Way v. Barr: Perot-isms

[David A. Szwak]

Not Reported in F.Supp., 1995 WL 307525 (D.Md.)

United States District Court, D. Maryland.
Lawrence A. WAY and Richard D. Stover, Plaintiffs,
v.
Thomas D. BARR, et al., Defendants.
Civ. A. No. HAR 94-2519.
May 15, 1995.


MEMORANDUM OPINION

HARGROVE, Senior District Judge.
*1 On September 18, 1994, plaintiffs Lawrence A. Way ("Way") and Richard D. Stover ("Stover") (at times collectively referred to as "plaintiffs") filed suit against seven defendants in protest of their removal as volunteers from H. Ross Perot's presidential campaign. In a prior Memorandum Opinion and Order, this Court dismissed four of the defendants for lack of personal jurisdiction. Presently before the Court is Defendant Trans Union Corporation's ("Trans Union's") Motion to Dismiss or, in the Alternative, for Summary Judgment. The Court has reviewed the parties' memoranda. The issues have been fully briefed; no hearing is necessary. Local Rule 105.6 (D. Md. 1994). For the reasons set forth below, the Court concludes that it must dismiss the claims asserted against Trans Union.

FACTS
Since the Court has already described in detail the facts of this case in its prior Memorandum Opinion, dated May 9, 1995, only a review of the facts relevant to the claims involving Trans Union is necessary here. Specifically, plaintiffs allege that during the course of its investigation, O'Connell Associates, Inc. ("O'Connell Associates") accessed Trans Union's TRACE database and received TRACE reports, which contained plaintiffs' addresses. [FN1] O'Connell Associates obtained a TRACE report on Stover on April 28, 1992 and one on Way on April 30, 1992.
In Counts VIII and XIV of their Complaint, plaintiffs allege that by failing to prevent O'Connell Associates from obtaining access to the TRACE reports, Trans Union violated the federal Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681, et seq., and the Maryland Consumer Reporting Act ("the Maryland Act"), Md. Comm. Law Code Ann. §§ 14-1214, et seq.

DISCUSSION
The FCRA requires consumer reporting agencies to "maintain reasonable procedures designed to ... limit the furnishing of consumer reports to the [[[permissible] purposes listed under 1681b of this title." 15 U.S.C. § 1681e. Plaintiffs allege that O'Connell Associates did not have a "permissible purpose" for obtaining a "consumer report" on them, and that Trans Union therefore violated the FCRA and Maryland Act by failing to limit its access to the TRACE reports. [FN2]
Trans Union argues that dismissal is warranted because the complaint fails to state a claim against it upon which relief may be granted. According to Trans Union, the limited name and address information it provided O'Connell Associates in its TRACE report does not constitute a "consumer report" so as to invoke liability under either the FCRA or the Maryland Act; and even if it did, the two year statute of limitations contained in the FCRA and the Maryland Act bar plaintiffs' claims.
Under Fed. R. Civ. P. 12(b)(6), the Court may dismiss an action for failure to state a claim upon which relief can be granted. When reviewing a claim pursuant to a Motion to Dismiss, the Court must presume all factual allegations of the complaint to be true. Miree v. De Kalb County, 433 U.S. 25 (1977). However, legal conclusions or deductions, framed as factual allegations, do not benefit from a presumption of truthfulness. United States v. Tulare Lake Canal Co., 535 F.2d 1093, 1097 (9th Cir. 1976), cert. den., 429 U.S. 1121 (1977). Dismissal is not warranted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (citations omitted).
*2 The parties contest whether the limited identifying information contained in the TRACE report make it a "consumer report." [FN3] The Court, however, declines to rule at this time on this issue since any claims plaintiffs raise under the FCRA or Maryland Act are clearly barred by the statutes' limitations periods. Both the FCRA and Maryland Act require that a plaintiff file suit for a statutory violation "within two years from the date on which liability arises." 15 U.S.C. § 1681p; Md. Comm. Law Code Ann. § 14-1214. Since O'Connell Associates obtained the TRACE reports from Trans Union in April, 1992, the filing of the instant lawsuit on September 14, 1994 occurred more than two years after the date of plaintiffs' injury, and is thus untimely.
Plaintiffs vigorously assert that this Court should adopt the discovery rule in this case, which would measure the limitations period from the time plaintiffs gained actual knowledge of the alleged statutory violations. Both the FCRA and Maryland Act, however, explicitly allow the discovery rule to toll the statute of limitations only where a defendant has materially and willfully misrepresented any information that the statutes require to be disclosed and that is material to defendant's liability. 15 U.S.C. § 1681p; Md. Comm. Law Code Ann. § 14-1214. In this case, no allegation exists that Trans Union acted in any way that materially and willfully misrepresented any information to plaintiffs. Thus, the discovery rule is inapplicable in this case to save plaintiffs' claims against Trans Union from dismissal.
Moreover, the plain language of the statutes reveals the legislative intent to permit the tolling of a cause of action only under particular circumstances. "Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent." Andrus v. Glover Construction Company, 446 U.S. 608, 616-17 (1980). In this case, no evidence of a contrary legislative intent exists. Therefore, to expand the limited exception to the limitations period under the FCRA or Maryland Act would contravene the statutory language, and is thus improper. See Rylewicz v. Beaton Services, Ltd., 888 F.2d 1175, 1181 (7th Cir. 1989) (refusing to read equitable tolling or discovery exception into limitations provisions of FCRA); Hyde v. Hibernia Nat. Bank, 861 F.2d 446, 448-49 (5th Cir. 1988), cert. den., 491 U.S. 910 (1989) (limitations period under FCRA begins to run upon transmission of report to user); Houghton v. Insurance Crime Prevention Institute, 795 F.2d 322, 324-25 (3d Cir. 1986) (plain language of FCRA prevents applicability of discovery rule to two-year statute of limitations set forth in statute).

CONCLUSION
For the reasons set forth above, plaintiffs' claims against Trans Union for violations of the FCRA and the Maryland Act are barred by the statute of limitations, thereby requiring their dismissal. It will be so ordered.

ORDER
*3 For the reasons set forth in the attached Memorandum Opinion IT IS this 15th day of May, 1995, by the United States District Court for the District of Maryland, hereby ORDERED:
1. That Trans Union Corporation's Motion to Dismiss BE, and the same hereby IS, GRANTED.


FN1. Plaintiffs allege that O'Connell Associates obtained their social security numbers from Trans Union. See Affidavit of John T. O'Connell, Exhibit 3 to Plaintiff's Reply in Opposition, ¶ 15. Trans Union, however, maintains that its TRACE reports reveal only name and address information in response to a subscriber's input of a subject's social security number. See Affidavit of Eileen Little, Exhibit 1 to Trans Union's Memorandum, ¶¶ 3, 7-8. Although a dispute may thus exist over what exact information the TRACE reports yielded on plaintiffs, it is immaterial given the discussion below.



FN2. The language of the provisions of the FCRA and Maryland Act at issue in this case is virtually identical. The Court will thus apply case
law interpreting the federal statute to the Maryland Act as well.



FN3. 15 U.S.C. § 1681a(d) provides, in part, the following definition:


(d) the term "consumer report" means any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for (1) credit or insurance to be used primarily for personal, family, or household purposes, or (2) employment purposes, or (3) other purposes authorized under section 1681b of this title.

D.Md.,1995.
Way v. Barr
Not Reported in F.Supp., 1995 WL 307525 (D.Md.)