United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge
Antoine Grant filed this action pro se in the District Court
of Johnson County, Kansas. Defendant filed a Notice of
Removal removing the case to federal court. Doc. 1. Defendant
then filed a Motion for More Definite Statement under
Fed.R.Civ.P. 12(e). Doc. 10. The court granted
defendant's Motion for More Definite Statement (Doc. 14),
and plaintiff filed an Amended Complaint on April 17, 2017
(Doc. 16). The Amended Complaint asserts five causes of
action: Count I, violation of the Fair Credit Reporting Act
(“FCRA”); Count II, violation of the Fair Debt
Collection Practices Act (“FDCPA”); Count III,
violation of the Consumer Credit Protection Act
(“CCPA”); Count IV, negligent enablement of
identity fraud; and Count V, defamation. Id. On May
1, 2017, defendant filed a Motion to Dismiss Plaintiff's
Amended Complaint for Failure to State a Claim. Doc. 17.
Plaintiff has filed an Opposition to the Motion (Doc. 19),
and defendant has submitted a Reply (Doc. 20). For reasons
explained below, the court grants defendant's Motion and
dismisses plaintiff's Amended Complaint without
Amended Complaint alleges the following facts. The court
accepts them as true and views them in the light most
favorable to the plaintiff. ASARCO LLC v. Union Pac. R.R.
Co., 755 F.3d 1183, 1188 (10th Cir. 2014). In October
2015, plaintiff discovered a delinquent credit card account
in his name with defendant First Premier Bank listed on his
credit reports. Plaintiff never applied for a credit card
with defendant. Plaintiff, believing he was a victim of
identity theft, contacted defendant to dispute the account in
late October 2015. Plaintiff alleges defendant failed to
inform him of the investigation's outcome or failed to
resolve the matter after repeated attempts to contact
defendant. Plaintiff filed a small claims action against
defendant in the District Court of Johnson County on November
17, 2016. His Amended Complaint asserts several claims based
on these allegations, including one under the FCRA.
Defendant, invoking federal question jurisdiction, removed
the case to federal court.
Motion to Dismiss
moves to dismiss the case for “failure to state a claim
upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). Federal Rule of Civil Procedure 8(a)(2) provides
that a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Although this Rule “does not require
‘detailed factual allegations, '” it demands
more than “[a] pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Id. (quoting Twombly, 550 U.S. at 570).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). “Under this
standard, ‘the complaint must give the court reason to
believe that this plaintiff has a reasonable
likelihood of mustering factual support for these
claims.'” Carter v. United States, 667
F.Supp.2d 1259, 1262 (D. Kan. 2009) (quoting Ridge at Red
Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.
the court must assume that the factual allegations in the
complaint are true, it is “‘not bound to accept
as true a legal conclusion couched as a factual
allegation.'” Id. at 1263 (quoting
Iqbal, 556 U.S. at 678). “Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements” are not enough to state a claim
for relief. Iqbal, 556 U.S. at 678. In addition to
the complaint's factual allegations, the court also may
consider “attached exhibits and documents incorporated
into the complaint by reference.” Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009) (citations
Pro Se Plaintiff
plaintiff brings this lawsuit pro se, the court construes his
pleadings liberally and holds them to a less stringent
standard than formal pleadings drafted by lawyers. See
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
But the court cannot assume the role of advocate for the
plaintiff. Id. In addition, plaintiff's pro se
status does not excuse him from “the burden of alleging
sufficient facts on which a recognized legal claim could be
based.” Id. Nor is plaintiff relieved from
complying with the rules of the court, if he fails to comply
with them, or facing the consequences of noncompliance.
Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir.
1994) (citing Nielsen v. Price, 17 F.3d 1276, 1277
(10th Cir. 1994)).
asserts that each claim in the Amended Complaint fails to
state a claim upon which relief can be granted. The court
addresses each claim, separately, below.
Fair Credit ...