1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ROCHELLE DANIEL, 

 Plaintiff, 

 Case No. 15-cv-11479 

v. 

 HON. MARK A. GOLDSMITH 

GOODYEAR TIRE/CBSD, et al, 

 

 Defendants. 

_____________________________________/ 

OPINION & ORDER 

(1) ACCEPTING THE MAGISTRATE JUDGE’S RECOMMENDATION DATED JULY 

27, 2017 (DKT. 29); (2) OVERRULING PLAINTIFF’S OBJECTIONS THERETO (DKT. 

32); (3) GRANTING DEFENDANT’S MOTION TO DISMISS (DKT. 25); AND (4) 

DISMISSING PLAINTIFF’S CLAIM WITH PREJUDICE 

 This matter is before the Court on the Report and Recommendation (“R&R”) of Magistrate 

Judge Stephanie Dawkins Davis (Dkt. 29), which recommends granting Defendant Citibank’s 

motion to dismiss. Following an extension, see 8/11/2017 Order (Dkt. 31), Plaintiff Rochelle 

Daniel timely filed objections to the R&R (Dkt. 32), to which Citibank filed a response (Dkt. 33). 

Daniel then filed a reply to the response (Dkt. 34). Because oral argument will not aid the 

decisional process, the objections to the R&R will be decided based on the parties’ briefing. See 

E.D. Mich. LR 7.1(f)(2); Fed. R. Civ. P. 78(b). For the reasons set forth below, the R&R is 

accepted and Citibank’s motion to dismiss is granted. 

I. BACKGROUND 

On April 29, 2013, Daniel received a copy of her credit report, prepared by Experian.1

 Sec. 

Am. Compl. (“SAC”) ¶ 7 (Dkt. 24). Through this report, Daniel discovered that Citibank had 

 

1

 Because this case is before the Court under Rule 12(b)(6) of the Federal Rules of Civil Procedure, 

the factual background is drawn from the allegations made in Plaintiff’s complaint. 
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requested a copy of her credit report, apparently without her consent. Id. Sixteen months later, in 

August 2014, she faxed a letter to Citibank requesting an explanation for the request; Citibank did 

not respond to the letter. Id. ¶ 11. On October 6, 2014, Daniel called Citibank and spoke to a 

representative who informed her that Citibank would not have information regarding any credit 

request because so much time had elapsed since the request. Id. ¶¶ 12-13. 

 Daniel filed suit, alleging that Citibank willfully violated the Fair Credit Reporting Act 

(“FCRA”), 15 U.S.C. §1681 et seq., by obtaining her credit report without a permissible purpose, 

SAC ¶¶ 24-28, and negligently violated the same Act. Id. ¶¶ 29-35. She further alleges that 

Citibank committed the tort of intrusion upon seclusion, arguing that she had a reasonable 

expectation of privacy in her credit report, and that Citibank violated this expectation by obtaining 

her credit report without legal justification. Id. ¶¶ 36-43. 

 Citibank filed a motion to dismiss, arguing that it did indeed have a permissible purpose 

for obtaining Daniel’s credit report, and, thus, could not have violated the FCRA. See Def. Mot. 

to Dismiss (Dkt. 25). To support this claim, Citibank submitted Daniel’s application for a 

Goodyear credit plan. See Pl. App., Ex. 2 to Def. Mot. to Dismiss (Dkt. 25-2). Citibank also 

argues that Daniel did not adequately state a claim for any of the three claims presented in the 

SAC. Daniel responded that the submitted application was “[c]learly” fabricated, and that she did 

sufficiently state her claims against Citibank. Pl. Resp. Br. (Dkt. 27). Citibank replied by 

reiterating that Daniel did not sufficiently state a claim, and that it had a permissible purpose for 

obtaining the credit report. See Def. Reply (Dkt. 28). 

