Opinion
1:23-CV-5990 (JGLC) (JLC)
06-27-2024
DONALD ADDISON MANZANO, Plaintiff, v. TRANS UNION (OF DELAWARE) LLC, Defendant.
TO THE HONORABLE JESSICA G. L. CLARKE, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
JAMES L. COTT, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Donald Addison Manzano, who is proceeding pro se, brings this action against defendant Trans Union LLC (“Trans Union”), alleging violations of the Fair Credit Reporting Act (“FCRA” or “the Act”). Trans Union has moved to dismiss the amended complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, the motion should be granted.
In Trans Union's answer to Manzano's original complaint, it notes an improper identification of defendant's name, and that it should be referred to as Trans Union, LLC, and not Trans Union (of Delaware) LLC. Dkt. No. 11 at 6.
I. BACKGROUND
A. Factual Background
The relevant facts are taken primarily from Manzano's amended complaint (“Am. Compl.”) and are accepted as true for purposes of this motion. Dkt. No. 16. Manzano alleges Trans Union violated the FCRA, 15 U.S.C. § 1681 et seq. Am. Compl. at 2. More specifically, Manzano alleges that Trans Union provided unauthorized access of his consumer report to Midland Credit Management (“Midland Credit”) on October 26, 2022, and again on November 22, 2022. Id. at 5. In its memorandum of law in support of its motion to dismiss (“Def. Mem.”), Trans Union identifies Midland Credit as a debt collection agency. Def. Mem. at 8. Manzano concedes Midland Credit's status as a debt collector in his opposition to Trans Union's motion to dismiss (“Pl. Opp.”). Pl. Opp. at 1. However, Manzano contends that he has no association with Midland Credit. Am. Compl. at 5. Manzano alleges he did not initiate a consumer credit transaction with Midland Credit, did not have an account with Midland Credit, and did not enter into a contract with Midland Credit. Id. Manzano alleges that Trans Union improperly furnished his consumer report to Midland Credit because Trans Union did not use reasonable procedures to verify whether Midland Credit had a permissible purpose to access his consumer report pursuant to 15 U.S.C. § 1681b. Id.
On June 6, 2023, Manzano alleges that he checked his Trans Union credit report and saw “inaccurate, incomplete, and false information” regarding nine of his accounts. Id. Manzano does not specify in his pleading what information was inaccurate, incomplete, or false. In Manzano's opposition, he alleges only that “the payment histories are all incorrect” for six of the nine accounts. Pl. Opp. at 1. On or about June 7, 2023, Manzano sent Trans Union a letter disputing his credit report. Am. Compl. at 5. Manzano did not provide a copy of the letter in his court filings, but it seemingly notified Trans Union of the purportedly false information and asked the company to correct the errors. After receiving Manzano's letter, Trans Union contacted the companies of the nine accounts and verified all information regarding Manzano's Trans Union credit report. Id. Manzano contends the information was still inaccurate, constituting a violation of 15 U.S.C. § 1681i. Id. Manzano contacted Trans Union one other time, after the filing of this case, through an email on January 10, 2024, in which he allegedly attached documentation regarding his Continental Financial Company and OLLO/TBOM bank accounts. Pl. Opp. at 1.
Regarding his purported injuries, Manzano alleges that a third party viewing his consumer report is an invasion of privacy, for which he suffered an injury that manifested in feelings of vulnerability, worry, and anxiety, leading to sleeplessness and headaches. Am. Compl. at 6. Manzano further alleges he suffered a loss of time due to researching the litigation process and learning how to file a case against Trans Union. Id. Lastly, Manzano alleges that the inaccurate information negatively impacted his credit score and as a result, he has been denied credit multiple times, although he does not specify the details of any of the credit rejections. Id.
B. Procedural History
On July 11, 2023, Manzano filed his original complaint. Dkt. No. 1. On November 20, 2023, Trans Union filed an answer. Dkt. No. 11. The case was referred to me on November 22, 2023 for general pretrial supervision. Dkt. No. 12.
Manzano filed an amended complaint on January 11, 2024. Dkt. No. 16. Trans Union moved to dismiss under Rule 12(b)(6) on February 9, 2024. Dkt. No. 17. In support of the motion, Trans Union submitted a memorandum of law. Dkt. No. 17-1. On March 15, 2024, the case was referred to me for dispositive motions. Dkt. No. 18. Pursuant to an extension, Manzano filed his opposition to the motion on April 1, 2024, and on April 10, 2024, Trans Union filed a reply memorandum of law (“Def. Reply”). Dkt. Nos. 20, 21.
