Gregory v. Select Portfolio Servicing, Inc.

• Decision Date: 31 August 2016
• Docket Number: Case No.: 2:15-cv-00781-JHE
• Parties: JONATHAN GREGORY, et al., Plaintiffs, v. SELECT PORTFOLIO SERVICING, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

JONATHAN GREGORY, et al., Plaintiffs, v. SELECT PORTFOLIO SERVICING, INC., et al., Defendants.

Case No.: 2:15-cv-00781-JHE

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

August 31, 2016

MEMORANDUM OPINION AND ORDER¹

Plaintiffs Jonathan and Amy Gregory initiated this action in the Circuit Court of Jefferson County, Alabama, against Defendants Select Portfolio Servicing, Inc. ("SPS"); Bank of America, NA; and Deutsche Bank National Trust Company ("Deutsche Bank"), asserting federal claims for violations of the Truth in Lending Act ("TILA"), the Real Estate Settlement Procedures Act ("RESPA"), the Fair Credit Reporting Act ("FCRA"), and the Fair Debt Collection Practices Act ("FDCPA"), along with state-law claims for negligence, wantonness, unjust enrichment, wrongful foreclosure, slander of title, breach of contract, fraud, "false light" invasion of privacy, defamation, and declaratory relief. (Doc. 1-1). On May 8, 2015, the three defendants removed the case to this Court and moved to dismiss. (Docs. 1, 7, & 8). Those motions were mooted when the Gregorys filed an unopposed amended complaint on July 6, 2015. (Docs. 18 & 19). On July 20, 2015, Defendants SPS and Deutsche Bank (collectively, "Defendants") moved to dismiss all of the Gregorys' claims except Count VI for Breach of Contract. (Doc. 22). On August 10, 2015, the Gregorys responded in opposition, (doc. 26), and Defendants replied onAugust 17, 2015, (doc. 27). The motion is fully briefed and ripe for review. For the reasons stated more fully below, the motion to dismiss is GRANTED.

I. Standard of Review

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action" are insufficient. Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (citing Bell Atl. Corp., 550 U.S. at 557). Additionally, "[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." Fed. R. Civ. P. 9(b).

Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a complaint fails to state a claim upon which relief can be granted. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted). A complaint states a facially plausible claim for relief "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citation omitted). The complaint must establish "more than a sheer possibility that a defendant has acted unlawfully." Id.; see also Twombly, 550 U.S. at 555 ("Factual allegations must be enough to raise a right to relief above the speculative level."). Ultimately, this inquiry isa "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.

The court accepts all factual allegations as true on a motion to dismiss under Rule 12(b)(6). See, e.g., Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000). However, legal conclusions unsupported by factual allegations are not entitled to that assumption of truth. Iqbal, 556 U.S. at 678.

II. Analysis

Defendants have moved for dismissal of all but Count VI of the fourteen counts of the Gregorys' amended complaint. (Doc. 22 at 1). The Gregorys, however, did not respond to arguments on several counts, which are deemed abandoned. After a general discussion of preemption under the FCRA, the remaining claims will be addressed in turn.

A. Abandonment of Claims

The Gregorys did not respond to Defendants' arguments regarding Count III (Unjust Enrichment), Count VIII (False Light Invasion of Privacy), Count IX (Defamation, Libel, and Slander), and Count XIV (Declaratory Relief), (see doc. 26), and Defendants assert this alone is grounds for dismissal of these claims, (doc. 27 at 2) (citing Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000)). Because the Gregorys did not attempt to defend their claims against Defendants' arguments, Counts III, VIII, IX, and XIV are dismissed. See Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000) ("The appellants' failure to brief and argue this issue during the proceedings before the district court is grounds for finding that the issue has been abandoned."); Bush v. J.P. Morgan Chase Bank, N.A., No. 2:15-CV-00769-JEO, 2016 WL 324993, at *6 (N.D. Ala. Jan. 27, 2016); Boyd v. Daniels, No. 2:13-CV-354-MEF, 2014 WL1245885, at *3 (M.D. Ala. Mar. 24, 2014) (dismissing claims on motion to dismiss for failure to respond); Joseph ex rel. Joseph v. Allen, No. CV-13-S-695-NE, 2013 WL 3712334, at *5 (N.D. Ala. July 12, 2013) (dismissing claims on motion to dismiss for failure to respond); Hooper v. City of Montgomery, 482 F. Supp. 2d 1330, 1334 (M.D. Ala. 2007) (same) (citing Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (dismissing undefended claims on summary judgment)); Hudson v. Norfolk S. Ry. Co., 209 F. Supp. 2d 1301, 1324 (N.D. Ga. 2001) ("When a party fails to respond to an argument or otherwise address a claim, the Court deems such argument or claim abandoned.").

