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Karle v. Capital One Bank

United States District Court, D. Massachusetts

December 16, 2016

MICHAELA O. KARLE, Plaintiff,
v.
CAPITAL ONE BANK, DISCOVER FINANCIAL SERVICES, FIRST USA UNITED SECURITY BANK, CHASE, and PROGRESSIVE DIRECT INSURANCE CO. Defendants.

         REPORT AND RECOMMENDATION REGARDING ORDER TO SHOW CAUSE (DKT. NO. 150) AND MOTIONS FOR SUMMARY JUDGMENT BY DEFENDANT PROGRESSIVE DIRECT INSURANCE COMPANY (DKT. NO. 125), DEFENDANT CAPITAL ONE BANK (DKT. NO. 130), AND PLAINTIFF MICHAELA O. KARLE (DKT. NO. 134)

          CABELL, U.S.M.J.

01/05/2017 view153 District Judge Leo T. Sorokin: ELECTRONIC ORDER entered. After de novo review, the Court ADOPTS the unobjected-to Report and Recommendation (#151) allowing the defendants' motions for summary judgment (#s 125 & 130) and denying the plaintiff's motion (#134). re Report and Recommendations re 151 Report and Recommendations. (Simeone, Maria) (Entered: 01/05/2017)

         This case arises innocently enough from invitations to apply for credit and insurance coverage. Defendants Capital One Bank (USA) N.A. (“Capital One”) and Progressive Direct Insurance (“Progressive”) sent plaintiff Michaela Karle (Karle or “the plaintiff”) credit card and insurance offers, respectively, after checking her credit and determining she might be a good client. Karle, representing herself, contends that the defendants violated federal and state law because they had no right to check her credit where she did not apply for credit or insurance from either defendant. The defendants counter that they pulled the plaintiff's credit in order to extend firm offers of credit and insurance, a statutorily permitted purpose, and they have moved for summary judgment on all counts. (Dkt. Nos. 125, 130). The plaintiff in response filed a cross motion for summary judgment. (Dkt. No. 134). After doing so, though, the plaintiff stopped participating in the case, and she has failed to respond to court issuances or to appear as directed for scheduled hearings. This failure to prosecute warrants dismissal on its own, but I also conclude on the merits that the defendants did not violate federal or state law in sending business solicitations to the plaintiff. Accordingly, I recommend that the defendants' summary judgment motions be allowed, that the plaintiffs motion for summary judgment be denied, and that the complaint be dismissed both for failure to prosecute and on the merits.

         I. Background

         A. The Second Amended Complaint

         The original complaint named five defendants but Karle dismissed her claims against all but two defendants, Capital One and Progressive. The second amended complaint is the operative complaint and it alleges five claims against the defendants. (Dkt. No. 72). Progressive obtained dismissal of Counts I, III, IV and V, leaving only Count II pending against it. (Dkt. No. 91). Capital One did not file a motion to dismiss; as a result, all five counts of the second amended complaint remain pending against it. (Dkt. No. 75).

         The plaintiff contends that the defendants improperly caused credit inquiries to be conducted on her on more than one occasion, and that these credit checks constitute violations of two federal statutes and the state consumer protection statute.

. Count I alleges a violation of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p by making false representations to obtain information about a consumer.
. Count II alleges a willful violation of the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681.
. Count III alleges a violation of M.G.L. c. 93A on the ground that a violation of the FDCPA and FCRA constitutes an “automatic violation” of the state consumer protection statute.
. Count IV alleges a negligent violation of the FCRA.
. Count V alleges a knowing and willful violation of the FCRA.

         B. Relev ...


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