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Selph v. Equifax Credit Bureau

United States District Court, D. New Mexico

August 28, 2018

MARVIN P. SELPH, Plaintiff,



         This matter is before the Court on Defendant Trans Union LLC's 12(b)(6) Motion to Dismiss Plaintiff's Amended Complaint, filed on March 28, 2018 (Doc. 14), and Plaintiff's Motion to Show Cause, filed on August 1, 2018 (Doc. 20). Jurisdiction arises under 28 U.S.C. § 1331. Having considered the submissions of the parties and the relevant law, the Court will deny both motions.

         In 2017, Plaintiff noticed something amiss on his credit report. After investigating, he came to the conclusion that Defendant Equifax Credit Bureau unlawfully disclosed his confidential, personal information due to a security breach. Plaintiff believes he has been the victim of identity theft and asserts that unknown individuals have used his personal information to open credit accounts and make purchases in his name. Plaintiff has filed disputes with the three Defendant credit bureaus and asked them to remove the false information from his credit report. To date, Defendants have failed to address the disputes, and the inaccurate information is still on his credit report. Plaintiff now brings claims against Defendants under the Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681-1681x.

         I. Background[1]

         Plaintiff first noticed fraudulent activity on his credit report on May 6, 2017. (Doc. 7 (Am. Compl.) at 1.) He alleges that he is a victim of the Equifax security breach. (Id. at 27.) As a result of the breach, Plaintiff's personal, confidential information has been compromised, including his email address, social security number, New Mexico driver's license information, home address, phone number, and military records. (Id. at 1, 7, 18.) Plaintiff's information has been used to open accounts, make “hard inquiries, ”[2] and take money from his checking account. (See Id. at 11-12, 27, 31-33.)

         Plaintiff filed disputes with the Defendants in mid-2017. (Id. at 1.) Plaintiff reached out to Defendants again on January 6, 2018, and asked them to delete all references to the false accounts listed on his credit report. (Id.) Plaintiff asserts that Defendants have “failed to address the dispute's” [sic] or correct his credit reports, and his confidential information is still being illegally used. (Id. at 1, 27.)

         Plaintiff filed suit in this Court on February 5, 2018. (Doc. 1.) After the Court dismissed Plaintiff's Complaint without prejudice for failure to assert facts to support subject matter jurisdiction (see Doc. 6), Plaintiff filed an Amended Complaint. (Am. Compl.) The Court then filed an Order to Show Cause, directing Plaintiff to show cause why he had not served Defendant Equifax Credit Bureau within the time limit prescribed by the rules. (Doc. 19.) When Plaintiff did not substantively respond to the Court's order to show cause, the Court dismissed Defendant Equifax Credit Bureau from the case. (Doc. 21.)

         Defendant Trans Union LLC (Trans Union)[3] filed its motion to dismiss on March 28, 2018. (Doc. 14.) Rather than file a substantive response to the motion, Plaintiff filed a Motion to Show Cause on August 1, 2018. (Doc. 20.) In his motion, Plaintiff reiterates the allegations from his Amended Complaint and states that although he “asked the Defendants to place a credit freeze on Plaintiff [sic] credit file, ” Defendants would not freeze his credit file unless Plaintiff paid “them $50.00 a month in order to keep the Plaintiff [sic] credit file locked.” (Id. at 1.) Plaintiff asks the “Court to allow the Plaintiff [sic] case to proceed to a Jury Trial.” (Id.)

         II. Legal Standards

         Plaintiff's “pro se . . . pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (internal citation omitted)). The Court may not, however, “serv[e] as the litigant's attorney in constructing arguments and searching the record.” Id. (citation omitted).

         In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court “must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff.” In re Gold Res. Corp. Sec. Litig., 776 F.3d 1103, 1108 (10th Cir. 2015) (citation omitted). “To survive a motion to dismiss, ” the complaint does not need to contain “detailed factual allegations, ” but it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). “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. (citing Twombly, 550 U.S. at 556). Plausibility does not equate to probability, but there must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556).

         III. Analysis

         A. The Court will deny Trans Union's motion.

         Plaintiff asserts that the remaining two Defendants have violated the FCRA by failing to address his disputes and by continuing to report false information.[4] (See Am. Compl. at 1, 5.) It appears to the Court that Plaintiff is asserting a claim ...

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