Brown v. Equifax Inc

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

WHITNEY-SIMONE BROWN CIVIL ACTION NO. 23-495

VERSUS JUDGE EDWARDS

EQUIFAX INC ET AL MAGISTRATE JUDGE HORNSBY

MEMORANDUM ORDER

Before the Court are two motions to dismiss. The first was filed by Equifax,

Inc. (“Equifax”), Mark Begor (“Begor”), and John Gamble (“Gamble”) (collectively, the

“original Defendants”).1 The second was filed by Equifax Information Services, LLC

(“EIS”).2 The plaintiff, Whitney-Simone Brown (“Ms. Brown”), opposes both.3

After careful consideration of the parties’ memoranda and the applicable law,

the motions are GRANTED, and Whitney-Simone Brown’s claims against Equifax,

Inc., Mark Begor, John Gamble, and Equifax Information Services, LLC are

DISMISSED.

I. BACKGROUND

Ms. Brown originally brought this case against Equifax and two of its corporate

officers—Begor and Gamble, alleging violations of the Fair Credit Reporting Act4

(“FCRA”) and the Gramm-Leach-Bliley Act5 (“GLBA”).6 The original Defendants

responded with a motion to dismiss alleging that Equifax was not a proper defendant

1 R. Doc. 25.

2 R. Doc. 29

3 R. Doc. 27; R. Doc. 32.

4 15 U.S.C. § 1681, et seq.

5 15 U.S.C. § 6801, et seq.

6 R. Doc. 1 at 2, 6–7.

under the FCRA; that the Court lacked personal jurisdiction over Begor and Gamble;

and that Begor and Gamble were not properly served.7 In response, Ms. Brown filed

a Motion to Amend and Change Defendants, conceding that Equifax, Begor, and

Gamble “were not the proper parties to be named as defendant[s] in this civil suit,”

and “request[ed] that” the Court substitute EIS in their stead.8 The Court denied Ms.

Brown’s first motion to amend as it lacked an attached amended complaint.9 Ms.

Brown corrected this oversight, moved again for amendment, and was granted leave

to do so.10 In light of Ms. Brown’s amendment, the Court denied the original

Defendants’ first motion to dismiss.11 The two instant motions to dismiss followed.

The original Defendants’ second motion to dismiss states the obvious in light

of Ms. Brown’s Amended Complaint: (1) that Ms. Brown no longer states a claim

against the original Defendants, and (2) that the Amended Complaint “fails to plead

any facts establishing personal jurisdiction” over the original Defendants.12 While in

the record as her response to the motion, Ms. Brown’s Brief of Additional Evidence to

Support Claim does not address this Motion to Dismiss, nor the original Defendants

at all.13 Instead, it only addresses Ms. Brown’s claims against EIS.14 Thus, taken in

combination with her admission that the original Defendants are not proper parties

to this suit, the Court considers this motion unopposed.15

7 See R. Doc. 11 at 4–9.

8 R. Doc. 17.

9 R. Doc. 19.

10 R. Doc. 21.

11 See R. Doc. 24.

12 R. Doc. 25-1 at 4.

13 See R. Doc. 27 at 1–3.

14 Id.

15 See R. Doc. 17.

The Motion to Dismiss filed by EIS is more substantive.16 In it, EIS argues

that Ms. Brown “fails to identify what the alleged inaccuracy is that she claims she

disputed to Equifax” as required to state a claim under § 1681i of the FCRA.17

Furthermore, EIS submits that § 1681(a)(4) of the FCRA does not provide a cause of

action; and that Ms. Brown misunderstands the definitional nature of §1681a(d)(2) of

the FCRA.18 Accordingly, and considering Ms. Brown’s prior opportunity to cure

alleged defects in her complaint, EIS asks us to dismiss her claims with prejudice.19

Ms. Brown filed an opposition, along with 103 pages of hand-annotated credit

records.20 In short, Ms. Brown offers that “[t]here are over 100 noted and highlighted

errors” in her consumer report compiled by EIS.21 Some of these alleged errors

include accounts with “inaccurate date closed”; “inaccurate months reviewed”;

“[inaccurate] activity designator”; “[inaccurate] date of last payment”; “[inaccurate]

status”; “[inaccurate] date of 1st delinquency”; and lacking “historical data.”22

Accordingly, Ms. Brown asserts that “Equifax has displayed willful noncompliance

and reckless negligence in properly investigating consumer claims.”23

II. LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead “enough

facts to state a claim [for] relief that is plausible on its face.”24 A complaint attacked

16 R. Doc. 29.

17 Id. at 4.

18 Id. at 4–6.

19 Id. at 6.

20 R. Doc. 32; R. Doc. 32-1.

21 R. Doc. 32 at 2.

22 Id.

23 Id. at 4.

24 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

by Rule 12(b)(6) does not need detailed factual allegations but requires more than

labels and conclusions.25 “[A] formulaic recitation of the elements of a cause of action

will not do.”26 When evaluating a pleading, courts accept all factual allegations as

true.27 However, courts need not accept legal conclusions as facts.28

III. ANALYSIS

A. Original Defendants’ Motion to Dismiss (R. Doc. 25)

It is facially apparent, and we agree with the original Defendants’ contention,29

that Ms. Brown’s Amended Complaint (R. Doc. 22) fails to plead “factual content that

allows the court to draw the reasonable inference that [Equifax, Begor, and Gamble]

[are] liable for the misconduct alleged.”30 Furthermore, Ms. Brown never filed a

response to this motion. This is consistent with the original Defendants’ assertion,31

and Ms. Brown's concession,32 that Equifax, Begor, and Gamble are not consumer

reporting agencies as defined by the statute33 and are thus not proper defendants to

these claims.34 Accordingly, Ms. Brown’s exclusion of claims against the original

Defendants from her Amended Complaint warrants their dismissal.