 In the R&R, Magistrate Judge Davis concluded that Citibank’s permissible-purpose 

argument was premature because the documents that form the defense were not part of the 

pleadings, and thus could not be considered at the motion-to-dismiss stage. See R&R at 9-11. 
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However, the Magistrate Judge agreed with Citibank that Daniel did not adequately state a claim 

regarding the willful violation of the FCRA, concluding that the SAC did not contain allegations 

of fact sufficient to support an inference that Citibank ran an unjustifiably high risk of violating 

the FCRA. See id. at 11-13. The Magistrate Judge also dismissed Daniel’s negligent-violation 

claim, concluding that Daniel did not offer factual underpinnings for her claim of emotional 

damages because the case did not involve extreme circumstances that could lead to damages for 

emotional distress. See id. at 13-16. Finally, the Magistrate Judge dismissed Daniel’s intrusionupon-seclusion claim, concluding that the SAC did not contain allegations sufficient to support a 

finding that Citibank’s actions were objectionable to the reasonable person. See id. at 16-17. 

 Daniel filed four objections to the R&R, arguing (i) the Magistrate Judge misstated the 

factual background; (ii) Citibank’s “mistake” constituted a willful violation of the law; (iii) Daniel 

sufficiently pleaded emotional distress; and (iv) a reasonable jury could conclude that Citibank’s 

conduct was objectionable. 

II. STANDARD OF REVIEW 

The Court reviews de novo any portion of the R&R to which a specific objection has been 

made. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Alspaugh v. McConnell, 643 F.3d 162, 

166 (6th Cir. 2011) (“Only those specific objections to the magistrate’s report made to the district 

court will be preserved for appellate review; making some objections but failing to raise others 

will not preserve all the objections a party may have.”). Any arguments made for the first time in 

objections to an R&R are deemed waived. Uduko v. Cozzens, 975 F. Supp. 2d 750, 757 (E.D. 

Mich. 2013). 

On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), “[t]he 

defendant has the burden of showing that the plaintiff has failed to state a claim for relief.” Directv, 
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Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citing Carver v. Bunch, 946 F.2d 451, 454-455 

(6th Cir. 1991)), cert. denied, 552 U.S. 1311 (2008). To survive a Rule 12(b)(6) motion, the 

plaintiff must allege sufficient facts to state a claim to relief above the speculative level, such that 

it is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility 

standard requires courts to accept the alleged facts as true, even when their truth is doubtful, and 

to make all reasonable inferences in favor of the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009); Twombly, 550 U.S. at 555-556. 

III. DISCUSSION 

A. Factual Background 

Daniel’s first objection is that the Magistrate Judge “erred in stating that the representative 

advised me that it no longer had the application because two years had elapsed.” Pl. Obj. at 2-3 

(Dkt. 32). Rather, Daniel argues that it was she who had made the observation that only two years 

had passed, not Citibank’s representative. 

The Court overrules Daniel’s objection. The Magistrate Judge’s alleged factual 

misstatement was made in connection with her conclusion that the facts alleged by Daniel were 

sufficient to “support a plausible inference that Citibank accessed her credit report without a 

permissible purpose,” finding in favor of Daniel on the argument on which this objection is 

grounded. R&R at 10. Thus, any error the Magistrate Judge might have made in the recitation of 

the factual background of the case is harmless. Accordingly, the Court overrules Daniel’s first 

objection. 

B. Willful Violation of Law 

Daniel’s second objection is that the Magistrate Judge erred in determining that Citibank’s 

“mistake” did not constitute a willful violation of law. Daniel cites Jerman v. Carlisle, McNellie, 
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Rini, Kramer & Ulrich GPA, 559 U.S. 573 (2010), in which the Supreme Court held that the “bona 

fide error” defense in the Fair Debt Collection Practices Act (FDCPA) does not apply to a violation 

resulting from a debt collector’s mistaken interpretation of the legal requirements of the Act. 

Daniel argues that this holding in the context of the FDCPA means that mistaken interpretations 

of an act cannot be used as a defense for violations of other federal consumer protection statutes, 

such as the FCRA. Citibank responds that Daniel has provided no support for her conclusion that 

Jerman applies to the FCRA, and that Daniel has not alleged sufficient facts to show the requisite 

level of culpability. 

This objection is overruled. The Magistrate Judge properly outlined the standard for 

determining a willful violation of the FCRA: In addition to meeting the elements of the civil 

violation,2

 it must also be shown that Defendant violated the Act either intentionally or recklessly. 

Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 57 (2007). In this context, an act is reckless when 

it entails “an unjustifiably high risk of harm that is either known or so obvious that it should be 

known.” Id. at 68 (internal quotation marks omitted). “[A] company subject to FCRA does not 

act in reckless disregard of it unless the action is not only a violation under a reasonable reading 

of the statute’s terms, but shows that the company ran a risk of violating the law substantially 

greater than the risk associated with a reading that was merely careless.” Id. at 69. Considering 

that the Supreme Court has spoken on the requisite standard for showing a willful violation of the 

FCRA, it is inconsequential that the Court, in the FDCPA context, ruled that mere mistake is not 

an adequate defense. Lower courts should not assume that a more recent Supreme Court opinion 

 

2

 To show a violation of the FCRA, a plaintiff must prove three elements: “(i) that there was a 

‘consumer report’ within the meaning of the statute; (ii) that the defendant used or obtained it; and 

(iii) that the defendant did so without a permissible statutory purpose.” Bickley v. Dish Network, 

LLC, 751 F.3d 724, 728 (6th Cir. 2014) (emphasis in original) (internal quotation marks omitted). 
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has overruled a prior decision without an explicit directive from the Supreme Court. See Agostini 

v. Felton, 521 U.S. 203, 237 (1997). Therefore, this Court is not free to infer an implicit overruling 

of Safeco and cannot view a subsequent decision regarding the FDCPA as having any bearing on 

this case. 

The question that remains is whether Daniel adequately pleaded intentionality or 

recklessness under Safeco. Even construing the complaint liberally, as the Court must, Daniel has 

not stated a claim for willful violation of the FCRA. Daniel simply does not make the factual 

allegations necessary to show that Citibank operated in a way that risked violating the FCRA in a 

manner “substantially greater than the risk associated with a reading that was merely careless.” 

Safeco, 551 U.S. at 69. As the Magistrate Judge observed, Daniel’s complaint only supports the 

conclusion that Citibank did not possess any application for a pull of Daniel’s credit report over 

two years after the report was pulled. Such an allegation does not state a claim that Citibank 

willfully violated the FCRA. Accordingly, Daniel’s second objection is overruled. 

C. Negligent Violation of Law 

Daniel next objects to the Magistrate Judge’s conclusion that she has not stated a claim for 

negligent violation of the FCRA. A defendant who negligently fails to comply with the terms of 

the FCRA is liable to the plaintiff for “any actual damages sustained by the consumer as a result 

of the failure.” 15 U.S.C. § 1681o. Daniel cites Bach v. First Union National Bank, 149 F. App’x 

354 (6th Cir. 2005), arguing that actual damages can be proven by showing humiliation and mental 

distress, and that a plaintiff’s testimony can be sufficient to support such a claim. Citibank cites 

the Magistrate Judge’s opinion, claiming that Daniel’s generalized claims of emotional injury are 

insufficient to withstand the motion to dismiss. 
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This objection is overruled. Daniel is correct that actual damages in this context may be 

proven by showing pain, suffering, and humiliation, and that a plaintiff’s testimony alone can show 

this harm. See Bach, 149 F. App’x at 361. As the Magistrate Judge observed, however, there is 

also precedent to the effect that claims for damages in the form of humiliation and mental distress 

must arise in cases with particularly extreme circumstances. See, e.g., Burnstein v. Saks Fifth 

Avenue & Co., 208 F. Supp.2d 765 (E.D. Mich. 2002). For example, in Smith v. LexisNexis 

Screening Solutions, Inc., 837 F.3d 604, 611 (6th Cir. 2016), the plaintiff was awarded damages 

for emotional distress after a negligently-performed background check characterized plaintiff as a 

felon, when in fact he was not. The Sixth Circuit concluded that emotional damages could be 

awarded “where the facts are so inherently degrading that a jury could infer ... emotional distress.” 

