District Court (Cal.) Finds Plaintiff Failed to Plead FCRA Inaccuracy; Finds FCRA Pre-empts Defamation Claim

In Iyigun v. Cavalry Portfolio Services, LLC, 2013 WL 93114 (C.D.Cal. 2013), Judge Fitzgerald found no FCRA/CCRAA claim properly pleaded for wont of an inaccuracy.

Iyigun’s claims for violations of the Fair Credit Reporting Act (“FCRA”) and the California Consumer Credit Reporting Agencies Act (“CCRAA”) fail because the FAC does not sufficiently plead the element of inaccurate credit reporting. The plain allegation that “the accounts do not belong to” Iyigun does not provide Cavalry with sufficient notice as to the claims against it because it does not sufficiently identify the inaccuracies of the alleged reporting. See Manukyan v. Cach, LLC, 2012 WL 6199938, at *3 (C.D.Cal. Dec. 11, 2012) (concluding that identical language fails to sufficiently plead inaccurate reporting under the FCRA and the CCRAA).

Judge Fitzgerald also found Plaintiff’s defamation claim pre-empted by FCRA.  Judge Fitzgerald did not settle whether malice needed to be pleaded; instead finding that Plaintiff had failed to plead malice properly anyway.

Iyigun’s claim for defamation by libel fails because it is preempted by the FCRA. See, e.g., Mann v. Wells Fargo Bank, 2012 WL 3727369, at *4 (N.D.Cal. Aug. 27, 2012) (Section 1681t(b)(1)(F) preempts common law defamation claim alleging inaccurate credit reporting and failure to correct inaccuracies). Gorman does not compel a contrary result in spite of counsel’s arguments at the hearing. Gorman, 584 F.3d at 1147. In that case, the Ninth Circuit did not decisively reach the question of facial preemption. The Gorman court instead noted widespread disagreement among district courts and concluded that even if the plaintiff’s claims were not preempted, he did not offer sufficient evidence to withstand a motion for summary judgment. Id. at 1167. Here, as in Gorman, even if the alleged tort is not preempted, Iyigun’s claim for defamation fails because she does not offer any facts to support the requisite element of malice. See id. at 1168. The claim for relief therefore must be dismissed whether it is preempted or assessed on its merits.