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Simpson v. Xerox Education Services, LLC

United States District Court, W.D. Kentucky, Louisville Division

December 18, 2017

ROSE M. SIMPSON PLAINTIFF
v.
XEROX EDUCATION SERVICES, LLC, d/b/a ACS EDUCATION SERVICES DEFENDANT

          MEMORANDUM OPINION AND ORDER

          Joseph H. McKinley, Jr., Chief Judge

         This matter is before the Court on a motion by plaintiff Rose M. Simpson to add a defendant to her complaint. (DN 22.) Also before the Court is a motion to dismiss the complaint by defendant Conduent Education Services, LLC f/k/a Xerox Education Services, LLC, d/b/a ACS Education Services, LLC (“CES”) (DN 23), and a motion to enforce restitution and other relief by Simpson. (DN 26.) These matters are ripe for decision.

         I. Background

         Simpson filed her initial complaint pro se on February 8, 2017. (DN 1.) She named one defendant in her complaint: “Xerox Education Services LLC, dba ACS Education Services” (“Xerox”). Simpson alleged that the defendant engaged in multiple acts of misconduct in an attempt to collect on a student loan that she had previously paid in full. The complaint was screened pursuant to this Court's pro se screening process and permitted to proceed on April 26, 2017. (DN 5.) Simpson proceeded to file two motions for default (DN 11, 15), and CES filed a motion to dismiss. (DN 13.) The Court denied both motions for default and granted the motion to dismiss, as Simpson had failed to specify what legal theories entitled her to relief. (DN 18.) The Court granted Simpson leave to file an amended complaint so as to specify the legal theories that entitled her to relief and add any corporate defendants that she believed should be included in the complaint. (Id.) Simpson filed her amended complaint (DN 21), and she has moved to add “Conduent Inc., d/b/a Conduent Education Services, LLC (CES) f/k/a Xerox Education Services LLC d/b/a ACS” as a defendant. (DN 22.) CES has moved to dismiss the amended complaint (DN 23), and Simpson has filed a “motion to enforce restitution and other relief.” (DN 26.)

         II. Standard of Review

         Upon a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), a court “must construe the complaint in the light most favorable to plaintiffs, ” League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (citation omitted), “accept all well-pled factual allegations as true, ” id., and determine whether the “complaint . . . states a plausible claim for relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Under this standard, the plaintiff must provide the grounds for its entitlement to relief, which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff satisfies this standard only when it “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. A complaint falls short if it pleads facts “merely consistent with a defendant's liability” or if the alleged facts do not “permit the court to infer more than the mere possibility of misconduct.” Id. at 678-79. Instead, a complaint “must contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief.'” Id. at 677 (quoting Fed.R.Civ.P. 8(a)(2)). “But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

         III. Discussion

         The Court will begin by reviewing Simpson's amended complaint to determine if she has asserted a legal theory under which she is plausibly entitled to relief. Next, it will address CES's argument that any claim is barred by the applicable statute of limitations. It will then turn to whether Conduent Inc. should be dismissed as a defendant. Finally, it will address Simpson's motion to enforce restitution.

         B. Failure to State a Claim

         Simpson's amended complaint alleges that she is entitled to relief under three federal laws: the Consumer Financial Protection Act of 2010 (CFPA), the Fair Credit Reporting Act (FCRA) and the Fair Debt Collection Practices Act (FDCPA). The Court will examine each theory.

         1. Consumer Financial Protection Act

         The CFPA prohibits “any person that engages in offering or providing a consumer financial product or service” from “engag[ing] in any unfair, deceptive, or abusive act or practice.” 12 U.S.C. §§ 5481(6), 5536(a)(1)(B). The Act gives the Consumer Financial Protection Bureau the power to commence a civil action against any person that violates the Act. Id. at § 5564(a). However, the CFPA does not create a private right of action. See Jones v. Deutsche Bank Nat'l Trust Co., 2017 WL 4612813, at *5 (M.D. Tenn. Oct. 16, 2017) (sections 5531 and 5536 of the CFPA “do not authorize a private right of action”) (collecting cases). Thus, even if the defendants in this case have violated the CFPA, the Act does not permit Simpson to bring a civil action against these entities and obtain relief.[1] Therefore, Simpson has not stated a claim that would entitle her to the relief she seeks. Accord Beider v. Retrieval Masters Creditors Bureau, Inc., 146 F.Supp.3d 465, 472 (E.D.N.Y. 2015) (concluding that the Act did not create a private right of action and refusing to read such a right of action into the statute).

         2. Fair Credit Reporting Act

         The FCRA, unlike the CFPA, does create a private right of action to enforce its provisions. See 15 U.S.C. §§1681n, 1681o. Specifically, §1681s-2 of the Act “is designed to prevent ‘furnishers of information' from spreading inaccurate consumer-credit information.” Boggio v. USAA Fed. Sav. Bank, 696 F.3d 611, 615 (6th Cir. 2012). When (1) a consumer has notified a consumer reporting agency that he or she is disputing the information in their file and (2) the agency has notified the furnisher of that information of the dispute, see 15 U.S.C. § 1681i(a)(2), the FCRA imposes five duties upon the furnisher of that information: to “conduct an investigation, ” “review all relevant information, ” “report the results of the investigation to the consumer reporting agency, ” report any finding that the information is incomplete or inaccurate to other consumer reporting agencies, and to either modify, delete, or ...


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