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Foskaris v. Experian Information Solutions, Inc.

United States District Court, D. Nevada

July 11, 2018

THOMAS FOSKARIS, Plaintiff,
v.
EXPERIAN INFORMATION SOLUTIONS, INC., Defendant.

          ORDER

          KENT J. DAWSON UNITED STATES DISTRICT JUDGE

         Presently before the Court is Defendant Experian Information Solutions, Inc.'s Motion for Judgment on the Pleadings (#39). Plaintiff filed a response to the motion (#41) to which Defendant replied (#46).

         I. Background

         In April 2016, Plaintiff Thomas Foskaris (“Foskaris”) believed he was the victim of credit fraud. After Foskaris found that accounts had been opened in his name at Kohl's and Verizon, he contacted Defendant Experian Information Solutions, Inc. (“Experian”). Foskaris requested that Experian place an initial fraud alert on his account and send him a consumer disclosure report. Defendant placed the fraud alert on the account and sent him the consumer disclosure that same day. The initial fraud alert lasts only 90 days, so on or about May 15, 2016 Foskaris requested an extended fraud alert, which lasts for seven years, pursuant to 15 U.S.C.A. § 1681c-1(b). Experian added the extended alert that same day. However, on or about May 16, 2016, Experian sent him a notice saying he needed to provide additional information before they could apply the extended fraud alert. However, subsequent reports provided to Foskaris on or about July 21, 2016 showed that Experian added the extended alert to his record. Foskaris was confused by the request for additional information and Experian's failure to disclose the permissible purpose of each credit inquiry requested after the fraud alert was enabled.

         Under the Fair Credit Reporting Act (FCRA), a consumer reporting agency (CRA) cannot release a consumer's credit information to a third party without having a permissible purpose. See 15 U.S.C.A. § 1681b. The report Experian provided to Foskaris did not contain a description of the third party's permissible purpose before receiving the credit information. Plaintiff claims that this constitutes a violation of Section 1681g. Plaintiff also alleges other violations of the Act stemming from Experian's failure to provide the permissible purpose as well as their handling of his request for an extended fraud alert.

         II. Legal Standard

         After the pleadings are closed- but early enough not to delay trial- a party may move for judgment on the pleadings. Fed.R.Civ.P. 12(c). Motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) are “functionally identical” to a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim. Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989).

         In reviewing a motion for judgment on the pleadings, the court “must accept all factual allegations in the complaint as true and construe them in the light most favorable to the non- moving party.” Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). “[J]udgment on the pleadings is proper when taking all the allegations in the non-moving party's pleadings as true, the moving party is entitled to judgment as a matter of law.” Ventress v. Japan Airlines, 486 F.3d 1111, 1114 (9th Cir. 2007) (citations omitted).

         III. Analysis

         A. First Cause of Action: Violation of the Fair Credit Reporting Act

         Plaintiff's complaint alleges multiple violations of the FCRA throughout. The causes of action named are limited and will be analyzed individually.

         1. § 1681b Violation

         Section 1681b, entitled “Permissible purposes of consumer reports, ” outlines when it is appropriate for a CRA to “furnish a consumer report” to a third party. 15 U.S.C.A. 1681b(a). The statute defines “consumer report” as

any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness [creditworthiness], credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for credit or insurance to be used primarily for ...

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