Jaramillo v. Experian Information Solutions, Inc.

• Decision Date: 21 May 2001
• Docket Number: No. CIV. A. 00-5876.,CIV. A. 00-5876.
• Citation: 155 F.Supp.2d 356
• Parties: Luis A. JARAMILLO, v. EXPERIAN INFORMATION SOLUTIONS, INC., CBA Information Services, BNBUSA, and National City Bank.
• Court: U.S. District Court — Eastern District of Pennsylvania

155 F.Supp.2d 356

Luis A. JARAMILLO, v. EXPERIAN INFORMATION SOLUTIONS, INC., CBA Information Services, BNBUSA, and National City Bank.

No. CIV. A. 00-5876.

United States District Court, E.D. Pennsylvania.

May 21, 2001.

Reconsideration Granted June 20, 2001.

James A. Francis, Mark D. Mailman, Francis & Mailman, PC, Philadelphia, PA, for plaintiff.

Robert J. Martin, Lavin, Coleman, O'Neil, Ricci, Finarelli & Gray, Philadelphia, PA, Patrick G. Broderick, Jones, Day, Reavis & Pogue, New York, NY, for Experian Information Solutions, Inc., defendant.

John K. Semler, Ballard, Spahr, Andrews and Ingersoll, Philadelphia, PA, for National City Bank, defendant.

MEMORANDUM

GILES, Chief Judge.

I. INTRODUCTION

Luis A. Jaramillo filed this action on November 17, 2000, against Experian Information Solutions, Inc. ("Experian"), CBA Information Services ("CBA"), BNBUSA, and National City Bank ("National City"), alleging violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. ("FCRA"), the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201.1 et seq. ("CPL"), defamation, and tortious interference with contractual relations.¹

Count I of the complaint avers that Experian and CBA are liable under §§ 1681n and 1681o of the FCRA for willfully and negligently failing to conduct a proper and reasonable reinvestigation concerning inaccurate credit information after receiving notice of the dispute from the plaintiff, in violation of § 1681i(a).

Count II, directed against BNBUSA and National City, alleges that those defendants also violated §§ 1681n and 1681o of the FCRA by willfully and negligently failing to conduct an investigation of the inaccurate information that plaintiff disputed.

Count III, against Experian and CBA, alleges that Experian and CBA have knowingly and maliciously published statements, both orally and through writing, to various creditors, prospective credit grantors, other credit reporting agencies, and other entities that the inaccurate information belong to the plaintiff, each time a credit report on plaintiff has been requested from any creditor, prospective credit grantors, furnisher, or other source.

Count IV, directed against BNBUSA and National City, alleges that those defendants knowingly published false negative representations both orally and in writing to various credit reporting agencies, collection agencies, and/or attorneys.

Count V, against all defendants, alleges that, pursuant to § 1681s of the FCRA, any violation of the FCRA constitutes an unfair or deceptive act or practice in violation of the Pennsylvania CPL, which was thus violated by all defendants.

Count VI, against BNBUSA and National City, alleges that BNBUSA and National City have willfully, maliciously, and intentionally harmed and interfered with plaintiff's contractual relations with third party creditors, by continuing to report inaccurate information to defendants Experian and CBA, and other credit reporting agencies and other entities in an effort to coerce plaintiff to pay the alleged debts.

Now before the court is National City's motion to dismiss plaintiff's claims against it. For the reasons that follow, the motion is granted, in part, and denied, in part.

II. FACTUAL BACKGROUND

Consistent with the review standards applicable to a motion to dismiss, Fed. R.Civ.P. 12(b)(6), the alleged facts vis a vis the plaintiff and National City, viewed in the light most favorable to the plaintiff, follow.

Mr. Jaramillo claims that National City has been reporting false, harmful, and derogatory credit information about him concerning a delinquent credit account that does not belong to him. Further, he claims that he disputed the inaccurate information not only with National City itself, but also with defendants Experian and CBA in March 1998, May 1998, January 1999, and that National City failed to perform reasonable investigations on each of these occasions as required by the FCRA, and continue to publish the inaccurate information to this day. (Compl.¶¶ 10, 14, 18, 19, 20, 36, 37.) Further, Mr. Jaramillo alleges that National City has willfully published multiple false and defamatory statements concerning the inaccurate information to various parties including Experian and CBA, and that National City's actions in repeatedly publishing the statements have directly and detrimentally interfered with his attempts to obtain credit and financing opportunities with third parties. (Compl.¶¶ 52-61, 68-71.)