In the amended complaint, Manzano listed Prentice-Hall Corporation System, Inc. as a defendant. Am. Compl. at 4. The Court assumes this is an error because Prentice-Hall is not mentioned elsewhere in the pleading, nor even listed in the caption. Accordingly, the Court should sua sponte dismiss Prentice-Hall.
II. DISCUSSION
A. Standard of Review
A party may move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). When a court is determining a Rule 12(b)(6) motion, it 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). However, “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations . . . [it] requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Consequently, a complaint must include facts sufficient to render the allegations plausible on their face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.'”) (quoting Bell Atl. Corp., 550 U.S. at 570). To meet the standard for facial plausibility, a complaint must include facts “that allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678.
Pro se complaints are construed more liberally than complaints drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 520 (1972) (“under the allegations of the Pro se complaint . . . we hold [it] to less stringent standards than formal pleadings drafted by lawyers.”). Furthermore, “[t]he Second Circuit, as a general matter, is solicitous of Pro se litigants, enforcing standards of procedural leniency rather than holding them to the rigidities of federal practice.” Watson v. Geithner, No. 11-CV-9527 (AJN), 2013 WL 5441748, at *2 n.1 (S.D.N.Y. Sept. 27, 2013). However, even under this more liberal standard, a Pro se complaint still must state a plausible claim for relief. Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013). Consequently, a Pro se complaint must be dismissed “where a plaintiff has clearly failed 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).
To prevail under 15 U.S.C. § 1681i, a plaintiff must establish that it is facially plausible that a credit reporting agency posted inaccurate information and did not conduct a reasonable investigation. See, e.g., Gestetner v. Equifax Info. Servs., LLC, No. 18-CV-5665 (JFK), 2019 WL 1172283, at *2 (S.D.N.Y. Mar. 13, 2019) (plaintiff must demonstrate inaccuracy of disputed information to state a claim under § 1681i). To prevail under 15 U.S.C. § 1681b, a plaintiff must demonstrate that it is facially plausible that a credit reporting agency, either negligently or willfully, furnished his or her consumer report to a third party without a permissible purpose. See, e.g., Moore v. Experian, No. 23-CV-0673 (PAE) (SLC), 2023 WL 7169119, at *6 (S.D.N.Y Oct. 13, 2023) (claim under § 1681b must plausibly allege that defendant willfully or negligently failed to maintain reasonable procedures), adopted by 2023 WL 7166158 (Oct. 31, 2023).
B. Analysis
1. Manzano Fails to Allege a Valid Claim Under 15 U.S.C. § 1681i
The FCRA provides procedures for a consumer reporting agency when consumers dispute the accuracy of information contained in their file. 15 U.S.C. § 1681i. Upon notice of an inaccuracy, the consumer reporting agency must “conduct a reasonable reinvestigation to determinate whether the disputed information is inaccurate.” 15 U.S.C. § 1681i(a)(1)(A). If the information is deemed inaccurate, the consumer reporting agency must delete or modify the item of information promptly. 15 U.S.C. § 1681i(a)(5)(i). If the investigation confirms the accuracy of the disputed information, and the dispute is found to be frivolous, then the consumer reporting agency may terminate the investigation. 15 U.S.C. § 1681i(a)(3)(A).
To state a claim under the FCRA, the challenged credit information must be incomplete or inaccurate. Lichtman v. Chase Bank USA, N.A., No. 18-CV-10960 (CS), 2020 WL 1989486, at *4 (S.D.N.Y. Apr. 27, 2020). The burden rests on the plaintiff to “identify the specific information on his credit report that is inaccurate and explain why the identified information is inaccurate.” Phipps v. Experian, No. 20-CV-3368 (LLS), 2020 WL 3268488, at *3 (S.D.N.Y. June 15, 2020).
