Edelman v. United States Government

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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GARY EDELMAN,

Plaintiff,

MEMORANDUM & ORDER

18-CV-2143(JS)(AKT)

-against-

UNITED STATES GOVERNMENT,

DEPARTMENT OF EDUCATION, BETSY DEVOS,

NAVIENT SOLUTIONS, STRADLEY RONON STEVENS

& YOUNG, GERARD DONOVAN,

Defendants.

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APPEARANCES:

For Plaintiff: Gary Edelman, pro se

1715 Union Avenue

Hewlett, New York 11557

For Defendants:

United States of America, Richard Schumacher II, Esq.

Department of Education, United States Attorney’s Office

and Betsy DeVos in her Eastern District of New York

official capacity as 610 Federal Plaza

Secretary of Education Central Islip, New York 11722

Navient Solutions, LLC, Francis X. Manning

Stradley Ronon Stevens Stradley Ronon Stevens & Young, LLP

& Young, LLP, and 457 Haddonfield Road, Suite 100

Gerard Donovan Cherry Hill, New Jersey 08002

SEYBERT, District Judge:

Pro se plaintiff Gary Edelman (“Edelman” or “Plaintiff”)

commenced this action against defendants the United States

Government (the “Government”), the United States Department of

Education (“DOE”), Betsy Devos (in her official capacity as

Secretary of Education) (“Devos”) (together with the United States

and DOE, the “Federal Defendants”), Gerard Donovan (“Donovan”),

Stradley Ronon Stevens & Young, LLP (“SRSY”), and Navient

Solutions, LLC. (“Navient”) (together with Donovan and SRSY, the

“Non-Federal Defendants”; collectively with the Federal

Defendants, the “Defendants”). Plaintiff’s Second Amended

Complaint (“SAC,” D.E. 43) asserts numerous claims against the

Non-Federal Defendants related to the servicing of his federal

student loans, as well as a claim that the Federal Defendants

colluded with the Non-Federal Defendants thereby violating federal

and state law. Along with monetary damages, Plaintiff seeks an

order directing Defendants to “remove all negative marking off

Plaintiff’s credit history” (SAC ¶¶263.a, 264.a); estopping future

“harassment, defamation or threats to Plaintiff” ((SAC ¶¶263.b,

264.b); vacating DOE’s decision that the loans are legally

enforceable (SAC ¶264.c); and preventing wage garnishment and/or

tax offsets (SAC ¶264.e).

Currently pending before the Court are the Federal

Defendants’ motion to dismiss the SAC pursuant to Federal Rule of

Civil Procedure 12(b)(1) for lack of subject matter jurisdiction,

or, in the alternative, pursuant to Federal Rule of Civil Procedure

12(b)(6) for failure to state a claim upon which relief can be

granted, and the Non-Federal Defendants’ motion to dismiss

pursuant to Rule 12(b)(6). For the reasons set forth below,

Defendants’ motions are GRANTED.

BACKGROUND

I. Procedural History

A. State Court Action

This is not the first case involving Plaintiff and

Defendants. On April 25, 2016, SRSY, on behalf of Donovan, an

employee of Navient, filed a complaint against Plaintiff in Nassau

County Supreme Court alleging harassment due to Plaintiff’s

voluminous phone calls and internet postings regarding Donovan.

(See, State Compl. dated Apr. 25, 2016, Ex. A, D.E. 58-2, attached

to Decl. of Francis X. Manning, D.E. 58-1.1) Through counsel,

Edelman filed counterclaims against Donovan alleging harassment

and interference with his ability to have his loans serviced.

(Pl.’s Countercls., Ex. B, D.E. 58-3.) On September 14, 2016,

Plaintiff’s counterclaims were dismissed with prejudice. (Sept.

14, 2016 Dismissal Order, Ex. C, D.E. 58-4.)

As to Donovan’s claims against Plaintiff, the parties

negotiated a settlement memorialized in a consent judgment entered

on August 3, 2017. (Aug. 3, 2017 Consent J., Ex. D, D.E. 58-5.)

Pursuant to the consent judgment: (1) Plaintiff agreed to remove

all his internet postings referencing Navient, its employees and

affiliates, including Donovan, and SRSY and its attorneys and

1 All Non-Federal Defendants’ exhibits are attached to the

Manning Declaration, D.E. 58-1. Hereafter, citation to those

exhibits will not reference the Manning Declaration.

employees (see id. at ¶ 2); and (2) Plaintiff was permanently

enjoined from: (a) posting anything on the internet or otherwise

publishing information concerning any of the parties with limited

exceptions (see id. at ¶ 3), (b) contacting Donovan in any manner,

or harassing, defaming or threatening him, and from interfering in

his employment relationship with Navient (see id. at ¶¶ 4, 5); (c)

communicating with Navient or any person employed by, or affiliated

with Navient, with the limited exception regarding e-mail

correspondence to Navient concerning legitimate inquiries

regarding any of his student loans that were being serviced by

Navient (see id. at ¶ 8); and (d) calling SRSY or any employees of

SRSY (see id. at ¶ 7).

