Opinion
16-cv-00072 (AMD)(MDG)
06-01-2016
CAMPBELL, Plaintiff, v. PORTFOLIO RECOVERY ASSOCIATES, LLC Defendant
MEMORANDUM DECISION AND ORDER ANN DONNELLY, District Judge.
The pro se plaintiff, Leaser Campbell, alleges that the defendant, Portfolio Recovery Associates, LLC, violated the Fair Credit Reporting Act ("FCRA") by pulling her consumer credit reports without her permission. The defendant moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that the complaint fails to state a claim on which relief may be granted. For the reasons set forth below, the defendant's motion to dismiss is granted.
FACTUAL BACKGROUND
The sole allegation in the plaintiff's complaint is that on ten different occasions between October 23, 2014 and November 17, 2015, Portfolio Recovery Associates, LLC ("PRA") pulled her Experian and Trans Union consumer credit reports without her permission. (ECF 1, ¶¶ 8-9.) The plaintiff states that she has never had any business dealings with the defendant; she has never received an offer of credit from the defendant; and she has never applied for employment, credit, or insurance from the defendant. (Id. ¶ 17.) Based on these allegations, the plaintiff claims $11,000 in statutory damages, plus punitive damages, attorney's fees, and costs. (Id. ¶ 22.)
STANDARD OF REVIEW
In order to survive a motion to dismiss, a complaint must contain "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). "A claim has facial plausibility 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). At the motion to dismiss stage, the court accepts the facts alleged in the complaint as true, and draws all reasonable inferences in the plaintiff's favor. Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). Legal conclusions in the complaint, on the other hand, do not have to be accepted as true, and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Iqbal, 566 U.S. at 678).
A court must "liberally" construe a pro se plaintiff's complaint "to raise the strongest arguments that [it] suggest[s]," Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013), and must hold it "to less stringent standards than formal pleadings drafted by lawyers." Nguyen v. Ridgewood Sav. Bank, 66 F.Supp.3d 299, 303 (E.D.N.Y. 2014) (quoting Hughes v. Rowe, 449 U.S. 5, 9 (1980)). This "liberal treatment," however, does not "exempt a pro se party from compliance with relevant rules of procedural and substantive law." Bell v. Jendell, 980 F.Supp. 2d 555, 559 (S.D.N.Y. 2013) (internal citation and quotation marks omitted). Further, a court "need not argue a pro se litigant's case nor create a case for the pro se which does not exist," Molina v. New York, 956 F.Supp. 257, 259 (E.D.N.Y. 1995), and "[w]hen a pro se plaintiff has altogether failed to satisfy a pleading requirement, the Court must dismiss the claim." Malachi v. Postgraduate Center for Mental Health, No. 10-cv-3527, 2013 WL 782614, at *1 (E.D.N.Y. Mar. 1, 2013) (citing Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997)).
DISCUSSION
Congress enacted the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et. seq., "to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy." Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52 (2007). The FCRA requires that "consumer reporting agencies adopt reasonable procedures" for ensuring the "confidentiality, accuracy, relevancy, and proper utilization" of consumer credit information. 15 U.S.C. § 1681; see also Nguyen, 66 F.Supp.3d at 303. Specifically, section 1681(b) of the FCRA "protects consumer privacy by limiting access to consumer credit reports." Moses Perl v. American Exp., Nos. 12-cv-4380, 12-cv-4796, 2012 WL 2711270, at *2 (S.D.N.Y. July 9, 2012). To state a claim under section 1681(b), "a plaintiff must allege both that the defendant used or obtained the plaintiff's credit report for an impermissible purpose and that the violation was willful or negligent." Betz v. Matte, No. 12-cv-5946, 2013 WL 5603846, at *2 (E.D.N.Y. Oct. 10, 2013) (quoting Moses Perl, 2012 WL 2711270, at *2); see also Casella v. Equifax Credit Info. Servs., 56 F.3d 469, 473 (2d Cir. 1995) ("The FCRA creates a private right of action against credit reporting agencies for the negligent, see 15 U.S.C. §1681o, or willful, see id. §1681n, violation of any duty imposed under the statute.") (internal citation omitted). Section 1681(b)(a) sets forth the only permissible purposes for furnishing a credit report; these purposes include use in connection with a credit transaction, employment purposes, the underwriting of insurance, a credit evaluation, evaluation for a license or other government benefit, or in connection with another legitimate business need.
