United States District Court, E.D. Virginia, Alexandria Division
M. HILTON UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendant's Motion for
Judgment on the Pleadings pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(c).
February 15, 2017 Plaintiff Harold Schmidt filed a Warrant in
Debt in Prince William General District Court against
Defendant Fair Collection and Outsourcing, Inc. The case was
removed to this Court. On May 23, 2017 this Court granted
Defendant's Motion to Dismiss for failure to state a
claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
Plaintiff refiled an Amended Complaint in June 2017.
Plaintiff's Amended Complaint alleges generally that FCO
violated the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, and committed acts of defamation,
libel, and slander.
Fourth Circuit, a motion for judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12(c) is governed
by the same standards as a motion to dismiss for failure to
state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6). Burbach Broad Co. of Del, v. Elkins Radio
Corp., 278 F.3d 401, 405-06 (4th Cir. 2002)
(internal citations omitted) ("the distinction is one
without difference, as we . . apply  the same standard for
Rule 12(c) motions as for motions made pursuant to Rule
12(b)(6)."). A motion for judgment on the pleadings,
therefore, 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."
King v. Deutsche Bank Nat'l Trust Co., No.
3:10CV41, 2010 U.S. Dist. LEXIS 100851, at *7 (E.D. Va. Sept.
21, 2010). Naturally, "a plaintiff's well-pleaded
allegations are taken as true, and the complaint is viewed in
the light most favorable to the plaintiff." Id.
initial matter, the Constitution requires that a plaintiff
have standing to bring a case or controversy before a federal
court. The standing inquiry "ensures that a plaintiff
has a sufficient personal stake in a dispute to render
judicial resolution appropriate." (Friends of the
Earth, Inc. v. Gaston Copper Recycling Corp.,
204 F.3d 149, 153 (4th Cir. 2000)). To satisfy the
case or controversy requirement of Article III, "a
plaintiff must, generally speaking, demonstrate that he
suffered ' injury in fact, ' that the injury is
'fairly traceable' to the actions of the defendant,
and that the injury will likely be redressed by a favorable
decision." (Bennett v. Spear, 520 U.S. 154, 162
(1997) (quoting Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992)). The injury in fact element
"requires that a plaintiff suffer an invasion of a
legally protected interest which is concrete and
particularized, as well as actual or imminent.,,
Friends of the Earth, 204 F.3d at 154.
Plaintiff alleges violations related to collection activity
on an account that is not in his name. Plaintiff seeks to
recover damages from the credit reporting of another's
debt. Plaintiff alleges that he acquired the account in
question from the debtor, but does not allege that FCO
attempted to collect a debt from him, that he suffered an
injury as a result of FCO's alleged conduct, or that he
suffered any harm whatsoever from FCO's actions. Rather,
Plaintiff makes conclusory allegations and requests an award
allegations all arise from collection efforts targeted at the
debtor, who is not the Plaintiff. Under Va. Code §
8.01-26, "only those causes of action for damage to real
or personal property, . . .and causes of action ex contractu
are assignable." Federal Rule of Civil Procedure 17(a)
states that "every action must be prosecuted in the name
of the real party in interest." Under Rule 17, an
"action must be brought by a person who possesses the
right to enforce the claim and who has a significant interest
in the litigation." Virginia Elec.-& Power Co.
v. Westinqhouse Elec. Corp., 485 F.2d 78, 83 (4 Cir.
1973). Plaintiff does not put forth sufficient factual
allegations to demonstrate that he is a real party of
interest who has suffered an injury in fact, and therefore
lacks standing to bring these claims.
claims also fail on the grounds that he fails to state a
claim upon which relief can be granted for the FCRA, FDCPA,
and torts claims. To bring a claim under the Fair Credit
Reporting Act § 1681s-2b, a plaintiff must establish:
(1) that he notified the consumer reporting agency of the
disputed information; (2) that the CRA notified the defendant
furnisher of the dispute; and (3) that the furnisher then
failed to investigate and modify the inaccurate information.
Ausar-El v. Barclay Bank Delaware, 2012 WL 3137151,
*3 (D. Md. July 31, 2012). Plaintiff fails to allege facts to
support any of these three elements. He thereby fails to
state a plausible claim for which relief can be granted under
also alleges Defendants violated the Fair Debt Collection
Practice Act, 15 U.S.C. §1692. To establish a prima
facie case for violation of the FDCPA, as the Defendant
notes, -The Plaintiff must establish: (1) the plaintiff is a
'consumer' as defined by the FDCPA; (2) the debt
arises out of a transaction entered primarily for personal,
family, or household purposes; (3) the defendant is a Mebt
collector' as defined by the FDCPA; and (4) the defendant
has violated, by act or omission, a provision of the
FDCPA." See Creiqhton v. Emporia Credit
Service, Inc., 981 F.Supp. 411 (E.D. Va. 1997).
Plaintiff does not allege any of these elements in the
Amended Complaint and therefore does not state a claim under
Plaintiff makes state law claims against the Defendant for
torts including defamation, libel, and slander. Plaintiff
simply alleges that FCO provided "inaccurate
information" to a credit agency but does not provide
specific factual detail as to what statements may have been
made, whether the statements were about him, or that the
statements harmed him in any way.
the FCRA preempts Plaintiff's tort claims. The FCRA
provides that "no consumer may bring any action or
proceeding in the nature of defamation . . . with respect to
the reporting of information against . . . any person who
furnishes information to a credit reporting agency . . .
except as to false information furnished with malice or
willful intent to injure such consumer." 15 U.S.C.
1681(h)(e). Plaintiff fails to plead that FCO acted with
malice or willful intent to injure the consumer.
Plaintiff's claim for defamation, slander, and libel
has failed to state a plausible claim for relief on any of
the counts. ...