B. Instant Complaint

On April 11, 2018, Edelman filed a complaint in this Court

against the Government (see D.E. 1) and, then, on July 3, 2018, he

commenced a separate action against Navient, SRSY and Donovan (see

D.E. 5 (Notice of Related Case)). On November 14, 2018, among

other things, the Court ordered Plaintiff’s two cases be

consolidated. (Nov. 14, 2018 Elec. Order). Plaintiff filed an

amended complaint against all Defendants on December 12, 2018.

(D.E. 15.) Thereafter, he was permitted to file a Second Amended

Complaint (“SAC”) (see June 10, 2019 Elec. Order), which Edelman

did on June 24, 2019. (See D.E. 43.)

On September 27, 2019, the Federal Defendants and the Non-

Federal Defendants each moved to dismiss the SAC. (D.E. 54

(“Federal Dismissal Motion”, D.E. 58 (“Non-Federal Dismissal

Motion”) (collectively, the “Dismissal Motions”).) Plaintiff

filed an omnibus opposition to the Dismissal Motions on October

28, 2019 (D.E. 62 (“Opposition”)), and on November 8, 2019, the

Federal Defendants and the Non-Federal Defendants filed their

respective replies. (D.E. 63, 64.)

II. Factual Background2

Plaintiff’s SAC raises thirty-eight counts related to his

federal student loans, consisting of Federal Family Education

Loans (“FFEL”) and/or direct loans, which he obtained from the DOE

between 2003 and 2011 to pay for his undergraduate and graduate

2 The following facts are drawn from the SAC and are assumed to

be true for purposes of this Memorandum and Order. In deciding

a motion to dismiss, the Court may take judicial notice of

public records, including state court filings. Blue Tree Hotels

Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide,

Inc., 369 F.3d 212, 217 (2d Cir. 2004). As discussed infra, the

Court also considers exhibits which are attached or integral to

the SAC. Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004).

Additionally, a document may be considered on a motion to

dismiss where the plaintiff has “reli[ed] on the terms and

effect of [the] document in drafting the complaint.” Chambers v.

Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (emphasis

omitted).

studies (hereafter, the “Loans”). (SAC 25-32, 98-99. 3) With two

exceptions,4 the Loans were guaranteed by the DOE. (SAC 100-01.)

Pursuant to its contract with the DOE, Navient services

federal student loans on behalf of the Government, including

Plaintiff’s Loans. (SAC 37-38, 125-27.) According to Plaintiff,

as a loan servicer, Navient is responsible for managing borrowers’

accounts; processing monthly payments; assisting borrowers’

enrollment in alternative repayment plans; and communicating

directly with borrowers about the repayment of their loans. (SAC

75-78.)

A. Alleged Conduct of the Non-Federal Defendants

Plaintiff’s action is based on Navient’s alleged refusal

to service his Loans and claims that SRSY, Navient, and Donovan

harassed and threatened Plaintiff. Plaintiff claims that issues

first arose with Navient when it placed unauthorized forbearances

on his account on March 5, 2012 and August 20, 2012. (SAC 195-

98, 241-42.) Then, on October 30, 2014, Plaintiff was instructed

by Donovan, an employee in Navient’s Office of Corporate Security,

that due to his voluminous and frequent calls to Navient, any

3 Because the paragraph numbers of Plaintiff’s SAC are out of

sequence, in the interest of clarity, the Court cites to the

numbered lines of Plaintiff’s SAC.

4 The two excepted loans were guaranteed by the New York Higher

Education Services Corporation (the “HESC”) but are now owned by

the DOE. (SAC 101-02.)

inquiries Plaintiff had regarding his Loans should be directed

solely to Donovan. (SAC 42-45; Ex. A, ¶¶ 2, 10, 11.) Plaintiff

claims that Donovan provided Plaintiff with his (Donovan’s)

personal mobile number which he “falsely presented as a Navient

business,” and at times serviced Plaintiff’s Loans via telephone.

(SAC 42-45, 107-09.)

Plaintiff further alleges that at some point SRSY was hired

by Navient to handle the servicing of Plaintiff’s Loans. (SAC 39-

41.) According to the SAC, Donovan, Navient and SSRY did not

provide Plaintiff with a toll-free number to service his Loans and

failed to respond to his voicemails and emails requesting loan

information. (SAC 149-50, 154-56, 162-63, 658-59.)

