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Daniel v. Goodyear Tire/CBSD

United States District Court, E.D. Michigan, Southern Division

September 27, 2017

GOODYEAR TIRE/CBSD, et al, Defendants.



         This matter is before the Court on the Report and Recommendation (“R&R”) of Magistrate Judge Stephanie Dawkins Davis (Dkt. 29), which recommends granting Defendant Citibank's motion to dismiss. Following an extension, see 8/11/2017 Order (Dkt. 31), Plaintiff Rochelle Daniel timely filed objections to the R&R (Dkt. 32), to which Citibank filed a response (Dkt. 33). Daniel then filed a reply to the response (Dkt. 34). Because oral argument will not aid the decisional process, the objections to the R&R will be decided based on the parties' briefing. See E.D. Mich. LR 7.1(f)(2); Fed.R.Civ.P. 78(b). For the reasons set forth below, the R&R is accepted and Citibank's motion to dismiss is granted.

         I. BACKGROUND

         On April 29, 2013, Daniel received a copy of her credit report, prepared by Experian.[1] Sec. Am. Compl. (“SAC”) ¶ 7 (Dkt. 24). Through this report, Daniel discovered that Citibank had requested a copy of her credit report, apparently without her consent. Id. Sixteen months later, in August 2014, she faxed a letter to Citibank requesting an explanation for the request; Citibank did not respond to the letter. Id. ¶ 11. On October 6, 2014, Daniel called Citibank and spoke to a representative who informed her that Citibank would not have information regarding any credit request because so much time had elapsed since the request. Id. ¶¶ 12-13.

         Daniel filed suit, alleging that Citibank willfully violated the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §1681 et seq., by obtaining her credit report without a permissible purpose, SAC ¶¶ 24-28, and negligently violated the same Act. Id. ¶¶ 29-35. She further alleges that Citibank committed the tort of intrusion upon seclusion, arguing that she had a reasonable expectation of privacy in her credit report, and that Citibank violated this expectation by obtaining her credit report without legal justification. Id. ¶¶ 36-43.

         Citibank filed a motion to dismiss, arguing that it did indeed have a permissible purpose for obtaining Daniel's credit report, and, thus, could not have violated the FCRA. See Def. Mot. to Dismiss (Dkt. 25). To support this claim, Citibank submitted Daniel's application for a Goodyear credit plan. See Pl. App., Ex. 2 to Def. Mot. to Dismiss (Dkt. 25-2). Citibank also argues that Daniel did not adequately state a claim for any of the three claims presented in the SAC. Daniel responded that the submitted application was “[c]learly” fabricated, and that she did sufficiently state her claims against Citibank. Pl. Resp. Br. (Dkt. 27). Citibank replied by reiterating that Daniel did not sufficiently state a claim, and that it had a permissible purpose for obtaining the credit report. See Def. Reply (Dkt. 28).

         In the R&R, Magistrate Judge Davis concluded that Citibank's permissible-purpose argument was premature because the documents that form the defense were not part of the pleadings, and thus could not be considered at the motion-to-dismiss stage. See R&R at 9-11. However, the Magistrate Judge agreed with Citibank that Daniel did not adequately state a claim regarding the willful violation of the FCRA, concluding that the SAC did not contain allegations of fact sufficient to support an inference that Citibank ran an unjustifiably high risk of violating the FCRA. See id. at 11-13. The Magistrate Judge also dismissed Daniel's negligent-violation claim, concluding that Daniel did not offer factual underpinnings for her claim of emotional damages because the case did not involve extreme circumstances that could lead to damages for emotional distress. See id. at 13-16. Finally, the Magistrate Judge dismissed Daniel's intrusion-upon-seclusion claim, concluding that the SAC did not contain allegations sufficient to support a finding that Citibank's actions were objectionable to the reasonable person. See id. at 16-17.

         Daniel filed four objections to the R&R, arguing (i) the Magistrate Judge misstated the factual background; (ii) Citibank's “mistake” constituted a willful violation of the law; (iii) Daniel sufficiently pleaded emotional distress; and (iv) a reasonable jury could conclude that Citibank's conduct was objectionable.


         The Court reviews de novo any portion of the R&R to which a specific objection has been made. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Alspaugh v. McConnell, 643 F.3d 162, 166 (6th Cir. 2011) (“Only those specific objections to the magistrate's report made to the district court will be preserved for appellate review; making some objections but failing to raise others will not preserve all the objections a party may have.”). Any arguments made for the first time in objections to an R&R are deemed waived. Uduko v. Cozzens, 975 F.Supp.2d 750, 757 (E.D. Mich. 2013).

         On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), “[t]he defendant has the burden of showing that the plaintiff has failed to state a claim for relief.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citing Carver v. Bunch, 946 F.2d 451, 454-455 (6th Cir. 1991)), cert. denied, 552 U.S. 1311 (2008). To survive a Rule 12(b)(6) motion, the plaintiff must allege sufficient facts to state a claim to relief above the speculative level, such that it is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard requires courts to accept the alleged facts as true, even when their truth is doubtful, and to make all reasonable inferences in favor of the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Twombly, 550 U.S. at 555-556.


         A. Factual Background

         Daniel's first objection is that the Magistrate Judge “erred in stating that the representative advised me that it no longer had the application because two years had elapsed.” Pl. Obj. at 2-3 (Dkt. 32). Rather, Daniel argues that it was she who had made ...

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