Thomas J. Alston v. Lexisnexis Risk Solutions Inc. ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
THOMAS J. ALSTON, )
)
Plaintiff, )
)
v. ) Civil Action No. 21-2322 (RBW)
)
LEXISNEXIS RISK SOLUTIONS INC., )
and SAGESTREAM, LLC, )
)
Defendants. )
)
MEMORANDUM OPINION
The plaintiff, Thomas Alston, proceeding pro se, brings this civil action pursuant to the
Fair Credit Reporting Act (“the Act”), 15 U.S.C. § 1681–1681x, against the defendants,
LexisNexis Risk Solutions Inc. (“LexisNexis”) and SageStream, LLC (“SageStream”). See First
Ame[n]ded Complaint and Jury Demand (“Am. Compl.”) ¶ 1, ECF No. 10. Currently pending
before the Court are (1) LexisNexis’s motion to dismiss Count II of the Amended Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for a more definite
statement of Count II pursuant to Federal Rule of Civil Procedure 12(e), see LexisNexis Risk
Solutions Inc.’s Partial Motion to Dismiss Plaintiff’s First Amended Complaint or, Alternatively,
Motion for a More Definite Statement (“LexisNexis’s Mot.”), ECF No. 11; and (2) SageStream’s
motion to dismiss both counts of the Amended Complaint pursuant to Federal Rules of Civil
Procedure 4(m) and 12(b)(5), see Defendant SageStream, LLC’s Motion to Dismiss Without
Prejudice (“SageStream’s Mot.”), ECF No. 14. Upon careful consideration of the parties’
submissions,1 the Court concludes for the following reasons that it must deny LexisNexis’s
motion and grant SageStream’s motion.
I. BACKGROUND
A. Factual Background
The plaintiff, a resident of the District of Columbia, see Am. Compl. ¶ 2, alleges that the
defendants are entities that “collect and furnish personal and/or credit information, including
public records and ‘hard’ credit inquiries, to [consumer2] reporting agencies [ ] and/or other third
parties[,]” id. ¶ 3. According to the plaintiff, between May 12, 2021, to July 19, 2021, see id.¶¶ 5–7, the defendants reported “several unauthorized inquiries on [the p]laintiff’s credit
reports[,]” id. ¶ 4, from three consumer reporting agencies,” id. ¶ 5–7, including five inquiries
from third parties according to a consumer report from Equifax,3 see id. ¶ 5; three inquiries from
third parties according to a consumer report from Experian,4 see id. ¶ 6; and one inquiry from a
1
In addition to the filings already identified, the Court considered the following submissions in rendering its
decision: (1) LexisNexis Risk Solutions Inc.’s Memorandum in Support of Partial Motion to Dismiss [the]
Plaintiff’s First Amended Complaint or, Alternatively, Motion for a More Definite Statement (“LexisNexis’s
Mem.”), ECF No. 11-1; (2) the Plaintiff’s Opposition to [the] Defendant’s Motion to Dismiss or, Alternatively,
Motion for a More Definite Statement (“Pl.’s Opp’n”), ECF No. 12; (3) LexisNexis Risk Solutions Inc.’s Reply in
Support of Its Partial Motion to Dismiss [the] Plaintiff’s First Amended Complaint or, Alternatively, Motion for a
More Definite Statement (“LexisNexis’s Reply”), ECF No. 13; (4) the Defendant SageStream, LLC’s Statement of
Points and Authorities in Support of Its Motion to Dismiss Without Prejudice (“SageStream’s Mem.”), ECF No. 14-
1; and (5) the Notice of Conceded Motion—[the] Defendant SageStream, LLC’s Motion to Dismiss without
Prejudice (“SageStream’s Notice”), ECF No. 16.
2
Although the plaintiff refers to these entities as “credit reporting agencies[,]” Am. Compl. ¶ 13, the Act actually
refers to them as “consumer reporting agencies[,]” 15 U.S.C. § 1681s-2. Accordingly, the Court will also refer to
them as “consumer reporting agencies[.]”
