MEMORANDUM AND ORDER
JOHN GLEESON, District Judge
Renaldo Garcia filed a motion to vacate his sentence under 28 U.S.C. § 2255 on September 11, 2009. I heard oral argument on February 19, 2010, and denied the petition orally after the argument. The minute entry for the proceedings filed on the docket stated incorrectly that a decision would be filed separately. On February 23, 2010, Garcia appealed my denial of his petition to the United States Court of Appeals for the Second Circuit. On February 24, 2010, Garcia moved for a certificate of appealability, as required by 28 U.S.C. § 2253. Finding there had been no substantial showing of a denial of a constitutional right, I denied Garcia's motion on February 24, 2010.
On March 15, 2010, Garcia filed an application with the Second Circuit for leave to file a successive motion for relief under 28 U.S.C. § 2255. On April 13, 2010, the Second Circuit issued a mandate denying Garcia's application because his habeas petition was not final as of the date of his application. See Whab v. United States, 408 F.3d 116, 118-19 (2d Cir. 2005). The Court transferred the motion to me for "whatever further action the district court finds appropriate."
Upon review of Garcia's application, I deem the claim raised by Garcia to be a new one. Garcia argues that the government failed to prove the type and quantity of drug involved in his offense beyond a reasonable doubt, as required by Apprendi v. New Jersey, 530 U.S. 466 (2000), before Garcia could lawfully be given a sentence in excess of 20 years. The rule announced in Apprendi, however, does not apply retroactively to § 2255 motions. Coleman v. United States, 329 F.3d 77, 90 (2d Cir. 2003). Accordingly, Garcia's claim is without merit and his petition, as supplemented, is dismissed.
So Ordered.
vices-inc#p638294 F.3d 631, 638 (5th Cir. 2002);
Cushman v. Trans Union Corp., 115 F.3d 220, 229 (3d Cir. 1997).
Because plaintiffs have alleged only common law claims, § 1681t is irrelevant for purposes of this motion. Section 1681h(e) controls.
2. Required Intent Under § 1681h(e)
Because I have held that § 1681h(e) controls, I now address whether the FCRA preempts plaintiffs' claims. While the Sixth Circuit has not ruled on this issue, other circuit courts have consistently held that the FCRA preempts state common law claims absent malice or willful intent to injure. See Wilson, supra, 518 F.3d at 42 n. 2; Lofton-Taylor, supra, 262 F. App'x at 1002; Young, supra, 294 F.3d at 638; Cushman, supra, 115 F.3d at 229; Bloom v. I.C. Sys., Inc., 972 F.2d 1067, 1069 (9th Cir. 1992); Thornton v. Equifax, Inc., 619 F.2d 700, 704 (8th Cir. 1980).
Plaintiffs argue that their allegation of "willful noncompliance" on behalf of defendant is sufficient to meet the "malice or willful intent to injure" requirement of § 1681h(e). Defendant is correct that plaintiffs' allegation of "willful noncompliance" on behalf of defendant does not rise to level of malice or willful intent to injure "required to avoid § 1681h(e) immunity." Reed v. Experian Info. Solutions, Inc., 321 F. Supp. 2d 1109, 1117 (D. Minn. 2004) (holding "[t]he malice or willful intent to injure contemplated by § 1681h(e) is of a higher degree than that which supports a claim of statutory or punitive damages under § 1681n[,]" which requires willful noncompliance.); see also Thornton, supra, 619 F.2d at 706.
Because plaintiffs have not alleged "malice or willful intent to injure" as required by § 1681h(e), plaintiffs' claims are preempted and defendant's partial motion to dismiss on these grounds shall be granted.
B. Negligent Misrepresentation
Even if plaintiffs' negligent misrepresentation claim were not preempted, it would likely still fail.
Under Ohio law, a claim of negligent misrepresentation requires the plaintiff establish that the defendant was:
[o]ne who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if
he fails to exercise reasonable care or competence in obtaining or communicating the information.
Delman v. City of Cleveland Heights, 41 Ohio St. 3d 1, 4 (Ohio 1989) (quoting 3 RESTATEMENT (SECOND) OF TORTS § 552(1));
see also Gutter v. Dow Jones, Inc., 22 Ohio St. 3d 286, 288 (1986);
Haddon View Inv. Co. v. Coopers Lybrand, 70 Ohio St. 2d 154, 157 (1982).
In addition, I have held that "[a] core requirement in a claim for negligent misrepresentation is a special relationship under which the defendant supplied information to the plaintiff for the latter's guidance in its business transaction." Hayes v. Computer Assocs. Int'l, Inc., 2003 WL 21478930, *6 (N.D. Ohio) (citing Picker Int'l, Inc. v. Mayo Found., 6 F. Supp. 2d 685, 689 (N.D. Ohio 1998)); see also Doe v. SexSearch.com, 551 F.3d 412, 418 (6th Cir. 2008). As Judge Gwin explained in Picker, supra,
This relationship occurs only in "special" circumstances. Usually the defendant is a professional (e.g., an accountant) who is in the business of rendering opinions to others for their use in guiding their business, and the plaintiff is a member of a limited class. This "special" relationship does not exist in ordinary business transactions.
6 F. Supp. 2d at 689.
Defendant is correct that the information went to LabCorp, not plaintiffs, for guidance in LabCorp's business transactions. Further, plaintiffs do not allege that a "special relationship" existed between themselves and the defendant.
Plaintiffs argue, however, that the third-party exception in Haddon, supra, allows for recovery. In Haddon, the Ohio Supreme Court held that "an accountant may be held liable by a third party for professional negligence when that third party is a member of a limited class whose reliance on the accountant's representation is specifically foreseen." 70 Ohio St. 2d at 157.
"Precedent indicates that a determination whether the plaintiff is part of a limited group of people is fact-specific and requires a close analysis of the relationship between the parties." Amann v. Clear Channel Commc'ns., 165 Ohio App. 3d 291, 298 (2006). See, e.g., Merrill v. William E. Ward Ins., 87 Ohio App. 3d 583 (1993) (children of a deceased life insurance policy holder "constitute[d] a limited class of individuals for whose benefit the representations were made and whose reliance on the information was specifically foreseen by defendants"). But see Hancock v. Sigg, 1995 WL 516492, *2 (Ohio App.) ("Sellers [of a home] are not among the limited class of persons whose reliance upon [appraiser's] appraisal of the property could be specifically foreseen.").
I need not reach a conclusion on this issue, however, because this claim is preempted by the FCRA.
Conclusion
It is, therefore,
ORDERED THAT defendant's partial motion to dismiss [Doc. 8] be, and the same hereby is granted. A scheduling conference is set for August 23, 2010 at 10:30 a.m.
So ordered.