In 2014, Plaintiff’s Loans went into default, and the Non-

Federal Defendants continued with the servicing of his Loans. (SAC

114-17.) Plaintiff allegedly filed a complaint against Navient

with state senators on October 30, 2014. (SAC 246-47.) According

to Plaintiff, shortly thereafter, Navient “initiated a campaign of

harassment and intimidation directed at Plaintiff.” (SAC 250-51.)

Then, in 2015, Plaintiff filed a complaint with the Attorney

General. (SAC 256-57.) He claims that Navient misinformed the

DOE, the HESC, and the Attorney General that the unauthorized

forbearance placed on his account had been removed. (SAC 199-210,

262-63, 266-68.) On November 27, 2014, Plaintiff requested that

Navient provide him with its payment methods and fees, but it

failed to respond. (SAC 272-74.)

Plaintiff claims that in December 2014, Donovan’s behavior

towards him caused Plaintiff to contact state and county police

because he feared for the safety of his family. (SAC 286-89.)

Plaintiff alleges that after he complained to the Consumer

Financial Protection Bureau, Navient and SRSY “went on a campaign

of DOXXing” him.5 (SAC 310-27.) He claims that Navient continued

to defame him, refused to provide him with a toll-free number or

accept payments, and had “legal” handle his Loans in violation of

the Higher Education Act (“HEA”). (SAC 306-08, Ex. 6.) Plaintiff

alleges that in April 2015, both Navient and SRSY provided him

with phone numbers that “fraudulently portrayed” themselves as the

DOE. (SAC 331-40.)

Plaintiff claims that in July and September 2015 he sent

Navient deferment requests which Navient refused to process

stating that his account was “on freeze” and “should not be

serviced.” (SAC 342-49, 443-44.) Plaintiff claims that the DOE

5 “Doxxing” is a slang term referring to “publicly identify[ing]

or publish[ing] private information about (someone) especially

as a form of punishment or revenge.” Merriam-Webster.com

Dictionary, Merriam-Webster, (Nov. 24, 2020),

https://www.merriam-webster.com/dictionary/dox; see also Harry

Bruinius, The Christian Monitor, Feb. 5, 2015 (describing

“doxxing” as “the troll harassment technique of finding and then

posting a user’s sensitive personal information, including

addresses, phone numbers, and even Social Security numbers”).

inquired about the freeze but that Navient denied Plaintiff’s

account was frozen. (SAC 356-57.) He also claims that he sent

five payments to Navient in 2016 but that it refused to process

them. (SAC 445-47.)

Plaintiff alleges that neither SRSY, Donovan, nor Navient

responded to Plaintiff’s June 3, 2017 request for loan service.

(SAC 467-70.) He claims that Navient later denied having any

knowledge of Donovan or SRSY servicing his Loans, and that SRSY

told him that it had nothing to do with his Loans. (SAC 472-77.)

Allegedly on June 6, 2017, Donovan and his SRSY attorney stated

that all servicing of Plaintiff’s Loans should go through Donovan.

(SAC 483-84.) Plaintiff claims that he later learned that all his

Loans had been transferred from Navient to SRSY in April. (SAC

486.)

Plaintiff further alleges that at some point Navient sent

Plaintiff a letter withdrawing SRSY from servicing his Loans but,

nonetheless, that SRSY continued to harass him. (SAC 402-04.) He

claims that an SRSY attorney demanded that he provide SRSY with a

photo of his eight-year-old niece (SAC 393-96), and that another

SRSY attorney threatened to fabricate stories to law enforcement,

including reporting Plaintiff’s firearms as stolen. (SAC 459-62.)

Plaintiff alleges that Navient and SRSY bragged to Plaintiff about

their “hacking” abilities and ”went on a campaign of ‘swatting,’

which included making it appear that Plaintiff’s house alarm was

going off and having the police respond.” (SAC 427-30.)

In 2018, Plaintiff filed another complaint with the

Consumer Financial Protection Bureau about Navient’s behavior.

(SAC 510-11.) Plaintiff claims that despite Navient’s claim that

his Loans defaulted in April 2017, they really defaulted years

earlier. (SAC 691-93.) He alleges that on December 3, 2018, an

SRSY attorney “threatened to falsely accuse Plaintiff of sending

letters to [Donovan’s] former employers when they were actually

created and mailed by Defendants themselves.” (SAC 726-25.)

Plaintiff contends that Navient published false statements to

federal agencies regarding his Loans, including that Navient never

refused payments, blocked his phone calls, or provided access to

a toll-free number. (SAC 648-57.)

