LISA PUPO LENIHAN, Magistrate Judge.
It is respectfully recommended that the Motion to Dismiss (ECF No. 4) filed by Defendant Tebo Financial Services, Inc. ("Tebo") be
Plaintiff filed a Complaint against Defendants Trans Union, LLC ("Trans Union") and Tebo in the Court of Common Pleas of Indiana County, Pennsylvania. (ECF No. 1). Prior to Tebo being served, Trans Union removed the case to this Court. (Id.) According to the Complaint, Plaintiff entered into a retail installment contract for an automobile with Defendant Tebo in 2017. (ECF No. 1-2 ¶ 6). Pursuant to the contract, Plaintiff was to make monthly payments, and in March 2018, Plaintiff paid off the account. (Id. ¶¶ 7, 8). Plaintiff never submitted a late payment. (Id. ¶ 10). Nevertheless, in March 2018, Tebo reported that the account was open and late and disseminated that misinformation to credit bureaus. (Id. ¶¶ 9, 28). Plaintiff disputed the accuracy of his credit status with Trans Union, the disputes were sent along to Tebo, and then Tebo failed to conduct an investigation of the information that Plaintiff disputed. (Id. ¶¶ 13, 26).
Count I of Plaintiff's complaint is a violation of the FCRA against Trans Union. (Id. ¶¶ 16-22). Count II alleges a violation of the FCRA against Tebo. (Id. ¶¶ 23-30). Trans Union filed an answer on August 29, 2018. (ECF No. 3). Tebo filed its Motion to Dismiss (ECF No. 4), with a Memorandum in Support of the Motion to Dismiss, (ECF No. 5). Plaintiff filed a Brief in Opposition, (ECF No. 15), and Tebo replied, (ECF No. 16).
A Rule 12(b)(1) motion is the proper vehicle for asserting lack of standing "because standing is a jurisdictional matter." Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 2007) (citations omitted). A motion to dismiss under Rule 12(b)(1) "may be treated as either a facial or factual challenge to the court's subject matter jurisdiction." Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). "A factual attack, in which the defendant contests the truth of the jurisdictional allegations, is a different matter: the court need not treat the allegations as true, and a plenary trial is held to resolve any material factual disputes." Long v. Se. Pa. Transp. Auth., 903 F.3d 312, 320 (3d Cir. 2018). In a facial attack, however, the court must consider the allegations of the complaint as true, in the light most favorable to the plaintiff, similar to a motion to dismiss under Rule 12(b)(6). Id.
In the case at bar, Tebo expressly asserts a facial challenge. (ECF No. 5 at 3); see Long, 903 F.3d at 320 (explaining defendant "filed the attack before it filed any answer to the Complaint or otherwise presented competing facts, so its motion is, by definition, a facial attack") (internal citation and quotation omitted).
A complaint may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted." Connelly v. Lane Constr. Corp., 809 F.3d 780, 786 (3d Cir. 2016). "But[,] detailed pleading is not generally required." Id. The Rules demand only "a short and plain statement of the claim showing that the pleader is entitled to relief" to give the defendant fair notice of what the claim is and the grounds upon which it rests. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting FED. R. CIV. P. 8(a)(2)).
Under the pleading regime established by Twombly and Iqbal, a court reviewing the sufficiency of a complaint must take three steps. First, the court must "tak[e] note of the elements [the] plaintiff must plead to state a claim." Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009). Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679; see also Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011) (explaining "[m]ere restatements of the elements of a claim are not entitled to the assumption of truth") (citation omitted). Finally, "[w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679. "A claim has facial plausibility 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.; see also Connelly, 809 F.3d at 786. Ultimately, the plausibility determination is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.
Tebo challenges standing on the basis that Plaintiff has not sustained a concrete injury or an injury that is "sufficient to meet the concreteness requirement." (ECF No. 5 at 8). The issue of standing may be raised anytime by either a party or by the court. Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 280 (3d Cir. 2014) (other citations omitted). A "plaintiff generally must assert [his or her] own legal rights and interests, and cannot rest [his or her] claim to relief on the legal rights or interests of third parties." Sec'y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 955 (1984). Importantly, the party invoking federal jurisdiction bears the burden of establishing standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
The United States Court of Appeals for the Third Circuit has noted the following regarding standing:
Blunt, 767 F.3d at 278 (quoting Lujan, 504 U.S. at 560) (emphasis added). Tebo challenges the first element — whether Plaintiff sustained a concrete and particular injury. "[T]he injury-in-fact element is not Mount Everest [and] require[s] only that claimant allege some specific, identifiable trifle of injury." In re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 633 (3d Cir. 2017) (alterations omitted) (quoting Blunt, 767 F.3d at 278). An injury is "particularized" if it "affects the plaintiff in a personal and individual way." Id. (internal citation and quotation omitted). Plaintiff was affected in a personal and individual way given that it was his credit report that was negatively affected.
