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1 in the United States District Court for the Eastern IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ESTATE OF JAMES C. RENNICK SR., CIVIL ACTION v. NO. 18-3881 UNIVERSAL CREDIT SERVICES, LLC MEMORANDUM RE: MOTION TO DISMISS Baylson, J. January 14, 2019 I. Introduction This action arises out of a credit report issued by Defendant Universal Credit Services, LLC, which included false reports from two major credit reporting agencies stating that James C. Rennick, Sr. was deceased when he was still alive. Plaintiff, the Estate of Mr. Rennick, alleges that because of the erroneous credit report, Mr. Rennick was denied a home equity line of credit. The Complaint sets forth eight causes of action: 1. Count I: Violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681, et seq.; 2. Count II: Intentional infliction of emotion distress (“IIED”); 3. Count III: Intrusion upon seclusion; 4. Count IV: Negligence; 5. Count V: Negligent infliction of emotional distress (“NIED”); 6. Count VI: Defamation; 7. Count VII: Gross negligence; and 8. Count VIII: Slander of credit. Presently before this Court is Defendant’s Motion to Dismiss Counts II, III, V, and VI of the Complaint for failure to state a claim for which relief can be granted under Federal Rule of 1 Civil Procedure 12(b)(6). There is no Motion to Dismiss Counts I, IV, VII, or VIII of the Complaint–the FCRA, negligence, gross negligence, and slander of credit claims. For the reasons discussed below, the Motion to Dismiss is granted with prejudice as to Counts II, III, and V, and denied as to Count VI. II. Factual Background Taking Plaintiff’s allegations as true, the factual background is as follows. Mr. Rennick was an individual who resided at all relevant times in Spring Hill, Florida. (ECF 1, Compl. ¶ 4.) Defendant regularly conducts business in Florida and has its principal place of business in Broomall, Pennsylvania. (Id. ¶ 5.) Michelle Malvarty, the Successor Trustee of Mr. Rennick’s living revocable trust, is the daughter of Mr. Rennick and his wife, Angela Rennick, both of whom are now deceased. (Id. ¶ 7.) Ms. Rennick suffered from Stage IV lung, kidney, bone, and brain cancer prior to her death and had significant limitations on her activities and abilities. (Id. ¶ 8.) Mr. Rennick suffered from a heart condition which also limited his activities and abilities. (Id. ¶ 9.) Due to their health conditions, Mr. and Ms. Rennick sought to renovate their home to accommodate their health needs and to enjoy their home to the fullest before Ms. Rennick passed away. (Id. ¶ 10.) The renovations included changing their kitchen and bathroom to accommodate their needs, as well as adding air conditioning to the third floor of their home so that Ms. Rennick could breathe in the heat, a lanai, and a screened-in porch area so that Ms. Rennick could enjoy the outdoors even with her extreme allergy to bugs in the area. (Id. ¶ 11.) The money from the home equity loan would also provide the funds to pay for Ms. Rennick’s anticipated funeral expenses. (Id. ¶ 12.) On or about January 2017, Mr. Rennick approached a mortgage broker to take out a home equity line of credit. (Id. ¶ 13.) The mortgage broker ran a credit report from Defendant, which 2 pulled the credit report information from all three major credit reporting agencies–Equifax, Experian, and TransUnion–and concisely placed this information into Defendant’s own credit report (“the tri-merge report”). (Id. ¶ 14.) The tri-merge report showed that two agencies were reporting Mr. Rennick as deceased even though he was alive. (Id. ¶¶ 15–16.) As a result, Mr. Rennick was unable to obtain the home equity line of credit. (Id. ¶ 21.) In June 2017, Ms. Rennick passed away. (Id.) Without the loan, Mr. Rennick was forced to cremate Ms. Rennick as the least expensive way to deal with her remains. (Id.) After Mr. Rennick cremated his wife, Mr. Rennick suffered from “emotional torment” for months, and months later, Plaintiff fell ill and passed away in May 2018. (Id. ¶¶ 23–24.) Plaintiff was also forced to cremate Mr. Rennick. (Id. ¶ 25.) III. Procedural History Plaintiff filed the Complaint in this case on September 10, 2018 (ECF 1). Defendant moved to Dismiss Counts II, III, V, and VI of the Complaint on October 30, 2018 (ECF 2, “Mot.”). Plaintiff moved for an extension of time to file a response on November 9, 2018 (ECF 4), which the Court granted on November 13, 2018 (ECF 5). Plaintiff filed a Response in Opposition to the Motion to Dismiss on November 27, 2018 (ECF 6, “Resp.”). IV. Legal Standard In considering a motion to dismiss under Rule 12(b)(6), the Court “accept[s] all factual allegations as true [and] construe[s] the complaint in the light most favorable to the plaintiff.” Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011) (internal quotation marks and citations omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 3 The Court in Iqbal explained that, although a court must accept as true all the factual allegations contained in a complaint, that requirement does not apply to legal conclusions; therefore, pleadings must include factual allegations to support the legal claims asserted. Iqbal, 556 U.S. at 678, 684. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678 (citing Twombly, 550 U.S. at 555); see also Phillips v. Cty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (“We caution that without some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only ‘fair notice,’ but also the ‘grounds’ on which the claim rests.”) (citing Twombly, 550 U.S. at 556 n.3). Accordingly, to survive a motion to dismiss, a plaintiff must plead “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 (citing Twombly, 550 U.S. at 556). V. Discussion A. Parties’ Contentions i. Defendant’s Motion to Dismiss In the Motion to Dismiss, Defendant contends that Plaintiff’s IIED claim (Count II) should be dismissed because Defendant’s alleged failure to correct a reporting error in the tri-merge report was merely a mistake, not outrageous conduct sufficient to support an IIED claim. (Mot. at 4.)1 Similarly, Defendant argues that because Defendant only compiled information provided by credit reporting agencies, Defendant did not cause Plaintiff’s alleged emotional distress. (Id. at 4–5.) Next, Defendant argues that Plaintiff’s intrusion on seclusion claim (Count III) fails as a matter of law because Defendant did not intrude on the private concerns of Plaintiff. (Id. at 5.) 1 Because Defendant does not include page numbers in the Motion to Dismiss, the Court refers to the page numbers of the ECF filing. 4 Because Defendant issued the report to Mr. Rennick’s broker in connection with Mr. Rennick’s home loan application, Defendant could not have intruded upon Mr. Rennick’s seclusion. (Id.) As Defendant did not generate the information in the tri-merge report, Defendant contends, Defendant did not cause Mr. Rennick’s alleged mental suffering, as required to support an intrusion on seclusion claim. (Id.) Further, Defendant argues that Plaintiff’s NIED claim (Count V) must be dismissed because Plaintiff has not pleaded any factual scenarios supporting such a claim, as the Complaint fails to allege that Mr. Rennick was subjected to physical impact, was in the “zone of danger,” or observed a tortious injury of a close relative because of Defendant’s alleged misconduct. (Id. at 6–7.) Finally, Defendant contends that Plaintiff cannot state a claim for defamation (Count VI) because Defendant did not publish the tri-merge report. (Id. at 8.) Rather, Defendant shared the tri-merge report only with Mr. Rennick and his broker. (Id.) ii. Plaintiff’s Response In response, Plaintiff argues that the Complaint states an IIED claim (Count II) because Defendant engaged in “intolerable professional conduct.” (Resp. at 3.) Defendant caused Mr. Rennick’s emotional distress, Plaintiff contends, because Defendant’s failure to conduct an appropriate or reasonable investigation of the inconsistencies in the information contained in the report led to the denial of Mr. Rennick’s home loan. (Id. at 4.) Plaintiff also contends that Defendant failed to correct false information in the report after learning it was wrong. (Id.)2 2 The Complaint does not allege that Defendant was informed that the information contained in the tri-merge report was incorrect. Therefore, the Court must disregard this additional allegation in ruling on the Motion to Dismiss. See Pa ex rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (noting that legal theories in plaintiff’s opposition brief may be considered “only to the extent that they find support in the allegations set forth in the complaint[]”). 5 Plaintiff then argues that the Complaint supports an intrusion on seclusion claim (Count III) because Defendant’s creation of a report stating that Mr. Rennick was deceased was unreasonable, inappropriate, and reckless. (Id. at 5.) Plaintiff specifically refutes Defendant’s argument that Defendant did not cause Mr. Rennick’s mental suffering, arguing that but for Defendant’s error, Mr. Rennick would have received a home equity loan. (Id. at 6.) Next, Plaintiff avers that the NIED claim (Count V) must stand because Defendant owed a fiduciary duty to Mr.
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