United States District Court, S.D. Texas, Houston Division
DERRICK W. THYMES, Plaintiff,
GILLMAN COMPANIES and GILLMAN AUTOMOTIVE GROUP, Defendants.
MEMORANDUM OPINION AND ORDER
LAKE, UNITED STATES DISTRICT JUDGE.
Derrick W. Thymes ("Plaintiff" or
"Thymes") brings five causes of action against
Defendant Gillman Subaru, Inc. ("Defendant" or
"Gillman") for: (1) violations of the Fair Credit
Reporting Act ("FCRA"); (2) negligence; (3)
disclosure of private consumer financial information and
invasion of privacy; (4) deliberate theft of Plaintiff's
identity by employees of Defendant; and (5) breach of
fiduciary duty. Pending before the court is
Defendant's Motion to Dismiss Plaintiff's First
Amended Complaint ("Motion to Dismiss") (Docket
Entry No. 18).
Factual Allegations and Procedural
initially brought this action on September 20, 2017,
asserting causes of action for (1) violations of the Federal
Trade Commission ("FTC") Safeguard Rule and the
Gramm-Leach-Bliley Act ("GLBA"); (2) negligence;
(3) disclosure of private consumer financial information in
violation of the GLBA; (4) identity theft and fraud; and (5)
breach of implied Contract. Defendant filed a motion to
dismiss Plaintiff's original complaint (Docket Entry-No.
7) . On March 9, 2018, the court dismissed with prejudice
Plaintiff's federal claims under the FTC Safeguard Rule
and the GLBA, and ordered Plaintiff to amend his complaint
setting forth facts to plausibly support a cause of action
for identify theft and fraud, and breach of an implied
contract. (Docket Entry No. 14).
Plaintiff's First Amended Complaint he alleges that he
purchased a car from Defendant in September of
2015. Although Plaintiff's bank had
pre-approved his auto loan, Defendant requested that
Plaintiff complete its finance application from Ally
Financial. After the purchase Plaintiff drove nonstop
from the dealership to his home in Louisiana. By December of
2015 debt collectors began contacting Plaintiff and utility
accounts in Texas were opened under Plaintiff's
name. Plaintiff alleges that "Defendant
failed to maintain an adequate identity theft protection and
document security program; and thus, improperly secured his
personal information . . . . " Plaintiff alleges that he
"personally notified Defendant . . . that his identity
had been stolen" but that Defendant "took no action
to utilize the assistance of law enforcement agencies (State
or Federal) or otherwise conduct an internal investigation to
ascertain how Plaintiff's personal information had been
compromised." Plaintiff brings five causes of action in
his Amended Complaint. Defendant moves to dismiss all
claims, except negligence, under Federal Rule of Civil
Procedure 12(b) (6) and, if the court dismisses
Plaintiff's federal claim, moves to dismiss any remaining
state law claims under Rule 12(b)(1) for lack of supplemental
Standard of Review
the Federal Rules of Civil Procedure a pleading must contain
"a short and plain statement of the claim showing that
the pleader is entitled to relief." Fed.R.Civ.P.
8(a)(2). A plaintiff's pleading must provide the grounds
of his entitlement to relief, and "a formulaic
recitation of the elements of a cause of action will not do.
. . ." Bell Atlantic Corp. v. Twombly, 127
S.Ct. 1955, 1965 (2007). " ' [N]aked assertion[s]
' devoid of 'further factual enhancement'"
or "[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice." See Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009). "[C]onclusory allegations or legal
conclusions masquerading as factual conclusions will not
suffice to prevent a motion to dismiss."
Fernandez-Montes v. Allied Pilots Ass'n, 987
F.2d 278, 284 (5th Cir. 1993). Instead, "[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."
Iqbal, 129 S.Ct. at 1949.
12(b)(6) motion tests the formal sufficiency of the pleadings
and is "appropriate when a defendant attacks the
complaint because it fails to state a legally cognizable
claim." Ramming v. United States, 281 F.3d 158,
161 (5th Cir. 2001), cert. denied sub nom. Cloud v.
United States, 122 S.Ct. 2665 (2002). To defeat a motion
to dismiss, a plaintiff must plead "enough facts to
state a claim to relief that is plausible on its face."
Twombly, 127 S.Ct. at 1974. The court does not
"strain to find inferences favorable to the
plaintiffs" or "accept conclusory allegations,
unwarranted deductions, or legal conclusions."