Here, Manzano falls short of meeting that burden regarding the allegedly inaccurate information. Am. Compl. at 5. In Manzano's amended complaint, he does not identify specific information that is incomplete or inaccurate. See, e.g., Wimberly v. Experian Info. Sols., No. 18-CV-6058 (MKV), 2021 WL 326972, at *5 (S.D.N.Y. Feb. 1, 2021) (“[A] plaintiff asserting a claim under Section 1681i ‘must demonstrate that the disputed information is inaccurate'” (quoting Gestetner, 2019 WL 1172283, at *2); see also Viverette v. Experian, No. 21-CV-6989 (LTS), 2022 WL 357274, at *3 (S.D.N.Y. Feb. 7, 2022) (plaintiff failed to plead essential element under § 1681i because she did not specify and explain why disputed information was false). Manzano alleges that he “checked his credit report and observed inaccurate, incomplete, and false information,” but he fails to specify what and how the information was inaccurate. Am. Compl. at 5. Thus, Manzano's allegations about inaccurate information on his Trans Union consumer report are entirely conclusory and insufficient to state a claim under § 1681i because the amended complaint contains no specific facts that render his claim facially plausible. See Wimberly, 2021 WL 326972, at *5 (“Plaintiff . . . pleads no specific facts to support his proposed claims that the information Defendant reported was inaccurate.”).
An inaccuracy under § 1681i has been defined as something that is “patently incorrect” or “misleading.” Krausz v. Equifax, No. 21-CV-7427 (KMK), 2023 WL 1993886, at *11 (S.D.N.Y. Feb. 14, 2023) (“‘The overwhelming weight of authority holds that 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 on credit decisions'”) (quoting Wenning v. On-Site Manager Inc., No. 14-CV-9693 (PAE), 2016 WL 3538379, at *9 (S.D.N.Y. June 22, 2016)). It is unclear whether Manzano alleges the inaccurate information is either “patently incorrect” or “misleading” because he does not provide details as to what specific information is inaccurate in his consumer report. Since he fails to provide these details, Manzano's claim must fail because “mere imprecision . . . does not render information actionable. Rather, a plaintiff must establish that the information provided by the [credit reporting agency] is open to an interpretation that is directly contradictory to the true information.” Wenning, 2016 WL 3538379, at *9 (cleaned up). Without specifically alleging what information is inaccurate and whether it is “patently incorrect” or “misleading,” Manzano's amended complaint is too vague to state a claim under § 1681i. Gross v. Private National Mortgage Acceptance, 512 F.Supp.3d 423, 427 (E.D.N.Y. 2021) (dismissing complaint because plaintiff failed to allege facts that his credit report was either “patently incorrect” or “misleading”).
Additionally, Manzano alleges that Trans Union did not conduct a reasonable investigation upon receiving his letter regarding the purportedly inaccurate information. Am. Compl. at 5-6. However, the initial issue in considering a § 1681i claim is the accuracy of the information because if the information is not properly alleged as inaccurate, no further inquiry into the reasonableness of the procedures is necessary. See, e.g., Krausz, 2023 WL 1993886, at *11 (“Moreover, if the information in the credit report is accurate, ‘no further inquiry into the reasonableness of the consumer reporting agency's procedure is necessary'”) (quoting Artemov v. TransUnion, LLC, No. 20-CV-1892 (BMC), 2020 WL 5211068, at *2 (E.D.N.Y. Sept. 1, 2020)). Consequently, since Manzano did not sufficiently allege the information in the report was inaccurate, Trans Union's investigation procedures do not need to be analyzed.
Even if Trans Union's investigation procedures were to be considered, the amended complaint does not plead sufficient facts that Trans Union's procedures were unreasonable. To state a facially plausible claim that Trans Union failed to conduct a reasonable investigation, Manzano was required to specifically state the unreasonable aspects of its investigation. See, e.g., Phipps, 2020 WL 3268488, at *3 (“Plaintiff does not allege facts indicating that Experian failed to follow reasonable reinvestigation procedures”). Examining Manzano's amended complaint, the Court finds no allegation of what Trans Union did wrong, or what it should have done. See, e.g., Okocha v. Trans Union, No. 08-CV-3107 (DLI), 2011 WL 2837594, at *6 (E.D.N.Y. March 31, 2011) (“Plaintiff has failed to produce any evidence indicating that Defendants failed to discharge its duty to reinvestigate the disputes in a reasonable manner”). In fact, by Manzano's own admission, Trans Union verified his information with the companies of the nine different accounts. Am. Compl. at 5.
