In Denton v. JPMorgan Chase & Co., No. 4:19cv114, 2020 U.S. Dist. LEXIS 185745 (E.D. Va. Oct. 6, 2020), Judge Davis allowed an FCRA to proceed due to Plaintiff’s allegation of emotional distress.
Plaintiff’s fourth count alleges that Chase violated 15 U.S.C. § 1681s-2(b) either willfully/recklessly or negligently by failing “to properly investigate Plaintiff’s dispute” and failing “to correct the inaccurate information” in his credit report. Compl. ¶¶ 79-95.11 “The FCRA creates a private right of action allowing injured consumers to recover ‘any actual damages’ caused by negligent violations and both actual [*20] and punitive damages for willful noncompliance.” Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 239 (4th Cir. 2009) (citing 15 U.S.C. §§ 1681n, 1681o). “A plaintiff alleging a violation of the FCRA must prove either actual damages and a negligent violation of the FCRA to recover under 15 U.S.C. § 1681o, or a willful violation of the FCRA under 15 U.S.C. § 1681n, which requires no actual damages and entitles a plaintiff to statutory damages.” Wood v. Credit One Bank, 277 F. Supp. 3d 821, 828 n.12 (E.D. Va. 2017). Chase challenges the sufficiency of Plaintiff’s negligence claim on the grounds that he fails to allege actual damages, and it challenges the sufficiency of his willful/reckless claim on the grounds that he fails to successfully plead that Chase violated § 1681s-2(b) willfully/recklessly. See ECF Nos. 49, 62. 1. Actual Damages for Negligence Claim “Actual damages may include economic damages, as well as damages for humiliation and mental distress.” Robinson, 560 F.3d at 239 (citing Sloane v. Equifax Info. Servs., 510 F.3d 495, 500 (4th Cir. 2007)). Plaintiff’s allegations of actual damages fall generally within three categories12 : “emotional” actual damages;13 “credit-worthiness” actual damages;14 and “costs” actual damages.15 In terms of Plaintiff’s emotional actual damages, the Fourth Circuit has “warned that ‘[n]ot only is emotional distress fraught with vagueness and speculation, it is easily susceptible to fictitious and trivial claims.'” Sloane, 510 F.3d at 503 (alteration in original) (quoting Price v. City of Charlotte, 93 F.3d 1241, 1250 (4th Cir. 1996)). Therefore, a plaintiff must “reasonably and sufficiently explain the circumstances of [the] injury and not resort to mere conclusory statements.” Id. (alteration in original) (quoting Price, 93 F.3d at 1251). However, the Fourth Circuit has articulated this admonition when considering appeals of verdicts, meaning that the records have been expanded significantly beyond what they would have been at a motion to dismiss stage. See Sloane, 510 F.3d 495 (appealing a jury verdict that Equifax violated the FCRA); Price, 93 F.3d 1241 (appealing a grant of partial summary judgment and a jury award of compensatory damages for equal protection violations). Therefore, this Court must balance the Fourth Circuit’s cautionary language regarding proof of emotional damages with Rule 8(a)(2)’s simpler requirement that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), so as to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests,” Twombly, 550 U.S. at 555 (quoting Conley, 355 U.S. at 47). Here, Plaintiff alleges details of his emotional actual damages, beyond mere conclusory statements, sufficient to survive a motion to dismiss. For instance, one manifestation was “physical injury as a result of emotional distress.” Compl. ¶ 27. Another was “fear of applying for credit he needs for his livelihood,” as well as “strain on his relationships.” [*23] Id. ¶ 27. Finally, because of Chase’s “conduct, Plaintiff suffered . . . the humiliation and embarrassment of the credit denials [and] reductions in lines of credit and [his] reputation as a successful borrower.” Id. ¶ 91.16 While the Court admits that these are rather bare allegations, they provide Chase with fair notice of the claims, and they are more robust than other FCRA cases within the Fourth Circuit that were not dismissed at this stage. See Alston v. Freedom Plus/Cross River, No. CV TDC-17-0033, 2018 U.S. Dist. LEXIS 20354, 2018 WL 770384, at *2, *6-7 (D. Md. Feb. 7, 2018) (allegations of “mental anguish and emotional distress from the invasion of [the plaintiff’s] privacy” as a result of the “unauthorized acquisitions of her credit report” sufficient to survive a motion to dismiss (quotations omitted)); Alston v. AT&T Servs., Inc., No. GJH-18-2529, 2019 U.S. Dist. LEXIS 25728, 2019 WL 670241, at *3 (D. Md. Feb. 19, 2019) (same); Williams v. Microbilt Corp., No. 3:19CV085, 2019 U.S. Dist. LEXIS 227601, 2019 WL 7988583, at *28 (E.D. Va. Sept. 23, 2019), report and recommendation adopted, No. 3:19CV85, 2020 U.S. Dist. LEXIS 28452, 2020 WL 821033 (E.D. Va. Feb. 19, 2020) (same). But see Vecchione v. Prof’l Recovery Consultants, Inc., No. 1:13CV584, 2014 U.S. Dist. LEXIS 169978, 2014 WL 6972397, at *4 (M.D.N.C. Dec. 9, 2014) (granting a motion to dismiss where the plaintiff only “generally alleged” that the defendant’s actions caused “mental anguish, emotional distress, humiliation, [and] a loss of reputation”). Importantly, as a judge in one of those cases cautioned, Plaintiff still “will need to produce actual evidence of emotional distress such as medical treatment, physical symptoms, loss of income arising from such distress, or testimony about an adverse impact on the plaintiff’s conduct and lifestyle” in order to prevail on this element, Freedom Plus/Cross River, 2018 U.S. Dist. LEXIS 20354, 2018 WL 770384, at *6-7,17 however, at this stage, the allegations in the Complaint are sufficient.