Opinion
23-CV-6270 (LTS)
10-16-2023
TYNEARIA A. VARLACK, Plaintiff, v. BANK OF AMERICA; EARLY WARNING SYSTEMS; CHEX SYSTEMS, Defendants.
ORDER TO AMEND
LAURA TAYLOR SWAIN, Chief United States District Judge
Plaintiff Tynearia A. Varlack, of Bronx County, New York, filed this pro se action. She sues Bank of America, Early Warning Systems, and Chex Systems, alleging that Defendants violated her rights. By order dated July 31, 2023, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis (“IFP”). For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within 60 days of the date of this order.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits - to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
The Court must dismiss an IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction of the claims raised. See Fed.R.Civ.P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits - to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
Rule 8 requires a complaint to include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id.
BACKGROUND
Plaintiff brings this action using the Court's general complaint form, invoking the Court's federal question jurisdiction. In the section that asks Plaintiff which of her federal constitutional or federal statutory rights have been violated, Plaintiff writes, “UCC 1-308 [,] U.S. code 1681b[,] U.S. code 1681.” (ECF No. 2 at 2.) In her statement of claim, Plaintiff alleges the following:
On 9-19-2018 there was a fraudulent account openend under my name without my consent and it has been reporting on my consumer report for 6 years now which is illegal, the banking system is dependent upon fair and accurate credit reporting. In accurate credit reports directly impairs the efficiency of the banking system & unfair credit reporting methods undermine the public confidence which is essential to continued functioning of the banking system. Now well if a negative account is on my consumer report & I can't use my consumer report in regards to that negative account how is the fair under the FCRA, how is it fair to me if I can't use my credit report.(Id. at 5.)
The Court quotes the complaint verbatim. All spelling, punctuation, and grammar are as in the original.
Plaintiff alleges that her injuries include “loss of credit, mental anxiety, deformation of character, I see a pschy.” (Id. at 6.) By way of relief, Plaintiff states that she “want[s] the highest amount 7,000,000,000 for my damages.” (Id.)
DISCUSSION
The Court construes Plaintiff's allegations as asserting claims under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., based upon Plaintiff's citing federal statutes that govern accessing credit information and her allegations that Defendants violated her rights.
A. FCRA
Congress enacted the FCRA to ensure that “consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information.” 15 U.S.C. § 1681(b). The FCRA regulates the activities of consumer reporting agencies and the use and dissemination of consumer credit information. See 15 U.S.C. § 1681 et seq. The FCRA places obligations on three types of entities involved in consumer credit: consumer reporting agencies, users of consumer reports, and furnishers of information to consumer reporting agencies. See Burns v. Bank of Am., No. 03 Civ. 1685 (RMB) (JCF), 2003 WL 22990065, at *2 (S.D.N.Y. Dec. 18, 2003); Redhead v. Winston & Winston P.C., No. 01-CV-11475 (DLC), 2002 WL 31106934, at *3 (S.D.N.Y. Sept. 20, 2002).
1. Reporting Inaccurate Information
The FCRA imposes certain duties on entities furnishing information to consumer reporting agencies. 15 U.S.C. § 1681s-2.Subsection 1681s-2 (a) states that persons “shall not furnish any information relating to a consumer to any consumer reporting agency if the person knows or has reasonable cause to believe that the information is inaccurate.” 15 U.S.C. § 1681s-2(a)(1)(A). But “there is no private cause of action for violations of § 1681s-2(a).” Longman v. Wachovia Bank, N.A., 702 F.3d 148, 151 (2d Cir. 2012). This is because subsection (a) of the FCRA “shall be enforced exclusively . . . by the Federal agencies and officials and the State officials identified in section 1681s of this title.” 15 U.S.C. § 1681s-2(d); Comunale v. Home Depot, U.S.A., Inc., 328 F.Supp.3d 70, 79 (W.D.N.Y. 2018) (“There is no private cause of action under Section 1681s-2(a), for the FCRA limits the enforcement of this subsection to government agencies and officials.”).
The term “furnishers of information” is not defined in the statute, see 15 U.S.C. § 1681a, but it has been interpreted to mean “entities that transmit, to credit reporting agencies, information relating to debts owed by consumers,” Kane v. Guaranty Residential Lending, Inc., No. 04-CV-4847, 2005 WL 1153623, at *3 (S.D.N.Y. May 16, 2005). The Court assumes for purposes of this order that Defendants are furnishers of information.
Because Plaintiff asserts that Defendants placed inaccurate information on her credit report, the Court construes this assertion as an allegation that Defendants reported inaccurate information to credit reporting agencies. This claim must be dismissed, however, because individuals do not have a private right of action under § 1681s-2(a).