As a result of National City's failing to conduct proper re-investigations of his disputes on the four separate occasions, and in continuing to publish the inaccurate information, Mr. Jaramillo claims that he has suffered serious financial and emotional distress from the denial of necessary financing and credit opportunities.

III. DISCUSSION

Dismissal under Federal Rule of Civil Procedure 12(b)(6) is appropriate only if, accepting the well-pled allegations of the complaint as true, and drawing all reasonable inferences in the light most favorable to plaintiff, it appears that a plaintiff could prove no set of facts that would entitle it to relief. See H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989); Weiner v. Quaker Oats Co., 129 F.3d 310 (3d Cir.1997); Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir.1989). The court may consider a statute of limitations defense in a motion to dismiss "where the complaint facially shows noncompliance with the limitations period and the affirmative defense clearly appears on the face of the pleading." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 1 (3d Cir.1994). [1] Thus, if it is clear from the face of the complaint that the relevant statute of limitations has run, then the complaint must be dismissed as untimely. See Cito v. Bridgewater Township Police Dep't, 892 F.2d 23, 25 (3d Cir.1989) (quoting Bethel v. Jendoco Construction Corp., 570 F.2d 1168, 1174 (3d Cir.1978)).

A. Plaintiff's Claims Against National City are Timely.

National City argues that the two-year statute of limitations has expired on all claims against it, because it began to run at the date of plaintiff's first discovery of the inaccurate information.

1. FCRA Claim

Any claim asserted under the FCRA must be brought within two years of the date the claim arises. 15 U.S.C. § 1681p. Mr. Jaramillo asserts that National City violated Section 623(b) of the FCRA, 15 U.S.C. 1681s-2(b), when, on dates unspecified in the complaint, it allegedly failed to conduct a proper reinvestigation upon receipt of Consumer Dispute Verification Forms ("CDV's") from Experian and/or CBA. Mr. Jaramillo concedes that, to the extent that National City received the CDV's prior to November 17, 1998, two years prior to the date his case was filed, his FCRA claim is barred by the statute of limitations. National City argues, however, that even if Mr. Jaramillo requested that Experian or CBA issue a CDV on or after November 17, 1998, his claim is time barred nonetheless. See Ryan v. Trans Union Corporation, et al., 2000 WL 1100440 (N.D.Ill.2000).

In Ryan, the plaintiff alleged that in 1996, his estranged wife used his personal information to obtain credit cards from Fleet and Universal banks and subsequently failed to make payments on the credit card accounts. That same year, the plaintiff began to contact Fleet and Universal in an attempt to escape liability for the debts. In March 1999, a consumer reporting agency sent a CDV to Fleet. Thereafter, the plaintiff filed his complaint, alleging that Fleet violated the FCRA by failing to properly reinvestigate his dispute after Fleet received the CDV in 1999. Id. at *2. In granting summary judgment, the court found that the 1999 CDV was nothing more than a rehashing of the plaintiff's 1996 dispute with Fleet. Because the court found that the plaintiff's dispute arose prior to September 30, 1997, the date of the Amendments to the FCRA imposing liability upon entities which furnish credit information to consumer reporting agencies, it held that the "pre-Amendment" FCRA governed, and granted summary judgment in favor of Fleet. Id. at *2-*3. See also Fearon v. Fleet Credit Card Services, 00-2395 (D.Minn.2/22/2001) (applying Ryan to find that a plaintiff may not allow a potential claim to collect dust and then revive it several years later by requesting that a consumer reporting agency issue a CDV).

Mr. Jaramillo argues that the "single publication rule" of Ryan should be rejected in this case, citing Hyde v. Hibernia, 861 F.2d 446 (5th Cir.1988). In Hyde, the defendant credit reporting agency argued that since the plaintiff's first injury from the defendant's unlawful conduct occurred well before the two year statute of limitations, the claim was time barred. The fifth circuit held that, due to the confidential nature of a credit report, as well as the fact that each violation resulted in a distinct and separate injury, "each transmission of the same credit report is a separate and distinct tort to which a separate statute of limitations applies." Id. at 450. The court reasoned:

We do not find that the rationale underlying the single publication rule applicable to the Fair Credit Reporting Act. The major harm may, indeed, result from the first transmission of defamatory material to an institution, but the confidential nature of a credit report necessarily means that each new issuance results in a distinct and separate inquiry.... [E]ach transmission of the same credit report is a separate and distinct tort to which a separate statute of limitations applies. The failure of the consumer to mitigate his damages by filing suit when he is first injured, thus permitting a more widespread circulation of the credit information, should have a "bearing [only] on the [calculation of] damages."

Id. (quoting Restatement of Torts 2d § 577A).

Further, in Ryan, the plaintiff had not pled a single...