Opinion
5:24-CV-188 (DNH/MJK)
02-14-2024
SHARMELL TAYLOR, Plaintiff, v. EXPERIAN INFORMATION SOLUTIONS, INC, Defendant.
SHARMELL TAYLOR, Plaintiff, pro se
SHARMELL TAYLOR, Plaintiff, pro se
ORDER AND REPORT-RECOMMENDATION
MITCHELL J. KATZ, U.S. Magistrate Judge
The Clerk has sent to the court for review a pro se complaint filed by plaintiff Sharmell Taylor, in which she has asserted claims against defendant Experian Information Solutions INC (“Experian”) under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692; the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681; and state law. (Dkt. No. 1) (“Compl.”). Plaintiff has also moved to proceed in forma pauperis (“IFP”). (Dkt. No. 2).
I. IFP Application
Plaintiff declares in her IFP application that she is unable to pay the filing fee. (Dkt. No. 2). After reviewing her application and supporting documents, this court finds that plaintiff is financially eligible for IFP status.
However, in addition to determining whether plaintiff meets the financial criteria to proceed IFP, the court must also consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss the case at any time if the court determines that the action is (i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915 (e)(2)(B)(i)-(iii).
In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and 28 U.S.C. § 1915. Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldredge, 505 F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to show liberality toward pro se litigants and must use extreme caution in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss a frivolous complaint sua sponte even when plaintiff has paid the filing fee).
To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp., 550 U.S. at 555).
In addition, Fed.R.Civ.P. 8(a)(2) requires that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Although Rule 8 does not require detailed factual allegations, it does “demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Houston v. Collerman, No. 9:16-CV-1009 (BKS/ATB), 2016 WL 6267968, at *2 (N.D.N.Y. Oct. 26, 2016) (quoting Ashcroft, 556 U.S. at 678). A pleading that contains allegations that “‘are so vague as to fail to give the defendants adequate notice of the claims against them' is subject to dismissal.” Id. (citing Sheehy v. Brown, 335 Fed.Appx. 102, 104 (2d Cir. 2009)). The court will now turn to a consideration of plaintiff's complaint under the above standards.
II. Complaint
Plaintiff alleges that defendant Experian operates a “credit collection agency.” (Compl. at 7). Plaintiff further states that on October 18, 2023, she sent a “dispute” to Experian, “disputing the reporting of transactions on the plaintiff's consumer report that were not authorized to be furnished by the consumer.” (Id.). On November 2, 2023, Experian “responded to the plaintiff sending out dispute results.” (Id.). On December 3, 2023, plaintiff “reached out” to Experian “for the second time regarding the transactions still being reported on the consumer report without authorization.” (Id.).
The page numbers cited are those produced by the Electronic Case Filing (“ECF”) system.
On December 22, 2023, Experian “responded with an identical letter and the transactions were still being reported.” (Id. at 7-8).
The complaint alleges four counts against Experian. First, plaintiff states a cause of action for “Defamation of Character (Per Se).” (Id. at 6). Specifically, plaintiff alleges that Experian, through plaintiff's consumer report, made “false and damaging statements about the plaintiff.” (Id.). Plaintiff states that, as a result of Experian's defamatory statements, plaintiff has suffered “negligent infliction of emotional and financial distress.” (Id.).
Plaintiff next asserts a cause of action for “Negligent Enablement of Identity Fraud.” (Id. at 6). She states that Experian's failure to investigate her submitted dispute “enabled identity fraud” against her, and, as a result of Experian's negligence, plaintiff has suffered “negligent infliction of emotional and financial distress.” (Id.).
Plaintiff's third cause of action is brought under the FDCPA. (Id. at 6). Plaintiff alleges that Experian, “a debt collector as defined by the [FDCPA], violated the Act by not removing the debt or the portion of the debt the plaintiff dispute with in the 30-day period under 15 U.S.C. § 1692g(b).” (Id. at 6-7).
