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Wyche v. Kuchinsky

United States District Court, E.D. Virginia, Richmond Division

May 19, 2017

LAFAYTHIA WYCHE, Plaintiff,
v.
NEIL KUCHINSKY, Defendants.

          MEMORANDUM OPINION

          M. Hannah Lauck United States District Judge

         This matter comes before the Court on two motions: (1) the Motion to Dismiss filed by Defendant Neil Kuchinsky (the "Kuchinsky Motion to Dismiss"), (ECF No. 22); and, (2) the Motion to Dismiss filed by Defendants LexisNexis Risk Solutions, Inc., and RELX ANV, Inc. (collectively, the "Lexis Defendants") (the "Lexis Motion to Dismiss"), (ECF No. 24). Wyche has responded to the Kuchinsky Motion to Dismiss, (ECF No. 35), and the Lexis Motion to Dismiss, (ECF No. 34). Kuchinsky did not reply to Wyche's response. The Lexis Defendants replied to Wyche's response. (ECF No. 38.) The Court dispenses with oral argument because the materials before it adequately present the facts and legal contentions, and argument would not aid the decisional process. Accordingly, the matters are ripe for disposition. The Court exercises jurisdiction pursuant to 28 U.S.C. § 1331.[1] For the reasons that follow, the Court will grant the Lexis Motion to Dismiss, (ECF No. 24), and grant the Kuchinsky Motion to Dismiss, (ECF No. 22). The Court will dismiss Wyche's Amended Complaint. (ECF No. 20.)

         I. Factual and Procedural Background

         A. Procedural Background

         Wyche filed her Complaint against Kuchinsky and the Lexis Defendants on February 24, 2016. Kuchinsky filed an Answer to the Complaint, (ECF No. 7), and the Lexis Defendants filed a Motion to Dismiss, (ECF No. 15). On August 25, 2016, Wyche filed an Amended Complaint pursuant to Federal Rule of Civil Procedure 15(a)(2).[2] (ECF No. 20.) Kuchinsky filed the Kuchinsky Motion to Dismiss on September 8, 2016, (ECF No. 22), and the Lexis Defendants filed the Lexis Motion to Dismiss the same day, (ECF No. 24).

         B. Summary of Allegations in the Amended Complaint[3]

         Wyche's short Amended Complaint alleges violations of the FCRA stemming from Kuchinsky's purported use of Wyche's "consumer report without a permissible purpose to do so." (Am. Compl. ¶ 9.) Wyche asserts that Kuchinsky obtained her "consumer report" from the Lexis Defendants to use "as evidence at an adoption-related hearing before the Petersburg Juvenile and Domestic Relations District Court." (Id. ¶ 8.) Wyche avers that Kuchnisky "represented to the [Lexis Defendants] that he was accessing [her consumer] report for a permissible purpose, " (id. ¶ 10), but that he in fact "had no legal basis to request or obtain" her consumer report, (id. ¶ 11). Wyche claims that either one or both of the Lexis Defendants "provided and published [her] consumer report to Defendant Kuchinsky without [a] permissible purpose and without reasonable procedures" to ensure that Kuchinsky had a permissible purpose. (Id. ¶ 13.)

         Wyche's Complaint alleges three counts:

Count I: Violation of 15 U.S.C. § 1681b(a) (against Lexis Defendants only): the Lexis Defendants negligently provided Wyche's consumer report to Kuchinsky without a permissible purpose to do so. (Am. Compl. ¶¶ 14-17.)
Count II: Violation of 15 U.S.C. § 1681e(1) (against Lexis Defendants only): the Lexis Defendants negligently provided Wyche's consumer report to Kuchinsky without reasonable procedures to assure "the proper use of and lawful purpose for such reports." (Am. Compl. ¶¶ 18-21.)
Count III: Violation of 15 U.S.C. § 1681b(f) (against Kuchinsky only): Kuchinsky negligently obtained and used Wyche's consumer report without a permissible purpose and without accurately and lawfully certifying a permissible purpose. (Am. Compl. ¶¶ 22-25.)

         Wyche seeks compensatory damages, attorneys' fees, and costs under 15 U.S.C. § 1581o for Defendants' alleged violations. (Am. Compl. at 5.)

         II. Analysis: The Lexis Motion to Dismiss

         The Lexis Defendants seek dismissal under Federal Rule of Civil Procedure 12(b)(6).[4] The Lexis Defendants' primary argument in support of the Lexis Motion to Dismiss is that Wyche's Amended Complaint must be dismissed because she asserts only the "legal conclusion that the report was a 'consumer report' without alleging any facts supporting that conclusion." (Mem. Supp. Lexis Mot. Dismiss 1-2, ECF No. 25.)

         A. Motion to Dismiss for Failure to State a Claim Standard

         "A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiffs well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952. This principle applies only to factual allegations, however, and "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

         The Federal Rules of Civil Procedure "require[ ] only *a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests."' Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (omission in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Plaintiffs cannot satisfy this standard with complaints containing only "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Id. (citations omitted). Instead, a plaintiff must assert facts that rise above speculation and conceivability to those that "show" a claim that is "plausible on its face." Iqbal, 556 U.S. at 678-79 (citing Twombly, 550 U.S. at 570; Fed.R.Civ.P. 8(a)(2)). "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. at 678 (citing Twombly, 550 U.S. at 556). Therefore, in order for a claim or complaint to survive dismissal for failure to state a claim, the plaintiff must "allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citations omitted).

         B. Wyche Fails to Plead Facts Sufficient to State All Elements of Her Claims Against the Lexis Defendants

         Wyche's Amended Complaint asserts two counts against the Lexis Defendants. Count One alleges that the Lexis Defendants negligently violated "15 U.S.C. § 1681b by providing [Wyche's] consumer reports [sic] to Defendant Kuchinsky without a permissible purpose to do so." (Am. Compl. ¶¶ 15, 16.) Count Two avers that the Lexis Defendants negligently violated "15 U.S.C. § 1681e(a) by providing [Wyche's] consumer report to Defendant Kuchinsky without reasonable procedures to assume [sic] the proper use of and lawful purpose for such reports." (Am. Compl. ¶¶ 19, 20.) Wyche fails to plead facts sufficient to state the elements of either count. On both counts, Wyche's pleading fails because she alleges only a conclusory allegation that the Lexis Defendants provided Kuchinsky with her "consumer report." (Am. Compl. ¶ 19.) This assertion, devoid of facts is "no more than a conclusion[], [and is] not entitled to the assumption of truth." Iqbal, 556 U.S. at 679.

         1. Wyche Fails to Plead Facts Sufficient to State a Claim that the Lexis ...


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