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John J. Nonnenmacher v. Capital One

March 31, 2011

JOHN J. NONNENMACHER
PLAINTIFF,
v.
CAPITAL ONE, TRANS UNION, EQUIFAX INFORMATION SERVICES, LLC, AND EXPERIAN, DEFENDANTS.



The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.

NOT FOR PUBLICATION

OPINION

Underlying this matter is a dispute between plaintiff John J. Nonnenmacher ("Nonnenmacher") and his credit card company, Capital One Bank (USA), N.A. ("Capital One"). Now before the Court are Capital One's motion to dismiss the Amended Complaint [D.E. 15] and Nonnenmacher's cross-motion to file a Second Amended Complaint [D.E. 22].

I. Facts

Nonnenmacher resides in Chatham, New Jersey, and has had a Capital One credit card since 2008. (Am. Compl. ¶¶ 3, 12, 15.) Between 2008 and 2010, Capital One sent his bills to the wrong address, causing him to incur fees and finance charges. (Id. ¶¶ 15, 21.) On September 23, 2009, Nonnenmacher called Capital One to rectify the situation and was informed that his bills were being sent to 350 15th Avenue, New York, N.Y.; Nonnenmacher's office address is 350 5th Avenue, Suite 7210. (Id. ¶¶ 27--32.) The customer representative Nonnenmacher spoke to promised to waive all fees he had incurred and send future bills to his home address in Chatham if he made a payment over the phone. (Id. ¶ 33.) Nonnenmacher made the payment.

Notwithstanding, the fees were not waived, and he did not receive bills at his home address; instead, his bills were sent to 350 5th Avenue, Suite 1700. (Id. ¶¶ 34--37.) Nonnenmacher wrote a letter to Capital One on September 28, 2009, recounting the conversation he had with the customer representative on September 23; in the letter, he alerted Capital One that it had sent false and inaccurate information to the credit reporting agencies. (Id. ¶ 38--39.) He forwarded this letter to the crediting reporting agencies Trans Union, Equifax, and Experian, and he alleges that as a result of the correspondence, those agencies put Capital One on notice of Nonnenmacher's dispute. (Id. ¶¶ 40--44.) Nonnenmacher asserts that Capital One failed to investigate his dispute and continued to report inaccurate information to the credit reporting agencies. (Id. ¶¶ 45--49.)

Nonnenmacher called Capital One again on December 30, 2009, and spoke to a customer service representative named Karen, who recognized that Capital One had made a mistake, reduced Nonnenmacher's balance, and promised to update his credit report. (Id. ¶¶ 50--51.) Following the conversation, Nonnenmacher again sent a confirmatory letter to Capital One and sent copies of the letter to Trans Union, Equifax, and Experian, and he again asserts that as a result, those agencies notified Capital One of a dispute. (Id. ¶¶ 52, 54--56.) Still, Nonnenmacher claims, Capital One again failed to investigate and failed to update his credit history. (Id. ¶¶ 53, 57--60, 62.) As a result, Capital One continued to report negative and inaccurate information to the credit reporting agencies, including that Nonnenmacher was making late payments. (Id ¶¶ 61, 63.) In fact, in a letter dated February 17, 2010, Capital One admitted to Nonnenmacher that it had reported incorrect information regarding late payments for the months of June through December 2009. (Id. ¶ 68.) In addition to the credit reporting agencies, Capital One sent such incorrect information to companies such as Sears, Best Buy, MBNA, Citibank, Chase, American Express, and Madison Honda. (Id. ¶ 73.)

Nonnenmacher claims that in addition to sending incorrect information to other companies, Capital One employees repeatedly made harassing and threatening phone calls to him at both his office and home addresses in order to recover money he did not actually owe. (Id. ¶¶ 70--71.) Capital One also left messages-which Nonnenmacher claims were defamatory-with his friends, employees, and family. (Id. ¶ 72.)

Nonnenmacher filed the Amended Complaint that is the subject of the current motions on June 28, 2010. [D.E. 11.] It states causes of action for (1) negligent hiring; (2) defamation and slander; and (3) violations of the Fair Credit Reporting Act ("FCRA"). (Am. Compl. ¶¶ 74--99.) It seeks $3 million in compensatory damages and $3 million in punitive damages. (Id. Prayer for Relief.)

Capital One moved to dismiss the Amended Complaint on the grounds that (1) the FCRA requires Nonnenmacher to plead the manner in which the credit reporting agencies notified Capital One of his dispute, and he has failed to sufficiently do so; and (2) FCRA preempts Nonnenmacher's state law claims. (Moving Br. at 1--2.) Nonnenmacher responded by filing a motion for leave to file a Second Amended Complaint to cure the deficiency, add a claim under the Fair Credit Billing Act ("FCBA"), and correct the caption to reflect Capital One's proper corporate name. (Opp'n Br. at 1--3.) Nonnenmacher also maintains that his state law claims are not preempted. (Id. at 2--3.)

II. Nonnenmacher's Motion to Amend

Capital One does not oppose Nonnenmacher's motion to file a Second Amended Complaint to the extent that it cures his deficient pleading of an FCRA claim or adds a claim under the FCBA. (Reply Br. at 1.) .

III. Discussion

Turning to the argument that the FCRA preempts Nonnenmacher's state law negligence and defamation claims, Capital Oneasserts that 15 U.S.C. § 1681t(b)(1)(F)-one of two FCRA preemption provisions-precludes Nonnenmacher from bringing his state law claims. (Moving Br. at 7--8; Reply Br. at 4--7.) Nonnenmacher counters by arguing that § 1681t(b)(1)(F) only preempts claims under state statutory law ...


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