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Malverty v. Equifax Information Services, LLC

United States District Court, M.D. Florida, Tampa Division

September 11, 2019

MICHELE MALVERTY, individually, and as successor-in-interest of JAMES C. RENNICK, Sr., Plaintiff,


          James D. Whittemore United States District Judge

         BEFORE 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 DENIED.


         Plaintiff 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).

         At the 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.[1] (Id. ¶¶ 14-15).

         Though 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).

         On 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. ¶¶ 27-28).

         In June 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).

         In 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. (Id.)

         During 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 VIII).[2]


         Equifax 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.

         A. Standard

         A 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)).

         “[O]nly 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. Id.

         A 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).

         B. Discussion

         1. Malverty's claims

         Equifax 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.

         Count II - Intentional Infliction of Emotional Distress

          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).

         A claim 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) (citation omitted).

         In 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. (citations omitted).

         Malverty 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” provides:

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 fact ...

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