United States District Court, E.D. North Carolina, Southern Division
TERRENCE W. BOYLE, CHIEF UNITED STATES DISTRICT JUDGE.
cause comes before the Court on defendants' motion to
dismiss. [DE 10]. The motion has been fully briefed and is
ripe for disposition. For the reasons discussed below,
defendants' motion to dismiss [DE 10] is GRANTED.
August 2016, plaintiff accompanied Ms. Ann Carlyle to
defendant Hendrick Toyota in Wilmington, North Carolina. [DE
1-10, ¶ 8]. Defendant Hendrick Toyota is an automobile
dealership that is allegedly owned and operated by the other
defendants. Id. \ 9. Ms. Carlyle was shopping for a
vehicle and plaintiff had previously purchased vehicles from
Hendrick Toyota. Id. ¶¶ 10-11. During the
process, an employee obtained a consumer credit report for
Ms. Carlyle and determined that she did not qualify for the
prospective purchase. Id. ¶¶12-13.
Plaintiff alleges that the Hendrick Toyota employee then
accessed plaintiffs personal information, which was on file
from his prior purchases, and used it without his consent
multiple times to obtain consumer credit reports for
plaintiff. Id. ¶¶ 14-15. Plaintiff alleges
that, as a result of these "frequent, unauthorized
credit inquires [sic]," his credit score dropped and he
was unable to refinance his home in November 2016.
Id. ¶¶ 16-17.
October 2018, plaintiff initiated this action in Brunswick
County Superior Court. [DE 1-4]. Plaintiff brought three
purported causes of action, alleging (1) that defendants
willfully violated the Fair Credit Reporting Act (FCRA), in
particular 15 U.S.C. §§ 1681b, 1681n, and 1681q;
(2) that defendants committed unfair and deceptive trade
practices under N.C. Gen. Stat. §§ 75-1.1 and
75-64; and (3) that defendants are vicariously liable to
plaintiff for the acts and omissions of their employees. [DE
1-10]. In December 2018, defendants removed this action from
Brunswick County to federal court. [DE 1].
January 2019, defendants moved to dismiss plaintiffs
complaint in its entirety under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which
relief may be granted. [DE 10]. Plaintiff responded in
opposition. [DE 13].
considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), "the court should accept as true all
well-pleaded allegations and should view the complaint in a
light most favorable to the plaintiff." Mylan Labs.,
Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). A
complaint must state a claim for relief that is facially
plausible. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007). Facial plausibility means that the court can
"draw the reasonable inference that the defendant is
liable for the misconduct alleged," as merely reciting
the elements of a cause of action with the support of
conclusory statements does not suffice. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). The court need not
accept the plaintiffs legal conclusions drawn from the facts,
nor need it accept unwarranted inferences, unreasonable
conclusions, or arguments. Philips v. Pitt County Mem.
Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
Plaintiffs FCRA claims must be dismissed.
has failed to allege sufficient facts to state a claim for
relief under any of the three provisions of the FCRA that he
relies upon. First, plaintiff fails to state a claim for
relief under 15 U.S.C. § 1681b. Plaintiff vaguely
alleges that defendants violated 15 U.S.C. § 1681b. In
his response to defendants' motion to dismiss, plaintiff
clarifies that he seeks relief under § 1681b(f), which
provides that "[a] person shall not use or obtain a
consumer credit report for any purpose," unless the
report "is obtained for a purpose for which the consumer
report is authorized to be furnished." To state a claim
under § 1681b(f), "a plaintiff must allege facts
showing each of the following: (i) there was a consumer
report; (ii) the defendants used or obtained it, (iii) the
defendants did so without a permissible statutory purpose,
and (iv) the defendants acted with the specified culpable
mental state." Benzing v. Tharrington-Smith,
LLP, 5:10-CV-533-F, 2012 WL 169946, at *3 (E.D. N.C.
Jan. 19, 2012) (citing Shepherd-Salgado v. Tyndall Fed.
Credit Union, No. 11-0427-WS-B, 2011 WL 5401993, at *3
(Nov. 7, 2011 S.D. Ala.)). In support of this allegation,
plaintiff states only that "Defendants willfully
violated the FCRA, 15 U.S.C. §§ 1681b, 1681n, and
1681q by accessing the Plaintiffs [sic] credit reports
without a permissible purpose and without the knowledge or
consent of the plaintiff." [DE 1-10, ¶ 20]. Even
viewing the complaint in the light most favorable to
plaintiff, this cursory recitation of the elements of the
statute- indeed, plaintiff does not even identify in his
complaint the specific provision under which he is seeking
relief-without additional factual allegations does not enable
the Court to reasonably infer that defendant is liable for
the alleged violation. Plaintiffs § 1681b claim must be
defect that is fatal to plaintiffs § 1681b claim-namely,
that the claim is supported by threadbare facts and a vague
and cursory recitation of the elements of the statute--is
similarly fatal to plaintiffs claims under §§ 168
In and 1681q. In fact, plaintiffs complaint is sufficiently
vague that defendants focused their argument on §
1681n(b), which is inapplicable for a variety of reasons,
rather than on § 1681n(a), which plaintiff belatedly
referenced in his response to defendants' motion to
dismiss. § 1681q, moreover, is inapplicable because it
creates a cause of action against "[a]ny person who
knowingly and willfully obtains information on a consumer
from a consumer reporting agency under false
pretenses" and plaintiff has not alleged that
defendants obtained his information under false pretenses;
rather, he simply alleges that they obtained his credit
information without a permissible statutory purpose and
without his knowledge. Plaintiffs claims under §§
1681n and 1681q, like his claim under § 1681b, are
facially deficient. Accordingly, each of plaintiff s three
FCRA claims must be dismissed.
Plaintiffs Unfair and Deceptive Trade Practices Act (UDTPA)
claims must be dismissed.
UDTPA claims, too, must be dismissed. Even setting aside the
vagueness problems and the fact that the claims are similarly
devoid of factual support, it is clear that plaintiff has not
stated facially plausible claims. First, to state a claim
under N.C. Gen. Stat. § 75-1.1, plaintiff must allege
that defendants (1) committed an unfair or deceptive trade
act or practice, (2) the act in question was in or affecting
commerce, and (3) the act proximately caused plaintiff harm.
Sessler v. Marsh, 551 S.E.2d 160, rev.
denied, 556 S.E.2d 577 ( N.C. 2001) (citations omitted).
But § 75-1.1 "is not intended to apply to all
wrongs in a business setting." Dalton v. Camp,
548 S.E.2d 704, 711 ( N.C. 2001). Rather, "some type of
egregious or aggravating circumstances must be
alleged and proved." Id. (quoting
AlliedDistribs., Inc. v. Latrobe Brewing Co., 847
F.Supp. 376, 379 (E.D. N.C. 1993)) (alterations omitted)
(emphasis in original). Plaintiff has alleged no such
egregious or aggravating circumstances; instead, he attempts
to elevate a one-off business wrong- an employee allegedly
obtaining his consumer credit report without
authorization-into an unfair or deceptive trade practice
within the meaning of N.C. Gen. Stat. § 75-1.1.
Plaintiffs claim must be dismissed.
plaintiffs claim under N.C. Gen. Stat. § 75-64 must also
be dismissed under Rule 12(b)(6). ...