Opinion
23-CV-9245 (GHW) (JLC)
07-31-2024
RUTH NOEMI NORMAN, Plaintiff, v. EXPERIAN INFORMATION SOLUTIONS, INC, EQUIFAX INFORMATION SERVICES, LLC, and TRANS UNION LLC, Defendants.
HONORABLE GREGORY H. WOODS, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
JAMES L. COTT, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Ruth Noemi Norman, who is proceeding pro se, brings this action against defendant Trans Union LLC (“Trans Union”), alleging violations of the Fair Credit Reporting Act. The action originally included two additional defendants, Experian Information Solutions, Inc. (“Experian”), and Equifax Information Services, LLC (“Equifax”) (collectively, with Trans Union, “defendants”). However, Norman reached settlements with Experian and Equifax and they have been dismissed from the case. Trans Union, the remaining defendant, has now moved to dismiss Norman's second 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 second amended complaint (“SAC”) filed on April 18, 2024 (Dkt. No. 29), and are accepted as true for purposes of this motion. Norman's pleading contains few specifics and no dates, so a detailed summary of the facts is not possible. In short, Norman asserts claims against Trans Union, a credit reporting company, alleging violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. SAC at 3.
Norman's “Objection to Motion to Dismiss,” which the Court construes as her second amended complaint, did not include paragraph numbers. Therefore, when citing to it, the Court refers to the numbers automatically generated by ECF at the top of the page.
Specifically, Norman alleges that Trans Union failed to ensure the accuracy of her disputed tradelines when preparing her consumer credit reports. Id. at 3-4. In addition, she alleges that Trans Union failed to properly reinvestigate disputes on her credit reports, failed to delete inaccurate or unverifiable information, and failed to follow a procedure preventing false information from appearing on her credit report after reinvestigation, damaging her credit rating and causing her mental and emotional distress. Id. at 3-5. Norman further alleges that Trans Union failed to provide her with a written description of the procedures it used to determine the accuracy of the disputed information. Id. at 5.
The crux of Norman's second amended complaint (as was also the case in her first amended complaint) appears to be that Trans Union incorporated information received from debt collection agencies into her credit report, did not remove that information when she disputed it, and furnished her credit report to unknown third parties without her permission.
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, which is referred to herein as the first amended complaint, explicitly declaring violations of the FCRA to be the basis of her claims. First Amended Complaint (“FAC”) ¶¶ 15-18. Dkt. No. 1-2. 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 first amended complaint. Dkt. No. 16.
On February 29, 2024, I issued a Report and Recommendation recommending that defendants' motion to dismiss be granted and that Norman's first amended complaint be dismissed with prejudice. Dkt. No. 25. On March 19, 2024, the Report and Recommendation was adopted nearly in full, dismissing Norman's first amended complaint but dismissing it without prejudice. Dkt. No. 28. On April 18, 2024, Norman filed an “Objection to Motion to Dismiss,” which the Court has construed as her second amended complaint. Dkt. Nos. 29, 31.
On May 8, 2024, the Court received a notice of settlement confirming settlement between Norman and Experian. Dkt. No. 37. On June 20, 2024, the Court dismissed the complaint against Experian with prejudice. Dkt. No. 53. On May 14, 2024, the Court received a notice of settlement between Norman and Equifax. Dkt. No. 41. On May 20, 2024, the Court dismissed the complaint against Equifax with prejudice. Dkt. No. 44.
On June 3, 2024, Trans Union, the remaining defendant, moved to dismiss Norman's second amended complaint. Dkt. No. 46. In support, Trans Union submitted a memorandum of law (“Def. Mem.”). Dkt. No. 47. On June 18, 2024, Norman submitted a response to Trans Union's motion to dismiss (“Pl. Opp.”). Dkt. No. 54. On July 1, 2024, Trans Union submitted its reply papers (“Def. Reply”). Dkt. No. 55. On July 24, 2024, Norman submitted a document entitled, “Objection to Motion to Dismiss,” which is effectively a sur-reply.
While sur-replies are not permitted without court authorization, and are generally not considered, see, e.g., Preston Hollow Cap. LLC v. Nuveen Asset Mgmt. LLC, 343 F.R.D. 460, 466 (S.D.N.Y. 2023) (collecting cases), the Court has nonetheless reviewed Norman's latest submission and concludes that it does not add anything to change the recommended outcome.
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 her 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 Second Amended Complaint Should Be Dismissed For Failure to State a Claim
1. Norman Fails to Plausibly Allege Inaccuracies on Her Disputed Tradelines and Defendants' Failure to Delete Unverified Information From Her Credit Reports
Citing 15 U.S.C. § 1681e(b), Norman alleges defendants “failed to follow reasonable procedures to assure maximum possible accuracy of the disputed tradelines information when preparing [her] consumer credit reports.” SAC at 3.