Plaintiff's final cause of action is brought under the FCRA. (Id. at 7). She states that Experian “willfully violated the [FCRA] by failing to comply with 15 U.S.C. § 1681b the permissible purpose of consumer reports and 1681a(2)(A)(i) definitions; rules of construction.” (Id. at 7).
In her request for relief, plaintiff seeks compensatory damages in the amount of $4,000 for “pain and suffering due to an inability to utilize the credit system[,]” as well as for causing “emotional and financial damages due to reported information by” Experian. (Compl. at 4). Plaintiff also seeks punitive damages in the amount of $4,000 “based on the egregious and willful nature of” Experian's conduct, and to “punish and deter future similar conduct.” (Id.). Last, plaintiff seeks injunctive relief in the removal of the disputed account from the consumer report. (Id.).
DISCUSSION
III. The Fair Debt Collection Practices Act
The FDCPA prohibits deceptive and misleading practices by “debt collectors.” Anderson v. Experian, No. 19-CV-8833, 2019 WL 6324179, at *2 (S.D.N.Y. Nov. 26, 2019) (quoting 15 U.S.C. § 1692e). The statute seeks to “eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” Kropelnicki v. Siegel, 290 F.3d 118, 127 (2d Cir. 2002) (quoting 15 U.S.C. § 1692(e)) (internal quotation marks omitted). “To accomplish these goals, the FDCPA creates a private right of action for debtors who have been harmed by abusive debt collection practices.” Anderson v. Experian, 2019 WL 6324179, at *2 (citing 15 U.S.C. § 1692k).
“To establish a violation under the FDCPA, three elements must be proven: ‘(1) the plaintiff [must] be a ‘consumer' who allegedly owes the debt or a person who has been the object of efforts to collect a consumer debt, (2) the defendant collecting the debt must be considered a “debt collector,” and (3) the defendant must have engaged in an act or omission in violation of the FDCPA's requirements.' ” Skvarla v. MRS BPO, LLC, No. 21-CV-55, 2021 WL 2941118, at *2 (S.D.N.Y. July 12, 2021) (quoting Derosa v. CAC Fin. Corp., 278 F.Supp.3d 555, 559-60 (E.D.N.Y. 2017)). “The term ‘debt collector' is defined under the FDCPA as a person who, among other requirements, is engaged in any ‘business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect . . . debts owed or due . . . another.' ” Perez v. Experian, No. 20-CV-9119, 2021 WL 4784280, at *12 (S.D.N.Y. Oct. 14, 2021), report and recommendation adopted, 2021 WL 5088036 (S.D.N.Y. Nov. 2, 2021)(quoting 15 U.S.C. § 1692a(6)).
Plaintiff's complaint fails to state facts suggesting a claim for relief under the FDCPA. Experian, the sole defendant named in this action, is “not normally identified as a debt collector.” Anderson v. Experian, 2019 WL 6324179, at *2; see also Perez v. Experian, 2021 WL 4784280, at *13 (“Equifax, Experian, and Trans Union are credit reporting agencies that do not collect debts, and therefore do not fall within the meaning ‘debt collector' under the FDCPA, but instead under the term ‘consumer reporting agency' [(“CRA”)] as defined in § 1681a(f).”); compare 15 U.S.C. 1692a(6) (defining debt collector) with 15 U.S.C. § 1681a(f) (defining consumer reporting agency). Plaintiff does not credibly allege that Experian is a “debt collector.” Rather, plaintiff's allegations suggest her challenges to the consumer report issued by Experian in its capacity as a CRA. (Compl. at 7). Because the complaint fails to allege any non-conclusory allegations that Experian is a “debt collector,” or that it has engaged in any debt collection activity, plaintiff has failed to state a claim under the FDCPA. See Allen v. United Student Aid Funds, Inc., No. 17-CV-8192, 2018 WL 4680023, at *5 (S.D.N.Y. Sept. 28, 2018) (granting motion to dismiss when plaintiff has not pled sufficient facts to classify defendants as debt collectors).