B. Federal Defendants’ Alleged Conduct

As to the DOE, Plaintiff claims that the DOE: colluded with

Navient to cover up Navient’s charging of illegal fees (SAC 275-

82); inquired about Navient’s refusal to provide fee information

to Plaintiff but then, on June 18, 2015, assisted Navient in

“cover[ing] up their fraudulent behavior” (SAC 275-79), and in

their “shake down” (SAC 524-26); defamed him by stating that

Plaintiff was fabricating SRSY’s role in the servicing of his loans

(SAC 409-10); published information to third parties which defamed

his character and colluded with Navient in providing incorrect

information in Navient’s reports. (SAC 225-28.) On November 5,

2017, “a portion of [P]laintiff’s loans were in default and an

official appeal was submitted to the DOE.” (SAC 532-34.) According

to Plaintiff, his appeal to the DOE was “not accepted,” and his

FOIA requests to the DOE were “not fulfilled, except for [one]

appeal.” (SAC 569-75.) Plaintiff alleges that he filed complaints

against the DOE with the U.S. Attorney General, the Inspector

General, and the Consumer Financial Protection Bureau. (SAC 546-

47.)

Plaintiff further alleges that: at some point, he entered

into a repayment agreement with the DOE but it failed to comply

with its terms, refusing to accept payments (SAC 579-82); the DOE

failed to ensure the accuracy of the information it submitted to

Navient, credit reporting agencies, the HESC, and the Consumer

Financial Protection Bureau (SAC 604-07); the DOE certified

Plaintiff for tax offset and/or wage garnishment without providing

an in-person hearing (SAC 608-12); in 2018, the DOE purchased his

two HESC loans but incorrectly marked at least one of them as

having “completed” the rehabilitation program, but refusing to

correct that inaccuracy (SAC 614-15, 618-22); the DOE’s actions

denied him the opportunity to “rehabilitate” his loans, which would

have removed collection costs and negative markings on his credit

history (SAC 623-25).

DISCUSSION

I. Standard of Review

“A case is properly dismissed for lack of subject matter

jurisdiction under Rule 12(b)(1) when the district court lacks the

statutory or constitutional power to adjudicate it.” Makarova v.

United States, 201 F.3d 110, 113 (2d Cir. 2000). The plaintiff

bears the burden of demonstrating by a preponderance of the

evidence that subject matter jurisdiction exists. Id. In

resolving a motion to dismiss for lack of subject matter

jurisdiction, the Court “may consider evidence outside the

pleadings.” See Morrison v. Nat’l Austl. Bank, Ltd., 547 F.3d

167, 170 (2d Cir. 2008), aff'd, 561 U.S. 247 (2010) (citation

omitted).

To withstand a motion to dismiss pursuant to Rule

12(b)(6), a complaint must contain factual allegations that

“‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This plausibility

standard is not a “probability requirement” and requires “more

than a sheer possibility that a defendant has acted unlawfully.”

Id. (internal quotation marks and citation omitted). To that

regard, “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”

Id. The Court's plausibility determination is a “context-specific

task that requires the reviewing court to draw on its judicial

experience and common sense.” Harris v. Mills, 572 F.3d 66, 72

(2d Cir. 2009) (internal quotation marks and citation omitted).

A complaint filed by a pro se litigant is to be construed

liberally and “however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation

marks and citation omitted). See also Hiller v. Farmington Police

Dep’t, No. 12-CV-1139, 2015 WL 4619624, at *7 (D. Conn. July 31,

2015) (noting that the dismissal of a pro se complaint pursuant to

Rule 12(b)(6) is not appropriate “unless it appears beyond doubt

that the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief”) (internal quotation marks

and citation omitted). Nevertheless, a pro se complaint must state

a plausible claim for relief and comply with the minimal pleading

standards set forth in Federal Rule of Civil Procedure 8. Id.

Generally, the Court's consideration of a Rule 12(b)(6)

motion to dismiss is “limited to consideration of the Complaint

itself.” Dechberry v. N.Y. City Fire Dep’t, 124 F. Supp. 3d 131,

135 (E.D.N.Y. 2015) (internal quotation marks and citation

omitted). “A complaint is deemed to include any written instrument

attached to it as an exhibit, materials incorporated in it by

reference, and documents that, although not incorporated by

reference, are integral to the complaint.” Sira, 380 F.3d at 67

(internal quotation marks and citations omitted.)

A document may be considered on a motion to dismiss where

the plaintiff has “reli[ed] on the terms and effect of [the]

document in drafting the complaint.” Chambers, 282 F.3d at 153

(emphasis omitted). Where an allegation in a complaint is

contradicted by a document or exhibit attached to the complaint,

the document controls and the allegation is not afforded the

presumption of truth for purposes of a motion to dismiss. Amidax

Trading Group v. S.W.I.F.T. SCRL, 671 F.3d 140, 146-47 (2d Cir.