3
The plaintiff alleges that, on his “report from Equifax, [the d]efendants [ ] report[ed] five inquiries[—]including a
[First National Bank of Omaha (“FNB Omaha”)] inquiry on July 19, 2021[;] [Branch Banking & Trust Co.
(“BB&T”)] inquiries on June 2, 8, and 9, 2021[;] and a Universal Credit Services inquiry on May 12, 2021[—]that
were not authorized by [him].” Id. ¶ 5.
4
The plaintiff alleges that, on his “report from Experian, [the d]efendants [ ] report[ed] three inquiries[—]including
a [First National Bank of Omaha (“FNB Omaha”)] inquiry on July 19, 2021[;] a PNC [Bank] inquiry on July 1,
2021[;] and a Universal Credit Services inquiry on May 12, 2021[—]that were not authorized by [him].” Id. ¶ 6.
2
third party according to a consumer report from TransUnion,5 see id. ¶ 7. Because the
defendants allegedly “furnish[ed] [ ] false credit inquiries” by these third parties to the consumer
reporting agencies, his credit reports reflected a “false record of credit searching attributed to
[the p]laintiff[,]” thereby “caus[ing] users of [the p]laintiff’s credit reports to believe [that he]
was a higher credit risk than he was in fact.” Id. ¶ 9.
“By letters dated June 1, 2021[;] June 18, 2021[;] and July 28, 2021[; the p]laintiff
disputed the unauthorized credit inquiries[,]” id. ¶ 12, and, thereafter, “the [consumer] reporting
agencies[—]Equifax, Experian[,] and Trans Union[—]forwarded notice of [the p]laintiff’s
disputes to the [d]efendants[,]” id. ¶ 13. According to the plaintiff, the “[d]efendants did not read
[his] dispute letter” or “investigate the issues raised in [the] [ ] letter[,]” id. ¶ 30 (emphasis in
original), but rather “responded to [the p]laintiff’s dispute[s] by false[ly] representing to the
[agencies] that the unauthorized credit inquiries were authorized by [the p]laintiff[,]” id. ¶ 14.
According to the plaintiff, although “[a] reasonable investigation of [the p]laintiff’s dispute
would have entailed the [d]efendants contacting the entities [who] made the inquir[ies,] [ ] the
[d]efendants [allegedly] verified the inquiries as authorized without contacting the entities who
made the inquiries.” Id. ¶ 15. And, the plaintiff represents that because the defendants did not
“instruct the [consumer] reporting agencies to remove the unauthorized inquiries on [the
p]laintiff’s credit report, [he] was denied credit[.]” Id. ¶ 16.
B. Procedural History
On November 1, 2021, the plaintiff filed his Amended Complaint in this case, see Am.
Compl., asserting two counts of violations of 15 U.S.C. § 1681, see id. ¶¶ 17–44. On November
15, 2021, LexisNexis filed its partial motion to dismiss the plaintiff’s first amended complaint or,
5
The plaintiff alleges that, on his “report from Trans Union, [the d]efendants reported a Ucs/2 Patch Of Land
inquiry on May 12, 2021, that was not authorized by [him].” Id. ¶ 7.
3
alternatively, for a more definite statement. See LexisNexis’s Mot. at 1. On November 30,
2021, the plaintiff filed his opposition to the motion. See Pl.’s Opp’n to LexisNexis at 1. On
December 6, 2021, the plaintiff filed his reply in support of his motion. See Pl.’s Reply at 1.
Finally, on January 24, 2022, SageStream filed its motion to dismiss without prejudice. See
SageStream’s Mot. at 1.
II. STANDARD OF REVIEW
A. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must dismiss a complaint
that “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In
evaluating a motion to dismiss, the Court must “treat the complaint’s factual allegations as true
and must grant [the] plaintiff the benefit of all inferences that can be derived from the facts
alleged.” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (citation and
internal quotation marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court
need not accept as true, however “a legal conclusion couched as a factual allegation,” nor an
inference unsupported by the facts set forth in the complaint. Trudeau v. Fed. Trade Comm’n,
456 F.3d 178, 193 (D.C. Cir. 2006). Although “detailed factual allegations” are not necessary to
withstand a Rule 12(b)(6) motion, see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), “a
complaint must contain sufficient factual matter, [if] accepted as true, to state a claim to relief
that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted).