IV. The Fair Credit Reporting Act
“The FCRA regulates consumer credit reporting agencies to ensure accuracy, confidentiality, relevancy, and proper utilization of consumer credit information.” Perez v. Experian, 2021 WL 4784280, at *5 (citing 15 U.S.C. § 1681(b)). “It ‘places distinct obligations on three types of entities: consumer reporting agencies, users of consumer reports, and furnishers of information to consumer reporting agencies.' ” Id. (quoting Redhead v. Winston & Winston, P.C., No. 01-CV-11475, 2002 WL 31106934, at *3 (S.D.N.Y. Sept 20, 2002) (citing 15 U.S.C. §§ 1681 et seq.)).
Liberally construed, plaintiff's complaint alleges FCRA claims against Experian pursuant to §§ 1681b, 1681e(b), and 1681i. The court will address each claim in turn.
A. § 1681b
“Section 1681b generally specifies the circumstances under which a consumer report may be furnished and used[,] and protects consumer privacy by limiting access to consumer credit reports.” Moore v. Experian, No. 23 Civ. 673, 2023 WL 7169119, at *5 (S.D.N.Y. Oct. 13, 2023), report and recommendation adopted, 2023 WL 7166158 (S.D.N.Y. Oct. 31, 2023) (internal citations and quotation marks omitted). “As distinguished from many other provisions of the FCRA regulating CRAs, liability under Section 1681b typically attaches to third parties who willfully or negligently ‘use or obtain' a consumer report for an impermissible purpose.” Id. (internal quotation marks omitted) (quoting Rajapakse v. Shaw, No. 20 Civ. 10473, 2022 WL 1051108, at *5 (S.D.N.Y. Feb. 18, 2022), report and recommendation adopted, 2022 WL 855870 (S.D.N.Y. Mar. 23, 2022)). However, liability may attach to a CRA where a third party accessed or used a consumer report for an impermissible purpose, if the CRA “either willfully or negligently fail[ed] to maintain reasonable procedures designed to avoid violations of” Section 1681b. Pietrafesa v. First Am. Real Estate Info. Servs., No. 05 Civ. 1450 (LEK/RFT), 2007 WL 710197, at *3 (N.D.N.Y. Mar. 6, 2007); see also Podell v. Citicorp Diners Club, 859 F.Supp. 701, 705 (S.D.N.Y. 1994) (noting that Section 1681b “limits the purposes and uses of a credit report,” and that the FCRA “imposes civil liability upon [CRAs] . . . who willfully or negligently violate the [FCRA]”). To determine whether the CRA maintained reasonable procedures, “the standard of conduct is what a reasonably prudent person would do under the circumstances.” Hines, 2022 WL 2841909, at *23.
Section 1681e(a) provides that “[e]very [CRA] shall maintain reasonable procedures designed to . . . limit the furnishing of consumer reports to the purposes listed under section 1681b of this title.” 15 U.S.C. § 1681e(a). The court construes plaintiff's Section 1681b Claim as if brought pursuant to both Sections 1681b and 1681e(a), and, as other courts have done, analyzes these claims together. See Hines v. Equifax Info. Servs., LLC, No. 19 Civ. 6701, 2022 WL 2841909, at *23 (E.D.N.Y. July 16, 2022).
Plaintiff fails to plausibly allege a § 1681b claim against Experian, because the complaint does not allege that Experian provided plaintiff's consumer report to a third party, “which is fatal to any claim that [Experian] impermissibly shared her report.” Moore v. Experian, 2023 WL 7169119, at *6. On this basis alone, plaintiff's complaint is subject to dismissal.
