rennick's car. (Id. at 16).
of intentional infliction of emotional distress under Florida
law requires a plaintiff to prove: (1) The wrongdoer's
conduct was intentional or reckless, that is, he intended his
behavior and he knew or should have known that emotional
distress would likely result; (2) the conduct was outrageous,
that is, it went beyond all bounds of decency, and is
regarded as odious and utterly intolerable in a civilized
community; (3) the conduct caused emotional distress; and (4)
the emotional distress was severe. LeGrande v.
Emmanuel, 889 So.2d 991, 994 (Fla. 3d DCA 2004)
evaluating whether conduct is outrageous, “the
subjective response of the person who is the target of the
actor's conduct does not control . . . Rather, the court
must evaluate the conduct as objectively as is possible to
determine whether it is atrocious, and utterly intolerable in
a civilized community.” Liberty Mut. Ins. Co. v.
Steadman, 968 So.2d 592, 595 (Fla. 2d DCA 2007)
(citations and internal quotation marks omitted).
“Whether conduct is outrageous enough to support a
claim of intentional infliction of emotional distress is a
question of law, not a question of fact.” Id.
argues that Equifax was aware of the Rennicks' medical
conditions and “stress and injury which was developing
by [Equifax's] conduct, ” and that Equifax had
“a clear position of authority over Mr. Rennick with
the clear ability to [affect] the Rennicks.” (Dkt. 97
at 17-18). She relies on Steadman and comments
“e” and “f” to Section 46 of the
Restatement (Second) of Torts. Comment “f”
f. The extreme and outrageous character of the conduct may
arise from the actor's knowledge that the other is
peculiarly susceptible to emotional distress, by reason of
some physical or mental condition or peculiarity. The conduct
may become heartless, flagrant, and outrageous when the actor
proceeds in the face of such knowledge, where it would not be
so if he did not know. It must be emphasized again, however,
that major outrage is essential to the tort; and the mere