United States District Court, D. Delaware
Joshua Labreck, Federal Correctional Institution-Milan,
Milan, Michigan. Pro Se Plaintiff.
T. Margolin, Esquire, Greenberg Traurig, LLP, Wilmington,
Delaware. Counsel for Defendants Bank of America, N.A. and
A. Bennett, Esquire, and Erik J. Jones, Esquire, Cooch and
Taylor, Wilmington, Delaware, Counsel for Defendant Trans
ANDREWS, U.S. DISTRICT JUDGE:
Peter Joshua Labreck, an inmate at FCI-Milan in Milan,
Michigan, proceeds pro se and has been granted leave
to proceed in forma pauperis. He filed this action
on January 5, 2017, alleging violations of the Fair Credit
Reporting Act ("FCRA"), 15 U.S.C. §§
1681, etseq. (D.I. 2). Plaintiff has filed an
Amended Complaint and an addendum to the Amended Complaint.
(D.I. 9, 11). The Court has jurisdiction by reason of a
federal question under 28 U.S.C. § 1331. Before the
Court is a motion to dismiss filed by Defendants Bank of
America, N.A. and its CEO, Brian Moynihan (together
"moving Defendants"). (D.I. 21). Briefing on the matter
is complete. (D.I. 22, 52, 53).
alleges that Defendants continue to put incorrect information
and/or outdated information on his consumer credit report
including a wrongly displayed mortgage and home equity line
of credit showing extensive delinquencies. (D.I. 9 at 2).
Plaintiff alleges the delinquencies either: (1) do not belong
to him; (2) are his but were paid in full during the second
half of 2007; or (3) are his but he has made no payments
since January 2008 and, therefore, by January 31, 2015,
Defendants were obligated to stop reporting the accounts and
delete them from his consumer credit reports. (Id.).
Plaintiff alleges that no payments were made for well over
seven years. (D.I. 11 at 2).
alleges Defendants made it impossible for him to practice his
chosen profession of real estate investor and to obtain
loans/mortgages which resulted in lost wages. (D.I. 9 at 2).
He also alleges that Defendants' actions are libelous.
(Id.). Plaintiff alleges, "Defendants
willing[ly], knowingly, and intentionally, and/or through
gross, willful neglect failed to do an investigation, and/or
a proper investigation after receiving notice of this
consumer complaint." (D.I. 11 at 1-2). Plaintiff seeks
judgment in the amount of $7, 588, 000. (D.I. 9 at 2).
Defendants seek dismissal for lack of subject matter
jurisdiction and for failure to state any cognizable claim
for relief under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) and, in
the alternative, for improper venue under Rule 12(b)(3).
12(b)(1). Rule 12(b)(1) of the Federal Rules of
Civil Procedure permits the dismissal of an action for
"lack of subject matter jurisdiction." A Rule
12(b)(1) motion may be treated as either a facial or factual
challenge to the court's subject matter jurisdiction.
See Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir.
2016). A facial attack contests the sufficiency of the
pleadings, whereas a factual attack contests the sufficiency
of jurisdictional facts. See Lincoln Ben. Life Co. v. AEI
Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015). When
considering a facial attack, the court accepts the plaintiffs
well-pleaded factual allegations as true and draws all
reasonable inferences from those allegations in the
plaintiffs favor. See In re Horizon Healthcare Services
Inc. Data Breach Litigation, 846 F.3d 625, 633 (3d Cir.
2017). When reviewing a factual attack, the court may weigh
and consider evidence outside the pleadings. See Gould
Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir.
12(b)(3). Federal Rule of Civil Procedure 12(b)(3)
allows a defendant to move to dismiss for improper venue. The
movant has the burden of proving that venue is improper in
the selected forum. See Myers v. American Dental
Ass'n, 695 F.2d 716, 724 (3d Cir. 1982). The
question of whether venue is wrong or improper is generally
governed by 28 U.S.C. § 1391. See Atlantic Marine
Constr. Co. v. U.S. Dist. Court for W. Dist. of Texas,
571 U.S. 49, 56 (2013). Section 1391 provides that "[a]
civil action may be brought 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 jurisdiction with respect to such
action." 28 U.S.C. § 1391(b).
venue is challenged, the Court must determine whether the
case falls within one of the three categories set forth in
§ 1391(b). See Atlantic Marine Constr. Co., 571
U.S. at 56. If it does, venue is proper; if it does not,
venue is improper, and the case must be dismissed or
transferred under 28 U.S.C. § 1406(a).
12(b)(6). In reviewing a motion filed under
Fed.R.Civ.P. 12(b)(6), the Court must accept all factual
allegations in a complaint as true and take them in the light
most favorable to plaintiff. See Erickson v. Pardus,551 U.S. 89, 94 (2007). Because Plaintiff proceeds pro
se, his pleading is liberally construed and his Amended
Complaint, "however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers." Erickson, 551 U.S. at 94. A Rule
12(b)(6) motion maybe granted only if, accepting the
well-pleaded allegations in the complaint as true and viewing
them in the light most favorable to the complainant, a ...