Although a plaintiff may survive a Rule 12(b)(6) motion even if “recovery is very remote and
unlikely,” the facts alleged in the complaint “must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555–56.
4
B. Motion for a More Definite Statement Pursuant to Federal Rule of Civil Procedure
12(e)
Federal Rule of Civil Procedure 12(e) provides defendants with a remedy when
complaints fail to satisfy the minimum pleading standard set forth in Rule 8(a). Fed. R. Civ. P.
12(e). “Thus, ‘when a defendant is unclear about the meaning of a particular allegation in the
complaint, the proper course of action is not to move to dismiss but to move for a more definite
statement.’” Hilska v. Jones, 217 F.R.D. 16, 21 (D.D.C. 2003) (citation omitted); see
also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, (2002) (recognizing that “[i]f a pleading
fails to specify the allegation in a manner that provides sufficient notice, a defendant can move
for a more definite statement under Rule 12(e)”). However, “[a] complaint satisfies th[e]
criterion [of Rules 8(a) and 12(e)] if it is not ‘so vague or ambiguous that a party cannot
reasonably be expected to frame a responsive pleading[;]’” in other words, “a plaintiff need not
allege all the facts necessary to prove its claim so long as it provides enough factual information
to make clear the substance of that claim.” Caribbean Broad. Sys., Ltd. v. Cable & Wireless
PLC, 148 F.3d 1080, 1086 (D.C. Cir. 1998) (citation omitted) (quoting Rule 12(e)).
C. Pro Se Plaintiff
In applying the above legal framework, the Court is mindful of the fact that the plaintiff
is proceeding in this matter pro se. This appreciation is required because the pleadings of pro se
parties are “to be liberally construed, and a pro se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,
551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). Furthermore, “all
filings by [a pro se plaintiff] should be read together in assessing whether [his C]omplaint[]
should be dismissed[,]” Khatri v. Bd. of Trustees of Univ. of D.C., No. 19-cv-2644 (RBW), 2021
5
WL 2403087, at *6 (D.D.C. June 11, 2021) (Walton, J.), although a “pro se complaint, like any
other, must present a claim upon which relief can be granted by the [C]ourt[,]” Crisafi v.
Holland, 655 F.2d 1305, 1308 (D.C. Cir. 1981). In addition, a pro se litigant “must comply with
the Federal Rules of Civil Procedure and this Court’s local rules[.]” Hedrick v. Fed. Bureau of
Investigation, 216 F. Supp. 3d 84, 93 (D.D.C. 2016) (citations omitted); see McNeil v. United
States, 508 U.S. 106, 113 (1993) (“[W]e have never suggested that procedural rules in ordinary
civil litigation should be interpreted so as to excuse mistakes by those who proceed without
counsel.”).
III. ANALYSIS
The Court will first address LexisNexis’s motion, before turning to SageStream’s motion,
and for the following reasons, the Court will deny LexisNexis’s motion and grant SageStream’s
motion.
A. LexisNexis’s Motion
LexisNexis moves to dismiss Count II or, in the alternative, for a more definite statement
regarding the allegations in Count II. See LexisNexis’s Mot. at 1. The Court will first address
LexisNexis’s motion to dismiss, before turning to its motion for a more definite statement.
1. LexisNexis’s Partial Motion to Dismiss
LexisNexis moves to dismiss Count II of the Amended Complaint, see id. at 1, which
alleges that the “[d]efendants violated [15 U.S.C. §] 1681s-2(b)(1)(A) by failing to conduct a
reasonable investigation of [the p]laintiff’s dispute[, which] was forwarded to [the defendants]
by the [consumer] reporting agencies[,]” Am. Compl. ¶ 29. Section 1681s-2 sets forth the
“[r]esponsibilities of furnishers of information to consumer reporting agencies[.]” 15 U.S.C.
