United States District Court, E.D. Pennsylvania
JOHN C. BERKERY, SR., Plaintiff
EQUIFAX INFORMATION SERVICES LLC et al., Defendants
E.K. Pratter united States District Judge.
se plaintiff John C. Berkery alleges that three consumer
reporting agencies violated the Fair Credit Reporting Act, 15
U.S.C. §§ 1681, et seq., because they
misreported that his Capital One credit card account was
overdue. In his original complaint, Mr. Berkery admitted that
he failed to make his minimum monthly payment; however, he
alleged that the information was inaccurate because Capital
One illegally increased his minimum monthly payment. The
Court granted the consumer reporting agencies' motion to
dismiss because Mr. Berkery failed to plead that the consumer
reporting agencies included a factual inaccuracy on his
reports, as required by the FCRA.
Berkery then filed an amended complaint which omitted the
problematic pleadings contained in his original complaint.
The consumer reporting agencies now move to dismiss Mr.
Berkery's amended complaint, arguing that Mr. Berkery
cannot avoid dismissal of his claims by omitting the
allegations that were fatal to his original complaint. Mr.
Berkery also moves to strike the consumer reporting
agencies' motion to dismiss. For the following reasons,
the Court denies both motions.
ruling on this motion to dismiss, the Court must accept the
facts presented in the complaint in the light most favorable
to Mr. Berkery and "accept all of the allegations as
true." ALA, Inc. v. CCAIR, Inc., 29 F.3d 855,
859 (3d Cir. 1994).
Berkery alleges that three consumer reporting agencies
violated the Fair Credit Reporting Act, 15 U.S.C.
§§ 1681, et seq., because they misreported
that the payments on his Capital One credit card account were
March 6, 2012, Mr. Berkery opened a Platinum Mastercard
credit card account with Capital One. In his original complaint,
he pleaded that when he opened the account, and for the next
six years, the minimum monthly payment was $25. Compl. at
¶ 7 (Doc. No. 2). He originally pleaded that he
continued to pay $25 per month even after Capital One
increased the minimum requirement payment on the account. Mr.
Berkery also alleged that "Capital One unilaterally and
without cause" raised his minimum monthly payment.
Id. Mr. Berkery contended that the three defendant
consumer reporting agencies-Equifax Information Services,
LLC, Experian Information Solutions, Inc, and Trans Union,
Corp.-allegedly misreported the Capital One account on his
credit reports by stating that the account was overdue when
Mr. Berkery refused to pay the increased minimum monthly
payment. He pleaded that this inaccuracy resulted in a
substantial loss, including the inability to obtain mortgage
financing or credit, and also damaged his reputation.
Berkery alleged that the consumer reporting agencies failed
to adopt or follow reasonable procedures to assure maximum
possible accuracy of his credit reports. According to Mr.
Berkery, the agencies continued to report the Capital One
account delinquency after he asked the agencies to
reinvestigate his claims. In his original complaint, Mr.
Berkery asserted that the consumer reporting agencies
violated § 1681e(b) by failing to use reasonable
procedures to assure maximum possible accuracy in their
credit reports and § 1681i(a) by failing to reasonably
reinvestigate his dispute of the allegedly inaccurate
later joined by Experian and Trans Union, filed a motion to
dismiss on the basis that Mr. Berkery had not alleged a
patent, factual error on his Equifax report, namely that
Equifax reported the numbers incorrectly. The Court granted
the motion to dismiss as to all the defendants with leave for
Mr. Berkery to amend his complaint. Mem. at 10 (Doc. No. 28).
In dismissing Mr. Berkery's § 1681e(b) claim, the
Court held that Mr. Berkery "fail[ed] to allege that the
consumer reporting agencies reported an inaccuracy"
because he "admit[ted] that Capital One increased his
monthly payment amount and that he continued to pay the
previous, lower amount in spite of the increase."
Id. at 6. The Court reasoned that "[w]hen the
consumer reporting agencies reported the delinquency, they
were accurate because Mr. Berkery was, in fact,
Mr. Berkery's § 1681i(a) claim, the Court held that
"[t]he reinvestigation Mr. Berkery requests would have
required the consumer reporting agencies to decide whether
Capital One was legally allowed to unilaterally increase Mr.
Berkery's minimum monthly payment." Id. at
9-10. The Court held that § 1681i(a) does not obligate
the consumer reporting agencies in this way, and noted
"as a matter of fairness, due process and policy, it is
difficult to imagine that resolving an issue such as this one
extant should be assigned to the consumer reporting
agency." Id. at 10.
Berkery has since filed his amended complaint. In his amended
pleadings, Mr. Berkery no longer alleges that he made monthly
payments of $25 or that Capital One increased his minimum
payment to greater than $25. Instead, he alleges that
although he maintained his account "in a timely
manner" for six years and that his account was
eventually "paid in full and closed," Capital One
reported to the consumer reporting agencies that the account
was three months overdue. Am. Compl. at ¶ 7 (Doc. No.
30). Mr. Berkery alleges that the consumer reporting agencies
produced factually inaccurate consumer reports based on this
information, even after conducting reinvestigations upon Mr.
Berkery's request. Id. at ¶ 25. Moreover,
Mr. Berkery no longer alleges that "Capital One
unilaterally and without cause" raised the minimum
monthly payment. Compare Compl. at ¶ 7 (Doc.
No. 2) with Am. Compl. at ¶ 7 (Doc. No. 30).
The remainder of Mr. Berkery's amended complaint mirrors
his original pleadings.
defendants again move to dismiss Mr. Berkery's amended
complaint, arguing that Mr. Berkery amended his pleadings in
an attempt to avoid dismissal. Mr. Berkery also moves to
strike the consumer reporting agencies' motion to dismiss
under Federal Rule of Civil Procedure 12(f).