In sum, this claim should be dismissed because Manzano's threadbare recitations of conclusory statements are insufficient to make out a facially plausible claim under § 1681i. A viable claim requires specific details about exactly what information was inaccurate, how it was inaccurate, and how Trans Union failed its duties to investigate.
2. Manzano Fails to Establish that Trans Union Lacked a Permissible Purpose to Share His Credit Report
Section 1681b of the FCRA lists permissible purposes for which a consumer reporting agency may furnish a consumer report. 15 U.S.C. § 1681b. This provision of the Act permits furnishing a consumer report to a person it has reason to believe intends to use the information regarding a credit transaction with the consumer or has a legitimate business need for the information. 15 U.S.C. § 1681b(3)(A)-(F). Section 1681e of the FCRA provides that “[e]very consumer reporting agency shall make a reasonable effort to verify the identity of a new prospective user and the uses certified by such prospective user prior to furnishing such user a consumer report.” 15 U.S.C. § 1681e. Manzano alleges that Trans Union did not use reasonable procedures to verify whether Midland Credit had a permissible purpose to obtain his credit report under § 1681b. Am. Compl. at 5.
For violations of § 1681b, liability is typically for third parties (like Midland Credit), and not for consumer reporting agencies (like Trans Union). See, e.g., Ahmad v. Experian Information Solutions, No. 23-CV-2222 (LJL), 2023 WL 8650192, at *7 (S.D.N.Y. Dec. 14, 2023); Rajapakse v. Seyfarth Shaw, No. 20-CV-10473 (VEC) (OTW), 2022 WL 1051108, at *5 (S.D.N.Y. Feb. 18, 2022), adopted by 2022 WL 855870 (Mar. 23, 2022). Furthermore, Manzano's allegations under § 1681b fall short because he does not specify how Trans Union's procedures failed to verify whether Midland Credit had a permissible purpose to access his consumer report. Moore, 2023 WL 7169119, at *6 (plaintiff did not plausibly allege defendant failed to maintain reasonable procedures to prevent furnishing of information without permissible purpose), adopted by 2023 WL 7166158 (Oct. 31, 2023).
Manzano is required to provide some detail as to what Trans Union did that was impermissible, or what it failed to do, but the amended complaint merely contains conclusory statements on this point. See, e.g., Taylor v. Experian Information Solutions, Inc., No. 5:24-CV-0188 (DNH) (MJK), 2024 WL 618741, at *4 (N.D.N.Y. Feb. 14, 2024) (complaint failed to include sufficient facts for plausible claim regarding unreasonable procedures under § 1681b), adopted by 2024 WL 986483 (Mar. 7, 2024). For example, the amended complaint alleges: “Trans Union did not use reasonable procedures to verify that the user Midland Credit Management had permissible purpose.” Am. Compl. at 5. Without more, it is unclear what Manzano is alleging that constitutes a failure to meet the reasonable procedures requirement.
Furthermore, Manzano fails to allege that Trans Union did not verify Midland Credit's identity. Under the FCRA, Trans Union is only required to verify Midland Credit's identity as a legitimate business and debt collection agency. See, e.g., Pietrafesa v. First American Real Estate Information Services, Inc., No. 1:05-CV-1450 (LEK), 2007 WL 710197, at *4 (N.D.N.Y. Mar. 6, 2007) (defendant had permissible purpose in furnishing information to third party because it verified third party's identity as legitimate real estate loan company). Trans Union was not required to verify that Midland Credit was actually sold a debt on Manzano's account. Id. (“It would be unreasonable to require credit reporting agencies processing a high number of requests to independently investigate each and every request to determine its legitimacy.”). Manzano's pleading does not allege that Midland Credit is a fraudulent business or that Trans Union did not verify its identity as a debt collection agency. In fact, Manzano's opposition papers acknowledge that Midland Credit is a “debt collector.” Pl. Opp. at 1. To state a claim, Manzano was required to identify and provide details regarding specific deviations from the standard of care in verifying Midland Credit's identity as a legitimate debt collection agency.