§ 1681s-2. Specifically, under § 1681s-2(b), “[a]fter receiving notice pursuant to [15 U.S.C. §
6
1681i(a)(2)] of a dispute with regard to the completeness or accuracy of any information
provided by a [furnisher] to a consumer reporting agency, the [furnisher]” is required to:
(A) conduct an investigation with respected to the disputed information;
(B) review all relevant information provided by the consumer reporting agency
pursuant to [§ 1681i(a)(2)];
(C) report the results of the investigation to the consumer reporting agency;
(D) if the investigation finds that the information is incomplete or inaccurate,
report those results to all other consumer reporting agencies to which the
[furnisher] furnished the information and that compile and maintain files on
consumers on a nationwide basis; and
(E) if an item of information disputed by a consumer is found to be inaccurate
or incomplete or cannot be verified after any reinvestigation . . . , for
purposes of reporting to a consumer reporting agency only, as appropriate,
based on the results on the reinvestigation promptly—
(i) modify that item of information;
(ii) delete that item of information; or
(iii) permanently block the reporting of that item of information.
15 U.S.C. § 1681s-2(b)(1). When a furnisher fails to comply with § 1681s-2, the Act “provides a
private right of action for violations . . . if the furnisher of information negligently or willfully
failed to meet the requirements of that section.” Cadmus v. Checkr, Inc., No. 19-cv-3459 (RC),
2021 WL 5411327, at *3 (D.D.C. Sept. 14, 2021) (internal quotation marks and alterations
omitted).
Here, LexisNexis argues that the plaintiff has failed to allege either that (1) LexisNexis is
a “furnisher” within the meaning of § 1681s-2(b), see LexisNexis’s Mem. at 4, or (2) LexisNexis
furnished any “information” to consumer reporting agencies within the meaning of § 1681s 2(b),
see id. at 6. In response, the plaintiff argues that (1) LexisNexis has sufficiently “acted as a
furnisher[,]” Pl.’s Opp’n at 2 (emphasis in original); and (2) the “hard credit inquiries” furnished
by LexisNexis to the consumer reporting agencies are “information” within the meaning of
§ 1681s-2(b), id. at 4. For the following reasons, the Court concludes that it must deny
LexisNexis’s motion.
7
a. Whether LexisNexis Is a “Furnisher” of Information Under § 1681s-2(b)
First, LexisNexis argues that the plaintiff has failed to allege that it is a “furnisher of
information” under § 1681s-2(b) because the “[p]laintiff alleges [that LexisNexis] is both a
furnisher and a [consumer reporting agency, b]ut[,]” according to federal regulations, “an entity
cannot be both a furnisher and a[ consumer reporting agency.]” LexisNexis’s Mem. at 5. In
response, the plaintiff argues that an entity may be both a furnisher and a consumer reporting
agency, so long as it acted only as a furnisher regarding the information at issue. See Pl.’s Opp’n
at 2.
“While the [Act itself] does not explicitly define [the term] ‘furnishers[,]’” Himmelstein
v. Comcast of the Dist., L.L.C., 931 F. Supp. 2d 48, 52 (D.D.C. 2013), 16 C.F.R. § 660.2 defines
a “furnisher” as “an entity that furnishes information relating to consumers to one or more
consumer reporting agencies for inclusion in a consumer report.” 16 C.F.R. § 660.2(c); see 12
C.F.R. § 1022.41(c) (providing the same definition).; see also Chiang v. Verizon New Eng., Inc.,
595 F.3d 26, 35 n.7 (1st Cir. 2010) (noting that a furnisher may be “any person with relevant data
about a consumer’s financial activity[,]” and the “most common . . . furnishers of information are
credit card issuers, auto dealers, department and grocery stores, lenders, utilities, insurers,
collection agencies, and government agencies”). However, an entity “is not a furnisher when[,]”
16 C.F.R. § 660.2(c), inter alia, it “[i]s acting as a ‘consumer reporting agency[,]’ as defined in
[§] 603(f) of the [Act,]” id. § 1022.41(c)(2). Section 603(f) states that a “consumer reporting
agency” is
any person which, for monetary fees, dues, or on a cooperative nonprofit basis,
regularly engages in whole or in part in the practice of assembling or evaluating
consumer credit information or other information on consumers for the purpose of
furnishing consumer reports to third parties, and which uses any means or facility
of interstate commerce for the purpose of preparing or furnishing consumer
reports.
