United States District Court, D. New Mexico
MARVIN P. SELPH, Plaintiff,
EQUIFAX CREDIT BUREAU, EXPERIAN CREDIT BUREAU, and TRANSUNION CREDIT BUREAU, Defendants.
MEMORANDUM OPINION AND ORDER
C. BRACK SENIOR U.S. DISTRICT JUDGE
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.
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.
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, ” and take money from his
checking account. (See Id. at 11-12, 27, 31-33.)
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.)
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.)
Trans Union LLC (Trans Union) 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.)
“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).
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).
The Court will deny Trans Union's motion.
asserts that the remaining two Defendants have violated the
FCRA by failing to address his disputes and by continuing to
report false information. (See Am. Compl. at 1, 5.) It
appears to the Court that Plaintiff is asserting a claim