2011) (citing L-7 Designs Inc. v. Old Navy, LLC, 647 F.3d 419, 422

(2d Cir. 2011)); Matusovsky v. Merrill Lynch, 186 F. Supp.2d 397,

400 (S.D.N.Y. 2002).

II. Claims Against Federal Defendants

Federal Defendants contend that the claims against them

should be dismissed in their entirety principally on the ground

that this Court lacks subject matter jurisdiction. They argue

that because Plaintiff’s claims all stem from an alleged breach of

contract with the Government and seek more than ten thousand

dollars in monetary damages, only the Court of Federal Claims has

jurisdiction. (Fed. Defs.’ Br., D.E. 56, at 2-3 (citing 28 U.S.C.

§ 1491(a); 28 U.S.C. § 1346(a)(2)).) Alternatively, Federal

Defendants argue that Plaintiff’s claims should be dismissed

pursuant to Federal Rule 12(b)(6) for failure to state a claim for

which relief may be granted. (Id. at 4, n.1.)

For the reasons discussed below, this Court dismisses

Plaintiff’s claims against the Federal Defendants.

A. Subject Matter Jurisdiction

“Absent a waiver, sovereign immunity shields the

Federal Government and its agencies from suit.” FDIC v. Meyer,

510 U.S. 471, 475 (1994). Claims asserted against agencies of the

Government or federal officers in their official capacities are

considered to be asserted against the United States and are also

barred under the doctrine of sovereign immunity. See, e.g.,

Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d

Cir. 1994). Thus, Plaintiff must show that his claims invoke one

of the areas where Congress has waived sovereign immunity or his

action against the Federal Defendants is precluded. De La Mota v.

U.S. Dep’t. of Educ., No. 02–CV–4276, 2003 WL 21919774, at *4

(S.D.N.Y. 2003) (“The general federal question jurisdiction

statute, 28 U.S.C. § 1331, is in no way a general waiver of

sovereign immunity.”) (internal quotation and citation omitted),

rev'd on other grounds, 412 F.3d 71 (2d Cir. 2005). Although

Plaintiff’s SAC fails to specify the basis for a waiver of the

Federal Defendants’ sovereign immunity, because of his pro se

status, the Court will consider whether there is immunity.

1. Tucker Act

Federal Defendants claim that Plaintiff’s claims should

be dismissed for lack of subject matter jurisdiction pursuant to

the Tucker Act, 28 U.S.C. § 1491 et seq. The Tucker Act grants

exclusive jurisdiction to the Court of Federal Claims over, inter

alia, “any claim against the United States founded ... upon any

express or implied contract with the United States” in excess of

$10,000. 28 U.S.C. § 1491(a)(1). Additionally, in order to

provide an entire remedy and to complete the relief afforded by a

money judgment, the Tucker Act provides the Court of Claims with

authority to issue equitable orders as “an incident of and

collateral to” such money judgment. See 28 U.S.C. § 1491(a)(2).

Here, Plaintiff’s SAC contains sixteen counts against

the Federal Defendants and seeks over $700,000 in damages. Among

Plaintiff’s claims, he alleges that the “DOE breached the contract

established with Plaintiff by failing to properly service the

federal student loans.” (SAC 1628-29.) Pursuant to the Tucker

Act, the Court of Federal Claims has exclusive jurisdiction over

Plaintiff’s breach of contract claim. Accordingly, Plaintiff’s

breach of contract claim is DISMISSED without prejudice for lack

of subject matter jurisdiction.

To the extent Federal Defendants contend that

Plaintiff’s remaining claims should also be dismissed for lack of

subject matter jurisdiction, or in the alternative, for failure to

state a claim, the Court will address each of Plaintiff’s remaining

claims in turn.6

2. Federal Trade Commission Act

Plaintiff purports to bring a claim under 15 U.S.C. §

45(a) of the Federal Trade Commission Act (the “FTC Act”), based

upon the Federal Defendants’ involvement with Navient’s alleged

unfair and deceptive practices regarding servicing Plaintiff’s

loans. Section 45(a) of the FTC Act makes it unlawful to engage

in unfair methods of competition and unfair and deceptive acts

affecting commerce. 15 U.S.C. § 45(a). However, the FTC Act is

only subject to enforcement by the Federal Trade Commission and

does not provide for a private cause of action. See Hourani v.

Wells Fargo Bank, N.A., 158 F. Supp. 3d 142, 148 (E.D.N.Y. 2016)

(finding no statutory basis for a private right of action under

the FTCA) (citing Alfred Dunhill Ltd. v. Interstate Cigar Co., 499

F.2d 232, 237 (2d Cir. 1974)). Therefore, Plaintiff’s FTC Act

claim against the Federal Defendants is DISMISSED with prejudice.