Southland Securities Corp. v. INSpire Insurance
Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004)
(internal quotation marks and citations omitted).
"[C]ourts are required to dismiss, pursuant to [Rule]
12(b)(6), claims based on invalid legal theories, even though
they may be otherwise well-pleaded." Flynn v. State
Farm Fire and Casualty Insurance Co. (Texas),
605 F.Supp.2d 811, 820 (W.D. Tex. 2009) (citing Neitzke
v. Williams, 109 S.Ct. 1827, 1832 (1989)).
Plaintiff Fails to State a Claim Under the FCRA
did not respond to Defendant's Motion to Dismiss by the
submission day, May 3, 2018. Accordingly, the court treats
the arguments as unopposed by Plaintiff. As such, this
court may dismiss the claims as abandoned. See Black v.
North Panola School Dist., 461 F.3d 584, 588 n.l (5th
Cir. 2006) (holding that the plaintiff's failure to
defend a claim in responses to motions to dismiss or to
otherwise pursue it beyond her complaint constituted
abandonment of the claim) (citing Vela v. City of
Houston, 276 F.3d 659, 679 (5th Cir. 2001)).
Plaintiff's only federal claim for violation of the FCRA,
15 U.S.C § 1681s-2, has no merit whether the court
treats it as abandoned or not. Section 1681s-2(a) of the FCRA
provides that " [a] person shall not furnish any
information relating to a consumer to any consumer reporting
agency if the person knows or has reasonable cause to believe
that the information is inaccurate." 15 U.S.C §
1681S-2(a)(1)(A). Although the FCRA does not create a private
right of action for violations of subsection (a) of Section
1681s-2, it does create one for violations of subsection (b)
of Section 1681-2. See Conrad v. Barclays Bank
Delaware, Civil Action No. 4:17-1045, 2017 WL 7796344 at
*2 (S.D. Tex. July 27, 2017) (citing cases in this district
that concluded that a private right of action under §
1681S-2(b) exists). Pursuant to Section 1681s-2(b), once a
"furnisher of information" is notified of a dispute
"with regard to the completeness or accuracy of any
information provided by a person to a consumer reporting
agency, " the person shall, inter alia, "conduct an
investigation with respect to the disputed information . . .
[and] report the results of any such investigation to the
consumer reporting agency." 15 U.S.C. § 1681s-2 (b)
(1); see also Young v. Equifax Credit Information
Services, Inc., 294 F.3d 631, 639 (5th Cir. 2 0 02). The
consumer reporting agency must give notice of a dispute to
the furnisher of information, and "[s]uch notice is
necessary to trigger the furnisher's duties under Section
1681s-2(b)." Young, 294 F.3d at 639 (citing 15
U.S.C. § 1681S-2(b)(1)); see also SimmsParris v.
Countrywide Financial Corp., 652 F.3d 355, 358 (3d Cir.
2011) ("Notice under § 1681i(a)(2) must be given by
a credit reporting agency, and cannot come directly from the
alleges that Defendant's employees "coaxed said
Plaintiff to finance the transaction through another
lender" and that "[o]nee the dealership contacted
consumer reporting agencies regarding Plaintiff, the
dealership is then a 'furnisher' under the FCRA
whereby imposing a duty on Defendant to investigate and
respond to claims from consumers (i.e.,
Plaintiff)." Plaintiff alleges that Defendant
"failed to respond, let alone investigate, once Mr.
Thymes notified them that his identity had been stolen and
was being used throughout southeast Texas to open numerous
utility accounts. "
Plaintiff complains that his identity was stolen and that
Defendant failed to investigate, he does not allege facts
that implicate the FCRA. First, Plaintiff does not allege
that Defendant furnished inaccurate information to a
credit reporting agency. See 15 U.S.C. §§
1681S-2 (a); 1681S-2 (b) (1) (A) . Second, Plaintiff does not
allege that he disputed the completeness or accuracy of the
information with the credit reporting agency. See
id. § 1681s-2(b). Third, Plaintiff alleges that
"Mr. Thymes notified [Defendant] that his identity had
been stolen ..." but fails to allege that the credit
reporting agency gave the requisite notice to
Defendant. Young, 294 F.3d at 639. Because
Plaintiff's identify theft allegations do not fall within
the FCRA, ...