United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER (1) ACCEPTING THE MAGISTRATE
JUDGE'S RECOMMENDATION DATED JULY 27, 2017 (DKT. 29); (2)
OVERRULING PLAINTIFF'S OBJECTIONS THERETO (DKT. 32); (3)
GRANTING DEFENDANT'S MOTION TO DISMISS (DKT. 25); AND (4)
DISMISSING PLAINTIFF'S CLAIM WITH PREJUDICE
A. GOLDSMITH, UNITED STATES DISTRICT JUDGE.
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.
April 29, 2013, Daniel received a copy of her credit report,
prepared by Experian. 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.
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.
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).
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.
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.
STANDARD OF REVIEW
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).
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.
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 ...