8
15 U.S.C. § 1681a(f). Therefore, when read together, these provisions provide that an entity
“that furnishes information relating to consumers to one or more consumer reporting agencies for
inclusion in a consumer report[,]” 16 C.F.R. § 660.2, is not acting as a furnisher, see id.§ 660.2(c)(3), when it is “preparing or furnishing consumer reports[,]” 15 U.S.C. § 1681a(f). In
sum, a single entity cannot be both the furnisher of information to a consumer reporting agency
and the consumer reporting agency receiving that same information. However, contrary to
LexisNexis’s argument, see LexisNexis’s Mem. at 5 (“[A]n entity cannot be both a furnisher and
a [consumer reporting agency].”), the regulations do not state that an entity may not at different
times and in regards to different information sometimes act as a consumer reporting agency and
sometimes act as a furnisher of information to other agencies. Consequently, there is nothing
inherently contradictory about the plaintiff’s allegations that LexisNexis is a “furnisher[] when
[it is] furnishing information to [consumer reporting agencies] and [is a consumer reporting
agency] when furnishing credit reports[,]” Am. Compl. ¶ 3.
Accordingly, the key question here is whether the plaintiff has alleged that LexisNexis is
acting as a furnisher—rather than a consumer reporting agency—with respect to the particular
information that was allegedly provided to the three consumer reporting agencies named in the
plaintiff’s Amended Complaint. As the plaintiff correctly argues, see Pl.’s Opp’n ¶¶ 6–7, he has
adequately alleged that LexisNexis was only acting as a furnisher of the information submitted to
Equifax, Experian, and Trans Union.
In his Amended Complaint, the plaintiff alleges that he “disputed [ ] inaccurate credit
inquiries appearing on his [Equifax, Experian, and Trans Union] credit reports as a result of the
9
[d]efendants’ furnishing of that information to” Equifax, Experian, and Trans Union,6 Am.
Compl. ¶ 28; see id. ¶¶ 5–7 (discussing the purported unauthorized inquiries on each credit
report). “[T]reating the [Amended C]omplaint’s factual allegations as true[,]” as the Court must,
see Sparrow, 216 F.3d at 1113, these allegations adequately allege that LexisNexis was the
“furnisher” of the information, see 12 C.F.R. § 1022.41(c), and that Equifax, Experian, and Trans
Union were the “consumer reporting agencies” that received the information from LexisNexis as
part of “preparing or furnishing [the plaintiff’s] consumer reports[,]” 15 U.S.C. § 1681a(f). Cf.
Armstrong v. Navient Solutions, LLC, 292 F. Supp. 3d 464, 468 (D.D.C. 2018) (citing 15 U.S.C.
§ 1681s-2) (“The [Act] imposes duties on [agencies] and on entities that furnish information
about borrowers to [agencies] . . . Here, [the defendant] is a ‘furnisher’ within the meaning of the
[Act] because it allegedly provided information about [the p]laintiffs’ loan balances and
‘creditworthiness’ to [agencies], which then used that information to generate credit reports.”).
Accordingly, the Court concludes that the plaintiff has adequately alleged that LexisNexis was
6
In his opposition, the plaintiff provides additional allegations supporting his claim that LexisNexis was acting as a
“furnisher” regarding the information that he allegedly disputed, see Pl.’s Opp’n at 2–3, which the Court may
consider due to the plaintiff’s pro se status, see Khatri, 2021 WL 2403087, at *6 (“[T]he plaintiff’s pro se status
leads the Court to conclude that all filings by the plaintiff should be read together in assessing whether his
Complaint should be dismissed.”) (internal quotation marks omitted). Specifically, the plaintiff states that
[t]he [Amended C]omplaint does not allege that Lexis[Nexis] was acting as [a] credit reporting
agency when it furnished information about hard credit inquiries to [] Equifax, Experian[,] and
Trans Union. Rather, as Lexis[Nexis] acknowledges, [the p]laintiff alleged that [the d]efendant
acted as a ‘furnisher’ when it furnished information about the hard credit inquiries to Equifax,
Experian[,] and Trans Union. . . . Clearly, with respect to the hard inquiries, [the p]laintiff is only
alleging that [] Lexis[Nexis] acted as a furnisher. [The p]laintiff does not allege that Lexis[Nexis]
acted as both a ‘furnisher and ‘credit reporting agency’ with respect to the hard credit inquiries.
