                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                        March 20, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
TONY LEE GREEN, an individual,

             Plaintiff–Appellant,

v.                                                        No. 12-6102
                                                   (D.C. No. 5:11-CV-01420-C)
LEXIS-NEXIS, a Massachusetts                              (W.D. Okla.)
corporation,

             Defendant–Appellee.


                            ORDER AND JUDGMENT*


Before LUCERO, Circuit Judge, PORFILIO, Senior Circuit Judge, and
MATHESON, Circuit Judge.


      Tony Lee Green appeals from the district court’s dismissal of his amended

complaint under Fed. R. Civ. P. 12(b)(6). Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      In his amended complaint, Green asserted negligence, libel, and slander claims

against Lexis-Nexis. Green alleges that the company published a false criminal

background report stating that he has felony convictions as a sex offender.

      Lexis-Nexis moved to dismiss the amended complaint under Rule 12(b)(6). It

argued that although Green asserted only state-law claims, those claims were based

on information disclosed under and governed by the Fair Credit Reporting Act

(“FCRA”), 15 U.S.C. §§ 1681 et seq., which requires a showing that the defendant

acted with malice or willful intent to injure. See § 1681h(e).1 Because Green did not

allege malice or willful intent to injure, Lexis-Nexis requested that the complaint be

dismissed. In response, Green agreed that FCRA applies, but asserted that Lexis-

Nexis’s lack of due diligence met FCRA’s requirement.

      The district court dismissed the amended complaint without prejudice,

determining that Green’s allegations were conclusory and therefore failed to state a

claim for relief. Additionally, the court determined that Green failed to allege facts

suggesting malice or willful intent.




      1
          Section 1681h(e) provides:
      [N]o consumer may bring any action . . . in the nature of defamation . . .
      or negligence with respect to the reporting of information against any
      consumer reporting agency . . . based on information disclosed by a user
      of a consumer report to or for a consumer against whom the user has
      taken adverse action, based in whole or in part on the report except as to
      false information furnished with malice or willful intent to injure such
      consumer.

                                          -2-
       On appeal, Green argues that the district court erred in dismissing his amended

complaint because the complaint asserted specific facts suggesting there is no

reasonable procedure for Lexis-Nexis to ensure its published information is accurate

as § 1681e(b) requires.2 Green contends that Lexis-Nexis showed utter indifference

and conscious disregard for the truth, which qualifies as malicious or willful.

       We review the district court’s 12(b)(6) dismissal de novo. Ridge at Red

Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In doing so, “we

assume the truth of [Green’s] well-pleaded factual allegations and view them in the

light most favorable to [him].” Id. To withstand a motion to dismiss, there must be

“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported

by mere conclusory statements, do not suffice.” Id. “[I]n ruling on a motion to

dismiss, a court should disregard all conclusory statements of law and consider

whether the remaining specific factual allegations, if assumed to be true, plausibly




       2
         Section 1681e(b) provides that “[w]henever a consumer reporting agency
prepares a consumer report it shall follow reasonable procedures to assure maximum
possible accuracy of the information concerning the individual about whom the
report relates.”


                                           -3-
suggest the defendant is liable.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210,

1214 (10th Cir. 2011).

      Applying these standards, we conclude the district court correctly dismissed

the amended complaint. Green asserts only conclusory claims for negligence,

slander, and libel. Further, Green failed to assert any facts that if true would show

that Lexis-Nexis acted with malice or willful intent to injure him as is required by

§ 1681h(e). Tellingly, the amended complaint does not even refer to FCRA. Green’s

conclusory assertion that Lexis-Nexis failed to exercise due diligence is not

equivalent to an assertion that it acted with malice or a willful intent to injure him.

Accordingly, we affirm the district court’s dismissal.

      AFFIRMED.


                                                 Entered for the Court


                                                 Carlos F. Lucero
                                                 Circuit Judge




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