In addition, Manzano fails to allege any facts related to Trans Union's state of mind, which is required for a § 1681b claim. Various courts have found that for a complaint under any provision of the FCRA to survive a motion to dismiss, it “‘must allege specific facts as to the defendant's mental state.'” Perez v. Experian, No. 20-CV-9119 (PAE) (JLC), 2021 WL 4784280, at *11 (S.D.N.Y. Oct. 14, 2021) (quoting Braun v. Client Servs. Inc., 14 F.Supp.3d 391, 397 (S.D.N.Y. 2014)), adopted by 2021 WL 5088036 (Nov. 2, 2021). To find Trans Union liable under § 1681b, Manzano is required to make detailed assertions that Trans Union acted willfully or negligently. Perl v. Am. Exp., No. 12-CV-4380 (ER), No. 12-CV-4796 (ER), 2012 WL 2711270, at *2 (S.D.N.Y. July 9, 2012) (“To state a claim for civil liability based on Section 1681b, a plaintiff must allege . . . that the violation was willful or negligent”); see also Perl v. Plains Com. Bank., No. 11-CV-7972 (KBF), 2012 WL 760401, at *2 (S.D.N.Y. Mar. 8, 2012) (“[P]laintiff's assertion that defendant's state of mind in doing so was . . . conclusory.”). Manzano's allegations do not refer to Trans Union's state of mind whatsoever, and thus, even if the company did make a mistake, “it is just as possible, based on the factual allegations, that the defendant in each case made an innocent mistake.” Perl, 2012 WL 760401, at *2. Bare conclusions regarding a defendant's mental state are insufficient for a claim to be facially plausible; therefore, allegations completely absent of a purported mental state must also be found insufficient. See Taylor, 2024 WL 618741, at *4.
For these reasons, Manzano's amended complaint does not make out a facially plausible claim under § 1681b.
3. Manzano's Injuries Are Insufficient to Establish Standing
Even if Manzano's claims were otherwise cognizable, his alleged injuries are insufficient to establish standing under Article III. Standing requires the plaintiff to “have suffered an ‘injury in fact' . . . which is . . . concrete and particularized.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). As the Supreme Court has put it succinctly: “[n]o concrete harm, no standing.” TransUnion LLC, v. Ramirez, 594 U.S. 413, 417 (2021). A concrete and particularized injury must be an actual and specific injury. See, e.g., Braver v. Diversified Adjustment Service, Inc., No. 22-CV-9390 (NSR), 2023 WL 8435825, at *3-4 (S.D.N.Y. 2023) (plaintiff lacks standing because his injury is merely conclusory and speculative). Where the purported harm is reputational or financial, a plaintiff must provide specific details. See, e.g., Adler v. Penn Credit Corporation, No. 19-CV-7084 (KMK), 2022 WL 744031, at *8 (S.D.N.Y. 2022) (“cases in the Second Circuit brought in the context of financial credit-including claims specifically brought pursuant to . . . the FCRA . . . have uniformly held that, absent specific evidence of reputational or monetary harm, plaintiffs lack standing.”).
One of Manzano's alleged injuries is an invasion of privacy, but § 1681h(e) provides that “no consumer may bring any action or proceeding in the nature of . . . invasion of privacy with respect to the reporting of information against any consumer reporting agency. . . except as to false information furnished with malice or willful intent to injure such consumer.” Manzano does not allege that Trans Union gave Midland Credit access to his consumer report with malice or willful intent to injure him. See, e.g., Ogbon v. Beneficial Credit Services, Inc., No. 10-CV-3760 (PAE), 2013 WL 1430467, at *11 (S.D.N.Y. 2013) (dismissing FCRA claim because insufficient details provided for alleged injury of intentional infliction of emotional distress). Consequently, Manzano's emotional injury caused by the alleged invasion of privacy is not a cognizable harm.
Manzano also alleges to have suffered an injury by way of loss of time in researching the litigation process. However, loss of time is not recoverable because Manzano does not explain how the loss of time was a concrete injury that impacted his earnings or its equivalent. See, e.g., In re General Motors LLC Ignition Switch Litigation, 339 F.Supp.3d 262, 329 (S.D.N.Y. 2018) (“recovery for lost time has been connected to loss of earnings, wages, or other income, turning on whether one has lost time that one might otherwise have used to one's profit.”). Furthermore, when analyzing recovery for lost time under the Fair Debt Collection Practices Act, which is “an analogous statute” to the FCRA, Sputz v. Alltran Fin., LP, No. 21-CV-4663 (CS), 2021 WL 5772033, at *6 (S.D.N.Y. Dec. 5, 2021), courts have found that “[t]ime and money spent due to concern and confusion are not concrete harms.” Merced v. Resurgent Cap. Servs., L.P., No. 22-CV-08327 (ALC), 2024 WL 1076519, at *3 (S.D.N.Y. Mar. 12, 2024) (quoting Braver, 2023 WL 8435825, at *4). Manzano merely states that the loss of time is an injury itself, which fails as a matter of law.
