United States District Court, W.D. Oklahoma
DAVID S. ELDRIDGE, Plaintiff,
EQUIFAX, INC., et al., Defendants.
L. RUSSELL UNITED STATES DISTRICT JUDGE
this Court is Defendant First Premier Bank's Motion to
Dismiss (Doc. 32). Plaintiff has responded (Doc. 39),
Defendant has replied (Doc. 44), and the matter is fully
briefed and at issue. For the reasons stated herein,
Defendant's motion is GRANTED.
plaintiff's complaint need only include “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a). Operationalizing
the Rule, a complaint must contain “sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face'” to survive a motion
to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). This standard “is ‘a middle
ground between heightened fact pleading . . . and allowing
complaints that are no more than labels and conclusions or a
formulaic recitation of the elements of a cause of
action.'” Khalik v. United Air Lines, 671
F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). That
is, the plaintiff's complaint “need only give the
defendant fair notice of what the claim is and the grounds
upon which it rests.” Id. at 1192 (internal
quotation marks and citations omitted). While assessing
plausibility is “a context-specific task . . .
requir[ing] . . . court[s] to draw on [their] judicial
experience and common sense, ” Iqbal, 556 U.S.
at 679, complaints “‘plead[ing] factual content
that allows the court to . . . reasonabl[y] infer that the
defendant is liable for the misconduct alleged'”
are facially plausible. See S.E.C. v. Shields, 744
F.3d 633, 640 (10th Cir. 2014) (quoting Iqbal, 556
U.S. at 678).
considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the Court “accept[s] as true all well-pleaded factual
allegations in the complaint and view[s] them in the light
most favorable to the plaintiff.” Burnett v. Mortg.
Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th
Cir. 2013). And though the Court liberally construes
Plaintiff's pro se complaint, it “will not
construct arguments or theories for the plaintiff in the
absence of any discussion of those issues.” Drake
v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.
1991); see also Dunn v. White, 880 F.2d 1188, 1197
(10th Cir. 1989) (“Although we must liberally construe
plaintiff's factual allegations, we will not supply
additional facts, nor will we construct a legal theory for
plaintiff that assumes facts that have not been
pleaded.” (citations omitted)).
to the sparse allegations in Plaintiff's complaint,
Defendant contends Plaintiff owes it money and has reported
this contention to credit reporting agencies Equifax,
Experian, and TransUnion. See Doc. 1-1, at 1-2.
According to Plaintiff, Defendant's actions violate the
Fair Credit Reporting Act (“FCRA”), 15 U.S.C.
§ 1681 et seq.; the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692
et seq.; and the Oklahoma Consumer Protection Act
(“OCPA”), 15 O.S. § 751 et seq.
See Doc. 1-1, at 2- 3. As well, Plaintiff alleges
that Defendant's conduct constitutes common-law fraud.
complaint fails to meet Rule 8's standard. Notably,
Plaintiff seems to admit in his response that his complaint
is deficient, stating, “First Premier Bank . . . is the
only one out of . . . 19 parties in this lawsuit who figured
out that . . . the Plaintiff did not comply with Fed.R.Civ.P.
8(a)(2).” Doc. 39, at 1. If this is sarcasm, it does
not leap off the page. Regardless, the complaint's
sufficiency turns not on Plaintiff's editorializing: the
complaint is inadequate on its own. First, Plaintiff pleads
insufficient factual content to show that Defendant violated
the OCPA. Plaintiff claims Defendant has violated Section
753(20) of the statute by committing “unfair or
deceptive trade practice[s] as defined in Section 752.”
15 O.S. § 753(20). A “[d]eceptive trade
practice” is “a misrepresentation, omission or
other practice that has deceived or could reasonably be
expected to deceive or mislead a person to the detriment of
that person, ” while an “[u]nfair trade
practice” is “any practice which offends
established public policy or if the practice is immoral,
unethical, oppressive, unscrupulous or substantially
injurious to consumers.” Id. §
752(13)-(14). This Court has held that Oklahoma
“intended to limit application of the [OCPA] to
problems arising between buyers and sellers, ” such
that debt collection activities do not fall within its ambit.
