Sarahs Motion Law in Support of Defendant Memorandum The instructions for this paper are: Research any case law and/or statutes that may apply and draft an

Sarahs Motion Law in Support of Defendant Memorandum The instructions for this paper are: Research any case law and/or statutes that may apply and draft an 8-10 page, well-researched Memorandum.

This is the fact scenario

“Your client, Sarah, posted a review on Google, stating that her former accountant is a “crook.” The accountant has sued her for Defamation of Character and Sarah retained your firm to defend her. Your paralegal does some research on the accountant and discovers that the accountant was convicted of, and subsequently fined for, stealing a radio from a retail store in 1981.”Based on these facts and the sample provided, draft a Memorandum for submission to the Court as to why the accountant’s Complaint against your client should be dismissed.

I chose to support the motion to dismiss and I uploaded a sample of how the paper should pan out with cases supporting It.

I will put a big tip in for this 🙂 TY in advance! Case 2:19-cv-00534-TJS Document 21-2 Filed 03/06/19 Page 1 of 10
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
GILES LETLOUGH,
Plaintiff,
CIVIL ACTION
v.
CAPITAL ONE BANK, COMENITY
BANK, DEPARTMENT STORES
NATIONAL BANK, FIRST NATIONAL
BANK OF OMAHA, KAY JEWELERS,
CITADEL FEDERAL CREDIT UNION,
SYNCHRONY BANK, DISCOVER
BANK, TRANS UNION, LLC,
NO. 2:19-CV-00534-TJS
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT
DISCOVER BANK’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT
DATED: March 6, 2019
Daniel JT McKenna, Esquire
mckennad@ballardspahr.com
Andrew M. Carobus, Esquire
carobusa@ballardspahr.com
BALLARD SPAHR LLP
1735 Market Street, 51st Floor
Philadelphia, PA 19103-7599
Attorneys for Defendant,
Discover Bank
Case 2:19-cv-00534-TJS Document 21-2 Filed 03/06/19 Page 2 of 10
TABLE OF CONTENTS
Page
I.
INTRODUCTION ……………………………………………………………………………………………….. 1
II.
STATEMENT OF FACTS ……………………………………………………………………………………. 2
III.
STANDARD OF REVIEW …………………………………………………………………………………… 2
IV.
ARGUMENT ………………………………………………………………………………………………………. 3
V.
A.
Plaintiff’s FCRA Claim Fails As a Matter of Law Because Plaintiff Has Not
Alleged the Threshold Requirements Necessary For a Private Right of Action
Against a Credit Furnisher Like Discover …………………………………………………….. 3
B.
Plaintiff Fails to Allege Actual Damages Further Warranting Dismissal…………… 5
CONCLUSION ……………………………………………………………………………………………………. 6
i
Case 2:19-cv-00534-TJS Document 21-2 Filed 03/06/19 Page 3 of 10
TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
Ashcroft v. Iqbal,
556 U.S. 662 (2009) …………………………………………………………………………………………………….3
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) ………………………………………………………………………………………………..3, 4
Bistrian v. Levi,
696 F.3d 352 (3d Cir. 2012)………………………………………………………………………………………….4
Chiang v. Verizon New England, Inc.,
595 F.3d 26 (1st Cir. 2010) …………………………………………………………………………………………..5
Duenas v. Nordstrom FSB,
No. CV 12-02062 GAF, 2012 U.S. Dist. LEXIS 149491 (C.D. Cal. Sep. 13,
2012) …………………………………………………………………………………………………………………………5
In re Michaels Stores, Inc.,
No. 14-7563 (KM) (JBC), 2017 U.S. Dist. LEXIS 9310 (D.N.J. Jan. 24, 2017) ………………….7
Kaplan v. Experian, Inc.,
2010 U.S. Dist. LEXIS 60098 (E.D. Mich. May 26, 2010)……………………………………………….6
Perl v. American Express,
2012 U.S. Dist. LEXIS 7719 (S.D.N.Y. Jan. 19, 2012)…………………………………………………….6
Ritchie v. Northern Leasing Systems, Inc.,
14 F. Supp. 3d 229 (S.D.N.Y. 2014)………………………………………………………………………………7
Santiago v. Warminster Twp.,
629 F.3d 121 (3d Cir. 2010)………………………………………………………………………………………….4
SimmsParris v. Countrywide Fin. Corp.,
652 F.3d 355 (3d Cir. 2011)………………………………………………………………………………………4, 5
Siwulec v. J.M. Adjustment Servs., LLC,
465 F. App’x 200 (3d Cir. 2012) …………………………………………………………………………………..3
Spokeo, Inc. v. Robins,
136 S. Ct. 1540 (2016) …………………………………………………………………………………………………7
