UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Shuntay Antonio Brown, : : Plaintiff, : v. : Civil Action No. 19-979 (CKK) : Civil Action No. 21-113 (CKK) Pennsylvania Higher Education : Agency et al., : : Defendants. :
MEMORANDUM OPINION
On March 2, 2020, the Court dismissed plaintiff’s complaint brought under the Fair
Credit Reporting Act (“FCRA”) with leave to amend as to the federal defendants and the credit
bureau defendants. See Mem. Op. I [Dkt. # 91]; see also Order at 2, [Dkt. # 90] (setting out
pleading requirements). On June 22, 2020, plaintiff filed an Amended Complaint, in which he
asks the question ‘How Long’ under the Fair Credit Reporting Act, shall a Bankruptcy appear on the record with the Credit Reporting Agency pursuant to the ambiguous terms within 15 U.S.C. Section 168lc(a)(l) after the bankruptcy was purged from the record pursuant to a reinvestigation and the Declaration of Anna Simmons within Document 15-1 regarding the deletion of the bankruptcy case in connection with Childress v. Experian Information Solution Inc. 790 F. 3d 745 (2015).
Am. Compl. at 1, ECF No. 96. Plaintiff seeks “$799,999.99 in damage and all other relief under
the regulation pursuant to 15 USC Section 1681n(a)” for “willful violations” allegedly
committed by Experian Information Solutions, Inc., and Equifax Information Services LLC.
Id. at 1-2. Plaintiff has since settled the case with Equifax. See Oct. 6. 2020 Minute Order
(dismissing suit against Equifax pursuant to settlement terms). Pending are separate motions to
dismiss on behalf of (1) U.S. Department of Education and U.S. Department of Housing and
1 Urban Development (“Federal Defendants”) and (2) Experian Information Solutions, Inc.
(“Experian”). The remaining defendant, Trans Union, LLC, has joined in Experian’s motion to
dismiss “in an abundance of caution.” Not. of Joinder at 1, n.1 [Dkt. # 106]; see id. (observing
correctly that the amended complaint “does not mention in its text, much less make any
allegations against Trans Union”). 1
Each motion seeks dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim upon which relief can be granted. For the following reasons, both motions will be
granted.
II. LEGAL STANDARD
A party may move under Rule 12(b)(6) to dismiss a complaint on the grounds that it
“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “[A]
complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual
allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly,
550 U.S. at 570. “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.” Iqbal, 556 U.S. at 678.
1 On January 4, 2021, plaintiff filed a largely incoherent document focused on Trans Union captioned: PLAINTIFFS' MOTION FOR ORDER TO SHOW CAUSE WHY DEFENDANTS SHOULD NOT BE HELD IN COMTEMPT OF CONGRESS FOR VIOLATING THE STATUTE OF LIMITATION REGARDING 15 U.S.C. SECTION 1681c(a) AND ILLINOIS JUDGE LEROY K. MARTIN JR ORDER OF CONCEAMENT PURSUANT TO MORAN V. SCREENIG PRO LLC 923 F.3d 1208 (9th Cir. 2019) (capitalization and misspellings in original). The Court’s resolution of the pending motions renders a show cause order unnecessary; therefore, this motion will be denied.
2 In ruling on a motion to dismiss for failure to state a claim, the Court accepts as true the
well-pleaded allegations in the operative complaint, but “not . . . the plaintiff’s legal conclusions
or inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in
U.S., 758 F.3d 296, 315 (D.C. Cir. 2014). The Court may consider not only “the facts alleged in
the complaint” but also “documents attached to the complaint as exhibits or incorporated by
reference in the complaint, and matters about which the Court may take judicial notice.”
Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citing EEOC v. St. Francis
Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997)). Pro se pleadings are held to
“less stringent standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam), but still they must satisfy the minimal requirement of alleging
sufficient “factual matter” to permit a court “to infer more than the mere possibility of
misconduct[.]” Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 150 (D.C. Cir. 2015)
(quoting Atherton v. District of Columbia Off. of the Mayor, 567 F.3d 672, 681-82 (D.C. Cir.
2009) (internal quotation marks omitted)).
III. ANALYSIS
1. Federal Defendants’ Motion
Defendants assert correctly that the amended complaint “contains no allegations relating
to the Federal Defendants.” Mem. in Supp. of Mot. to Dismiss at 5 [Dkt. # 98]. On July 7, 2020,
the Court duly advised plaintiff about the consequences of failing to respond to the Federal
Defendants’ motion by August 14, 2020. See Order [Dkt. # 100]. Yet, plaintiff has neither filed
a response nor requested additional time to respond. Consequently, the Court will grant the
Federal Defendants’ well-grounded motion to dismiss.
