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Sal-Bey v. Hunter Warfield, Inc.

United States District Court, S.D. Florida

October 23, 2019

Luis Sal-Bey, Plaintiff,
v.
Hunter Warfield, Inc., Defendant.

          ORDER

          DARRIN P. GAYLES UNITED STATES DISTRICT JUDGE.

         THIS 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.

         BACKGROUND

         Plaintiff Luis Sal-Bey sued Defendant alleging that Defendant, a debt collector, erroneously reported an unpaid account in collection status on his credit report.[1] 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 emotional distress.

         Defendant removed this case from state court and filed the instant Motion, which is now ripe for review.

         LEGAL STANDARD

         To 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).

         DISCUSSION

         I. Count I: Violations of Florida Regulation 69J-128.022

         Plaintiff's 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.

         Defendant 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.[2] 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. 1989)).

         Moreover, 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 ...


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