Opinion
23-CV-9245 (GHW) (JLC)
02-29-2024
RUTH NOEMI NORMAN, Plaintiff, v. EXPERIAN INFORMATION SOLUTIONS, INC, EQUIFAX INFORMATION SERVICES, LLC, and TRANS UNION LLC, Defendants.
REPORT AND RECOMMENDATION
JAMES L. COTT, UNITED STATES MAGISTRATE JUDGE.
To the Honorable Gregory H. Woods, United States District Judge:
Plaintiff Ruth Noemi Norman, who is proceeding pro se, brings this action against defendants Experian Information Solutions, Inc., Equifax Information Services, LLC, and Trans Union LLC (collectively “defendants”), alleging violations of the Fair Credit Reporting Act. The action was originally filed in state court and subsequently removed to this Court. Defendants have moved to dismiss the amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that it fails to state a claim upon which relief can be granted. For the following reasons, the motion should be granted.
I. BACKGROUND
A. Factual Background
The relevant facts are taken primarily from Norman's amended complaint (“Am. Compl.”) filed in Bronx County Civil Court on September 23, 2023 (Dkt. No 12), and are accepted as true for purposes of this motion. Norman's barebones pleading contains few specifics and no dates, so a detailed background is not possible. In short, Norman asserts claims against defendants, all credit reporting companies, alleging violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. Am. Compl. ¶ 4.
Specifically, Norman alleges that defendants furnished her credit report without authorization. Id. ¶ 5. In addition, she alleges that defendants failed to properly reinvestigate elements of her credit report after she filed dispute letters. Id. ¶¶ 10-14. Reading between the lines, the crux of Norman's amended complaint appears to be that defendants incorporated information received from debt collection agencies into her credit report, did not remove that information when disputed by Norman, and furnished her credit report to unknown third parties without her permission.
The state court judge to whom this case was assigned characterized the lawsuit as a “financial defamation matter.” Dkt. No. 1-3.
B. Procedural History
Norman filed this case in the Civil Court of the City of New York, Bronx County on July 26, 2023. Dkt. No. 1-1. In her original complaint, Norman alleged only that she had been “violated” by defendants, “causing damage to [her] reputation.” Id. Following defendants' motion to dismiss in state court, Norman filed a “Formal Complaint” on September 23, 2023, explicitly declaring violations of the FCRA to be the basis of her claims. Am. Compl. ¶¶ 15-18. On September 25, 2023, the Bronx Civil Court determined that the “Formal Complaint” constituted an amendment of Norman's initial pleading and ordered defendants to withdraw their motion to dismiss, which they had made for “want of specificity” in the original pleading. Dkt. No. 1-3. On October 20, 2023, defendants timely removed this case to federal court. Dkt. No. 1. On October 26, 2023, this case was referred to me for general pretrial supervision and any dispositive motions. Dkt. No. 12. On November 27, 2023, defendants jointly filed a motion to dismiss the amended complaint. Dkt. No. 16. In support, they submitted a memorandum of law (“Def. Mem.”). Dkt. No. 17. On December 14, 2023, Norman filed a “Motion to Deny Defendants Dismissal,” which the Court construes as her opposition to the motion (“Pl. Opp.”). Dkt. No. 19. On January 22, 2024, defendants filed their reply papers (“Def. Reply”). Dkt No. 22.
II. DISCUSSION
A. Legal Standards
Rule 12(b)(6) allows a party to move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In considering a Rule 12(b)(6) motion, a court accepts all factual allegations in the complaint as true and draws all reasonable inferences in the plaintiff's favor. See, e.g., Mayor & City Council of Baltimore v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013). To survive dismissal, a plaintiff must allege 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). Facial plausibility exists 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) (citing Twombly, 550 U.S. at 556). “Importantly, the ‘plausibility' standard applies only to a complaint's factual allegations. [The Court] give[s] no effect at all to ‘legal conclusions couched as factual allegations.'” Citigroup, Inc., 709 F.3d at 135 (quoting Port Dock & Stone Corp. v. Oldcastle Northeast., Inc., 507 F.3d 117, 121 (2d Cir. 2007)).
