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Cavanaugh v. Equifax Information Services LLC

United States District Court, D. Maine

October 2, 2018

JOHN J. CAVANAUGH, JR., Plaintiff
v.
EQUIFAX INFORMATION SERVICES, LLC, Defendant

          ORDER ON PLAINTIFF'S OBJECTION TO REMOVAL AND RECOMMENDED DECISION ON DEFENDANT'S MOTION TO DISMISS

          John C. Nivison U.S. Magistrate Judge

         In this 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).

         Through his Objection to Removal, [1] 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.

         Because 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.

         Procedural Background

         On June 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.)

         Factual Background

         The 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).

         Beginning 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.)

         Plaintiff 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.)

         From 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.)

         Plaintiff 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.)

         While 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.)

         Defendant 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 following:

On August 26, 2016, Plaintiff filed a petition for bankruptcy relief under Chapter 13 of ...

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