To be sure, [the Amended C]omplaint does allege [that] Lexis[Nexis] did act as a credit reporting
agency also at one point in time. However, the [Amended C]omplaint clearly alleges that
Lexis[Nexis] acted as a credit reporting agency only with respect to the credit reports that
Lexis[Nexis] maintains on [the p]laintiff. . . . While Lexis[Nexis] is acting as a credit reporting
agency with respect to its own credit reports, Lexis is not acting as a credit reporting agency with
respect to credit reports maintained by Equifax, Experian[,] and Trans Union.
Pl.’s Opp’n at ¶¶ 6–9 (emphases in original) (citing Am. Compl. ¶¶ 4–7, 10, 11, 19). These allegations further
support the Court’s conclusion that the plaintiff has adequately alleged that LexisNexis was the “furnisher” of the
information, see 16 C.F.R. § 660.2, provided to Equifax, Experian, and Trans Union.
10
acting as a furnisher, rather than a consumer reporting agency, regarding the information that he
disputed. Cf. id. (concluding that Navient Solutions, LLC was “a ‘furnisher’ within the meaning
of the [Act] because it allegedly provided information about [the p]laintiffs’ loan balances and
‘creditworthiness’ to [consumer reporting agencies], which then used that information to
generate credit reports”).
b. Whether the “Hard Credit Inquiries Furnished by LexisNexis Constitute
‘Information’” Under § 1681s-2(b)
Second, LexisNexis argues that the plaintiff has not adequately alleged that LexisNexis is
a “furnisher” because the inquiries that the plaintiff alleges LexisNexis furnished to the
consumer reporting agencies do not qualify as “information relating to consumers” within the
meaning of 16 C.F.R. § 660.2. See LexisNexis’s Mem. at 6; 16 C.F.R. § 660.2 (defining a
“furnisher” as “an entity that furnishes information relating to consumers to one or more
consumer reporting agencies for inclusion in a consumer report” (emphasis added)). In response,
the plaintiff argues that “a credit inquiry is plainly information that relates to [him]” within the
meaning of § 660.2. Pl.’s Opp’n at 4.
In support of its argument, LexisNexis relies on language from the statement in Alston[7]
v. Freedom Plus/Cross River, 17-cv-33 (TDC), 2018 WL 770384 (D. Md. Feb. 7, 2018), that
“[a]n inquiry ‘[could not] constitute information relating to [Ms.] Alston.’” LexisNexis’s Mem.
at 6 (quoting Alston, 2018 WL 770384, at *7). However, that case is inapplicable to this case.
In that case, the plaintiff sued several banks and financial entities that she alleged had requested
her credit report from consumer reporting agencies, alleging, inter alia, that they had violated
their duties as furnishers under § 1681s-2(b). See Alston, 2018 WL 770384, at *1. The court
7
LexisNexis represents that the plaintiff in Alston v. Freedom Plus/Cross River , Yvonne Alston, is a relative of the
plaintiff in this case. See LexisNexis’s Mem. at 5 n.4. However, even if this is correct, the relationship alone
between Ms. Alston and the plaintiff is irrelevant to this case.
11
concluded that Ms. Alston had not adequately alleged that the defendant banks and financial
entities were furnishers because they “c[ould ]not plausibly be deemed to hold relevant
information about [Ms.] Alston, let alone to have furnished it to a [consumer reporting agency],”
when “[t]he only communication that [Ms.] Alston allege[d] any [d]efendant to have made to a[n
agency] was an inquiry[,]” i.e., a request for her credit report. Id. at *7.
