Opinion
5:24-CV-0850 (DNH/ML)
10-29-2024
PIM SHIH, Plaintiff, v. BANKERS HEALTHCARE GROUP, LLC, Defendant.
PIM SHIH Plaintiff, Pro Se
The Clerk of the Court is directed to update Plaintiff's address to include his correct state of New Jersey. (Dkt. No. 1 at ¶ 4; Dkt. No. 2 at 2; Dkt. No. 8 at 2-3.)
ORDER AND REPORT-RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge
The Clerk has sent a complaint in the above captioned action together with an application to proceed in forma pauperis and motion to file electronically in ECF, filed by Pim Shih (“Plaintiff”) to the Court for review. (Dkt. Nos. 1, 2, 8.) For the reasons discussed below, I (1) grant Plaintiff's in forma pauperis application (Dkt. No. 2), (2) deny Plaintiff's motion for permission to file electronically in ECF (Dkt. No. 8), and (3) recommend that Plaintiff's Complaint (Dkt. No. 1) be dismissed with leave to amend.
I. INTRODUCTION
Construed as liberally as possible, the Complaint alleges that Defendant Bankers Healthcare Group, LLC (“Defendant”) discriminated against Plaintiff in denying a loan application. (See generally Dkt. No. 1.) The Complaint alleges that Plaintiff is “an Asian American male and a believer in Jesus Christ the Lord.” (Dkt. No. 1 at 2.)
The court must interpret pro se complaints to raise the strongest arguments they suggest. Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
More specifically, Plaintiff alleges that on September 18, 2023, he applied for credit with Defendant and was denied the same day. (Id.) Plaintiff alleges that the denial communication stated that he would receive a letter within 30 business days outlining the specific reasons for the denial. (Id.) The Complaint alleges that on November 23, 2023, Plaintiff received a letter from Defendant stating that his application was denied due to a “Derogatory Public Record on Record.” (Dkt. No. 1 at 3.) The Complaint alleges that on November 23, 2023, Plaintiff corresponded with Defendant's account manager, Stephen Kiely, during which, Plaintiff identified as a minority business owner and a Christian. (Id.) The Complaint alleges that Mr. Kiely explained that a “Derogatory Public Record” generally refers to issues like collections or late payments and Mr. Kiely identified himself as an Asian American. (Id.)
Based on these factual allegations, the Complaint asserts the following five claims: (1) a claim that Defendant violated Title II of the Equal Credit Opportunity Act (“ECOA”) by discriminating against Plaintiff on the basis of his race and religion; (2) a claim that Defendant violated the New York City Human Rights Law (“NYCHRL”) by discriminating against Plaintiff based on his race and religion; (3) a claim that Defendant breached an implied contract when Plaintiff submitted a loan application and Defendant agreed to consider the application in accordance with applicable laws and regulations; (4) a claim of negligent misrepresentation because Plaintiff does not have any derogatory public record but reasonably relied on Defendant's representation that he did; and (5) a claim of tortious interference with economic relations by denying Plaintiff's loan application based on impermissible factors including Plaintiff's race and religion. (Dkt. No. 1 at 4-19.) As relief, Plaintiff seeks compensatory damages, punitive damages, and injunctive relief “to prohibit Defendant from engaging in further discriminatory practices.” (Id. at 19-21.)
II. PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS
When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $405, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized, however, to permit a litigant to proceed in forma pauperis status if a party “is unable to pay” the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1). After reviewing Plaintiff's in forma pauperis application (Dkt. No. 2), the Court finds that Plaintiff meets this standard. Therefore, Plaintiff's application to proceed in forma pauperis is granted.
The language of that section is ambiguous because it suggests an intent to limit availability of in forma pauperis status to prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the commencement of an action without prepayment of fees “by a person who submits an affidavit that includes a statement of all assets such prisoner possesses”). The courts have construed that section, however, as making in forma pauperis status available to any litigant who can meet the governing financial criteria. Hayes v. United States, 71 Fed.Cl. 366, 367 (Fed. Cl. 2006); Fridman v. City of N.Y., 195 F.Supp.2d 534, 536 n.1 (S.D.N.Y. 2002).
Plaintiff is reminded that, although his application to proceed in forma pauperis has been granted, he is still required to pay fees that he may incur in this action, including copying and/or witness fees.
III. LEGAL STANDARD FOR INITIAL REVIEW OF THE COMPLAINT
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is 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).
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). 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. Eldridge, 505 F.2d 802, 804 (8th Cir. 1974); see Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) (a district court “may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee[.]”); see also Pflaum v. Town of Stuyvesant, Columbia Cnty., N.Y., 11-CV-0335, 2016 WL 865296, at *1, n.2 (N.D.N.Y. Mar. 2, 2016) (Suddaby, C.J.) (finding that the Court had the power to address and dismiss additional theories of the plaintiff's retaliation claim sua sponte because those theories were so lacking in arguable merit as to be frivolous).
