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Petronykoriak v. Equifax Information Services LLC

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

June 18, 2019

T. Petronykoriak, Plaintiff,
v.
Equifax Information Services LLC et al., Defendants.

          David R. Grand Mag. Judge

          OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS [17, 27]

          JUDITH E. LEVY UNITED STATES DISTRICT JUDGE.

         Plaintiff filed this action in Wayne County Circuit Court on February 12, 2019, alleging various federal statutory and state law tort claims based on allegedly false information on his credit report. Defendant Equifax Information Services LLC timely removed the case to federal court on March 15, 2019. (ECF No. 1, PageID.1.) Two defendants, AT&T Corp. and Avis Budget Group, move to dismiss pursuant to Federal Rule of Civil Procedure 12. (ECF No. 17, PageID.212; ECF No. 27, PagesID.265.) Plaintiff failed to respond to either defendants' Rule 12 motion.

         I. Background

         Plaintiff brings eleven causes of action against seventeen named defendants arising from the allegedly false information reported by defendants Equifax, Trans Union, and Experian. (ECF No. 1-2, PageID.13.) These claims appear to arise out of plaintiff's assertion that his “credit was excellent, ” but that based on false information on his credit report, plaintiff was unable to obtain a credit card and a loan. (Id. at PageID.13.)

         Plaintiff does not include allegations specifically identifying AT&T and Avis. Instead, the complaint includes various allegations regarding “ALL LISTED DEFENDANTS, ” including that they all: failed to take action to correct false consumer reports; failed to adopt procedures to assure reports were accurate; and disseminated false information about plaintiff, despite the fact that “ALL LISTED DEFENDANTS were notified of the errors and disputes.” (ECF No. 1-1, PageID.16-17.) Plaintiff argues that these actions were in violation of various federal statutes, including the Fair Credit Reporting Act (“FCRA”), the Fair Credit Billing Act (“FCBA”), and the Fair Debt Collection Practices Act (“FDCPA”). Additional counts are brought against AT&T and Avis under various state tort law theories, including negligence, defamation, “malicious use of a telephone, ” and harassment.[1]

         II. Legal Standards

         Avis filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) on April 5, 2019. (ECF. No. 17.) AT&T filed an answer on April 2, 2019 (ECF No. 14) and filed this motion to dismiss under 12(b)(6) on April 24, 2019. (ECF No. 27.)

         A post-answer motion to dismiss pursuant to 12(b)(6) is not permitted. See Fed. R. Civ. P. 12(b)(6). But an untimely motion to dismiss “may be properly considered as one for judgment on the pleadings under Fed.R.Civ.P. 12(c), and evaluated, nonetheless, under the standards for dismissal under 12(b)(6).” Doe v. Sentech Empl. Servs., 186 F.Supp.3d 732, 736 (E.D. Mich. 2016) (quotations omitted); see also Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 n.1 (6th Cir. 1988). Accordingly, the Court will construe AT&T's motion as one for judgment on the pleadings and analyze it under the same standard as one to dismiss.

         When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must “construe the complaint in the light most favorable to the plaintiff and accept all allegations as true.” Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012). “To survive a motion to dismiss, a complaint 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). A plausible claim need not contain “detailed factual allegations, ” but it must contain more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         The pleading standard is less stringent for plaintiffs proceeding pro se, but does not “compel the courts to conjure up unpleaded facts to support conclusory allegations.” Grinter v. Knight, 532 F.3d 567, 577 (6th Cir. 2008) (quoting Kamppi v. Ghee, 208 F.3d 213 (table), 2000 WL 303018, at *1 (6th Cir. 2000)).

         III. Analysis

         The complaint fails to allege specific facts with respect to either AT&T or Avis. As a result, the Court has no way of knowing what relationship these defendants have to this case. Moreover, the Court is unable to assess whether the conduct of these defendants was lawful or reasonable with respect to plaintiff as a consumer. Because the complaint fails to allege facts with any specificity, and relies on conclusory allegations, it fails to state a claim against AT&T or Avis.

         The complaint includes similarly conclusory allegations with respect to “ALL LISTED DEFENDANTS, ” and, for reasons outlined below, these general ...


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