She does not, however, provide any support for her claim, nor does she identify a credit report that was furnished inaccurately.
Section 1681e(b) imposes a duty on credit reporting agencies like Trans Union 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. 15 U.S.C. § 1681i(a). 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); see also 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).
In her response to the motion to dismiss, Norman alleges that “Trans Union reported derogatory accounts that were inaccurately reported on [her] consumer report.” Pl. Opp. at 3. However, Norman provides even fewer details in her second amended complaint than in her previous filings. She does not provide any further details in her opposition papers or in the second amended complaint beyond her claim in the first amended complaint that 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.” FAC ¶ 11. The four companies listed in her first amended complaint are debt collection companies. Initial Opposition (“In. Opp.”) at 28, 34, 48-50, 52, Dkt. No. 19. In her opposition papers to the prior motion to dismiss, Norman provided copies of the responses to her review requests from Trans Union (as well as Equifax, though not from Experian). In. Opp. at 8-13, 56-63. These responses establish that 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 prior opposition papers confirm that they are debt collection companies. In. Opp. at 28, 33, 45, 48-51; see also Dkt. No. 17 at 7 n.2 (listing cases where these companies are identified as debt collection agencies).
Just as in her first amended complaint, Norman's argument now rests entirely on Trans Union's purported failure to revise her credit report based on a lack of a contract between her and the debt collection companies who may have provided Trans Union with the challenged information. In her second amended complaint, Norman alleges Trans Union's failure to follow reasonable procedures to ensure the accuracy of her credit report and its failure to delete inaccurate or unverifiable information from her credit report constitute a violation of the FCRA.
Notably, Norman still does not explicitly argue that the underlying accounts contained in her credit report are incorrect, only that Trans Union did not verify them. She alleges in her second amended complaint only that Trans Union failed to “delete information that was inaccurate or could not verify.” SAC at 4.
SAC at 3-5. However, she pleads no additional facts and makes no new arguments. To the extent she alleges that information on her credit report is inaccurate or unreliable because Trans Union did not produce copies of her transactions with the companies listed in the first amended complaint, “[credit reporting agencies] are not responsible for maintaining or presenting original copies of ‘contracts' for the accounts they report.” Whiteford v. Equifax Inc., No. 2:21-CV-94 (WSS), 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. 3:17-CV-422 (MCR) (CJK), 2018 WL 5986534, at *3 (N.D. Fla. Oct. 12, 2018), adopted by 2018 WL 5981841 (Nov. 14, 2018).
Norman's vague and conclusory allegations are insufficient to sustain a cause of action under Section 1681i in the same way that her allegations in the first amended complaint were inadequate. 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).
2. Norman Fails to Plausibly Allege That Defendants Failed to Comply with Reinvestigation Requirements and Failed to Prevent Giving False Information to Debt Collection Agencies
Norman also alleges Trans Union failed to comply with reinvestigation requirements and failed to have a procedure to prevent giving false information upon reinvestigation. Pl. Opp. at 4-5. To state a facially plausible claim that Trans Union failed to conduct a reasonable reinvestigation, Norman was required to specifically state the unreasonable aspects of the 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 Norman's second amended complaint and her opposition papers, 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, as reflected in Norman's own submissions, Trans Union conducted reinvestigations in response to her requests and removed some challenged items from her credit report. In. Opp. at 56-63.
The Court previously recommended dismissal of these claims because Norman misconstrued FCRA's limitations on report furnishing, failed to allege that defendants did not complete a reinvestigation of her credit report, and incorrectly interpreted the definition of the consumer report in the FCRA. Report and Recommendation at 5-9, Dkt. No. 25. The second amended complaint did not rectify Norman's failure to plausibly allege those claims. Instead, it simply recited sections of the United States Code and made statements that asserted in conclusory fashion that Trans Union failed to verify the accuracy of the disputed tradelines and failed to comply with reinvestigation requirements as the basis of Norman's remedy. SAC at 3-5.
In sum, Norman's second amended complaint and her opposition papers fail to state a claim under the FCRA. Her claims rest solely on incorrect interpretations of the FCRA and therefore they should be dismissed.
3. 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 multiple opportunities to plead her claims, and has now had the benefit of the Court's analysis on defendants' prior motion to dismiss. Dkt. Nos. 1-3, 29, 54, 56. Granting another opportunity to amend would thus be futile. Norman has provided no basis to conclude that 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 second amended complaint 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 the foregoing reasons, I recommend that Trans Union's motion to dismiss be granted and that Norman's second 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).