An injury is concrete if it is "de facto" and "actually exists." Long, 903 F.3d at 321 (3d Cir. 2018) (internal citation and quotation omitted). Even an intangible harm can constitute an injury-in-fact. Id.
Id. (quoting Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1548-49 (2016)). "A `bare procedural violation, divorced from any concrete harm," cannot "satisfy the injury-in-fact requirement of Article III.'" Id. at 325 (quoting Spokeo, 136 S.Ct. at 1548-49). But see Lugo v. Experian Information Sols., Inc., Case No. 5:16-cv-04647-EJD, 2017 WL 2214641, at *3 (N.D. Cal. May 19, 2017) (explaining "[s]ince Plaintiff alleges that TD Bank was notified that its credit reporting was inaccurate and failed to undertake one of its duties under § 1681s-2(b), she has not merely alleged a `bare procedural violation' but rather a harm the court finds sufficiently concrete based on Congress' intent in enacting the FCRA") (emphasis added).
As to the Congressional inquiry, Congress, in enacting the FCRA, clearly sought to make this type of injury redressable. The FCRA was enacted, in part, to "to ensure fair and accurate credit reporting." Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52 (2007). As to the historical inquiry, the inaccurate reporting of Plaintiff's credit history "has a close relationship to the harm caused by the publication of defamatory information, which has long provided the basis for a lawsuit in English and American courts." Pedro v. Equifax, Inc., 868 F.3d 1275, 1280 (11th Cir. 2017) (citing RESTATEMENT (FIRST) OF TORTS § 569 cmt. g (1938)).
In addition to an inaccuracy in his credit report, Plaintiff also claims that he lost time repeatedly disputing the inaccuracy in his credit report. (ECF No. 1-2 ¶ 26). "[T]ime spent trying to resolve problems with the credit reporting agency may also be taken into account. Cortez v. Trans Union, LLC, 617 F.3d 688, 719 (3d Cir. 2010). Additionally, although not specifically alleged in the complaint, Plaintiff suggests that he suffered accompanying distress. Common sense dictates an inaccurate credit report would cause distress. Ashcroft, 556 U.S. at 679 ("[d]etermining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense"). At this juncture, Plaintiff has pled facts when viewed in the light most favorable to him, pass the standing hurdle by the slimmest of margins.
Tebo argues that Plaintiff failed to state a claim under the FCRA because Plaintiff did not present Tebo with notice of a potentially meritorious dispute as his payment was in fact late; Tebo satisfied any duty it owed to Plaintiff by removing the delinquent notification from Plaintiff's credit report; and Plaintiff has failed to allege any actual damages. (ECF No. 5 at 6-7). Plaintiff has stated a claim under § 1681s-2(b). "Section 1681s-2(b) imposes certain duties on a furnisher/creditor who has been notified by a consumer credit reporting agency that a consumer has disputed information furnished by that furnisher/creditor." Harris v. Pa. Higher Educ. Assistance Agency/ Am. Educ. Servs., 696 F. App'x 87, 90 (3d Cir. 2017) (citing Seamans v. Temple Univ., 744 F.3d 853, 864-65 (3d Cir. 2014); Johnson v. MBNA Am. Bank, NA, 357 F.3d 426, 429-30 (4th Cir. 2004)). The statute provides in relevant part, "After receiving notice pursuant to section 1681i(a)(2) of this title of a dispute with regard to the completeness or accuracy of any information provided by a person to a consumer reporting agency, the person shall—(A) conduct an investigation with respect to the disputed information." 15 U.S.C. § 1681s-2(b)(1)(a).
Berkey v. Verizon Comms. Inc., 658 F. App'x 172, 175 (3d Cir. 2016).
Nevertheless, Tebo argues that Plaintiff's claim must be dismissed because the information Tebo provided to Trans Union regarding the delinquency of Plaintiff's account was accurate and because it did reasonably investigate Plaintiff's claim and determined that Plaintiff's payment had been late, albeit by a day. (ECF No. 5 at 5-8). A FED. R. CIV. P. 12(b)(6) motion tests the sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In making its argument, Tebo wholly ignores the standard and introduces new facts unsupported by the record. At the motion to dismiss stage, courts "generally consider only the allegations contained in the complaint, exhibits attached to the complaint[,] matters of public record," and "an undisputedly authentic document." Levins v. Healthcare Revenue Recovery Grp. LLC, 902 F.3d 274, 279 (3d Cir. 2018) (internal citation and quotation omitted). Thus, Tebo's argument is entirely without merit.
For the foregoing reasons, it is respectfully recommended that the Motion to Dismiss (ECF No. 4) filed by Defendant be