Opinion
C/A No. 2:20-cv-00094-RMG-MHC
09-30-2020
Hershula R. Davis, Plaintiff, v. Equifax, Inc., Defendant.
REPORT AND RECOMMENDATION
Plaintiff Hershula R. Davis (Plaintiff) filed this action, pro se, against Defendant Equifax Inc. (Defendant). ECF No. 1. Before the Court is Defendant's Motion to Dismiss (Motion) the Complaint. ECF No. 18. Plaintiff filed a Response in Opposition to the Motion, ECF No. 24, and Defendant filed a Reply, ECF No. 25. The Motion is now ripe for review. This case was automatically referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(e), D.S.C. Because Defendant's Motion is a dispositive motion, this Report and Recommendation is entered for review by the District Judge.
BACKGROUND FACTS
The facts, and all inferences therefrom, are construed in the light most favorable to Plaintiff for purposes of ruling on Defendant's Motion. See E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011).
In October of 2019, Plaintiff received a legal notice regarding a class action settlement with Defendant over a data breach that occurred in September of 2017. ECF No. 1-1 at 1-2. She subsequently submitted a request for exclusion from the litigation. Id. at 3. On November 1, 2019, Plaintiff sent a letter (the Conditional Acceptance Letter) to Defendant's CEO, Mark Begor, with the subject line referencing a "conditional acceptance (CA) - request for proof of claim as to the liability of Equifax, Inc. for the fraudulent breach of the personal data of 148 million Americans including [Plaintiff], the undersigned, as reported on September 8, 2017, by Equifax, Inc." ECF No. 1-1 at 4. The Conditional Acceptance Letter outlined twelve "proof[s] of claim" for which Plaintiff sought a response and stated "[a] non-response and or failure to provide Proof of Claim will constitute agreement by you, and that the undersigned can exercise the remedy provided by all applicable laws . . . . Your non-response will equate to commercial acquiescence to the terms outlined by the undersigned in a final Affidavit and Notice of Default." Id. at 5.
On November 21, 2019, after receiving no response to the Conditional Acceptance Letter, Plaintiff sent Mr. Begor a "Notice of Fault and Opportunity to Cure and Contest Acceptance." ECF No. 1-1 at 7. Plaintiff then sent Mr. Begor an "Affidavit and Notice of Default" on December 2, 2019. Plaintiff filed Affidavits certifying the mailing of the aforementioned communications, as well as the lack of responses thereto. ECF No 1-1 at 6, 8-9, 12-13.
Thereafter, on January 9, 2020, Plaintiff filed this lawsuit, claiming that Defendant is "in default under contract" for its failure to respond to the facts stated in the Conditional Acceptance Letter and Affidavits. ECF No. 1 at 4. Plaintiff is seeking $10,000,000 in damages, as well as treble damages in the amount of $30,000,000 and all court costs. Id. Defendant has moved to dismiss the Complaint for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
LEGAL STANDARD
"The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint." Williams v. Preiss-Wal Pat III, LLC, 17 F. Supp. 3d 528, 531 (D.S.C. 2014); see Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) ("A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of [affirmative] defenses."). Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), such that the defendant will have "fair notice of what the claim is and the grounds upon which it rests," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). "[T]he facts alleged 'must be enough to raise a right to relief above the speculative level' and must provide 'enough facts to state a claim to relief that is plausible on its face.'" Robinson v. Am. Honda Motor Co., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
When considering a Rule 12(b)(6) motion, the court is required to evaluate the complaint in its entirety, accept the factual allegations in the pleading as true, and draw all reasonable factual inferences in favor of the non-moving party. Kolon Indus., Inc., 637 F.3d at 440, 448. "A complaint should not be dismissed as long as it provides sufficient detail about the claim to show that the plaintiff has a more-than-conceivable chance of success on the merits." Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 511 (4th Cir. 2015) (internal quotation marks omitted).
Pro se pleadings are given liberal construction and are held to a less stringent standard than formal pleadings drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, principles requiring generous construction of pro se complaints do "not require courts to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). Giving liberal construction does not mean that the Court can ignore a pro se plaintiff's clear failure to allege facts that set forth a cognizable claim. See Weller v. Dept. of Soc. Servs., City of Baltimore, 901 F.2d 387, 391 (4th Cir. 1990) ("Only those questions which are squarely presented to a court may properly be addressed."). Thus, even under this less stringent standard, a pro se complaint is still subject to summary dismissal. Estelle, 429 U.S. at 106-07.
DISCUSSION
Although Plaintiff's Complaint does not expressly identify a cause of action, Plaintiff contends that Defendant's failure to respond to her correspondence constitutes a "default under contract." ECF No. 1 at 4. Construing Plaintiff's Complaint liberally, as this Court must, the undersigned interprets Plaintiff's claim as one for breach of contract. However, Plaintiff has not alleged facts establishing the existence of a contract with Defendant, which is a necessary prerequisite for a breach of contract claim.