Here, however, the plaintiff has sued the defendants, whom he alleges were responsible
for “collect[ing]” the inquiries made by third parties “and furnish[ing]” those inquiries to the
consumer reporting agencies, see Am. Compl. ¶ 3, resulting in the inquiries from the agencies
appearing on the plaintiff’s credit reports, see id. ¶¶ 5–8. Unlike the plaintiff in Alston, the
plaintiff here has not sued the entities that made the inquiries in the first place, which in this case
was allegedly “BB&T[,]” id. ¶ 5; “FNB Omaha[,]” id. ¶ 6; “Universal Credit Services[,]” id. ¶ 5;
“PNC[ Bank,]” id. ¶ 6; and “Ucs/2 Patch of Land[,]” id. ¶ 7. Compare id. ¶¶ 3–8, with Alston,
2018 WL 770384, at *1. Consequently, Alston’s conclusion that inquiries by banks and
financial institutions to consumer reporting agencies for a consumer’s credit report do not
“constitute ‘information relating to’ Alston[,]” Alston, 2018 WL 770384, at *7, is inapplicable
here.
Selectively quoting from Alston, LexisNexis argues that “[a]n inquiry ‘cannot constitute
information relating to [the plaintiff].” LexisNexis’s Mem. at 6 (quoting Alston, 2018 WL
770384, at *7). However, when read in context, Alston does not amount to such a broad holding
and, as discussed above, its actual holding is not applicable to this case. See Alston, 2018 WL
770384, at *7. Accordingly, the Court concludes that the plaintiff has adequately alleged that
LexisNexis is a furnisher under § 1681s-2(b), and LexisNexis’s partial motion to dismiss must be
denied.
12
2. LexisNexis’s Motion in the Alternative for a More Definite Statement
The Court now turns to LexisNexis’s motion in the alternative for a more definite
statement. LexisNexis argues that the complaint filed by the plaintiff in Alston v. Equifax
Information Services, Civil Action No. 21-2323, which was filed on the same day as he filed the
Complaint in this case, contradicts the allegations in the Complaint in this case. See
LexisNexis’s Mem. at 7–8; see also id. at 8 (comparing the allegations in the two complaints). In
response, the plaintiff argues that LexisNexis “does not cite a single source of authority to
support its argument that a complaint” can be deficient under Federal Rule of Civil Procedure
12(e) “based on a different complaint[,]” and that Rule 8 “explicitly permits” contradictory
allegations. Pl.’s Opp’n ¶ 19. For the following reasons, the Court will also deny LexisNexis’s
motion for a more definite statement.
Rule 12(e) permits a party to “move for a more definite statement of a pleading to which
a responsive pleading is allowed but which is so vague or ambiguous that the party cannot
reasonably prepare a response.” Fed. R. Civ. P. 12(e). “[T]he basis for requiring a more definite
statement under Rule 12(e) is unintelligibility,” Thorp v. District of Columbia, 309 F.R.D. 88, 90
(D.D.C. 2015) (citations and internal quotation marks omitted), i.e., there must be a “major
ambiguity or omission” that renders a complaint unanswerable, United Ins. Co. of Am. v. B.W.
Rudy, Inc., 42 F.R.D. 398, 403 (E.D. Pa. 1967). See, e.g., Dorsey v. Am. Express Co., 499 F.
Supp. 2d 1, 3 (D.D.C. 2007) (granting a Rule 12(e) motion where the pro se plaintiff’s complaint
was not detailed enough to provide fair notice).