Van Veen v. Equifax Info.,
844 F. Supp. 2d 599 (E.D. Pa. 2012) ………………………………………………………………………….4, 5
FEDERAL STATUTES
15 U.S.C. § 1681n …………………………………………………………………………………………………………….4
ii
Case 2:19-cv-00534-TJS Document 21-2 Filed 03/06/19 Page 4 of 10
15 U.S.C. § 1681o …………………………………………………………………………………………………………4, 6
15 U.S.C. § 1681s-2(a) ……………………………………………………………………………………………………..4
15 U.S.C. § 1681s-2(b) ………………………………………………………………………………………………….4, 5
15 U.S.C. § 1681s-2(d) ……………………………………………………………………………………………………..4
Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. …………………………………………………………1, 6
RULES
Fed. R. Civ. P. 8 ……………………………………………………………………………………………………………….3
Fed. R. Civ. P. 8(a) …………………………………………………………………………………………………………..3
Fed. R. Civ. P. 12(b)(6)………………………………………………………………………………………………1, 3, 4
iii
Case 2:19-cv-00534-TJS Document 21-2 Filed 03/06/19 Page 5 of 10
Defendant Discover Bank (“Discover”), through its counsel, respectfully submits this
memorandum of law in support of its motion to dismiss the Complaint pursuant to
Fed. R. Civ. P. 12(b)(6). The Court should dismiss the claims against Discover because plaintiff
Giles Letlough (“Plaintiff”) fails to allege facts specific to Discover to support the elements of any
of his claims under the Fair Credit Reporting Act, 15 U.S.C. §1681, et seq. (“FCRA”).
I.
INTRODUCTION
Plaintiff alleges that Discover inaccurately furnished information regarding his credit card
to the credit reporting agencies (“CRAs”). Specifically, Plaintiff alleges that Discover failed to
notate his bankruptcy discharge in reporting to Trans Union, LLC (“Trans Union”). See Compl.,
ECF No. 1 at ¶¶ 14-15. He claims this failure violates the FCRA. Compl. ECF No. 1 at ¶¶ 17, 27,
32. But Discover’s reporting to Trans Union, which the Court may consider in evaluating a motion
to dismiss an FCRA claim, shows that Discover has been reporting Plaintiff’s account as closed
since March 2017 with a zero balance, which account closure occurred before Plaintiff received a
bankruptcy discharge. Plaintiff cannot show that he suffered damages as a result of information
Discover furnished to the CRAs.
Further, Plaintiff has not stated a claim against Discover because the Complaint contains
vague blanket allegations against all defendants as a group without declaring even basic facts
specific to Discover to withstand a motion to dismiss. He further fails to allege viable claims for
relief under the FCRA because he has not adequately alleged that any of CRAs notified Discover
of a dispute or that Discover failed to take action after receiving notice of a dispute. These are
necessary prerequisites for a private FCRA action against a credit furnisher like Discover1.
1
Discover, through its undersigned counsel, has also notified Plaintiff’s counsel that Discover has no records
of receiving any dispute from any CRA related to Plaintiff, but Plaintiff has refused to dismiss his case.
Case 2:19-cv-00534-TJS Document 21-2 Filed 03/06/19 Page 6 of 10
For these reasons, and as further discussed below, the Complaint should be dismissed in its
entirety with prejudice.
II.
STATEMENT OF FACTS
Plaintiff alleges that Discover, among other defendants, failed to note his bankruptcy
discharge, which was entered on June 15, 2017, when furnishing data to the CRAs. See Compl.,
ECF No. 1 at ¶¶ 14-15, 19. Plaintiff alleges he disputed this information with defendant Trans
Union, that Trans Union “acknowledged” receipt of his dispute and that, “upon information and
belief”, Trans Union forwarded his dispute to the creditors. Compl., ECF No. 1 at ¶¶ 22-26.
Plaintiff further claims that all defendants failed to perform reasonable investigations into
his dispute in violation of the FCRA. Compl., ECF No. 1 at ¶ 29.
Plaintiff does not make any specific allegations with regard to Discover’s actions. He does
not specifically allege that Discover received notice of the dispute or how Discover purportedly
failed to investigate the alleged dispute.