Even if the complaint could be read to allege that Experian furnished a consumer report to an unnamed third party, the claim would still fail because plaintiff does not plausibly allege that a third party sought or used the information for an impermissible purpose, nor does it plausibly allege that Experian “either willfully or negligently fail[ed] to maintain reasonable procedures” to prevent an improper furnishing of information. Pietrafesa, 2007 WL 710197, at *3; see also Selvam v. Experian Info. Sols., Inc., No. 13 Civ. 6078, 2015 WL 1034891, at *4 (E.D.N.Y. Mar. 10, 2015) (granting motion to dismiss where plaintiff failed to allege how the CRA acted unreasonably). In her complaint, plaintiff states that Experian “willfully” violated the FCRA, and also references that Experian “breached [its] duty through negligence.” (Compl. at 6-7). However, “[m]erely stating that the violation was ‘willful' or ‘negligent' without more is insufficient.” Perez v. Experian, 2021 WL 4784280, at *11 (citing Perl v. Plains Com. Bank, No. 11-CV-7972, 2012 WL 760401, at *2 (S.D.N.Y. Mar. 8, 2012)); see also Perl v. Am. Exp., No. 11-CV-6899, 2012 WL 178333, at *2 (S.D.N.Y. Jan. 19, 2012) (“While [plaintiff] assert[s] that each [D]efendant's FCRA violation was willful, [he] do[es] so in a conclusory manner in [both] of the complaints . . . . [Plaintiff] ha[s] failed to allege any facts related to [D]efendants' state of mind when they allegedly [violated the FCRA]”). Accordingly, plaintiff's § 1681b claim should be dismissed.
B. §§ 1681e(b) and 1681i ]
The following discussion of the applicable law is taken from U.S. Magistrate Judge James L. Cott's cogent summary in Perez v. Experian, No. 20-CV-9119, 2021 WL 4784280, at *1 (S.D.N.Y. Oct. 14, 2021), which report-recommendation was adopted in its entirety by U.S. District Judge Paul A. Engelmayer in Perez v. Experian, No. 20 Civ. 9119, 2021 WL 5088036 (S.D.N.Y. Nov. 2, 2021).
Section 1681e(b) imposes a duty on CRAs to “assure maximum possible accuracy of the information concerning the individual about whom the report relates.” 15 U.S.C. § 1681e(b). To state a claim under Section 1681e(b), a plaintiff must allege that: “(1) the consumer reporting agency was negligent or willful in that it failed to follow reasonable procedures to assure the accuracy of its credit report; (2) the consumer reporting agency reported inaccurate information about the plaintiff; (3) the plaintiff was injured; and (4) the consumer reporting agency's negligence proximately caused the plaintiff's injury.” Wimberly v. Experian Info. Sols., No. 18-CV-6058, 2021 WL 326972, at *5 (S.D.N.Y. Feb. 1, 2021) (quoting Khan v. Equifax Info. Servs., LLC, No. 18-CV-6367, 2019 WL 2492762, at *2 (E.D.N.Y. June 14, 2019)).
When the accuracy of a report is in dispute, Section 1681i outlines specific procedures that CRAs must follow to ensure the proper reinvestigation of disputed information. Section 1681i requires that if a consumer notifies a CRA of a dispute as to the accuracy of any item of information contained in his file, within 30 days of notification, the CRA “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). Courts in this District have noted that “the parameters of a reasonable investigation will . . . depend on the circumstances of a particular dispute.” Frydman v. Experian Info. Sols, Inc., No. 14-CV-9013, 2016 WL 11483839, at *15 (S.D.N.Y. Aug. 11, 2016) (quoting Cortez v. Trans Union, LLC, 617 F.3d 688, 713 (3d Cir. 2010)), report and recommendation adopted, 2016 WL 5661596 (Sept. 30, 2016). The reinvestigation requirement demands “more than (a) forwarding the dispute information onto the furnisher of information and (b) relying on the furnisher of information's response.” Gorman v. Experian Info. Sols., Inc., No. 07-CV-1846, 2008 WL 4934047, at *5 (S.D.N.Y. Nov. 19, 2008) (citing Cushman v. Trans Union Corp., 115 F.3d 220, 225 (3d Cir. 1997)).
