Glanton v. DirecTV, LLC

• Decision Date: 22 March 2016
• Docket Number: Civil Action No. 8:15–5041–TMC
• Citation: 172 F.Supp.3d 890
• Parties: Matthew U. Glanton, Jr., Plaintiff, v. DirecTV, LLC, Defendant.
• Court: U.S. District Court — District of South Carolina

172 F.Supp.3d 890

Matthew U. Glanton, Jr., Plaintiff,

v.DirecTV, LLC, Defendant.

Civil Action No. 8:15–5041–TMC

United States District Court, D. South Carolina, Anderson Division.

Signed March 22, 2016

Filed March 23, 2016

Matthew U. Glanton, Jr., Johnson, SC, pro se.

Carter R. Massingill, John Robert Devlin, Jr., Devlin and Parkinson, Greenville, SC, for Defendant.

ORDER

Timothy M. Cain, United States District Judge

Plaintiff, proceeding pro se, filed this action pursuant to the Fair Credit Reporting Act, 15 U.S.C. § 1681. Defendant filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). (ECF No. 17). In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02, D.S.C., these matters were referred to a magistrate judge for pretrial handling. Before the court is the magistrate judge's Report and Recommendation (“Report”), recommending that the court grant Defendant's motion to dismiss. (ECF No. 24). Plaintiff was advised of his right to file objections to the Report. (ECF No. 24 at 11). Plaintiff, however, filed no objections to the Report, and the time to do so has now run.

The Report has no presumptive weight and the responsibility to make a final determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 270–71, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). In the absence of objections, this court is not required to provide an explanation for adopting the Report. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir.1983). Rather, “in the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”

Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir.2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).

After a thorough review of the Report and the record in this case, the court adopts the magistrate judge's Report (ECF No. 24) and incorporates it herein. It is therefore ORDERED that Defendant's motion to dismiss (ECF No. 17) is GRANTED .

IT IS SO ORDERED.

REPORT OF MAGISTRATE JUDGE

Kevin F. McDonald, United States Magistrate Judge

This matter is before the court on the defendant's motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) (doc. 17). Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge for consideration.

FACTUAL ALLEGATIONS

The plaintiff alleges that he is the “victim of ongoing identity theft,” which he has reported to the police (comp. ¶ 9). The plaintiff further alleges that he discovered a “fraudulent inquiry” made by the defendant on his credit report and that he reported the same to Equifax in April 2014 (id. ¶ 10) The plaintiff alleges that the inquiry was “fraudulent” because it was initiated “as a result of Identity Theft” (doc. 17–3). The plaintiff alleges that Equifax's response to this “dispute” indicated that the defendant “refused to remove the fraudulent inquiry due to factual records it has on file for [the plaintiff]” (comp. ¶ 11). The plaintiff contends that, as a consequence of the appearance of this inquiry, he was “framed and humiliated by [the defendant], and suffered from harassment, severe emotional distress, feelings of oppression, embarrassment, and financial damages ...” (id. ¶ 12).

The plaintiff alleges that he sent a “letter of dispute along with both of his police reports, which clearly supported his claims of identity theft, [to the defendant] via regular mail ...” on July 30, 2014 (the “July 30 Letter”) (Id. ¶ 13; doc. 17–2, July 30 Letter). In the July 30 Letter, the plaintiff stated as follows, in pertinent part:

I am a victim of identity theft, and I recently found that you made an unauthorized inquiry on my Equifax credit profile. It is shocking to know that you have done this without my consent or permission, I have never sought to acquire services from and may not ever do so because of this terrible experience ...

Furthermore, I am often misconstrued with my father because he and I both share the same first and last name; he has also been found guilty by the local authorities for providing my personal information in order avoid legal matters. He and I also lived at the same residence for many years, so it's easy to get our information confused.

I'm asking that you please remove the unauthorized inquiry from my credit report(s) as soon as possible, you are not only damaging my credit score, but you are in violation of my personal and financial privacy....

(Doc. 17–2).¹

The plaintiff claims that the defendant “failed to send a correspondence in regard to the receipt” of the July 30 Letter and that the defendant “intentionally failed to adhere to the Fair Credit Reporting Act (“FCRA”) in regard to victims of identity theft and that [the defendant] grossly failed to take all required actions to investigate the negative item and to permanently remove it from ... [the plaintiff's] public credit profile” (comp. ¶ 14).

The plaintiff alleges that he sent a second letter to the defendant on November 2, 2015 (the “November 2 Letter”) (doc. 17–3, November 2 Letter). In the November 2 Letter, the plaintiff stated as follows, in pertinent part:

I disputed an unauthorized inquiry, as a result of Identity Theft, made by you on November 9, 2013, via Equifax. On July 29, 2014, you responded to Equifax stating that you had factual record of file access even after the inquiry was reported to be a result of Identity Theft.

Wednesday, July 30, 2014, I sent you a letter of dispute (enclosed with my police report supporting my claims) through regular mail referencing the unauthorized inquiry made by you; also, in the letter, I respectfully requested that you send me factual documents in which you were referencing to be factual record of file access. However, you never responded to my request.

I have been struggling to clear my good name due to ongoing Identity Theft, as well as a mixture of information which pertains to a relative(s) who share the same first and last name as I do. You have caused me great emotional distress, and inconvenience....

(Id. ). The plaintiff alleges that the defendant again failed to respond to the letter, “therefore committing another criminal act of omission” (comp. ¶ 18). In his complaint, the plaintiff demands judgment “in ... excess ... of $75,000 in actual damages, discretionary penalties all together with attorney's fees, court costs, and other costs as provided by law” (id. ¶ C).

APPLICABLE LAW AND ANALYSIS

“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss–Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C.2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.1999) ). Rule 8(a) sets forth a liberal pleading standard, which requires only a “ ‘short and plain statement of the claim showing the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what ... the claim is and the grounds upon which it rests.’ ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level’ and must provide ‘enough facts to state a claim to relief that is plausible on its face.’ ” Robinson v. American Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir.2009) (quoting Twombly, 550 U.S. at 555, 569, 127 S.Ct. 1955 ). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted).

While a complaint “does not need [to allege] detailed factual allegations,” pleadings that contain mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. “Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (internal quotation marks omitted). Stated differently, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show [n]’—‘that the pleader is entitled to relief.’ ” Id. at 679, 129 S.Ct. 1937 (quoting Fed. R. Civ. P. 8(a)(2) ). When determining a motion to dismiss pursuant to Rule 12(b)(6), the court must take all well-pled material allegations of the complaint as admitted and view them in the light most favorable to the non-moving party. De Sole v. U.S., 947 F.2d 1169, 1171 (4th Cir.1991) (citing Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969) ). The court must liberally construe pro se complaints to allow the development of a potentially meritorious case, Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980), and such pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978).

“In deciding whether a complaint will survive a motion to dismiss, a court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc ., 637 F.3d 435, 448 (4th Cir.2011). The court may consider such a document, even if it is not attached to the complaint, if the document “was integral to and explicitly relied on in the complaint,” and there is no authenticity challenge. Id. at 448 (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir.199...