Discover attaches as Exhibit A a copy of Plaintiff’s Trans Union Consumer Credit Report
related to Discover. See Exhibit A, Trans Union Consumer Credit Report. Discover has been
reporting Plaintiff’s account as closed since March 2017 with a zero balance, which account closure
occurred before Plaintiff received a bankruptcy discharge in June 2017. See id.
III.
STANDARD OF REVIEW
A motion to dismiss filed under Federal Rule of Civil Procedure 12(b)(6) tests the
sufficiency of the complaint against the pleading requirements of Fed. R. Civ. P. 8(a). Siwulec v.
J.M. Adjustment Servs., LLC, 465 F. App’x 200, 202 (3d Cir. 2012). Fed. R. Civ. P. 8(a) requires
a complaint contain a “short and plain statement of the claim showing that the pleader is entitled to
relief.” As the Supreme Court explained in Ashcroft v. Iqbal, 556 U.S. 662 (2009), this requirement:
2
Case 2:19-cv-00534-TJS Document 21-2 Filed 03/06/19 Page 7 of 10
demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation. A pleading that offers labels and conclusions or a formulaic
recitation of the elements of a cause of action will not do. Nor does a
complaint suffice if it tenders naked assertion[s] devoid of further factual
enhancement.
Id. at 687 (internal citations and quotations omitted).
To satisfy the requirements of Fed. R. Civ. P. 8, a complaint must allege “sufficient factual
matter, accepted as true, ‘to state a claim for relief that is plausible on its face.’” Id. (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim lacks plausibility where the plaintiff
alleges only the “sheer possibility” of misconduct. Id.
In determining whether the plausibility requirement is satisfied, courts engage in a threestep analysis: (1) the court must “outline the elements a plaintiff must plead to . . . state a claim for
relief”; (2) the court must identify “those allegations that are no more than conclusions and thus not
entitled to the assumption of truth”; and (3) “where there are well-pleaded factual allegations, [the
court] should assume their veracity and then determine whether they plausibly give rise to an
entitlement for relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012); Santiago v. Warminster
Twp., 629 F.3d 121, 130 (3d Cir. 2010). A complaint that fails to satisfy these requirements must
be dismissed for failure to state a claim. Fed. R. Civ. P. 12(b)(6). Dismissal is likewise warranted
where “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Twombly, 550 U.S. at 570.
IV.
ARGUMENT
A.
Plaintiff’s FCRA Claim Fails Because Plaintiff Has Not Alleged the Threshold
Requirements Necessary For a Private Right of Action Against a Credit
Furnisher Like Discover
Under the FCRA, furnishers of credit information, such as Discover, are subject to the duties
set forth in 15 U.S.C. § 1681s-2(a), which require furnishers of credit information to provide credit
reporting agencies with accurate information, and 15 U.S.C. § 1681s-2(b), which require furnishers
3
Case 2:19-cv-00534-TJS Document 21-2 Filed 03/06/19 Page 8 of 10
of credit information to investigate the accuracy of reported information upon receiving notice of a
dispute from a credit reporting agency. The FCRA, however, only imposes civil liability against
credit furnishers for the willful or negligent failure to comply with the investigation requirements
of Section s-2(b). See 15 U.S.C. § 1681s-2(d) (liability limited to s-2(b) claims); 15 U.S.C. § 1681n
(willful noncompliance); § 1681o (negligent noncompliance); SimmsParris v. Countrywide Fin.
Corp., 652 F.3d 355, 358 (3d Cir. 2011) (“[t]he FCRA also has several provisions that create
liability for violations of the Act. . . . These provisions, however, cannot be used by a private
individual to assert a claim for a violation of § 1681s–2(a), as such claims are available only to the
Government.”)
For there to be a viable FCRA claim under Section s-2(b), Plaintiff must establish that: (a)
he sent a dispute to a CRA; (b) the CRA forwarded that dispute to the furnisher; and (c) the furnisher
thereafter failed to perform a reasonable investigation.
See SimmsParris, 652 F.3d at 359
(“consumer must first alert the credit reporting agency that reported the allegedly erroneous
information of a dispute. It is then up to the reporting agency to inform the furnisher of information
that there has been a dispute, thereby triggering the furnisher’s duty to investigate. It is only when
the furnisher fails to undertake a reasonable investigation following such notice that it may become
liable to a private litigant under § 1681s-2(b).”)