The threshold question under both Sections 1681e(b) and 1681i “is whether the challenged credit information is accurate; if the information is accurate, no further inquiry into the reasonableness of the consumer reporting agency's procedures is necessary.” Id. (collecting cases). A credit report is inaccurate “either when it is patently incorrect or when it is misleading in such a way and to such an extent that it can be expected to have an adverse effect.” Wimberly, 2021 WL 326972, at *5 (quoting Wenning v. On-Site Manager, Inc., No. 14-CV-9693, 2016 WL 3538379, at *9 (S.D.N.Y. June 22, 2016)). “Information provided by a consumer reporting agency is misleading where it is ‘open to an interpretation that is directly contradictory to the true information.' ” Id. (quoting Wagner v. TRW, Inc., 139 F.3d 898, 898 (5th Cir. 1998)).
Although plaintiff may have a cognizable cause of action against Experian under the FCRA, at this juncture the bare-bone allegations contained in her complaint fail to state a claim for purposes of this initial review. As to the threshold question of the accuracy of the challenged information, Plaintiff states that Experian “report[ed] transactions on the plaintiff's consumer report that were not authorized to be furnished by the consumer.” (Compl. at 7). Without more, the court cannot determine whether plaintiff is alleging that the information in her credit report was factually inaccurate, or if plaintiff's challenge is actually to the validity of a debt assessed by a third-party lender, which ultimately appeared on her credit report. If the latter, plaintiff's claim must fail because “inaccuracies that turn on legal disputes are not cognizable under the FRCA.” See Mader v. Experian Info. Sols., Inc., 56 F.4th 264, 270 (2d Cir. 2023) (plaintiff failed to allege inaccuracy within the plain meaning of the FCRA because “[t]he bespoke attention and legal reasoning required to determine the post-bankruptcy validity of Mader's debt means that its status is not sufficiently objectively verifiable to render Mader's credit report ‘inaccurate' under the FCRA.”).
Even if the court were to interpret plaintiff's allegation to state that the challenged information in plaintiff's credit report was factually inaccurate, plaintiff has failed to set forth any allegations regarding the deficiencies in the procedures followed by Experian in assuring the accuracy of its reporting in order to state a claim under § 1681e(b). Because plaintiff “fail[s] to make any allegations regarding . . . the procedures followed” by Experian, Nguygen v. Ridgewood Sav. Bank, No. 14-CV-1058, 2015 WL 2354308, at *11 (E.D.N.Y. May 15, 2015), her “[t]hreadbare recitals of the elements” do not state a plausible claim for relief under Section 1681e, Iqbal, 556 U.S. at 678.
Assuming, again, that plaintiff had sufficiently alleged that her credit information was not factually accurate, the court could also construe that plaintiff is alleging Experian violated the FCRA requirement to reasonably investigate her disputes under § 1681i. However, to state such an action, plaintiff must allege that Experian was either willful or negligent in its noncompliance with § 1681i. See Perez v. Experian, 2021 WL 4784280, at *11 (“The FCRA allows for a cause of action for willful and negligent noncompliance ‘with any requirement imposed' by the FCRA.”) (citing 15 U.S.C. §§ 1681n, 1681o). “In regard to a plaintiff's obligation to allege that a defendant's violation was willful or negligent, various courts have held that . . . the plaintiff's complaint must allege specific facts as to the defendant's mental state” when the defendants committed the violation of the FCRA. Braun v. Client Servs. Inc., 14 F.Supp.3d 391, 397 (S.D.N.Y. 2014). Here, plaintiff has failed to allege any facts as to Experian's “mental state” when committing the alleged violations of the FCRA. As detailed above, plaintiff's reference to the terms “willful” and “negligence” in her statement of claims, without more, is insufficient. (Compl. at 6-7). See Perez v. Experian, 2021 WL 4784280, at *11; Perl v. Am. Exp., 2012 WL 178333, at *2.