3 2. Experian’s Motion
Plaintiff alleges that on October 2, 2019, Experian “reinserted the 2012 bankruptcy
record without proper certification pursuant to 15 U.S.C. Section 168li(a)(5)(A)(i).” Am.
Compl. at 1. He seeks damages for that alleged violation. See id. at 2. The FCRA provides in
relevant part:
if the completeness or accuracy of any item of information contained in a consumer’s file at a consumer reporting agency is disputed by the consumer and the consumer notifies the agency directly, or indirectly through a reseller, of such dispute, the agency shall, free of charge, conduct a reasonable reinvestigation to determine whether the disputed information is inaccurate and record the current status of the disputed information, or delete the item from the file in accordance with paragraph (5), before the end of the 30- day period beginning on the date on which the agency receives the notice of the dispute from the consumer or reseller.
15 U.S.C.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Shuntay Antonio Brown, : : Plaintiff, : v. : Civil Action No. 19-979 (CKK) : Civil Action No. 21-113 (CKK) Pennsylvania Higher Education : Agency et al., : : Defendants. :
MEMORANDUM OPINION
On March 2, 2020, the Court dismissed plaintiff’s complaint brought under the Fair
Credit Reporting Act (“FCRA”) with leave to amend as to the federal defendants and the credit
bureau defendants. See Mem. Op. I [Dkt. # 91]; see also Order at 2, [Dkt. # 90] (setting out
pleading requirements). On June 22, 2020, plaintiff filed an Amended Complaint, in which he
asks the question ‘How Long’ under the Fair Credit Reporting Act, shall a Bankruptcy appear on the record with the Credit Reporting Agency pursuant to the ambiguous terms within 15 U.S.C. Section 168lc(a)(l) after the bankruptcy was purged from the record pursuant to a reinvestigation and the Declaration of Anna Simmons within Document 15-1 regarding the deletion of the bankruptcy case in connection with Childress v. Experian Information Solution Inc. 790 F. 3d 745 (2015).
Am. Compl. at 1, ECF No. 96. Plaintiff seeks “$799,999.99 in damage and all other relief under
the regulation pursuant to 15 USC Section 1681n(a)” for “willful violations” allegedly
committed by Experian Information Solutions, Inc., and Equifax Information Services LLC.
Id. at 1-2. Plaintiff has since settled the case with Equifax. See Oct. 6. 2020 Minute Order
(dismissing suit against Equifax pursuant to settlement terms). Pending are separate motions to
dismiss on behalf of (1) U.S. Department of Education and U.S. Department of Housing and
1 Urban Development (“Federal Defendants”) and (2) Experian Information Solutions, Inc.
(“Experian”). The remaining defendant, Trans Union, LLC, has joined in Experian’s motion to
dismiss “in an abundance of caution.” Not. of Joinder at 1, n.1 [Dkt. # 106]; see id. (observing
correctly that the amended complaint “does not mention in its text, much less make any
allegations against Trans Union”). 1
Each motion seeks dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim upon which relief can be granted. For the following reasons, both motions will be
granted.
II. LEGAL STANDARD
A party may move under Rule 12(b)(6) to dismiss a complaint on the grounds that it
“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “[A]
complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual
allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly,
550 U.S. at 570. “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.” Iqbal, 556 U.S. at 678.
1 On January 4, 2021, plaintiff filed a largely incoherent document focused on Trans Union captioned: PLAINTIFFS' MOTION FOR ORDER TO SHOW CAUSE WHY DEFENDANTS SHOULD NOT BE HELD IN COMTEMPT OF CONGRESS FOR VIOLATING THE STATUTE OF LIMITATION REGARDING 15 U.S.C. SECTION 1681c(a) AND ILLINOIS JUDGE LEROY K. MARTIN JR ORDER OF CONCEAMENT PURSUANT TO MORAN V. SCREENIG PRO LLC 923 F.3d 1208 (9th Cir. 2019) (capitalization and misspellings in original). The Court’s resolution of the pending motions renders a show cause order unnecessary; therefore, this motion will be denied.
2 In ruling on a motion to dismiss for failure to state a claim, the Court accepts as true the
well-pleaded allegations in the operative complaint, but “not . . . the plaintiff’s legal conclusions
or inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in
U.S., 758 F.3d 296, 315 (D.C. Cir. 2014). The Court may consider not only “the facts alleged in
the complaint” but also “documents attached to the complaint as exhibits or incorporated by
reference in the complaint, and matters about which the Court may take judicial notice.”
Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citing EEOC v. St. Francis
Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997)). Pro se pleadings are held to
“less stringent standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam), but still they must satisfy the minimal requirement of alleging
sufficient “factual matter” to permit a court “to infer more than the mere possibility of
misconduct[.]” Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 150 (D.C. Cir. 2015)
(quoting Atherton v. District of Columbia Off. of the Mayor, 567 F.3d 672, 681-82 (D.C. Cir.
2009) (internal quotation marks omitted)).
III. ANALYSIS
1. Federal Defendants’ Motion
Defendants assert correctly that the amended complaint “contains no allegations relating
to the Federal Defendants.” Mem. in Supp. of Mot. to Dismiss at 5 [Dkt. # 98]. On July 7, 2020,
the Court duly advised plaintiff about the consequences of failing to respond to the Federal
Defendants’ motion by August 14, 2020. See Order [Dkt. # 100]. Yet, plaintiff has neither filed
a response nor requested additional time to respond. Consequently, the Court will grant the
Federal Defendants’ well-grounded motion to dismiss.
3 2. Experian’s Motion
Plaintiff alleges that on October 2, 2019, Experian “reinserted the 2012 bankruptcy
record without proper certification pursuant to 15 U.S.C. Section 168li(a)(5)(A)(i).” Am.
Compl. at 1. He seeks damages for that alleged violation. See id. at 2. The FCRA provides in
relevant part:
if the completeness or accuracy of any item of information contained in a consumer’s file at a consumer reporting agency is disputed by the consumer and the consumer notifies the agency directly, or indirectly through a reseller, of such dispute, the agency shall, free of charge, conduct a reasonable reinvestigation to determine whether the disputed information is inaccurate and record the current status of the disputed information, or delete the item from the file in accordance with paragraph (5), before the end of the 30- day period beginning on the date on which the agency receives the notice of the dispute from the consumer or reseller.
15 U.S.C. § 1681i(a)(1). After an investigation, paragraph five requires prompt deletion from
the consumer’s file of information “found to be inaccurate or incomplete or cannot be verified”
or modification of such information “as appropriate.” Id. § 1681i(a)(5)(A). If information is
deleted, it “may not be reinserted in the file by the consumer reporting agency unless the person
who furnishes the information certifies that the information is complete and accurate,” and “the
consumer reporting agency shall notify the consumer of the reinsertion in writing not later than 5
business days after the reinsertion” and inform him about challenging the reinsertion. Id. § 1681i
(a)(5)(B).
Plaintiff’s claim fails for the simple fact that his 2012 Voluntary Petition of Bankruptcy
in the Northern District of Illinois is a verifiable court document, the accuracy of which he
cannot plausibly question. See Def.’s Ex. 1, Dkt. # 101-2 (bankruptcy petition containing
electronic signatures of plaintiff under penalty of perjury and his attorney). Plaintiff references
Childress v. Experian Information Solutions, Inc., 790 F. 3d 745 (7th Cir. 2015), see Am. Compl.
4 at 1, but why is unclear and perhaps self-defeating. In that case, the Seventh Circuit Court of
Appeals affirmed a grant of summary judgment to Experian. In doing so, the court agreed that
the FCRA requires a consumer reporting agency to act “upon receipt of” certified documentation
affecting a report of bankruptcy but squarely rejected the notion that the Act imposes an
affirmative duty on the agency to “monitor all dismissals of bankruptcy petitions and investigate
to determine whether they were dismissed at the request of the petitioner.” Childress, 790 F.3d
at 747. Plaintiff asserts that his “bankruptcy was purged pursuant to a reinvestigation,” Am.
Compl. at 1, but the document he cites, “Declaration of Anna Simmons within Document 15-1,”
id., states nothing of the kind. A bare assertion, such as this, fails to “nudge” plaintiff’s claim
“across the line from conceivable to plausible[.]” Twombly, 550 U.S. at 570. Save
circumstances not shown to apply here, a consumer report must exclude bankruptcy cases “that
antedate the report by more than 10 years.” 15 U.S.C. § 1681c(a)(1). So, to answer the question
underlying the amended complaint, Experian asserts correctly that “any reporting of this
bankruptcy cannot run afoul of the 10-year period . . . until 2022 at the earliest.” Reply at 1.
CONCLUSION
For the foregoing reasons, defendants’ motions to dismiss are granted and plaintiff’s
motion for an order to show cause is denied. A separate order accompanies this Memorandum
Opinion.
__________s/s__________________ COLLEEN KOLLAR-KOTELLY United States District Judge DATE: January 14, 2021