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Robert Burrell v. Dfs Services

March 3, 2011

ROBERT BURRELL, PLAINTIFF,
v.
DFS SERVICES, LLC, D/B/A DISCOVER, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Dickinson R. Debevoise, U.S.S.D.J.

NOT FOR PUBLICATION

OPINION

This matter arises out of a case of identity theft. On May 27, 2010 Plaintiff Robert Burrell filed a Complaint against Defendant DFS Services, LLC ("Discover"), among others, alleging violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681, et seq., Fair Credit Billing Act ("FCBA"), 15 U.S.C. § 1666 et seq., and asserting claims for intentional infliction of emotional distress, defamation, and negligence.

On July 29, 2010, Discover moved to dismiss Mr. Burrell's claims pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that (1) he cannot assert a cause of action under the FCRA or FCBA and; (2) his state law claims are preempted by the FCRA. In an Opinion, dated December 6, 2010, the Court found that Mr. Burrell (1) failed to assert a private cause of action under the FCRA; (2) properly asserted a cause of action under the FCBA; and (3) cannot assert claims for intentional infliction of emotional distress, defamation, and negligence in this case because they are preempted by the FCRA.

On December 28, 2010, Mr. Burrell filed an Amended Complaint setting forth the same causes of action as those in the original Complaint, but rescinded his FCRA claim against Discover. On January 11, 2011, Discover again moved to dismiss Mr. Burrell's state law claims, arguing that they were properly dismissed with prejudice in the Court's December 6, 2010 opinion. For the reasons set forth below, Discover's motion is granted.

I. BACKGROUND

Mr. Burrell was a victim of identity theft. In April 2008, Mr. Burrell did not receive a billing statement for his Discover card. He contacted the company and was told by a customer service representative that his statements were being sent to his new address. Upon informing the customer service representative that he had not moved, Mr. Burrell was told that Discover would rectify the error and forward the April 2008 statement to his correct address.

Mr. Burrell never received his April 2008 statement. In fact, Discover did not communicate with him at all until September 1, 2008, when the company sent him a statement showing several charges that Mr. Burrell did not make, along with accumulated late fees and penalties for non-payment. Mr. Burrell contacted Discover again, only to be told by a customer service representative that the person to whom the company had been sending his bills had stopped making payments. The representative identified that person as "Sarah Foster" -- presumably an alias used by the identity thief. Mr. Burrell responded that his identity had been stolen and that he was not affiliated with anyone named Sarah Foster. The representative said that the Discover would "look into" the disputed charges.

Approximately one month later, in October 2008, Mr. Burrell again informed representatives of Discover that his identity had been stolen and received similar assurances that the company would investigate. Finally, on or about May 18, 2009, he submitted a written Affidavit of Fraud provided by Discover in which he detailed the various fraudulent charges on his September 1, 2008 statement.

It appears that Discover's assurances were empty, as there is no indication that Discover investigated any of the fraudulent charges made to Mr. Burrell's credit card. Even worse, the company allowed the identity thief to continue making such charges, all while assessing late fees and penalties for non-payment. Indeed, On June 16, 2009, nearly a month after submitting the Affidavit of Fraud, Mr. Burrell received a bill from Discover for $9,706.68. The following month, he received a letter stating that his card would soon exceed its credit limit of $10,300.

Apparently at a loss for how to proceed, Mr. Burrell yet again contacted a Discover customer service representative, who told him to file a police report. When he went to his local police station, however, he was referred to the post office, which advised him that it was unable to help him.

On March 17, 2010, having attempting to combat the theft of his identity for roughly two years, Mr. Burrell stumbled upon the entities that Discover contends he should have notified in the first place. On that date, he filed a complaint with the three main companies that track consumer credit ratings in the United States -- Experian Information Solutions, Inc. ("Experian"), Equifax, Inc. ("Equifax"), and TransUnion, LLC ("TransUnion") -- disputing the debts incurred by the identity thief.

However, at that point, Discover had submitted information to the credit rating agencies stating that he had not paid his debts for almost two years. As a result, his consumer credit rating was ruined, and he was beset by debt collectors, some of whom allegedly continue to harass Mr. Burrell and his family by repeatedly calling his house at inconvenient hours. Furthermore, the theft of Mr. Burrell's identity has rendered him irritable and unable to sleep.

On, May 27, 2010 Plaintiff Robert Burrell filed a Complaint against Defendant DFS Services, LLC ("Discover") and a number of other parties,*fn1 alleging violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681, et seq., Fair Credit Billing Act ("FCBA"), 15 U.S.C. § 1666 et seq., and ...


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