In Ali v. Capital One, 2012 WL 260023 (E.D.Cal. 2012), Judge O’Neill explained the unsettled area of FCRA pre-emption of common law defamation claims:
Plaintiff’s defamation claim is based on the allegation that defendant furnished inaccurate information to consumer reporting agencies knowing that the information was false. Because her claim is based on the furnishment of information to a consumer reporting agency, her claim is completely preempted by the FCRA. See Buraye v. Equifax, 625 F.Supp.2d 894, 900 (C.D.Cal.2008) (holding that the plain language of “section 1681t(b)(1)(F) clearly eliminated all state cause of action against furnishers of information”) (internal quotation marks and citations omitted); Roybal v. Equifax, 405 F.Supp.2d 1177, 1181 (E.D.Cal.2005) (“On its face, the FCRA precludes all state statutory or common law causes of action that would impose any requirement or prohibition on the furnishers of credit information”); see also Johnson v. JP Morgan Chase Bank DBA Chase Manhattan, 536 F.Supp.2d 1207, 1215 (E.D.Cal.2008) (holding that FCRA preempted plaintiff’s cause of action for defamation). ¶ This Court acknowledges that there is an apparent tension between two preemption provisions in the FCRA that relate to defamation claims. In Gorman, the Ninth Circuit recognized that “[a]lthough § 1681t(b)(1)(F) appears to preempt all state law claims based on a creditor’s responsibilities under § 1681s–2, § 1681h(e) suggests that defamation claims can proceed against creditors as long as the plaintiff alleges falsity and malice.” Gorman, 584 F.3d at 1166. The Ninth Circuit further acknowledged that “[a]ttempting to reconcile the two sections has left district courts in disarray,” id., but concluded that it need not decide the issue, id. at 1167. This Court acknowledges the apparent tension, but follows its previous reasoning in holding that 15 U.S.C. § 1681t(b)(1)(F) preempts defamation claims based on allegations that a furnisher of information provided false or inaccurate information to a consumer reporting agency. Johnson, 536 F.Supp.2d at 1214–15 (holding that the FCRA preempted plaintiff’s defamation claim based on allegations that a furnisher of information reported inaccurate information to a consumer reporting agency because 15 U.S.C. § 1681h(e) was inapplicable under the facts presented). Because plaintiff’s defamation claim is completely preempted by the FCRA, “the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.” Schreiber Distributing Co. v. ServWell Furniture Co. ., Inc., 806 F.2d 1393, 1401 (9th Cir.1986) (holding that the district court abused its discretion when it dismissed claims with prejudice without first determining whether the allegation of other facts could possibly cure the deficiencies).