25 Id. at 555.

26 Id.

27 In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).

28 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

29 R. Doc. 25-1 at 4.

30 Iqbal, 556 U.S. at 678.

31 R. Doc. 11 at 4–9.

32 R. Doc. 17.

33 15 U.S.C. § 1681a(f) (defining a “consumer reporting agency” as “any person which, for monetary

fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of

assembling or evaluating consumer credit information or other information on consumers for the

purpose of furnishing consumer reports to third parties, and which uses any means or facility of

interstate commerce for the purpose of preparing or furnishing consumer reports.”).

34 See Stevenson v. TRW Inc., 987 F.2d 288, 292 (5th Cir. 1993) (citing 15 U.S.C. § 1681o) (“A consumer

reporting agency that negligently fails to comply with FCRA’s requirements is liable for actual

damages, costs, and reasonable attorney’s fees.”).

B. EIS’s Motion to Dismiss (R. Doc. 29)

EIS contends that, in order to state a claim under §1681i of the FCRA, the

complaint must allege an actual inaccuracy in the credit file.35 We agree.36

Ms. Brown has not stated a claim under § 1681i because she did not plead

sufficient facts for the Court to infer that EIS’s credit report was inaccurate.37 Her

annotations marking the credit report entries as simply “inaccurate” are

inadequate.38 Accordingly, Ms. Brown’s pleadings fall well short of the threshold

required to survive a motion to dismiss under Rule 12(b)(6).39

Finally, neither the GLBA,40 nor §§ 1681(a)(4)41 and 1681a(d)(2)42 of the FCRA,

confers a right of action to Ms. Brown. As such—especially considering her prior

opportunity to amend her complaint and subsequent failure to bolster her claims’

plausibility—Ms. Brown’s claims against EIS must be dismissed.43

35 R. Doc. 29-1 at 4 (citing Morris v Trans Union LLC, 420 F. Supp 2d 733, 751 (S.D. Tex. 2006), aff’d

224 F. App’x 415 (5th Cir. 2007); Carvalho v. Equifax Info. Servs. LLC, 629 F.3d 876, 890 (9th Cir.

2010); Losch v. Nationstar Mortgage LLC, 995 F.3d 937, 944 (11th Cir. 2021); Hinton v. Trans Union

LLC, 654 F. Supp. 2d 440, 451 (E.D. Va. 2009)).

36 See Boothe v. Equifax Info. Servs. LLC, No. 3:21-CV-1766-D, 2021 WL 5630839 at *3–4 (N.D. Tex.

Dec. 1, 2021) (collecting cases).

37 Id. at *4 (“Accordingly, for [plaintiff] to plausibly plead his claims against TransUnion under §

1681e(b) and § 1681i, he must plead sufficient facts for the court to draw the reasonable inference that

TransUnion’s credit report was inaccurate.”)

38 See id. at *5 (“When a plaintiff attaches documents to the complaint, courts are not required to

accept the plaintiff’s interpretation of those documents.”), quoting Becci v. Equifax Info. Servs. LLC,

2020 WL 7771204, at *3; see id. at *4–5 (“[T]he court's inquiry is focused on the report's factual

inaccuracy, not on whether [plaintiff] thought the report was inaccurate.”) (emphasis in original); R.

Doc. 22 at 1–2.

39 See Iqbal, 556 U.S. at 663-64 (holding that “conclusory statements” will not survive an attack under

Rule 12(b)(6) of the Federal Rules of Civil Procedure).

40 See Lowe v. ViewPoint Bank, 972 F. Supp. 2d 947, 954-55, 961 (N.D. Tex. 2013).

41 §1681(a) merely sets out the findings and policy purpose of the statute. 15 U.S.C. § 1681(a).

42 § 1681a(d) and its subsections merely define the term “consumer report.” 15 U.S.C. § 1681a(d).

43 Cf. Bazrowx v. Scott, 136 F.3d 1053 at 1054-55 (5th Cir. 1998) (holding that dismissal of a pro se

plaintiff’s complaint is proper when further amendment would be futile, or when done without

prejudice).

IV. CONCLUSION

For the foregoing reasons, IT IS ORDERED that the original Defendants’

Motion to Dismiss‘4 is GRANTED, and Whitney-Simone Brown’s claims against

Equifax, Inc., Mark Begor, and John Gamble are hereby DISMISSED WITH

PREJUDICE.

IT IS FURTHER ORDERED that EIS’s Motion to Dismiss* is GRANTED,

and Whitney-Simone Brown’s claims against Equifax Information Services, LLC are

hereby DISMISSED without prejudice.

A judgment consistent with this ruling shall be issued accordingly.

THUS DONE AND SIGNED this 11th day of July, 2024.

JERRY EDWARDS, JR.

UNITED STATES DISTRICT JUDGE

Doc. 25.

45 R. Doc. 29.