United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW UNITED STATES DISTRICT JUDGE.
matter is before the Court on defendant Diversified
Consultants, Inc.'s (“DCI”) motion to
dismiss. Plaintiff Jacob Kaestner opposes the motion and it
is fully briefed. For the following reasons, the motion to
dismiss, construed as a motion for judgment on the pleadings,
will be granted.
an action under the Fair Debt Collection Practices Act, 15
U.S.C. §§ 1692, et seq.
(“FDCPA”), and the Fair Credit Reporting Act, 15
U.S.C. §§ 1681, et seq.
(“FCRA”). The case was filed in the Circuit Court
of Jefferson County, Missouri, Associate Circuit Division,
and removed to this Court by defendant Trans Union, LLC,
pursuant to 28 U.S.C. §§ 1331, 1441, and 1446.
Plaintiff sues nine defendants: Credit reporting agencies
Equifax Information Services, LLC, Experian Information
Solutions, Inc., and Trans Union, LLC (collectively referred
to as “CRAs”), and credit information furnishers
Transworld Systems, Inc., American Express Centurion Bank,
Inc., Capital One, N.A., Credit One Bank, Citibank North
America, and DCI (collectively referred to as
of the petition asserts a violation of the FDCPA by
defendants DCI and Transworld System, Inc., Count II asserts
a violation of the FCRA by the three CRAs and is not at issue
on the instant motion, and Count III asserts a violation of
the FCRA by the Furnishers.
alleges that in the fall of 2016, he noticed that the
Furnishers were “reporting inaccurate, negative and
derogatory information about” him to the CRAs. Pet.
¶ 18. In response, plaintiff sent a detailed written
dispute to the three CRAs that explained how the tradelines
were inaccurate and asked for a reinvestigation. Id.
¶¶ 19-20. The CRAs responded that they verified or
updated the derogatory accounts and refused to remove them.
Plaintiff sent new reinvestigation correspondences to the
CRAs on four separate dates, but the CRAs again responded
that they verified the accounts and refused to delete the
tradelines. Id. ¶¶ 20-23.
relevant to defendant DCI, plaintiff alleges that DCI
“should never have been reporting as Plaintiff paid the
original creditor, even though Plaintiff disputed owing [it]
any money.” Id. ¶ 24. Plaintiff alleges
that the “inaccurate information of all the Defendant
credit furnishers includes, but is not limited to: incorrect
payment history, outstanding and delinquent balance, dates,
status, amount owed and past due.” Id. ¶
27. Plaintiff alleges that the CRAs and Furnishers
“have wrongfully verified the derogatory tradelines
since Plaintiff's initial FCRA dispute and all other
subsequent written disputes, ” and “have
continued to report and maintain this derogatory and
inaccurate information related to Plaintiff's credit
history and said derogatory information has been conveyed to
third parties.” Id. ¶¶ 29-30.
Plaintiff alleges that because he already paid and did not
owe the amount DCI is claiming, DCI is attempting to collect
a debt that it cannot legally collect in violation of 15
U.S.C. § 1692e, and is misrepresenting the character,
amount and/or legal status of the alleged debt in violation
of 15 U.S.C. § 1692e(2)(A). Id. ¶ 32.
Count III, plaintiff additionally alleges that the CRAs
reported to DCI that plaintiff disputed the collection
accounts, charge-offs, and false credit reporting, but
despite receiving this information, DCI “failed to
respond with truthful information, failed to acknowledge the
disputes and/or reported the false, derogatory information,
” and continued to falsely report about plaintiff to
the CRAs. Id. ¶¶ 45-47. Plaintiff alleges
that DCI failed to “respond to reinvestigation requests
and failed to supply accurate and truthful information”
in violation of 15 U.S.C. § 1681s-2(b), id.
¶ 48, and continued to report false and inaccurate
information, failed to retract, delete, and suppress false
and inaccurate information it reported about plaintiff, and
failed to investigate or reinvestigate regarding inaccurate
consumer data it reported and re-reported about plaintiff.
Id. ¶¶ 49-51.
alleges that as a result of DCI's actions, he was
prevented from obtaining financing, suffered emotional
distress, and incurred attorney's fees.
filed the instant motion to dismiss for failure to state a
claim under Rule 12(b)(6), Federal Rules of Civil Procedure,
but it previously filed an answer (Doc. 11) to the petition.
A Rule 12(b)(6) motion technically cannot be filed after an
answer has been submitted, see Rule 12(b);
NanoMech, Inc. v. Suresh, 777 F.3d 1020, 1023 (8th
Cir. 2015). Rule 12(h)(2) provides that a defense of failure
to state a claim upon which relief can be granted may be
raised in a motion for judgment on the pleadings under Rule
12(c). The Court will therefore construe DCI's motion to
dismiss as a motion for judgment on the pleadings under Rule
motion under Rule 12(c) is determined by the same standards
that are applied to a motion under Rule 12(b)(6).
Ginsburg v. InBev NV/SA, 623 F.3d 1229, 1233 n.3
(8th Cir. 2010). To survive a motion to dismiss pursuant to
Rule 12(b)(6) for failure to state a claim upon which relief
can be granted, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A plaintiff “must include sufficient factual
information to provide the ‘grounds' on which the
claim rests, and to raise a right to relief above a
speculative level.” Schaaf v. Residential Funding
Corp., 517 F.3d 544, 549 (8th Cir. 2008) (citing
Twombly, 550 U.S. at 555 & n.3). This obligation
requires a plaintiff to plead “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550
U.S. at 555.
Court accepts as true all of the factual allegations
contained in the complaint, even if it appears that
“actual proof of those facts is improbable, ”
id. at 556, and reviews the complaint to determine
whether its allegations show that the pleader is entitled to
relief. Twombly, 550 U.S. at 555-56; Fed.R.Civ.P.
8(a)(2). The principle that a court must accept as true all
of the allegations contained in a complaint does not apply to
legal conclusions. Iqbal, 556 U.S. at 678.