United States District Court, E.D. North Carolina, Western Division
DAVID T. PERRY, Plaintiff,
PNC BANK, N.A. and KELLY COOKE, Defendants.
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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.
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.
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.
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