United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
N. STIVERS, JUDGE UNITED STATES DISTRICT COURT
matter is before the Court on Defendant’s Motion to
Dismiss (DN 12). No response was filed by Plaintiff. For the
reasons outlined below, the motion is
STATEMENT OF FACTS AND CLAIMS
alleged in the Complaint, Plaintiff Betty Cecil
(“Cecil”) discovered in 2015 that Defendant
Capital One Bank (USA), N.A. (“Capital One”) had
erroneously reported to the credit bureau Experian
Information Solutions, Inc. (“Experian”) that one
of Cecil’s accounts had been charged off. (Compl.
¶ 16, DN 1). Cecil has alleged that “[d]espite
[her] lawful request for removal of the disputed item . . .,
Capital One and Experian failed to investigate [her] dispute
and failed to remove the item from [her] credit
report.” (Compl. ¶ 20).
then filed this action against Capital One and Experian
asserting, inter alia, claims of negligence,
defamation, and a violation of 15 U.S.C. § 1681s-2 of
the Fair Credit Reporting Act (“FCRA”). (Compl.
¶¶ 23-49). During the pendency of this action,
Plaintiff settled her claims with Experian. (Agreed Order
Dismissal, DN 14). Capital One has moved to dismiss the
state-law claims of negligence and defamation on the bases
that such claims are preempted by the FCRA and time barred by
the applicable statutes of limitations. (Def.’s Mem.
Supp. Mot. Dismiss 3-13, DN 12-1). Cecil did not respond to
the motion, which is now ripe for adjudication.
Court has subject-matter jurisdiction of this matter based
upon federal question jurisdiction. See 28 U.S.C.
§ 1331. In addition, the Court has supplemental
jurisdiction over Plaintiff’s state law claims.
See 28 U.S.C. § 1367(a).
STANDARD OF REVIEW
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief,” and is subject to dismissal if it
“fail[s] to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 8(a)(2); Fed. R. Civ. P
12(b)(6). When considering a motion to dismiss, courts must
presume all factual allegations in the complaint to be true
and make all reasonable inferences in favor of the non-moving
party. Total Benefits Planning Agency, Inc. v. Anthem
Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th
Cir. 2008) (citing Great Lakes Steel v. Deggendorf,
716 F.2d 1101, 1105 (6th Cir. 1983)). To survive a motion to
dismiss under Rule 12(b)(6), the plaintiff must allege
“enough facts to state a claim to relief that is
plausible on its face.” Traverse Bay Area
Intermediate Sch. Dist. v. Mich. Dep’t of Educ.,
615 F.3d 622, 627 (6th Cir. 2010) (internal quotation marks
omitted) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim becomes plausible “when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556).
Applicable Statutes of Limitation
Kentucky law, the statute of limitations is one year for both
negligence and defamation. See KRS 413.140(1)(a),
(d). As alleged in the Complaint, Cecil discovered in July
2015 that Capital One had provided the allegedly false
information to the credit bureau. (Compl. ¶ 16).
Plaintiff, however, did not file this action until August 25,
2016. She has not disputed the untimely assertion of these
state-law claims. See Paulmann v. Hodgdon Power Co.,
No. 3:13-CV-00021-CRS-DW, 2014 WL 4102354, at *1 (W.D. Ky.
Aug. 18, 2014) (“Failure to respond to a dispositive
motion will be grounds for granting the motion.”
(citations omitted)). See also LR 7.1(c)
(“Failure to timely respond to a motion may be grounds
for granting the motion.” Accordingly, Cecil’s
negligence and defamation claims are time barred by their
respective one-year statutes of limitations, and those claims
will be dismissed.
One also argues that such claims are preempted by the FCRA.
In light of the Court’s determination that those
state-law claims are time barred, however, it is ...