United States District Court, D. Maine
JOHN J. CAVANAUGH, JR., Plaintiff
EQUIFAX INFORMATION SERVICES, LLC, Defendant
ORDER ON PLAINTIFF'S OBJECTION TO REMOVAL AND
RECOMMENDED DECISION ON DEFENDANT'S MOTION TO
C. Nivison U.S. Magistrate Judge
removed action, Plaintiff John Cavanaugh, Jr., alleges
Defendant Equifax Information Services, LLC violated certain
credit reporting standards. The matter is before the Court on
Plaintiff's Objection to Removal (ECF No. 6) and
Defendant's Motion to Dismiss (ECF No. 7).
his Objection to Removal,  Plaintiff asserts that his claim arises
under state and federal law, and he prefers to proceed in
state court. In its Motion to Dismiss, Defendant contends
Plaintiff fails to state an actionable claim if the Court
takes judicial notice of a bankruptcy court proceeding in
which Plaintiff was involved.
Plaintiff has asserted a claim within this Court's
original jurisdiction, the Court denies Plaintiff's
request to remand the matter to state court. Following a
review of the relevant pleadings, I recommend the Court deny
Defendant's Motion to Dismiss.
14, 2018, Plaintiff filed his complaint in Cumberland County
Superior Court. (State Court Record, Complaint, ECF No. 5-2.)
Plaintiff served the complaint on Defendant on June 28, 2018.
(Notice of Removal, ¶ 2, ECF No. 1; June 28, 2018
Summons, ECF No. 5-5.) On July 18, 2018, Defendant removed
the matter to this Court. (ECF No. 1.) Plaintiff objected to
the removal on July 23, 2018. (Objection to Notice of
Removal, ECF No. 6.) On July 25, 2018, Defendant filed its
Motion to Dismiss. (Motion to Dismiss, ECF No. 7.)
facts set forth herein are derived from Plaintiffs'
complaint (ECF No. 5-2), which facts are deemed true for
purposes of evaluating Defendant's motion to dismiss.
Blanco v. Bath Iron Works Corp., 802 F.Supp.2d 215,
221 (D. Me. 2011). In addition, the facts are in part drawn
from the record in the bankruptcy proceeding commenced by
Plaintiff in the Bankruptcy Court for the Middle District of
Florida, as the Court may take judicial notice of matters of
public record, including matters reflected on another
court's docket. Haley v. City of Boston, 657
F.3d 39, 46 (1st Cir. 2011).
in November 2017, Plaintiff applied for credit with certain
lending institutions. (Complaint ¶¶ 3, 10, 19.)
Plaintiff submitted his most recent credit application,
according to his complaint, on June 5, 2018. (Id.
¶ 25.) All of the lending institutions denied
Plaintiff's applications for credit and in each case
noted that the denial was because his credit report reflected
“charge offs, ” “90 days or more
delinquent, ” a “voluntary repo, ” and
“account included in collection.” (Id.
¶¶ 4, 8, 11, 19, 25.)
contacted Defendant and disputed the accuracy of his credit
report. (Id. ¶¶ 5, 6, 13, 16 - 18, 20, 22,
26.) In addition, Plaintiff sent Defendant a copy of
schedules associated with his bankruptcy petition, which
schedules included “all the negative accounts.”
(Id. ¶ 5.) According to Plaintiff,
Defendant's representatives were unhelpful. (Id.
¶¶ 15, 20, 22, 26.)
the first denial of credit based on a report reflecting that
accounts were charged off, Plaintiff contacted Defendant and
disputed the accuracy of his credit report. Plaintiff
informed Defendant that he considered his credit report
inaccurate because some of the debts reported as charged off
were included in his pending Chapter 13 bankruptcy proceeding
and that fact was not disclosed on the report. Plaintiff
alleges that he supplied Defendant with records demonstrating
the accounts were subject to the Chapter 13 plan; and that he
told Defendant the accounts should have been identified in
his report as “in wage earner plan.” (Complaint
¶ 7.) According to Plaintiff, Defendant informed him it
would include information in his report to show that the
accounts were included in a Chapter 13 wage earner plan if,
in fact, the accounts were within the plan. (Id.
¶¶ 9, 16.) Defendant, however, failed to update the
record to reflect the Chapter 13 plan. (Id.
¶¶ 12, 19.)
alleges Defendant “maliciously, willfully,
intentionally, and/or negligently failed to review any of
[the] paperwork sent to them, or conduct a reasonable
investigation of the Plaintiff's disputes.”
(Id. ¶ 23.) Plaintiff asserts a claim captioned
“Count 1 Violations of the Fair Credit Reporting Act 15
U.S.C. [§§] 1681 et seq.” Under Count 1,
Plaintiff alleges Defendant violated 15 U.S.C. §
1681e(b). (Id. ¶ 32.)
Plaintiff's complaint does not contain any reference to
state law, in his Objection to Removal, Plaintiff states that
“there is clearly a state statute that deals with the
Fair Credit Reporting Act and credit reporting agencies,
” and he asserts that he intended to include in this
action a claim under state law, citing 10 M.R.S. Chapter 210,
§§ 1310, 1310-A, and 1310-C. (Objection to Removal
¶¶ 4, 5, 7, 8.)
asks the Court to take judicial notice of the docket in the
matter In re John J. Cavanaugh,
Jr., Debtor, No. 6:16-bk-5687 (M.D. Fla.).
Defendant asserts that the Bankruptcy Court dismissed
Plaintiff's bankruptcy petition on July 19, 2018, without
discharging Plaintiff's debts. (Motion to Dismiss at 2.)
The docket of the bankruptcy proceeding reflects the
On August 26, 2016, Plaintiff filed a petition for bankruptcy
relief under Chapter 13 of ...