B. FCRA Preemption

Defendants contend all of the state-law claims—to the extent they are based on alleged inaccurate credit reporting—are preempted by 15 U.S.C. § 1681t(b)(1)(F) of the FCRA. (Doc. 22 at 5-8). In response, the Gregorys make a series of often inapplicable arguments based, at many points, on inapplicable or outdated cases. (Doc. 26 at 13-22).² Therefore, the analysis below will first address the Gregorys' argument piece by piece (explaining why the cases cited do not support their conclusion) then will analyze the preemption issue separately.

1. The Gregorys' Arguments

First, the Gregorys address a case Defendants do not rely on, arguing the opinion was vacated on reconsideration, invalidating its holding that state-law claims are preempted because §1681t "superseded" the FCRA's other less expansive provision, § 1681h(e). (Doc. 26 at 15) (discussing Jaramillo v. Experian, 155 F. Supp. 2d 356 (E.D. Pa. 2001)). However, not only do Defendants never cite the Jaramillo case, but this Court's analysis below does not rely on it.

Next, the Gregorys assert many courts have refused to dismiss "negligent credit reporting" claims and, in support, append a string cite of cases addressing (1) the wrong preemption provision (§ 1681h(e) not § 1681t), (2) the separate issue of complete preemption for removal purposes, or (3) issues other than preemption. (Doc. 26 at 16-17). The first four cases the Gregorys cite are inapplicable because they all address § 1681h(e), not § 1681t (the provision whose preemptive scope Defendants have invoked). See Williams v. Experian Info. Sols., Inc., No. 2:02-CV-38 TJW, 2002 WL 31133235, at *1 (E.D. Tex. Aug. 6, 2002) ("Section 1681h(e) does not protect a person who furnishes inaccurate information to consumer reporting agencies or others from civil liability, generally."); Whitesides v. Equifax Credit Info. Servs., Inc., 125 F. Supp. 2d 807, 811 (W.D. La. 2000) (holding § 1681h(e) did not cover the claims asserted); McAnly v. Middleton & Reutlinger, P.S.C., 77 F. Supp. 2d 810, 814-15 (W.D. Ky. 1999) (same); Yeager v. TRW, Inc., 984 F. Supp. 517, 522 (E.D. Tex. 1997) (applying § 1681h(e)).

In the next case the Gregorys cite, Brown v. Bank One Corp., No. 01 C 4698, 2002 WL 31654950 (N.D. Ill. Nov. 22, 2002), the plaintiff did not dispute the preemption argument but sought leave to amend the complaint to allege facts not covered by the FCRA. Id. at *3. On that basis, the court found amendment was not futile. Id. That holding does not support the proposition state-law claims for "defamation and negligent enablement of the imposter" are not preempted by § 1681t. Regarding claims for "invasion of privacy, etc.," the Gregorys again cite the inapplicable Whitesides and McAnly cases, along with a case addressing removal, Sehl v. Safari Motor Coaches, Inc., No. C 01-1750 SI, 2001 WL 940846, at *6 (N.D. Cal. Aug. 13, 2001) ("The issue before this Court is not whether the libel claim in this complaint is preempted."); a case that never addresses preemption at all, Olexy v. Interstate Assurance Co., 113 F. Supp. 2d 1045 (S.D. Miss. 2000); and a case later overruled by its circuit court,Dornhecker v. Ameritech Corp., 99 F. Supp. 2d 918, 931 (N.D. Ill. 2000) (finding claims for negligence, defamation, or invasion of privacy were not "requirement[s] or prohibition[s]" covered by § 1681t(b)(1)(F),³ a rationale directly at odds with Purcell v. Bank of America, 659 F.3d 622, 626 (7th Cir. 2011), which held the FCRA preempted state-law claims for defamation, invasion of privacy, or negligence in reporting of information to consumer reporting agencies). None of these cases support the Gregory's conclusion.

The next three paragraphs of the Gregorys' argument assert there is no preemption under various circumstances, citing cases that (1) are from before the amendment of the relevant provision, (2) address complete preemption for removal purposes, or (3) do not support the proposition asserted. (Doc. 26 at 17-19). The first three cases the Gregorys cite were...