6 For the first time, in his opposition, Plaintiff contends

that this Court has subject matter jurisdiction over his claims

pursuant to the Higher Education Act of 1965 (“HEA”), 20 U.S.C.

§ 1070 et seq. (See Pl.’s Br., D.E. 62, at 2.) Though a

plaintiff “cannot amend [his] complaint by asserting new facts

or theories for the first time in opposition to [d]efendant[’]s

motion to dismiss,” K.D. ex rel. Duncan v. White Plains Sch.

Dist., 921 F. Supp. 2d 197, 209 n.8 (S.D.N.Y. 2013), the Court

notes that the HEA does not provide a private right of action

for student borrowers. Wimberly v. U.S. Dep’t of Educ., No.

12-CV-7773, 2013 WL 6123172, at *2 (S.D.N.Y. Nov. 21, 2013);

Nehorai v. U.S. Dep't of Educ. Direct Loan, No. 08–CV–920, 2008

WL 1767072 at *1 (E.D.N.Y. Apr. 14, 2008).

3. Consumer Financial Protection Act

Plaintiff also has no claim under the Consumer Financial

Protection Act (“CFPA”), which provides that “[i]f any person

violates a Federal consumer financial law, the [Consumer Financial

Protection Bureau] may . . . commence a civil action against such

person to impose a civil penalty or to seek all appropriate legal

and equitable relief including a permanent or temporary injunction

as permitted by law.” 15 U.S.C. § 5564(a). Thus, since the CFPA

authorizes only the Consumer Financial Protection Bureau to bring

claims under the statute, Plaintiff is foreclosed from privating

maintaining such an action. See Fraser v. Aames Funding Corp.,

No. 16-CV-0448, 2017 WL 564727, at *4-5 (E.D.N.Y. Jan. 24, 2017)

(finding no statutory basis for a private right of action under

the CFPA); Nguven v. Ridgewood Sav. Bank, No. 14-CV-1058, 2015 WL

2354308, at *11 (E.D. N Y. May 15, 2015) (same). Accordingly,

Plaintiff’s CFPA claim against the Federal Defendants is DISMISSED

with prejudice.

4. Constitutional Claims

Plaintiff’s SAC asserts due process claims pursuant to

the Fifth and Fourteenth Amendments against the Federal

Defendants. (SAC 1692-728). He subsequently voluntarily withdrew

his constitutional claims against the Government and the DOE, but

not as to DeVos. (See Pl.’s Opp. at 3.) However, Edelman’s

constitutional claims against DeVos must be dismissed for lack of

subject matter jurisdiction, “[b]ecause an action against a

federal agency or federal officers in their official capacities is

essentially a suit against the United States[; thus], such suits

are barred under the doctrine of sovereign immunity unless such

immunity is waived.” Robinson, 21 F.3d at 510 (citing Federal

Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 484 (1994)). Here, the

Government has not waived sovereign immunity, thereby permitting

the DOE to be sued for damages for any alleged violation of

Plaintiff's constitutional rights. Eiland v. U.S. Dep't of Educ.,

No. 10-CV-4131, 2011 WL 31537, at *3 (S.D.N.Y. Jan. 4, 2011)

(citing Mignogna v. Sair Aviation, Inc., 937 F.2d 37, 40 (2d Cir.

1991)). Consequently, this Court lacks subject matter

jurisdiction to consider Plaintiff’s constitutional claims against

DeVos as an officer of the Department of Education. Accordingly,

Plaintiff’s constitutional claims against DeVos are DISMISSED with

prejudice.

5. Fair Credit Reporting Act

The Fair Credit Reporting Act (“FCRA”), which regulates

credit reporting procedures, codifies a consumer's right to

dispute information reported to a credit agency by a furnisher of

credit information. Crawford v. Duncan, No. 11–CV–3774, 2013 WL

1346382, at *3 (E.D.N.Y. Apr. 3, 2013) (citing 15 U.S.C. §§

1681g(c)(1)(B)(iii), 1681i(a) (1)(A), 1681s–2(a)(8).) However,

because the FCRA does not contain a clear and unequivocal waiver

of the Government’s sovereign immunity, this Court is without

subject matter jurisdiction to adjudicate Plaintiff’s FCRA claims

against the Federal Defendants. See Stein v. U.S. Dep’t. of Ed.,

450 F. Supp. 3d 273 (E.D.N.Y. 2020) (noting that though the Second

Circuit has not ruled on the issue of whether the FCRA contains a

waiver of sovereign immunity, “[a]n examination of FCRA's text

reveals that it does not contain a waiver of the government’s

sovereign immunity.”); see also Robinson v. U.S. Dep’t of Educ.,

917 F.3d 799 (4th Cir. 2019) (holding that the FCRA did not

unambiguously and unequivocally waive DOE's sovereign immunity);

Daniel v. Nat’l Park Serv., 891 F.3d 762 (9th Cir. 2018) (finding

FCRA did not clearly waive sovereign immunity from suit).