Here, LexisNexis does not argue that the Amended Complaint “is so vague or ambiguous
that [it] cannot reasonably prepare a response[,]” Fed. R. Civ. P. 12(e), within the meaning of
Rule 12(e). See generally LexisNexis’s Mem. at 8–9. To the contrary, LexisNexis’s
memorandum and reply, which thoroughly address the allegations in the Amended Complaint,
13
see, e.g., LexisNexis’s Mem. at 2 (representing that the plaintiff’s “claims stem from the alleged
‘reporting’ of ‘inquiries’ on his ‘reports’ issued by the three national consumer reporting
agencies: Equifax, Experian, and TransUnion[;] also LexisNexis’s Reply at 2 (arguing that the
First Amended Complaint “revolves around [LexisNexis’s] alleged ‘reporting’ of ‘unauthorized
inquiries’ on [the p]laintiff’s Equifax, Experian, and Trans Union [sic] reports”), exhibit a clear
appreciation and understanding of what the plaintiff is alleging in his Amended Complaint. See
Potts v. Howard Univ., 269 F.R.D. 40, 43 (D.D.C. 2010) (denying a motion for a more definite
statement because “a review of the defendants’ submissions established that the defendants
underst[oo]d the crux of [Potts’] claim”). Instead of arguing that the plaintiff’s Amended
Complaint is “unintelligib[le,]” Thorp, 309 F.R.D. at 90 (citations and internal quotation marks
omitted), LexisNexis argues that the allegations in the Amended Complaint conflict with
allegations made in another case filed by the plaintiff— Alston v. Equifax, Civil Action No. 21-
2323, see LexisNexis’s Mem. at 8–9. However, as the plaintiff correctly notes, see Pl.’s Opp’n
at ¶ 19, LexisNexis does not cite, and the Court has been unable to locate, any authority
supporting the proposition that a pleading is “vague or ambiguous” within the meaning of Rule
12(e), see Fed. R. Civ. P. 12(e), if its allegations are contradicted by allegations made in other
cases. See generally LexisNexis’s Mem.; LexisNexis’s Reply. Furthermore, to the extent that
LexisNexis is arguing that the Amended Complaint is “vague or ambiguous[,]” Fed. R. Civ. P.
12(e), because the allegations are inconsistent with the Complaint filed by the plaintiff in another
case, that question is ripe for discovery to explore. See Johnson v. Metro. Direct Prop. & Cas.
Ins. Co., No. 18-cv-1715 (JEB), 2019 WL 176851, at *3 (D.D.C. Jan. 11, 2019) (“Time and
again, courts in this district have noted that a Rule 12(e) motion is an improper vehicle for
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seeking evidence underlying a complaint’s factual allegations.”). Accordingly, the Court will
deny LexisNexis’s motion for a more definite statement.
B. SageStream’s Motion
The Court now turns to SageStream’s motion, in which it “requests that this Court
dismiss all claims alleged against [it] without prejudice” because, as of the date of filing of the
motion, “[the p]laintiff ha[d] failed to provide [it with] the requisite notice and service required
to initiate a lawsuit[.]” SageStream’s Mot. at 1–2. After SageStream filed its motion on January
24, 2022, the plaintiff failed to file any opposition within the period permitted by the Local Civil
Rules. See LCvR 7(b) (“Within 14 days of the date of service or at such other time as the Court
may direct, an opposing party shall serve and file a memorandum of points and authorities in
opposition to the motion.”). Therefore, on February 25, 2022, the Court ordered that “on or
before March 11, 2022, the plaintiff shall file [a] memorandum in opposition to [SageStream’s
Motion] if he intends to oppose the motion[,]” and advised him that, if he failed to do so, “the
Court may dismiss the plaintiff’s claims against SageStream upon a finding that the arguments
raised by SageStream in its motion are meritorious.” Order at 3 (Feb. 25, 2022), ECF No. 17.
However, as of the date of the issuance of this Memorandum Opinion, the plaintiff has not filed
any opposition to SageStream’s motion.
Because the plaintiff has failed to file any opposition or proof of service, the Court will
consider SageStream’s motion to be conceded. See General Order for Civil Cases Before the
Honorable Reggie B. Walton ¶ 5(e), ECF No. 15 (“If a party fails to oppose a motion, the Court
may treat the motion as conceded.”); LCvR 7(b) (“If such a memorandum is not filed within the
prescribed time, the Court may treat the motion as conceded.”). And, without any proof of
service on SageStream provided by the plaintiff within the ninety-day time frame permitted
under Federal Rule of Civil Procedure 4(m) or any demonstration by the plaintiff of “good cause
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for [his] failure” to serve SageStream, Fed. R. Civ. P. 4(m), the Court concludes that
SageStream’s motion is meritorious. Accordingly, the Court will grant SageStream’s motion and
dismiss without prejudice the plaintiff’s claims against SageStream.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that it must deny LexisNexis’s motion and
grant SageStream’s motion.
SO ORDERED this 16th day of December, 2022.8
REGGIE B. WALTON
United States District Judge
8
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
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