2. Duty to Investigate
Section 1681s-2(b) of the FCRA “governs the furnishers' duty once notice is received from a credit reporting agency that there is a dispute as to the completeness or accuracy of the information provided to that reporting agency.” Comunale, 328 F.Supp.3d at 77-78. The FCRA “does provide for a private cause of action pursuant to § 1681s-2(b).” Id. at 80.
A furnisher's duties under § 1681s-2(b) include, among other things, to “conduct an investigation with respect to the disputed information,” after receiving notice from a consumer reporting agency. 15 U.S.C. § 1681s-2(b)(1). “To state a claim [under § 1681s-2(b)(1)], a consumer must show that (1) a furnisher received notice of a credit dispute from a [credit reporting agency] (as opposed to from the consumer alone) and (2) the furnisher negligently or willfully failed to conduct a reasonable investigation.” Jackling v. HSBC Bank USA, N.A., No. 15-CV-6148 (FPG), 2019 WL 162743, at *4 (W.D.N.Y. Jan. 10, 2019).
In determining whether a furnisher of information has satisfied its obligations arising under Section 1681s-2(b), “courts have required a ‘reasonable investigation.'” Amendoeira v. Monogram Credit Card Bank of Ga., No. 05-CV-4588, 2007 WL 2325080, at *1 (E.D.N.Y. Aug. 7, 2007). The reasonableness of a furnisher's investigation depends upon the nature and scope of the consumer's dispute. See Okocha v. HSBC Bank USA, N.A., No. 08-CV-8650, 2010 WL 5122614, at *6 (S.D.N.Y. Dec. 14, 2010) (examining the reasonableness of a furnisher of information's investigation based upon “what it was told by the credit bureau”).
Once a dispute has been raised, the FCRA does not require that a furnisher of information delete a consumer's disputed account, but rather “simply requires the furnisher of information to investigate and to report information from the investigation.” Ritchie v. N. Leasing Sys., Inc., No. 12-CV-4992, 2016 WL 1241531, at *17 (S.D.N.Y. Mar. 28, 2016). To allege that an investigation was unreasonable, Plaintiff must plead some facts about the nature of the dispute. See, e.g., Okocha, 2010 WL 5122614, at *6 (examining the reasonableness of a furnisher of information's investigation based upon “what it was told by the credit bureau”).
Plaintiff's allegations are insufficient to state a valid FCRA claim. Plaintiff does not allege that she disputed information that appeared on her credit report. The Court therefore grants Plaintiff leave to replead this claim. If Plaintiff submits an amended complaint asserting a claim under Section 1681s-2(b), she must plead some facts about what information Defendants are erroneously reporting, that she raised a dispute as to that information, that Defendants investigated Plaintiff's claims, and how Defendants' investigation was deficient.
B. New York Legal Assistance Group
Plaintiff may consider contacting the New York Legal Assistance Group (“NYLAG”), which maintains a free Clinic for Pro Se Litigants in the Southern District of New York that is staffed by attorneys and paralegals to assist those who are representing themselves in civil lawsuits in this court. The clinic is run by a private organization; it is not part of, or run by, the court. It cannot accept filings on behalf of the court, which must still be made by any pro se party through the Pro Se Intake Unit. A copy of the flyer with details of the clinic is attached to this order.
LEAVE TO AMEND
Plaintiff proceeds in this matter without the benefit of an attorney. District courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has cautioned that district courts “should not dismiss [a pro se complaint] 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.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Because Plaintiff may be able to allege facts to state a valid claim against Defendants under the FCRA, the Court grants Plaintiff 60 days' leave to amend her complaint to detail her claims.
Plaintiff is granted leave to amend her complaint to provide facts about her claims against Defendants. In the “Statement of Claim” section of the amended complaint form, Plaintiff must provide a short and plain statement of the relevant facts supporting her claims against each Defendant. Plaintiff should include all of the information in the amended complaint that Plaintiff wants the Court to consider in deciding whether the amended complaint states a claim for relief. That information should include:
a) the names and titles of all relevant people;
b) a description of all relevant events, including what Defendants did or failed to do, the approximate date and time of each event, and the general location where each event occurred;
c) a description of the injuries Plaintiff suffered; and d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief.
Essentially, Plaintiff's amended complaint should tell the Court what federally protected rights Defendants violated and how; when and where such violations occurred; and why Plaintiff is entitled to relief.
Because Plaintiff's amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint.
CONCLUSION
Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court's Pro Se Intake Unit within 60 days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 23-CV-6270 (LTS). An Amended Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and she cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).
SO ORDERED.