Rule 8 of the Fed.R.Civ.P. requires a “short and plain statement” of a claim, showing that “the pleader is entitled to relief.” Whitfield v. Johnson, 763 Fed.Appx. 106, 107 (2d Cir. 2019) (quoting Fed.R.Civ.P. 8(a)). Each statement must be “simple, concise, and direct,' and must give ‘fair notice of the claims asserted.” Whitfield, 763 Fed.Appx. at 107 (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)). A pleading must also contain “a demand for the relief sought[.]” Id. “A complaint may be dismissed under Rule 8 if it is ‘so confused, ambiguous, or otherwise unintelligible that its true substance, if any, is well disguised.'” Id.
“In reviewing a complaint . . . the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam) (reading the plaintiff's pro se complaint “broadly, as we must” and holding that the complaint sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties . . . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).
IV. ANALYSIS
In addressing the sufficiency of a plaintiff's complaint, the court must construe his pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having reviewed Plaintiff's Complaint with this principle in mind, I recommend that it be dismissed.
A. ECOA Claim
Under ECOA, it is unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction “on the basis of race, color, religion, national origin, sex or marital status, or age[.]” 15 U.S.C. § 1691. “Proof of intentional discrimination under the ECOA generally follows the same burden-shifting methodology employed in Title VII cases.” Thompson v. Marine Midland Bank, 198 F.3d 235, 1999 WL 752961, at *2 (2d Cir. 1999). Therefore, the complaint must allege that the plaintiff was a member of a protected class, that he qualified for a loan, that the defendant took adverse action against him with respect to the loan, and the defendant showed preference for someone outside of the protected class. Thompson, 1999 WL 752961 at *2.
Here, Plaintiff's only allegations in support of a claim arising under ECOA are that (1) he is a member of a protected class, and (2) his loan application was denied. (See Dkt. No. 1 at 24.) The Complaint fails to allege facts plausibly suggesting that Plaintiff qualified for a loan or that Defendant showed preference for someone outside of Plaintiff's protected class. See Thompson, 1999 WL 752961 at *2-3. Despite Plaintiff's express reference to ECOA, his sparse allegations fail to plausibly suggest that he has a colorable claim. As a result, I recommend that Plaintiff's ECOA claim be dismissed for failure to state a claim upon which relief may be granted.
The undersigned notes that Plaintiff attached to the Complaint what appears to be the denial letter from Defendant. (Dkt. No. 1 at 22.) Although the copy of the letter in the Complaint is extremely difficult to read, it appears to present four reasons-in separate bullet points-for the denial of Plaintiff's loan application. (Id.) Thus, even taking as true Plaintiff's allegation that he had no derogatory public record, there appear to be three other reasons that he was not qualified for the loan.
B. Claim Pursuant to NYCHRL
“To state a claim under the NYCHRL, the [p]laintiff must allege that the [d]efendant discriminated against her ‘within the boundaries of New York City.'” Robles v. Cox & Co., 841 F.Supp.2d 615, 623 (E.D.N.Y. 2012) (quoting Shah v. Wilco Sys., Inc., 806 N.Y.S.2d 553, 558 (N.Y. 1st Dep't 2005)). “[T]o determine the location of the discrimination under the NYCHRL, courts look to the location of the impact of the offensive conduct.” Curto v. Med World Commc'ns, Inc., 388 F.Supp.2d 101, 109 (E.D.N.Y. 2005); see also Kraiem v. JonesTrading Institutional Servs. LLC, 429 F.Supp.3d 184, 200 (S.D.N.Y. 2020) (citation and quotation marks omitted) (dismissing NYCHRL claims where the alleged conduct did not occur “among those who work in the city.”). The Complaint fails to allege facts plausibly suggesting that any of the discrimination occurred within the boundaries of New York City. As a result, the Complaint fails to allege facts plausibly suggesting a claim pursuant to NYCHRL.
C. Breach of Implied Contract
“Under New York law, ‘[a] contract implied in fact may result as an inference from the facts and circumstances of the case, although not formally stated in words, and is derived from the ‘presumed' intention of the parties as indicated by their conduct.'” Leibowitz v. Cornell University, 584 F.3d 487, 506-07 (2d Cir. 2009) (quoting Jemzura v. Jemzura, 36 N.Y.2d 496, 504 (N.Y. 1975)), superseded by statute, Local Civil Rights Restoration Act of 2005, N.Y.C. Local L. No. 85, as recognized in Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013). “A contract implied in fact is as binding as one that is express, and similarly requires such elements as consideration, mutual assent, legal capacity and legal subject matter.” Leibowitz, 584 F.3d at 507 (internal quotations omitted).
Plaintiff's allegation that he submitted an application for credit fails to allege facts plausibly suggesting that he entered into an implied contract with Defendant. Moreover, Plaintiff does not allege any consideration or mutual assent between the parties to plausibly support a claim that an implied contract existed.
As a result, I recommend that Plaintiff's breach of implied contract claim be dismissed for failure to state a claim upon which relief may be granted.
