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Thompson v. Equifax Information Services, LLC

United States District Court, N.D. Georgia

March 19, 2018

EDWARD W. THOMPSON, Plaintiff,
v.
EQUIFAX INFORMATION SERVICES, LLC et al. Defendants.

          MEMORANDUM OPINION

          Goldberg, J.

         Plaintiff Edward Thompson brings the current action against Defendants Equifax Information Services, LLC (“Equifax”) and Experian Information Solutions, Inc. (“Experian”)[1]under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681, et seq. Defendant Equifax has moved to dismiss the case for lack of venue or, alternatively, to transfer the case to the Northern District of Georgia. For the reasons set forth below, I will transfer the case the Northern District of Georgia.

         I. FACTS AS ALLEGED IN THE COMPLAINT

         The Complaint alleges the following facts:

         Defendants Equifax and Experian, along with former Defendant Trans Union, (collectively, the “CRAs”) are regulated under the FCRA as “consumer reporting agencies” and must follow procedures to ensure that the reports they sell meet the standard of “maximum possible accuracy.” When the CRAs are advised by any of their many data furnishing sources that a given consumer is deceased, they place a “deceased” notation or marking on reports. The furnishing sources identify “deceased” consumers by marking the “status” of such consumer's responsibility for any subject account with an “X” code in the ECOA field of an electronic data input format used in the credit reporting history, known as Metro or Metro 2. The CRAs do not independently verify with any source that a consumer is, in fact, deceased before placing a “deceased” mark on that consumer's report. Even in instances where other data on the face of the consumer's report indicates that he/she is not deceased, the CRAs have no procedures to assure that a consumer with a “deceased” mark is, in fact, deceased. (Compl. ¶¶ 8, 10, 12-16, 22-23.)

         Once a “deceased” mark is placed on a consumer's report, the CRAs will not calculate and will not provide a credit score for that consumer. Nevertheless, the CRAs routinely sell credit reports to third parties for persons with a “deceased” mark on their reports and with no credit score. The CRAs know that consumers without credit scores or with “deceased” marks on their reports are turned down for credit. For years after a consumer's actual death, CRAs will continue to sell credit reports about that consumer and, therefore, profit from the sale of reports on the deceased. (Id. ¶¶ 24-25, 29-32, 38, 41.)

         Plaintiff alleges that, although he is not deceased, he has been marked as “deceased” on his Trans Union, Experian, and Equifax credit reports since at least January 2016. As a result, the CRAs have not calculated a credit score for Plaintiff, even though they sold reports about him to third parties, and have repeatedly published and disseminated inaccurate consumer reports to third parties. In turn, Plaintiff has been unable to obtain any credit. (Id. ¶¶ 51-54.)

         Plaintiff initiated action against the CRAs on February 28, 2017. On October 13, 2017, Equifax filed a Motion to Dismiss for Improper Venue, or Alternatively, to Transfer Venue to the Northern District of Georgia. Plaintiff filed a response on November 10, 2017, and Equifax submitted a reply brief on December 8, 2017. Experian has neither joined nor opposed the Motion.

         II.

         MOTION TO DISMISS FOR IMPROPER VENUE UNDER F.R.C.P. 12(b)(3)

         A. Standard of Review

         Under 12(b)(3), a court must grant a motion to dismiss if venue is improper. Fed.R.Civ.P. 12(b)(3). When a plaintiff files a suit in an improper forum, “district courts are required either to dismiss or transfer to a proper forum.” Lafferty v. St. Riel, 495 F.3d 72, 77 (3d Cir. 2007) (citing Goldlawr, Inc. v. Heiman, 369 U.S. 463, 465-66); 28 U.S.C. § 1406(a). Motions to dismiss for improper venue “generally require the court to accept as true the allegations of the pleadings.” Heft v. AAI Corp., 355 F.Supp.2d 757, 762 (M.D. Pa. 2005) (citing Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002)). “The parties may submit affidavits in support of their positions, and may stipulate as to certain facts, but the plaintiff is entitled to rely on the allegations of the complaint absent evidentiary challenge.” Heft, 335 F.Supp.2d at 762 (citing Carteret Sav. Bank, F.A. v. Shushan, 954 F.2d 141, 142 n.1 (3d Cir. 1992); Myers v. Am. Dental Ass'n, 695 F.2d 716, 724 (3d Cir. 1982)). “Dismissal is considered to be a harsh remedy . . . and transfer of venue to another district court in which the action could originally have been brought, is the preferred remedy.” Spiniello Cos. v. Moynier, No. 13-5145, 2014 WL 7205349, at *5 (D.N.J. Dec. 17, 2014) (quoting NCR Credit Corp. v. Ye Seekers Horizon, Inc., 17 F.Supp.2d 317, 319 (D.N.J. 1998)).

         B. Discussion

         “The test for determining venue is not the defendant's ‘contacts' with a particular district, but rather the location of those ‘events or omissions giving rise to the claim . . . .'” Cottman Transmission Sys., Inc. v. Martino, 36 F.3d 291, 294 (3d Cir. 1994). According to 28 U.S.C. 1391(a), venue is proper only in:

(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal ...

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