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Deane v. Transunion LLC

United States District Court, D. Maine

February 11, 2019

JOHN D. DEANE, Plaintiff
v.
TRANSUNION LLC, Defendant

          RECOMMENDED DECISION ON PLAINTIFF'S MOTION TO DISMISS

         In this action, Plaintiff alleges Defendant unlawfully distributed inaccurate reports to prospective creditors about Plaintiff's credit history and credit worthiness. In particular, Plaintiff asserts Defendant failed to correct his credit history file after he informed Defendant that many of the transactions listed in his credit history were fraudulent. (Statement of Claim, ECF No. 1-1.)

         The matter is before the Court on Plaintiff's motion to dismiss. (ECF No. 10.) Plaintiff asserts that he did not file the state court complaint which Defendant removed to federal court. In response to the motion, Defendant asks the Court to order Plaintiff to pay the costs incurred in previous lawsuits before he files any additional claims against Defendant.

         Following a review of the record, and after consideration of the parties' arguments, I recommend the Court grant Plaintiff's motion to dismiss and deny Defendant's request for an order of costs.

         Background[1]

         According to Plaintiff, beginning in 2007, Plaintiff began noticing a series of incorrect items on his credit report due to fraudulent activity. (Statement of Claim ¶¶ 5, 7, ECF No. 1-1.) Plaintiff maintains he worked to correct the errors for over ten years, but Defendant continues to provide credit reports with false information about Plaintiff's credit history. (Id. ¶ 6, 8.) Plaintiff asserts potential lenders have declined his credit applications and when accepted, he is required to pay higher interest rates as a result of the false information in the reports. (Id. ¶ 9.) Plaintiff argues Defendant's actions violate the Fair Credit Reporting Act, 15 U.S.C. § l681a et seq., and Maine's analogous credit reporting statute, 10 M.R.S. § l309 et seq. (Statement of Claim ¶¶ 12 - 19.)

         On March 16, 2018, Plaintiff filed a complaint with the Small Claims Session of the Superior Court of Connecticut in Hartford. (ECF No. 12-1.) On April 5, 2018, that court dismissed the claim for lack of jurisdiction. (ECF No. 12-2.) On April 10, 2018, Plaintiff filed the same complaint with the Small Claims Session of the Superior Court of Connecticut in New Britain. (ECF No. 12-3.) Plaintiff voluntarily withdrew that case on April 17, 2018 as “erroneously filed in two Court locations.” (ECF No. 12-4.)

         Plaintiff later served a similar Statement of Claim on Defendants, which claim was to be presented in the Maine District Court in Bridgton on November 1, 2018. (Affidavit in Support of Notice of Removal ¶ ECF No. 1.) On November 21, 2018, Defendant filed a notice of removal with this Court. (ECF No. 1.)

         On November 30, 2018, in a letter to the Court, Plaintiff wrote, “a case was contemplated previously . . . nothing has been filed with any Court of any jurisdiction at this time nor is there an intent to file anything at this time, ” (ECF No. 10), which filing the Court construed as a voluntary motion to dismiss. (ECF No. 11.)

         Discussion

         Because Defendant answered Plaintiff's complaint, Plaintiff cannot voluntarily dismiss his action without a court order. Fed.R.Civ.P. 41(a)(2). In Colon-Cabrera v. Esso Standard Oil Co. (P.R.), 723 F.3d 82 (1st Cir. 2013), the First Circuit discussed the factors relevant to a court's determination whether to grant a plaintiff's request to dismiss an action without prejudice.

         First, the Court observed that under Rule 41(a)(2), “dismissal without prejudice is the norm, ‘unless the court finds that the defendant will suffer legal prejudice.'” Id. at 88 (quoting P.R. Maritime Shipping Auth. v. Leith, 668 F.2d 46, 50 (1st Cir. 1981)). In addition, the Court noted: “The mere prospect of a subsequent lawsuit does not constitute such prejudice.” Id. (citing Doe v. Urohealth Sys., Inc., 216 F.3d 157, 160 (1st Cir. 2000)).

         The Court then wrote:

Voluntary dismissal under Rule 41(a)(2) is conditioned on court permission to protect the nonmovant from unfair treatment. Such unfairness can take numerous forms, including the defendant's effort and expense of preparation for trial, excessive delay and lack of diligence on the part of the plaintiff in prosecuting the action, insufficient explanation of the need to take a dismissal, and the fact that a motion for summary judgment has been filed by the defendant. For example, it is appropriate to consider whether a party proposes to dismiss the case at a late stage of pretrial proceedings, or seeks to avoid an imminent adverse ruling. A plaintiff should not be permitted to ...

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