Accordingly, Plaintiff’s FCRA claim against the Federal Defendants

is DISMISSED with prejudice.

6. Federal Tort Claims Act

To the extent Plaintiff alleges claims against the

Federal Defendants sounding in tort, the Federal Tort Claims Act

(“FTCA”) provides a limited waiver of sovereign immunity where

suit is brought against the United States based upon torts

committed by its officers. See Castro v. United States, 34 F.3d

106, 110 (2d Cir. 1994) (“[A] claimant's exclusive remedy for

nonconstitutional torts by a government employee acting within the

scope of his employment is a suit against the government under the

FTCA.”) (citing Rivera v. United States, 928 F.2d 592, 608–09 (2d

Cir. 1991)); 28 U.S.C. § 2679(b)(1). However, “where a tort claim

stems from a breach of contract, the cause of action is ultimately

one arising in contract, and thus is properly within the exclusive

jurisdiction of the Court of Federal Claims to the extent that

damages exceed $10,000.” Awad v. United States, 301 F.3d 1367,

1372 (Fed. Cir. 2002)(upholding transfer of intentional infliction

of emotional distress claim to the United States Claims Court where

it was “inextricably intertwined with the government’s supposed

breach”) (citing Wood v. United States, 961 F.2d 195, 198 (Fed.

Cir. 1992) (upholding a transfer of the plaintiff's claims from

the district court to the United States Claims Court on the ground

that negligence and conversion claims could not establish a cause

of action in tort independent of the underlying contractual

relationship); Blanchard v. St. Paul Fire and Marine Ins. Co., 341

F.2d 351 (5th Cir. 1965) (holding that the plaintiff's claim

against the United States for negligence was not a tort claim

within the FTCA where it was founded upon an alleged failure to

perform explicit or implicit contractual obligations).

To determine “whether the claims in a case are

contractual, the [c]ourt is to examine ‘the source of the rights

upon which the plaintiff bases its claims, and . . . the type of

relief sought [.]’” Champagne v. United States, 15 F. Supp. 3d

210, 221 (N.D.N.Y. 2014) (quoting Megapulse, Inc. v. Lewis, 672

F.2d 959, 968 (D.C. Cir. 1982)). “If the right that the plaintiff

seeks to vindicate stems from no independent, non-contractual

source, and the remedy for violating that right is a contractual

remedy, then the claim arises out of a contract...” Id. (internal

quotation marks omitted).

Here, Plaintiff asserts tort claims against the Federal

Defendants for breach of fiduciary duty and intentional infliction

of emotional distress. (SAC 1663-713, 1642-59.) Plaintiff’s

breach of fiduciary duty claim appears to allege that Federal

Defendants owed Plaintiff a fiduciary duty “to act in a way which

benefited [him]” with regard to “information related to

Plaintiff’s loans.” (SAC 1664-67.) Because the source of

Plaintiff’s claimed rights stem from a contract, i.e., the master

promissory note (hereafter, the “Note”), his allegations are

merely a restatement of Plaintiff’s breach of contract claim. See

Woodbury v. United States, 313 F.2d 291, 295 (9th Cir. 1963)

(holding that a developer's claim for breach of fiduciary duty was

actually a contract action properly brought in the Court of

Claims).

Similarly, Plaintiff’s intentional infliction of emotional

distress claim is premised on the DOE’s efforts in having the Loans

serviced. (SAC 1644-48.) Such allegations are “inextricably

intertwined” with the DOE’s alleged breach of the loan agreement.

See Awad, 301 F.3d at 1372. Moreover, both claims seek monetary

damages, which is relief that is generally considered contractual.

See Champagne, 15 F, Supp. 3d at 221. Therefore, the Court finds

that because Plaintiff’s tort claims arise from his contract with

DOE, the FTCA’s limited waiver of sovereign immunity is not

applicable in this instance. Rather, this Court lacks subject

matter jurisdiction to adjudicate of Plaintiff’s breach of

fiduciary duty and intentional infliction of emotional distress

claims warranting their DISMISSED with prejudice.

7. Administrative Procedure Act

Plaintiff’s claims pursuant to the Administrative

Procedure Act (“APA”) allege that the DOE: unilaterally withdrew

from a rehabilitation payment agreement (SAC 1759-73); failed to

process Plaintiff’s dispute in a timely manner (SAC 1780-98); and,

denied Plaintiff’s claims against Navient and SRSY (SAC 1832-56).

