United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Magistrate Judge Walter E.
Johnson's Order and Report and Recommendation 
(“R&R”). The R&R recommends the Court
grant Defendant Capital One Auto Finance's
(“Defendant”) Motion to Dismiss 
April 7, 2017, Plaintiff Jeremy Davis
(“Plaintiff”) filed his initial Complaint [1.1]
in the Magistrate Court of Fulton County, Georgia, alleging
that Defendant violated the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. § 1681, and committed
identity theft in violation of O.C.G.A. § 16-9-121. On
June 1, 2017, Plaintiff filed his Amended Complaint ,
realleging the same claims. On June 14, 2017, Defendant filed
its Motion, seeking to dismiss the action pursuant to Federal
Rule of Civil Procedure 12(b)(6). On August 8, 2017, the
Magistrate Judge issued his R&R, recommending the Court
grant Defendant's Motion.
Review of a Magistrate Judge's R&R
conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or
modify a magistrate judge's report and recommendation. 28
U.S.C. § 636(b)(1); Williams v. Wainwright, 681
F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge
“shall make a de novo determination of those portions
of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). Where, as here, no party has objected to
the report and recommendation, the Court conducts only a
plain error review of the record. United States v.
Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
Motion to Dismiss
motion to dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, the Court must “assume that
the factual allegations in the complaint are true and give
the plaintiff the benefit of reasonable factual
inferences.” Wooten v. Quicken Loans, Inc.,
626 F.3d 1187, 1196 (11th Cir. 2010). Although reasonable
inferences are made in the plaintiff's favor,
“‘unwarranted deductions of fact' are not
admitted as true.” Aldana v. Del Monte Fresh
Produce, N.A., 416 F.3d 1242, 1248 (11th Cir. 2005)
(quoting S. Fla. Water Mgmt. Dist. v. Montalvo, 84
F.3d 402, 408 n.10 (1996)). The Court also is not required to
accept as true conclusory allegations and legal conclusions.
See Am. Dental Ass'n v. Cigna Corp., 605 F.3d
1283, 1290 (11th Cir. 2010) (construing Ashcroft v.
Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007)); see also White v.
Bank of America, NA, 597 F. App'x 1015, 1018 (11th
Cir. 2014) (“[C]onclusory allegations, unwarranted
deductions of facts or legal conclusions masquerading as
facts will not prevent dismissal.”) (quoting Oxford
Asset Mgmt., Ltd. V. Jaharis, 297 F.3d 1182, 1188 (11th
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.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). Mere “labels and conclusions”
are insufficient. Twombly, 550 U.S. at 555. “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.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). This requires more than
the “mere possibility of misconduct.” Am.
Dental, 605 F.3d at 1290 (quoting Iqbal, 556
U.S. at 679). The well-pled allegations must “nudge
their claims across the line from conceivable to
plausible.” Id. at 1289 (quoting
Twombly, 550 U.S. at 570).
filed pro se are to be liberally construed and are
“held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (citations and internal quotation marks
omitted). Nevertheless, a pro se plaintiff must
comply with the threshold requirements of the Federal Rules
of Civil Procedure. “Even though a pro se
complaint should be construed liberally, a pro se
complaint still must state a claim upon which the Court can
grant relief.” Grigsby v. Thomas, 506
F.Supp.2d 26, 28 (D.D.C. 2007). “[A] district court
does not have license to rewrite a deficient pleading.”
Osahar v. U.S. Postal Serv., 297 F. App'x 863,
864 (11th Cir. 2008).
Plaintiff's O.C.G.A. ...