Moreover, in the FCRA context, “the Supreme Court made clear that ‘a bare procedural violation, divorced from any concrete harm' fails to satisfy the injury-in-fact requirement of Article III. Zlotnick v. Equifax Info. Servs., LLC, 583 F.Supp.3d 387, 391 (E.D.N.Y. 2022) (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016), as revised (May 24, 2016)). “In 2021, the Supreme Court, in another case involving the FCRA, again emphasized that the absence of any allegation of a concrete harm forecloses federal standing.” Id. (citing TransUnion LLC v. Ramirez, 594 U.S. 413, 41718 (2021)); see also In re FDCPA Mailing Vendor Cases, 551 F.Supp.3d 57, 62-63 (E.D.N.Y. 2021). At the pleading stage, “standing allegations need not be crafted with precise detail, nor must the plaintiff prove the allegations of his injury.” Fin. Guar. Ins. Co. v. Putnam Advisory Co., LLC, 783 F.3d 395, 401-02 (2d Cir. 2015) (quoting Baur v. Veneman, 352 F.3d 625, 631 (2d Cir. 2003)). However, a plaintiff must allege facts “that affirmatively and plausibly suggest that [she] has standing to sue.” Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011).
Here, plaintiff has alleged injury to the extent that she has an “inability to utilize the credit system . . . due to reported information by” Experian. (Compl. at 4). There is no suggestion, however, that plaintiff has suffered any particularized injury, or that her information was actually disseminated to third parties. See Zlotnick v. Equifax Information Services, LLC, 583 F.Supp.3d 387, 391 (E.D.N.Y. 2022) (“[W]hile plaintiff claims that his credit score was lowered as a result of the alleged improper reporting . . . he fails to allege any particularized injury or actual dissemination to third-party creditors.”); Grauman v. Equifax Info. Servs., LLC, 549 F.Supp.3d 285, 291 (E.D.N.Y. 2021) (“Just as a plaintiff could not bring a defamation suit over a letter that merely sat in a desk drawer, these plaintiffs could not bring their FCRA suit over information that had never left the credit reporting agency's database.”) (citation omitted).
Plaintiff's conclusory allegations of “emotional and financial distress” are further insufficient to allege a how Experian's purported violations caused plaintiff to suffer a “concrete” harm. See Gross v. TransUnion, LLC, 607 F.Supp.3d 269, 273 (E.D.N.Y. 2022) (Conclusory allegations in complaint were insufficient where “[t]he alleged harms are not expenses, costs, any specific lost credit opportunity, or specific emotional injuries[.]”) (citing Ashcroft v. Iqbal, 556 U.S. at 678); see also Maddox v. Bank of N.Y. Mellon Trust Co., 19 F.4th 58, 66 (2d Cir. 2021) (“A perfunctory allegation of emotional distress, especially one wholly incommensurate with the stimulant, is insufficient to plausibly allege constitutional standing.”); Garland v. Orlans, PC, 999 F.3d 432, 440 (6th Cir. 2021) (plaintiff's injuries cannot create standing “[b]ecause bare allegations of confusion and anxiety do not qualify as injuries in fact”); Pennell v. Glob. Tr. Mgmt., LLC, 990 F.3d 1041, 1045 (7th Cir. 2021) (stress and confusion - without accompanying physical manifestation - do not suffice for standing).
Accordingly, for the reasons stated above, the court recommends dismissing plaintiff's claims for violations of §§ 1681e(b) and 1681i of the FRCA against Experian.
V. State Law Claims
Section 1681h(e) of the FCRA provides that “no consumer may bring any action or proceeding in the nature of defamation, invasion of privacy, or negligence with respect to the reporting of information against any consumer reporting agency, any user of information, or any person who furnishes information to a consumer reporting agency, .... except as to false information furnished with malice or willful intent to injure such consumer.” Otherwise stated, “[s]ection 1681h(e) preempts defamation [and other state-based] claims against CRAs unless the alleged false information is furnished with malice or willful intent to injure the plaintiff.” Thompson v. Equifax Info. Servs. LLC, No. 20-CV-6101, 2022 WL 2467662, at *10 (E.D.N.Y. Feb. 24, 2022) (citing Frydman v. Experian Info. Sols., Inc., No. 14-CV-9013, 2016 WL 11483839, at *17 (S.D.N.Y. Aug. 11, 2016), report and recommendation adopted, 2016 WL 5661596 (S.D.N.Y. Sept. 30, 2016) (“[Section 1681h(e)] essentially affords . . . qualified immunity against the types of state law claims asserted by [plaintiff] unless he can establish that [defendants] acted ‘with malice or willful intent to injure' him”) (citations omitted)); Ogbon v. Beneficial Credit Services, Inc., 10 Civ. 3760, 2013 WL 1430467, at *10 (S.D.N.Y. Apr. 8, 2013) (“Thus, defendants have qualified immunity against defamation actions, which can only be overcome where plaintiff shows that defendants acted with malice or willful intent.”) (collecting cases)).