Id. (internal quotation marks omitted) (ellipses in original). On the other hand, damages were not 

appropriate in Burnstein because the plaintiff did not identify any “egregious behavior” that “could 

be expected to give rise in emotional distress,” in a case in which the plaintiff claimed that her 

reputation would suffer on account of a delinquency noted on her credit report. Id. at 779. The 

court observed that the defendant’s “conduct could more accurately be characterized as inattentive 

than outrageous.” Id. At the motion-to-dismiss stage, the allegations in the complaint must be 

more than “sparse and conclusory” to support a claim of negligent violation of the FCRA. Sion v. 

SunRun, Inc., 2017 WL 952953, at *2 (N.D. Cal. 2017). In Sion, the court dismissed the case 

because the Plaintiff merely alleged that she was “affected personally” and felt that her “privacy 

had been invaded” by the disclosure. Id. 

Here, Daniel argues that she suffered mental anguish due to the violation of her privacy; 

she became more frustrated when her fax to Citibank was ignored, and even more so when 

Citibank’s representative was unapologetic and nonchalant on the telephone. SAC at ¶¶ 32-33. 
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Daniel also argues that she suffered humiliation because the credit report contained derogatory 

information about which she was embarrassed. Id. at ¶ 34. While it is understandable that Daniel 

grew frustrated due to what she perceived as poor customer service, that is far from the extreme or 

inherently degrading circumstances necessary to support a claim of emotional damages. Rather, 

as in Burnstein, Citibank’s conduct is more accurately described, at worst, as inattentive rather 

than outrageous. Because Daniel’s claims of emotional distress are no more than sparse and 

conclusory, the third objection is overruled. 

D. Intrusion Upon Seclusion 

Finally, Daniel objects to the Magistrate Judge’s conclusion that she did not adequately 

plead an intrusion-upon-seclusion claim. To successfully plead the claim, a plaintiff must 

adequately allege “(1) the existence of a secret and private subject matter, (2) a right possessed by 

the plaintiff to keep that subject matter private; and (3) the obtaining of information about that 

subject matter by the defendant through some method objectionable to the reasonable man.” 

Lansing Ass’n of School Adm’rs v. Lansing School Dist. Bd. of Educ., 549 N.W.2d 15, 20 (Mich. 

Ct. App. 1996) (emphasis removed). Citing case law that intrusion-upon-seclusion claims should 

be dismissed when the plaintiff merely finds the disclosure itself to be intrusive, the Magistrate 

Judge determined that Daniel did not plead the third prong of the claim because the act of accessing 

a credit report alone is not a method objectionable to a reasonable person. See R&R at 16 (citing 

Daniel v. West Asset Management, 2015 WL 2405708 at *3 (E.D. Mich. 2015)). Daniel objects, 

arguing that Citibank has no evidence of a legitimate business need, and that Defendant never sent 

an adverse-action notice to Daniel. 

This objection is overruled. As the Magistrate Judge observed, Daniel must plead that the 

method used to obtain the information was objectionable. See Lansing Ass’n of School Adm’rs, 
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549 N.W.2d at 20. Daniel has made no such allegation here. Instead, she only alleges that the 

obtaining of the information itself was highly objectionable. See SAC ¶ 24. As recited by the 

Magistrate Judge, this allegation is inconsistent with a litany of cases holding that obtaining a 

credit report is rarely an actionable intrusion. See R&R at 16-17 (listing cases). Without facts 

directed to the method itself and how that method was objectionable, the claim of intrusion of 

seclusion was not properly pled. Thus, Daniel’s objection is overruled. 

IV. CONCLUSION 

For the reasons set forth above, the Court accepts the Magistrate Judge’s recommendation 

dated July 27, 2017 (Dkt. 29); overrules Daniel’s objections thereto (Dkt. 32); grants Citibank’s 

motion to dismiss (Dkt. 25); and dismisses Daniel’s claim with prejudice. 

SO ORDERED. 

Dated: September 27, 2017 s/Mark A. Goldsmith 

Detroit, Michigan MARK A. GOLDSMITH 

 United States District Judge 

 

 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and any 

unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail 

addresses disclosed on the Notice of Electronic Filing on September 27, 2017. 

 s/Karri Sandusky 

 Case Manager