If any of those steps are missing, Plaintiff has not alleged a viable claim. Here, Plaintiff
fails to state a viable FCRA claim against Discover because he has failed to fully allege that any
CRA notified Discover about the dispute. Plaintiff alleges only that he “submitted letters” to Trans
Union disputing the errant trade lines and, “[u]pon information and belief, Defendant Trans Union
forwarded Plaintiff’s consumer dispute to the Furnishers.” See Compl., ECF No. 1 at ¶¶ 22, 26.
Discover respectfully submits that these allegations are insufficient here.
4
Case 2:19-cv-00534-TJS Document 21-2 Filed 03/06/19 Page 9 of 10
Absent more than speculation that TransUnion might have sent a notice of dispute, Plaintiff
should not be permitted to advance his claim against Discover.
B.
Plaintiff Fails to Allege Actual Damages Further Warranting Dismissal
Plaintiff must also allege actual damages caused by Discover’s alleged conduct for each of
his claims. See 15 U.S.C. § 1681o (providing liability for any person who negligently fails to
comply with a requirement imposed under § 1681, but allowing only for actual damages); Perl v.
American Express, 2012 U.S. Dist. LEXIS 7719, at *10 (S.D.N.Y. Jan. 19, 2012) (recognizing that
actual damage is an essential element of a § 1681o claim) (collecting cases)); Kaplan v. Experian,
Inc., 2010 U.S. Dist. LEXIS 60098, at *9 (E.D. Mich. May 26, 2010) (concluding that a plaintiff
must establish that he incurred actual damages that were caused by the defendant’s FCRA violation
in order to pursue a claim under § 1681o).
Plaintiff cannot meet his burden of alleging damages by vaguely claiming he,
suffered actual damages and serious financial harm arising from monetary
losses relating to credit denials, loss of use of funds, loss of credit and loan
opportunities, excessive and/or elevated interest rate and finance charges,
out-of-pocket expenses including but not limited to, cellular telephone
minutes, postage, faxing and other related costs, all which will continue into
the future to Plaintiff’s great detriment and loss.
Compl., ECF No. 1 at ¶ 34)
Plaintiff’s claim of “great physical, emotional and mental pain and anguish” and “actual
damages in the form of financial and dignitary harm arising from the injury to credit rating and
reputation,” Compl., ECF No. 1 at ¶¶ 35-36, are likewise insufficiently specific. See, e.g., Ritchie
v. Northern Leasing Systems, Inc., 14 F. Supp. 3d 229, 240 (S.D.N.Y. 2014) (dismissing claims for
negligent violation of the FCRA because the “[c]omplaint contains nothing more than conclusory
allegations” of actual damages).
5
Case 2:19-cv-00534-TJS Document 21-2 Filed 03/06/19 Page 10 of 10
Indeed, it is hard to believe how Plaintiff could claim actual damages here since his credit
report from TransUnion, which this Court can consider at this stage, see Lum v. Bank of Am., 361
F.3d 217, 221 n.3 (3d Cir. 2004) (in deciding motion to dismiss, court may consider documents that
are “integral or explicitly relied upon in the complaint” and form the basis of a claim), shows that
Discover has been reporting his account as closed since March 2017 with a zero balance, which
account closure occurred before Plaintiff received a bankruptcy discharge in June 2017. See
Exhibit A, Trans Union Consumer Credit Report. It is simply impossible that Plaintiff suffered
distress by Discover reporting a closed account with no balance due instead of the more stress
inducing notation of discharged in bankruptcy. Plaintiff should not be allowed to avoid his lack of
actual damages through vague allegations of harm.
V.
CONCLUSION
For all of the foregoing reasons, Defendant Discover respectfully requests that the Court
dismiss Plaintiff’s claims against Discover. Alternatively, Discovery requests that Plaintiff be
compelled to file an amended complaint asserting actual facts supporting his claim of an FCRA
violation and harm.
DATED: March 6, 2019
/s/ Daniel JT McKenna
Daniel JT McKenna, Esquire
mckennad@ballardspahr.com
Andrew M. Carobus, Esquire
carobusa@ballardspahr.com
BALLARD SPAHR LLP
1735 Market Street, 51st Floor
Philadelphia, PA 19103-7599
T: 215.665.8500
F: 215.864.8999
Attorneys for Defendant,
Discover Bank
6

Purchase answer to see full
attachment