While pro se complaints are read liberally “to raise the strongest arguments they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (citation omitted), they must still state a plausible claim for relief. Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013). Thus, a district court should dismiss a pro se plaintiff's complaint if it “fail[s] to meet minimum pleading requirements.” Kinsey v. Bloomberg, No. 12-CV-8936 (PAE) (JCF), 2014 WL 630670, at *3 (S.D.N.Y. Feb. 18, 2014).
Submissions made by pro se plaintiffs are held “to less stringent standards than formal pleadings drafted by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotations omitted); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (courts are “obligated to construe a pro se complaint liberally”). As a result, the Court may consider allegations that appear in a pro se plaintiff's motion papers or other submissions to the Court as well as in his pleadings. See, e.g., Freud v. N.Y.C. Dep't of Educ., No. 21-CV-2281 (MKV), 2022 WL 889213, at *4 (S.D.N.Y. Mar. 25, 2022) (courts “may also consider factual statements made in the pro se Plaintiff's opposition to the motion to dismiss” (citing Walker, 717 F.3d at 122 n.1).
Nevertheless, pro se plaintiffs are not excused from the normal rules of pleading; “dismissal . . . is proper if the complaint lacks an allegation regarding an element necessary to obtain relief.” Geldzahler v. N.Y. Med. Coll., 663 F.Supp.2d 379, 387 (S.D.N.Y. 2009) (cleaned up).
B. Norman's Amended Complaint Should Be Dismissed For Failure to State a Claim
1. Norman Misconstrues the FCRA's Limitations on Report Furnishing
Norman alleges that defendants violated the FCRA by furnishing her credit report without her consent or a court order. Am. Compl. ¶¶ 5-6. She does not provide support for her claim that defendants furnished her credit report to any third parties, nor does she identify a credit report that was furnished without a purpose. Moreover, in addition to these failures, her claim rests on a misinterpretation of the FCRA.
Citing 15 U.S.C. § 1681b(a)(1)-(2), Norman alleges that under the FCRA a credit reporting agency may furnish a consumer report only in response to a court order or with the authorization of the consumer. Id. ¶ 5. Because she did not authorize the furnishing of her report, and there was no court order, Norman claims defendants violated the FCRA. Id. ¶¶ 5-6. But the FCRA permits credit reporting agencies to furnish credit reports for several reasons beyond those identified by Norman. 15 U.S.C. § 1681b(a)(3). In fact, the majority of legitimate authorizations for disclosure do not require the written consent of the consumer. See, e.g., Mitchell v. Experian Info. Solutions, Inc., No. 22-CV-5883 (RPK) (RER), 2023 WL 2990479, at *3 (E.D.N.Y. Apr. 18, 2023) (“Section 1681b requires a credit reporting agency to obtain a consumer's consent only in very limited circumstances involving employment relationships, underage consumers, and medical information”); Premium Morg. Corp. v. Equifax Info. Servs., LLC, No. 07-CV-6349T, 2008 WL 4507613, at *2 (W.D.N.Y. Sept. 30, 2008) (the FCRA explicitly authorizes credit bureaus and resellers to provide consumer credit information under circumstances “in which the consumer did not consent to his or her information be[ing] disseminated”); Bentley v. Greensky Trade Credit, LLC, 156 F.Supp.3d 274, 296 (D. Conn. 2015) (written consumer instruction “does not apply to every single one of the [FCRA's] authorized purposes”).
Norman does not address these other permissible scenarios that permit credit reporting agencies to furnish reports, nor does she allege that defendants actually furnished her report to any third party. Accordingly, she fails to adequately allege that defendants violated the FCRA by furnishing her credit report without her consent or without a court order. Her FCRA claim against defendants on the grounds that they violated 15 U.S.C. § 1681b should therefore be dismissed. See, e.g., Mitchell, 2023 WL 2990479 at *3 (dismissing FCRA claims where pro se plaintiff alleged defendants furnished credit report without his written consent).