As previously discussed, plaintiff has failed to allege anything more than conclusory statements to suggest that Experian furnished any information with “malice” or “willful intent to injure” plaintiff. Accordingly, plaintiff's state law claims related to the contents of her credit report are preempted. Moreover, even if her claims were not preempted, her allegations lack the sufficient specificity required of such claims to put Experian on notice. See, e.g., Mitchell v. Experian Info. Sols., Inc., No. 22-CV-5883, 2023 WL 2990479, at *3 (E.D.N.Y. Apr. 18, 2023) (“In assessing whether a defamation claim has been plead with sufficient particularity, courts look to whether [the] complaint references the alleged defamatory statement, identifies who made the statement, when it was made, the context in which it was made, whether it was made orally or in writing and whether it was made to a third party.”) (citation omitted). Accordingly, plaintiff's state law claims should be dismissed.
VI. Opportunity to Amend
Generally, before the court dismisses a pro se complaint or any part of the complaint sua sponte, the court should afford the plaintiff the opportunity to amend at least once; however, leave to re-plead may be denied where any amendment would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present when the problem with plaintiff's causes of action is substantive such that better pleading will not cure it. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation omitted).
Here, the court is recommending dismissal with prejudice as to plaintiff's claims brought pursuant to the FDCPA. There is no plausible suggestion that defendant Experian was operating outside of its capacity as a credit reporting agency with respect to the conduct at issue, and the court does not find it plausible that plaintiff could amend to state a claim against Experian in any capacity as a “debt collector.”
With respect to plaintiff's FCRA and state law claims, the court is recommending dismissal without prejudice, providing plaintiff the opportunity to amend her complaint. If the court approves this recommendation and allows plaintiff to submit a proposed amended complaint, plaintiff should be warned that any amended complaint must be a complete and separate pleading. Plaintiff must state all of her claims in the new pleading and may not incorporate by reference any part of her original complaint.
WHEREFORE, based on the findings above, it is
ORDERED, that plaintiff's motion to proceed IFP (Dkt. No. 2) is GRANTED,and it is
Although her IFP Application has been granted, plaintiff will still be required to pay fees that she may incur in this action, including copying and/or witness fees.
RECOMMENDED, that plaintiff's claims pursuant to the Fair Debt Collection Practices Act be DISMISSED WITH PREJUDICE, and it is
RECOMMENDED, that the complaint be DISMISSED WITHOUT PREJUDICE in all other respects, and it is
RECOMMENDED, that if the District Court adopts this recommendation, plaintiff be given forty-five (45) days to amend her complaint to the extent authorized, and that plaintiff be advised that any amended pleading must be a COMPLETE PLEADING, WHICH WILL SUPERSEDE THE ORIGINAL, and that plaintiff must include all remaining facts and causes of action in the amended complaint. No facts or claims from the original complaint may be incorporated by reference, and it is
RECOMMENDED, that if the District Court adopts this recommendation, and plaintiff does not elect to amend her complaint within the imposed deadline, the case be dismissed in its entirety, with prejudice, and it is
RECOMMENDED, that if the District Court adopts this recommendation, and plaintiff files a proposed amended complaint, the proposed amended complaint be returned to me for review of the amended complaint and any orders relating to service on the defendants, and it is
ORDERED, that the Clerk of the Court serve a copy of this Order and Report-Recommendation on plaintiff by regular mail.
The Clerk shall also provide plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Hum. Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.