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Perry v. PNC Bank, N. A.

United States District Court, E.D. North Carolina, Western Division

February 28, 2017

DAVID T. PERRY, Plaintiff,
v.
PNC BANK, N.A. and KELLY COOKE, Defendants.

          ORDER

          LOUISE W. FLANAGAN, UNITED STATES DISTRICT JUDGE

         This matter is before the court on defendants' motion to dismiss. (DE 7). The motion has been fully briefed, and in this posture issues raised are ripe for ruling. For the reasons that follow, defendants' motion is granted.

         BACKGROUND

         Plaintiff, proceeding pro se, initiated this action May 7, 2015, in the General Court of Justice Superior Court Division for Wake County, North Carolina, seeking compensatory and punitive damages arising from defendants' alleged fraud and violations of the North Carolina Unfair and Deceptive Trade Practices Act (“UDTPA”), N.C. Gen. Stat. § 75-1.1, et seq., arising out of a dispute concerning an unpaid debt appearing on plaintiff's credit report. Thereafter, defendants removed the case to this court on the basis of federal question and diversity jurisdiction.

         Plaintiff initiated a prior action in state court April 13, 2015, removed to this court (hereinafter the “2015 action”) against defendants and also against Equifax Information Services (“Equifax”), LLC, Transunion, LLC, and Experian Information Solutions, Incorporated (“Experian”), asserting similar claims. In that case, plaintiff asserted 10 counts arising under state and federal law. Plaintiff voluntarily dismissed Transunion, LLC, before any other motions were filed. The court then dismissed each count against defendants PNC Bank, N.A. and Kelly Cooke with prejudice except plaintiff's count under § 1681s-2(b) of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681s-2(b), which the court dismissed without prejudice based on plaintiff's failure to plead a necessary element of a cause of action under that statute. Finally, plaintiff's case against Experian and Equifax settled for reasons not disclosed in the record of the 2015 action.

         Defendants filed the instant motion November 4, 2016, seeking dismissal on grounds of res judicata, failure to state a claim, and preemption. In particular, defendants argue plaintiff's claims are barred by his failure to assert them in prior litigation, that plaintiff has not pleaded facts alleging fraud or UDTPA violations, and that the FCRA preempts plaintiff's claims arising under state law.

         Plaintiff opposes the motion on the ground that his prior settlement with Experian and Equifax constitutes a new factual development permitting plaintiff to overcome dismissal based upon res judicata. In addition, plaintiff maintains that facts as he pleads them are sufficient to state a fraud claim and a violation of the UDTPA. Plaintiff's filings do not address defendants' arguments concerning preemption.

         STATEMENT OF FACTS

         The facts alleged in the complaint may be summarized as follows. On or about January 2012, an unknown individual stole plaintiff's identity and used his personal information to open accounts at PNC Bank. A few months later, in mid to late 2012, these then delinquent accounts began appearing on plaintiff's credit reports, and he began the process of disputing the accuracy of the entries with the consumer credit reporting agencies, including defendants Equifax and Experian. In 2013 or 2014, plaintiff contends he again disputed the information pertaining to the accounts by contacting defendant PNC directly by phone and mail.

         In February 2015, plaintiff spoke with defendant Cooke, in her capacity as fraud investigator at PNC, at which time, plaintiff provided defendants with a letter he received from defendant PNC about a personal credit application containing missing information. Defendant Cooke then provided plaintiff with the documentation she had on file about him, including a personal credit application. Plaintiff informed defendants that the signature on the documents was not his, that the documents lacked his social security number, and that they contained an inaccuracy concerning plaintiff's place of employment. In response, defendant Cooke mailed plaintiff a letter, dated February 9, 2015, suggesting plaintiff file a police report if he believed he was the victim of identity theft, and detailing the information required by defendants in order to investigate plaintiff's claim. Plaintiff filed a police report with the Northampton County Sheriff's Department March 18, 2015.

         As noted above, plaintiff brought the 2015 action, which procedural history plaintiff asserts as pertinent fact giving rise to the present action. As part of the settlement in the 2015 action, Experian and Equifax allegedly removed from plaintiff's credit report information pertaining to the delinquent accounts in issue. This action followed.

         DISCUSSION

         To determine whether an earlier federal judgment bars a claim asserted in a later action on the basis of res judicata, the court considers whether:

1) the prior judgment was final and on the merits, and rendered by a court of competent jurisdiction in accordance with ...

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