2. Norman Fails to Allege that Defendants Did Not Complete a Reinvestigation of Her Credit Report
Section 1681e(b) imposes a duty on credit reporting agencies to “assure maximum possible accuracy of the information concerning the individual about whom the report relates.” 15 U.S.C. § 1681e(b). When the accuracy of a report is in dispute, § 1681i outlines specific procedures that credit reporting agencies must follow to ensure the proper reinvestigation of disputed information. Section 1681i requires that if a consumer notifies a credit reporting agency of a dispute as to the accuracy of any item of information contained in her file, within 30 days of notification, the credit reporting agency “shall, free of charge, conduct a reasonable reinvestigation to determine whether the disputed information is inaccurate.” 15 U.S.C. § 1681i(a)(1)(A); Jones v. Experian Info. Solutions., Inc., 982 F.Supp.2d 268, 272 (S.D.N.Y. 2013). If information disputed by the consumer “is found to be inaccurate or incomplete or cannot be verified, the consumer credit reporting agency shall . . . promptly delete that item of information.” 15 U.S.C. § 1681i(a)(5)(A).
Norman alleges that she has submitted letters disputing her credit report with defendants, but they failed to adequately investigate the report or remove the allegedly inaccurate information. Am. Compl. ¶¶ 9-14. She does not provide any further details in her amended complaint, beyond her claim that because she “never had a contract with LVNV Funding, PORTFOLIO RECOVERY, JEFF CAPITAL SYSTEM OR MIDLAND CREDIT . . . there is no way [defendants] verified any of these accounts.” Id. ¶ 11. The four companies listed in her amended complaint are debt collection companies. Pl. Opp. at 28, 34, 48-50, 52. In her opposition papers, Norman provides copies of the responses to her review requests from defendants Equifax and Trans Union, though not from Experian. Pl. Opp. at 8-13, 56-63. These responses establish that Equifax and Trans Union did conduct reinvestigations in response to her requests and in fact removed some challenged items from her credit report, while the accounts with the four debt collection companies were verified. Id.
The exhibits attached to Norman's opposition papers confirm that they are debt collection companies. Pl. Opp. at 28, 33, 45, 48-51; see also Def. Mem. at 7 n.2 (listing cases where these companies are identified as debt collection agencies).
Norman's argument rests entirely on defendants' proported failure to revise her credit report based on a lack of a contract between her and the debt collection companies who may have provided defendants with the challenged information.However, “[credit reporting agencies] are not responsible for maintaining or presenting original copies of ‘contracts' for the accounts they report.” Whiteford v. Equifax Inc., No. CV 2:21-CV-94, 2021 WL 3683293, at *3 (W.D. Pa. Aug. 18, 2021); see also, e.g., Little v. Equifax Info. Servs., LLC, No. 8:22-CV-00669-PX, 2022 WL 17989622, at *3 (D. Md. Dec. 29, 2022); Butler v. Equifax Info. Servs., No. 3:17CV422-MCR-CJK, 2018 WL 5986534, at *3 (N.D. Fla. Oct. 12, 2018), adopted by 2018 WL 5981841 (Nov. 14, 2018). Norman mistakenly contends that there is a requirement that credit reporting agencies must obtain copies of contracts in order to verify accounts (as this is found nowhere in the FCRA), and, working backward from that inaccurate standard, concludes that because no such contracts exist, and defendants did not remove the challenged information from her credit report, they must not have conducted proper reinvestigations.
Notably, at no point does Norman explicitly argue that the underlying accounts contained in her credit report are incorrect, only that defendants did not verify them.