See Melvin v. Nationwide Debt Recovery, Inc., No.
00-CV-212, 2000 WL 33950122 (W.D. Okla. Aug. 24,
2000). Plaintiff offers hardly any facts at all,
but to the extent that he does implicate Defendant in some
activity, that activity appears to be related to debt
collection-or, more broadly, conduct between a lender and
borrower. Thus, such a claim would not fall within the
OCPA's scope. Accordingly, Plaintiff fails to state a
claim under the OCPA against Defendant.
additional claims against Defendant fare no better.
Plaintiff's FCRA claim fails because he lacks a private
right of action against Defendant for the purported
violations he has pled. See Whisenant v. First Nat'l
Bank & Tr. Co., 258 F.Supp.2d 1312 (N.D. Okla.
2003). The “FCRA places distinct obligations on three
types of entities: (1) consumer reporting agencies; (2) users
of consumer reports; and (3) furnishers of information to
consumer reporting agencies.” Aklagi v.
Nationscredit Fin., 196 F.Supp.2d 1186, 1192 (D. Kan.
2002). As Plaintiff only alleges that Defendant falsely
claimed it was owed money and reported this false claim to
credit reporting agencies, Plaintiff seems to be asserting a
FCRA claim based on Defendant's purported status as a
furnisher of information. The FCRA imposes two duties on
furnishers of information: “(1) the duty to provide
accurate information; and (2) the duty to investigate the
accuracy of reported information upon receiving notice of a
dispute.” Ilodianya v. Capital One Bank USA
NA, 853 F.Supp.2d 772, 773 (E.D. Ark. 2012) (citing 15
U.S.C. § 1681s-2(a)-(b)). But the FCRA creates no
private right of action for an information furnisher's
violation of its duty to provide accurate information.
Id. at 774 (citing 15 U.S.C. § 1681s-2(c)(1));
Whisenant, 258 F.Supp.2d at 1316. And while a
private right of action exists for violations of an
information furnisher's duty to investigate the accuracy
of reported information, this duty only arises after the
furnisher receives notice of a dispute from a consumer
reporting agency. Id. at 1316-17. Plaintiff offers
no facts indicating Defendant received any notice. Thus,
Plaintiff's attempts to state a FCRA claim fail.
the FDCPA, Plaintiff's complaint is deficient. The FDCPA
applies to “debt collectors, ” a defined term in
the statute, but Plaintiff fails to allege that Defendant is
a debt collector. See 15 U.S.C. §§
1692a(6), 1692k. Indeed, Plaintiff's conclusory averment
that Defendant “violat[ed] . . . the [FDCPA] in
attempting to collect debts that are not owed, ” Doc.
1-1, at 3, is simply insufficient to meet Rule 8's
threshold. Finally, Plaintiff unsuccessfully pleads a fraud
claim against Defendant. The Federal Rules of Civil Procedure
require parties “alleging fraud” to “state
with particularity the circumstances constituting fraud . . .
.” Fed.R.Civ.P. 9(b). Plaintiff's factual
contentions are anything but particular.
fails to state any claim against Defendant. Accordingly,
Defendant First Premier Bank's motion to dismiss (Doc.
32) is hereby GRANTED, and Plaintiffs complaint against First
Premier Bank is DISMISSED without prejudice.
 On March 6, 2019, Plaintiff filed a
“Riposte to First Premier Bank's
Reply” brief. See Doc. 54. The Court
construes this document as a surreply and declines to
consider it, as Plaintiff may not file a surreply without
leave of court. See LCvR7.1(i) (“Supplemental
briefs may be filed only upon motion and leave of
 A legally-sufficient complaint must
also include “a short and plain statement of the
grounds for the court's jurisdiction” and “a