United States District Court, S.D. Florida
P. GAYLES UNITED STATES DISTRICT JUDGE.
CAUSE comes before the Court on Defendant Hunter
Warfield, Inc.'s Motion to Dismiss [ECF No. 4] (the
“Motion”). The Court has reviewed the briefing,
the record in this case, and the applicable law, and is
otherwise fully advised. For the reasons that follow, the
Motion is granted.
Luis Sal-Bey sued Defendant alleging that Defendant, a debt
collector, erroneously reported an unpaid account in
collection status on his credit report. Plaintiff
discovered the error when he obtained copies of his
TransUnion and Experian credit reports. Defendant's
improper report negatively impacted Plaintiff's credit
score. Plaintiff claims that Defendant reported the
collection account in error, as he has never done any
business and had no contract with Defendant. Plaintiff first
tried to remove the charge by sending three Notices of
Dispute to Defendant through certified mail. Defendant did
not respond. Plaintiff then filed this suit claiming damages
resulting from his improperly perceived bad credit and
removed this case from state court and filed the instant
Motion, which is now ripe for review.
survive a motion to dismiss brought pursuant to Federal Rule
of Civil Procedure 12(b)(6), a claim “must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face, '”
meaning that it must contain “factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). While a court must accept well-pleaded factual
allegations as true, “conclusory allegations . . . are
not entitled to an assumption of truth-legal conclusions must
be supported by factual allegations.” Randall v.
Scott, 610 F.3d 701, 709-10 (11th Cir. 2010).
“[T]he pleadings are construed broadly, ”
Levine v. World Fin. Network Nat'l Bank, 437
F.3d 1118, 1120 (11th Cir. 2006), and the allegations in the
complaint are viewed in the light most favorable to the
plaintiff. Bishop v. Ross Earle & Bonan, P.A.,
817 F.3d 1268, 1270 (11th Cir. 2016). At bottom, the question
is not whether the claimant “will ultimately prevail .
. . but whether his complaint [is] sufficient to cross the
federal court's threshold.” Skinner v.
Switzer, 562 U.S. 521, 530 (2011).
Count I: Violations of Florida Regulation
first claim arises under Florida Regulation 69J-128.022,
titled Protection of Fair Credit Reporting Act. Plaintiff
asserts that this regulation protects consumers from
negligent credit reporting practices. Defendant counters that
the regulation does not contain a private right of action and
is unrelated to Plaintiff's claims.
is correct as to both arguments. First, the regulation does
not provide litigants with a private cause of action. It
states in its entirety:
Nothing in these rules shall be construed to modify, limit or
supersede the operation of the federal Fair Credit Reporting
Act (15 U.S.C. § 1681 et seq.), and no
inference shall be drawn on the basis of the provisions of
these rules regarding whether information is transaction or
experience information under Section 603 of that Act.
Fla. Admin. Code Ann. r. 69J-128.022. Nothing in this text
suggests that the Florida legislature intended to provide
litigations with a private right to sue. See In re
Managed Care Litig., 298 F.Supp.2d 1259, 1298-99 (S.D.
Fla. 2003) (“[A] legislature's enactment of
regulatory standards and a corollary scheme of administrative
enforcement does not alone demonstrate intent to afford
parallel private remedies.”) (citing Alexander v.
Sandoval, 532 U.S. 275, 286 (2001)). The Court is not
empowered to create a private cause of action where the
Florida legislature did not. Swerhun v. Guardian Life Ins.
Co. of Am., 979 F.2d 195, 198 (11th Cir. 1992) (noting
that courts are “reluctan[t] to read private rights of
action in state laws where state courts and state
legislatures have not done so”) (quoting Farlow v.
Union Cent. Life Ins. Co., 874 F.2d 791, 795 (11th Cir.
the regulation is wholly unrelated to Plaintiff's credit
reporting claims, as the regulation concerns preemption
issues. [ECF No. 1-4, ¶¶ 27-36]. And, even
liberally construing his claims as ones brought under the
Fair Credit Reporting Act (“FCRA”), Plaintiff has