A plaintiff asserting a negligent violation of the FCRA by a defendant must also allege that the violation caused her actual damage. 15 U.S.C. §1681o; see also Israel Perl v. American Exp., No. 11-cv-7374, 2012 WL 178333, at *3 (S.D.N.Y. Jan. 19, 2012) (dismissing FCRA claims based on negligence of the defendants as "plaintiffs in these actions have failed adequately to allege another necessary element of the negligence cause of action—actual damage.")
By asserting that she never had any business dealing with or received an offer of credit from the defendant, and that she did not seek employment, credit or insurance from it, the plaintiff adequately alleges that the defendant used her credit reports for an impermissible purpose. See Moses Perl, 2012 WL 2711270, at *2; see also Augustin v. Capital One, No. 14-cv-179, 2015 WL 5657365, at *4 (E.D.N.Y. July 27, 2015), report and recommendation adopted, 2015 WL 5664510 (E.D.N.Y. Sept. 24, 2015) ("A plaintiff's allegation that he knew of no permissible purpose for the defendant's accessing his credit report has been found sufficient to allege a technical violation of 15 U.S.C. § 1681(b)."); Farkash v. RJM Acquisitions Funding, Inc., No. 12-cv-735 et al., 2012 WL 1948643, at *2 (S.D.N.Y. May 29, 2012) ("In each of the instant cases, Mr. Farkas adequately alleges that his report was obtained for an impermissible purpose by alleging that he 'never had any business dealings or any accounts with, made application for credit from, made application for employment with, applied for insurance from, or received a bona fide offer of credit from'" the defendant.).
But the complaint includes no allegation that the defendant's alleged violations were willful or negligent, let alone any facts that could support such an assertion. Willfulness, as used in the FCRA, means "knowledge or recklessness." Moses Perl, 2012 WL 2711270, at *2 (citing Safeco Ins. Co., 551 U.S. at 57). While the complaint does allege a "series of pulls" of the plaintiff's credit reports, and suggests that there could be no permissible purpose for these pulls, this alone does not "provide enough factual content to allow this Court to draw the reasonable inference that the alleged violation was willful." Israel Perl v. American Exp., No. 11-cv-7374, 2012 WL 178333, at *2 (S.D.N.Y. Jan. 19, 2012); see also Augustin, 2015 WL 5657365, at *6 ("Plaintiff's own lack of knowledge of a lawful reason for the credit pulls is insufficient to allege willfulness.") Indeed, based on the allegations in the complaint, the defendant's conduct "could just as likely have been unintentional." Israel Perl, 2012 WL 178333, at *2. Further, "[a]llegations stating a violation of the FCRA are insufficient, without more, to establish the element of negligence, which Congress clearly intended to be an extra hurdle to liability under the FCRA." Id. at *3 (citing 15 U.S.C. § 1681o).
By contrast, with respect to the plaintiff's claims against different defendants, the court in Israel Perl found the pleadings were sufficient to support claims for willfulness where the plaintiff had alleged that the "relevant defendant repeatedly informed the relevant plaintiff that it could not find any record of an account belonging to him or her." 2012 WL 178333, at *3. The Court reasoned that "[i]f, as alleged in each of those two actions, the relevant defendant was well aware that the plaintiff had no account, it plausibly follows that the defendant was also aware that it had no permissible purpose for obtaining the plaintiff's credit report." Id. --------
Therefore, the plaintiff has not adequately pled a required element of a claim under section 1681(b) of the FCRA, and I must dismiss her complaint. Betz, 2013 WL 5603846, at *2 (dismissing claim as a matter of law where "[p]laintiff fails to allege any specific facts to support his assertion that defendants pulled his credit report for an impermissible purpose or that defendants acted willfully or negligently"); Moses Perl, 2012 WL 2711270, at *3 (dismissing claim under 1681(b) where the plaintiff "allege[d] no facts that would establish that Defendants knew they had no permissible purpose or recklessly disregarded their obligation to have a permissible purpose under the law"); Farkash, 2012 WL 1948643, at *3 (same).
A district court should not dismiss a pro se plaintiff's complaint, however, "without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Shelton v. Trs. of Columbia Univ., 236 Fed.Appx. 648, 649 (2d Cir. 2007) (quoting Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991). Therefore, the plaintiff may re-plead her complaint within 30-days. If the plaintiff chooses to re-plead, conclusory statements that the defendant's conduct was willful or negligent will not suffice; rather, she must plead facts from which the Court can reasonably infer that the defendant willfully or negligently violated the FCRA. If the plaintiff does not re-plead within 30-days, then her claims will be dismissed with prejudice.
SO ORDERED.
s/Ann M. Donnelly
Ann M. Donnelly
United States District Judge Dated: Brooklyn, New York
June 1, 2016