Norman's vague and conclusory allegations are insufficient to sustain a cause of action under Section 1681i. See, e.g., Nguyen v. Ridgewood Sav. Bank, No. 14-CV-1058 (MKB), 2015 WL 2354308, at *11 (E.D.N.Y. May 15, 2015) (“Plaintiffs' conclusory and broad allegations of fraud and deceptive practices, without explanation of how Defendants willfully or negligently violated the FCRA, do not suffice to state a claim under the statute.”); Selvam v. Experian Info. Solutions, Inc., No. 13-CV-6078 (DLI) (JO), 2015 WL 1034891, at *4 (E.D.N.Y. Mar. 10, 2015). Her allegations, taken as true, all rest upon the non-existent requirement that credit reporting agencies must obtain original contracts with her signature in order to verify her accounts, and so her cause of action under this provision of the FCRA should therefore be dismissed as well.
3. Norman Incorrectly Interprets the Definition of Consumer Report in the FCRA
Finally, in both her amended complaint and in her opposition papers, Norman cites the FCRA's definitions section, specifically the provision stating that the term “consumer report” does not include a “‘report containing information solely as to transactions or experiences between the consumer and the person making the report.” Am. Compl. ¶ 8 (quoting § 1681a(d)(2)(A)(i)); Pl. Opp. at 1 (quoting same). She claims that this definition precludes “the accounts being reported” (which are not identified by Norman but presumably are the accounts with the four debt collection agencies) from inclusion on her credit report. Id.
Norman has inverted the statute. The cited section prevents the consumer report from containing any transaction between the consumer and the entities making the reports-i.e., credit reporting agencies, like defendants in this case-but does not bar a credit reporting agency from incorporating transactions between the consumer and third parties. Such a restriction, if it existed, would render credit reporting agencies unable to function. See Parker v. TransUnion LLC, No. 22-CV-01731, 2023 WL 6290547, at *2 (N.D. Ill. Sept. 27, 2023) (rejecting identical argument).
In sum, Norman's amended complaint and her opposition papers fail to state a claim under the FCRA upon which relief can be granted. Her claims rest solely on incorrect interpretations of the FCRA and therefore they should be dismissed.
4. Norman's Amended Complaint Should Be Dismissed with Prejudice
“District courts should generally not dismiss a pro se complaint without granting the plaintiff leave to amend.” Ashmore v. Prus, 510 Fed.Appx. 47, 49 (2d Cir. 2013) (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)). “However, leave to amend is not necessary when it would be futile.” Id. (leave to replead futile where even liberal reading of complaint did not suggest that plaintiff should be given chance to reframe her pleading (citing Cuoco, 222 F.3d at 112)).
In this instance, Norman has already had the opportunity to submit an amended complaint in state court, which she used to articulate her federal cause of action, and has filed opposition papers, which the Court has reviewed to determine whether any cognizable claims are set forth therein. Dkt. No. 1-3. Granting another opportunity to amend would be futile. Norman has provided no basis to conclude she has a claim under federal law; to the extent that she has elaborated on her claims in her pleadings and motion papers, she relies on statutory requirements that are not included in the FCRA. Accordingly, Norman's claims should be dismissed without leave to further amend. See, e.g., Ashmore, 510 Fed.Appx. at 49 (“[G]ranting leave to amend would be futile as the barriers to relief for [plaintiff's] claims cannot be surmounted by reframing the complaint.”); Selvam, 2015 WL 1034891, at *4 (“[T]he [FCRA] complaint gives no indication that Plaintiff has a colorable claim under federal law and Plaintiff has already had one opportunity to amend the complaint. As any further attempt to amend the complaint would be futile, Plaintiff is denied leave to amend the complaint.”).
III. CONCLUSION
For all of the foregoing reasons, I recommend that defendants' motion to dismiss be granted and that Norman's amended complaint be dismissed with prejudice.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Gregory H. Woods, United States Courthouse, 500 Pearl Street, New York, NY 10007. Any requests for an extension of time for filing objections must be directed to Judge Woods.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).