Manzano's third alleged injury is that the inaccurate information regarding his nine bank accounts had a negative impact on his credit score. In the amended complaint, Manzano states that he has been denied credit multiple times as a result of his worsened credit score. Am. Compl. at 6. The Second Circuit has found that in order for plaintiffs to have standing on the basis of a worsened credit score, they must allege specific facts that show how the negative credit score materialized into a more concrete and traceable injury. See, e.g., Maddox v. Bank of New York Mellon Trust Company, N.A., 19 F.4th 58, 65 (2d Cir. 2021) (plaintiff did not have standing because she failed to allege that her adversely impacted credit score materialized into specific injury). Manzano only alleges that “[his] creditworthiness has been negatively impacted . . . [and he] has been denied credit multiple times.” Am. Compl. at 6. These threadbare conclusions are insufficient to constitute a cognizable injury. See, e.g., Stephenson-Ortiz v. Simon's Agency, Inc., No. 19-CV-2639 (RPK) (RML), 2023 WL 2711269, at *3 (E.D.N.Y. Mar. 30, 2023) (plaintiff lacks standing because she did not identify actual harm resulting from her damaged credit score). Additionally, Manzano's description is insufficient because “‘[a] lowered credit score in and of itself is not a concrete harm,' absent ‘any allegations or other support that plaintiff was in fact denied credit or that plaintiff suffered any concrete consequences as a result of an allegedly lowered credit score.'” Krausz v. loanDepot.com, LLC, 22-CV-0152 (VB), 2022 WL 16960928, at *2 (S.D.N.Y. Nov. 16, 2022) (quoting Zlotnick v. Equifax Info. Servs., LLC, 583 F.Supp.3d 387, 392 (E.D.N.Y. 2022)). Thus, Manzano was required to provide details regarding the denial of credit because of the worsened credit score, but failed to do so.
In sum, Manzano's alleged injuries are insufficient to establish standing under Article III.
4. Manzano'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, even in a Pro se case “‘it is proper to deny leave to [amend] when there is no merit in the proposed amendments or amendment would be futile.'” Costello v. Wells Fargo Bank, NA, No. 22-CV-1528, 2023 WL 6380061, at *2 (2d Cir. Oct. 2, 2023) (quoting Hunt v. All. N. Am. Gov't Income Tr., Inc., 159 F.3d 723, 728 (2d Cir. 1998)).
Here, Manzano had the opportunity to submit an amended complaint and has filed opposition papers as well. Dkt. Nos. 16, 20. Thus, he has now had three opportunities to plead his claims, including after Trans Union answered the original complaint, putting him on notice of its defects. In these submissions, Manzano has provided no basis to conclude that he has a plausible claim under the FCRA.
Therefore, Manzano's claims should be dismissed without further leave to amend unless he presents additional evidence in any objection he files to this report. See, e.g., Sprague v. Salisbury Bank and Tr. Co., 969 F.3d 95, 101 (2d Cir. 2020) (affirming dismissal of FCRA claims with prejudice because plaintiff was given opportunities to fix claim's deficiency but failed to do so); Ngambo v. Chase, No. 20-CV-2224 (NSR), 2023 WL 9004789, at *5 (S.D.N.Y. Dec. 28, 2023) (dismissing pro se plaintiff's FCRA claims with prejudice because he failed to cure his complaint's deficiencies after multiple opportunities to amend); cf. Augustin v. Capital One, No. 14-CV-179 (CBA) (VMS), 2015 WL 5664510, at *2 (E.D.N.Y. Sept. 24, 2015) (granting Pro se in FCRA case leave to further amend to incorporate additional evidence presented in objection to Report and Recommendation).
III. CONCLUSION
For the reasons stated herein, Trans Union's motion to dismiss should be granted.
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 have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Jessica G. L. Clarke and the undersigned, United States Courthouse, 500 Pearl Street, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Clarke.
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).