D. Negligent Misrepresentation
To state a claim for negligent misrepresentation, plaintiff must allege that “(1) the defendant had a duty, as a result of a special relationship, to give correct information; (2) the defendant made a false representation that [it] should have known was incorrect; (3) the information supplied in the representation was known by the defendant to be desired by the plaintiff for a serious purpose; (4) the plaintiff intended to rely and act upon it; and (5) the plaintiff reasonably relied on it to his or her detriment.” Hydro Investors, Inc. v. Trafalgar Power Inc., 227 F.3d 8, 20 (2d Cir. 2000). Plaintiff fails to allege that (1) Defendant had a duty as a result of a special relationship, or (2) Plaintiff reasonably relied on the allegedly false representation of a “Derogatory Public Record” to his detriment. Instead, Plaintiff's email dated November 23, 2023, attached to the Complaint contains Plaintiff's assertion that he does not have a Derogatory Public Record. (Dkt. No. 1 at 23.) Thus, based on Plaintiff's filing, it is apparent that he knew the alleged derogatory public record was false.
As a result, I recommend that Plaintiff's negligent misrepresentation claim be dismissed for failure to state a claim upon which relief may be granted.
E. Tortious Interference
The elements of a claim for tortious interference with prospective economic advantage are “(1) the plaintiff had business relations with a third party; (2) the defendant interfered with those business relations; (3) the defendant acted for a wrongful purpose or used dishonest, unfair, or improper means; and (4) the defendant's acts injured the relationship.” Catskill Dev., L.L.C. v. Park Place Entm't Corp., 547 F.3d 115, 132 (2d Cir. 2008).
The Complaint fails to allege facts plausibly suggesting that Plaintiff had business relations with a third party, that Defendant interfered with those business relations, or that Defendant's acts injured the relationship. As a result, I recommend that Plaintiff's tortious interference claim be dismissed for failure to state a claim upon which relief may be granted.
V. OPPORTUNITY TO AMEND
Generally, a court should not dismiss claims contained in a complaint filed by a pro se litigant 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.” Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991); see also Fed.R.Civ.P. 15(a)(2) (“The court should freely give leave when justice so requires.”). An opportunity to amend is not required, however, where “the problem with [the 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); see also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.).
See also Carris v. First Student, Inc., 132 F.Supp.3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)-that the Court should grant leave to amend “unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would be successful in stating a claim”-is likely not an accurate recitation of the governing law after Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev'd on other grounds, 682 Fed.Appx. 30.
Given that this is the Court's first review of Plaintiff's Complaint and that Plaintiff is a pro se litigant, out of an abundance of caution, I recommend that he be permitted to replead the Complaint.
If Plaintiff chooses to file an amended complaint, he should note that the law in this circuit clearly provides that “‘complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning.'” Hunt v. Budd, 895 F.Supp. 35, 38 (N.D.N.Y. 1995) (McAvoy, J.) (quoting Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987)); accord Pourzancvakil v. Humphry, 94-CV-1594, 1995 WL 316935, at *7 (N.D.N.Y. May 22, 1995) (Pooler, J.). Therefore, in any amended complaint, Plaintiff must clearly set forth facts that give rise to the claims, including the dates, times, and places of the alleged underlying acts, and each individual who committed each alleged wrongful act. In addition, the revised pleading should allege facts demonstrating the specific involvement of any of the named defendants in the constitutional deprivations alleged in sufficient detail to establish that they were tangibly connected to those deprivations. Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). Finally, Plaintiff is informed that any such amended complaint will replace the existing Complaint, and must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the Court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an amended complaint ordinarily supersedes the original and renders it of no legal effect.”).
VI. PLAINTIFF'S MOTION TO OBTAIN ECF LOGIN AND PASSWORD
In light of the recommended disposition of this case, Plaintiff's motion for ECF login and password is denied without prejudice. (Dkt. No. 8.) “Because this court is recommending dismissal at this time, the court will deny [P]laintiff's motion to obtain ECF privileges without prejudice.” Amato v. McGinty, 17-CV-0593, 2017 WL 9487185, at *11 (N.D.N.Y. June 6, 2017) (Baxter, M.J.), report and recommendation adopted, 2017 WL 4083575 (N.D.N.Y. Sept. 15, 2017) (D'Agostino, J.); see Mahmood v. United States Gov't, 20-CV-0207, 2020 WL 3965125, at *3 (N.D.N.Y. Mar. 17, 2020) (Stewart, M.J.) (same), report and recommendation adopted, 2020 WL 1808206 (N.D.N.Y. Apr. 9, 2020) (D'Agostino, J.).
ACCORDINGLY, it is
ORDERED that Plaintiff's application to proceed in forma pauperis (Dkt. No. 2) is GRANTED; and it is further
ORDERED that Plaintiff's motion to obtain an ECF login and password (Dkt. No. 8) is DENIED without prejudice; and it is further
ORDERED that the Clerk of the Court update the docket to reflect Plaintiff's correct home state as New Jersey; and it is further respectfully
RECOMMENDED that Plaintiff's Complaint (Dkt. No. 1) be DISMISSED WITH LEAVE TO REPLEAD for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further
ORDERED that the Clerk of the Court shall file a copy of this order, report, and recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.
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).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen 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 . 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).
(Attachment Omitted)