Under basic contract tenets, the formation of a valid contract requires the essential element of mutual assent. See, e.g., BCD LLC v. BMW Mfg. Co, LLC, 360 F. App'x 428, 434 (4th Cir. 2010) ("In order to have a valid and enforceable contract under South Carolina law, there must be a meeting of the minds between the parties with regard to all the essential and material terms of the agreement.") (citing Player v. Chandler, 382 S.E.2d 891, 893-94 (S.C. 1989)). Plaintiff has not alleged any facts that would show any sort of agreement or contractual relationship with Defendant. Plaintiff's claim is premised upon Defendant's failure to respond to her correspondence in November and December of 2019. ECF No. 1 at 4. Notably, Plaintiff states that Defendant's "non-response and or failure to provide Proof of Claim will constitute agreement by [Defendant]" and equate to "commercial acquiescence." ECF No. 1-1 at 4-5. However, mailing a series of pre-litigation documents with certain response deadlines and consequences unilaterally imposed by Plaintiff does not demonstrate assent by Defendant or a meeting of the minds sufficient to establish a contract between the parties. Under the circumstances, the allegations in Plaintiff's Complaint fail to state a claim for relief that is plausible on its face.
In her Response, Plaintiff asserts that Defendant is in violation of the Fair Credit Reporting Act and the Federal Trade Commission Act. ECF No. 24 at 1. However, Plaintiff has not pled or otherwise referenced any federal law in her Complaint. In fact, Plaintiff appears to have framed her Complaint in a manner specifically and solely to assert a breach of contract claim. Regardless, however, while the Court affords liberal construction to pro se pleadings, a district court may not "rewrite a complaint to include claims that were never presented," Wright v. Bank of America, No. 5:13-CV-02913-JMC, 2014 WL 3565822, at *3 (D.S.C. July 18, 2014) (citing Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999)), "construct the plaintiff's legal arguments for [her]," id. (citing Small v. Endicott, 998 F.2d 411 (7th Cir. 1993)), or "conjure up questions never squarely presented" to the court, id. (citing Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985)). See also Williams v. Equifax, Inc., No. 1:19-CV-622, 2019 WL 3556920, at *3 (S.D. Ohio Aug. 5, 2019) (noting liberal construction afforded to pro se complaints but finding court is not required to discover or create a claim that is not pled) (citing Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011); Johnson v. Fedex/Kinko's Store No. 1726, No. 1:11-CV-563, 2012 WL 997006 at *2 (S.D. Ohio Mar. 23, 2012) (holding that plaintiff's citation to the U.C.C. failed to grant subject matter jurisdiction and did not support any claim)).
Even if Plaintiff's Response is interpreted as an elaboration of the claim as set forth in her Complaint, Plaintiff has not set forth a claim for relief that is plausible on its face. The Response does nothing more than unilaterally conclude a violation of the two federal statutes. A court must accept all well-pleaded factual allegations as true but need not "accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). These conclusory statements in the Response, without more, do not remedy the Complaint's failure to state a claim for relief that is plausible on its face.
Generally, a court may not look outside the pleadings when reviewing a Rule 12(b)(6) motion to dismiss. However, the mandate of liberal construction for pro se litigations makes it appropriate to consider the plaintiff's additional materials, such as her opposition memorandum, where consistent with the allegations in the Complaint. See Lowdermilk v. LaManna, No. CIV A 807-2944-GRA, 2009 WL 2601470, at *8 n.3 (D.S.C. Aug. 21, 2009) (citing Gil v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987)).
Plaintiff also asserts in her Response that an email she received from Sam's Club demonstrates identity theft stemming from the data security incident. ECF No. 24 at 2, 24-2 at 9-10. The email, which appears to be a promotional advertisement from "digitalmarketing.com," does not "thank[] [Plaintiff] for [her] recent visit" as Plaintiff contends, nor is it otherwise necessarily indicative of identity theft. Id. Moreover, the email is dated more than eight months after Plaintiff's correspondence to Defendant, which is the basis for the Complaint in this case, and more than six months after Plaintiff filed her Complaint. The reference to the Sam's Club email does not change the fact that the allegations in Plaintiff's Complaint fail to state a claim for relief.
Notably, other courts have dismissed complaints substantially similar to the one submitted by Plaintiff, based upon the same form documents Plaintiff sent to Defendant. See Williams v. Equifax, Inc., No. 1:19-CV-622, 2019 WL 3556920, at *3 (S.D. Ohio Aug. 5, 2019) (recommending dismissal for failure to state any plausible claim, among other reasons), adopted by, 2019 WL 5455557 (S.D. Ohio Oct. 24, 2019); Yorty v. Equifax, Inc., No. 1:19-CV-476, 2020 WL 3052526, at *3 (W.D. Mich. May 14, 2020) (recommending dismissal for failure to state a claim upon which relief may be granted, among other reasons), adopted by, 2020 WL 3050551 (W.D. Mich. June 8, 2020).
Plaintiff's attempts to distinguish her case from Williams and Yorty are unavailing. First, whether those cases also addressed issues of service or jurisdiction does not change their analysis and holdings concerning the failure to state a claim upon which relief could be granted within the complaints at issue in each case. Moreover, while the cases may be insightful, the undersigned's recommendation is not dictated by them. Ultimately, Plaintiff has failed to allege in her Complaint, including the documents attached thereto, facts which, if accepted as true, would establish that Defendant breached any contract or agreement with her or otherwise violated her rights. Plaintiff's generalized, conclusory allegations in the Complaint fail to state a claim upon which relief can be granted.
The undersigned takes no position on whether Plaintiff could amend her Complaint in a manner that would assert a cognizable claim against Defendant.
RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that Defendant's Motion to Dismiss, ECF No. 18, be GRANTED and Plaintiff's Complaint DISMISSED without prejudice.
The parties are referred to the Notice Page attached hereto. September 30, 2020
Charleston, South Carolina
/s/_________
Molly H. Cherry
United States Magistrate Judge
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).