He seeks monetary damages and an order vacating the DOE’s

certification that his loans are “legally enforceable.” (SAC 1876-

86, 2020-21.) As discussed below, this Court finds that it lacks

subject matter jurisdiction over Plaintiff’s APA claims.

The APA provides “a limited waiver of sovereign immunity

for suits seeking non-monetary relief against agencies and

officers of the United States.” Lipkin v. S.E.C., 468 F. Supp. 2d

614, 621 (S.D.N.Y. 2006). In pertinent part, the APA provides

that a reviewing court shall set aside agency actions, findings,

and decisions that are “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law . . . [or] is

unsupported by substantial evidence.” 5 U.S.C. § 706(2). However,

“[o]nly after exhausting administrative remedies may a borrower

seek judicial review of the Secretary's decision under the

Administrative Procedure Act.” Wimberly, 2013 WL 6123172, at *2;

Lipkin, 468 F. Supp. 2d at 622 (“[T]he APA allows review only of

‘final agency action for which there is no other adequate remedy

in a court.’”) (quoting 5 U.S.C. § 704.) Thus, “[a] failure to

first pursue administrative remedies will result in dismissal of

the action.” Wimberly, 2013 WL 6123172, at *2 (citing Shabtai v.

U.S. Dep’t of Educ., No. 02-CV-8437, 2003 WL 21983025, at *7

(S.D.N.Y. Aug. 20, 2003).

Relevant to the instant action, under the HEA, which

governs federally-guaranteed student loans, a borrower seeking

certain types of loan relief must normally avail himself of the

administrative process outlined in 20 U.S.C. §§ 1071, et seq., and

its governing regulations, 34 C.F.R. Part 682. See, e.g., Carlin

v. CBE, No. 08–CV–1491, 2008 WL 2113255, at *1–2, n. 1 (E.D.N.Y.

May 19, 2008) (citing Nehorai, 2008 WL 1767072, at *1). Under

this process, it is “[t]he Secretary of Education, not a district

court that has the authority to discharge a loan guaranteed by the

DOE.” Id. at *1. “If Plaintiff has properly sought such a

discharge and is now dissatisfied with a decision made by the

Secretary of Education, []he would be entitled to challenge the

Secretary’s decision by filing a claim for judicial review under

the [APA].” Nehorai, 2008 WL 1767072, at *1 (dismissing action

seeking cancellation of student loans because the plaintiff had

not alleged that she requested cancellation from the holder of the

loan); Shabtai, 2003 WL 21983025, at *7 (same).

Here, Plaintiff’s APA claims fail for two reasons.

First, Plaintiff is not entitled to monetary relief pursuant to

the APA. See Lipkin, 468 F. Supp. 2d at 621. Second, regarding

his request for loan cancelation, Plaintiff alleges generally that

he “has exhausted all administrative processes and was advised by

[DOE] that his next and last step was to file a lawsuit in [f]ederal

[c]ourt.” (SAC 235-37.) However, Plaintiff does not allege that

he complied with the applicable regulations governing the

procedures for a borrower seeking to cancel his federal student

loans. Therefore, since Plaintiff fails to allege a “final agency

action” regarding the cancellation of his Loans, he has not

satisfied his burden of establishing this Court’s subject matter

jurisdiction over his APA claims. However, given Plaintiff’s pro

se status, the Court will afford Plaintiff the opportunity to amend

his SAC addressing this deficiency in his pleadings, i.e., the

lack of allegations that he followed the applicable administrative

procedures governing the cancellation of his Loans if, in fact, he

followed said procedures. Accordingly, Plaintiff’s APA claim is

DISMISSED without prejudice.

8. Freedom of Information Act

Plaintiff’s SAC asserts that Federal Defendants violated

the Freedom of Information Act (“FOIA”) by unreasonably delaying

the production of documents and refusing to provide updates about

his FOIA requests. (SAC 1802-03, 1737.) Plaintiff does not

request equitable relief ordering the disclosure of information;

rather, he seeks monetary damages in the amount of $15,000. (SAC

2031.) However, the FOIA does not provide a private right of

action for monetary damages. See Diamond v. FBI, 532 F. Supp.

216, 233 (S.D.N.Y. 1981) (citing 5 U.S.C. § 552(a)(4)(B)), aff’d

sub nom. 707 F.2d 75 (2d Cir. 1983). Rather, the Act’s remedy is

limited to “enjoin[ing] the agency from withholding agency records

and to order[ing] the production of any agency records improperly

withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B)).

Accordingly, as the Court is precluded from granting the relief

sought, Plaintiff’s FOIA claims are DISMISSED with prejudice.

III. Claims Against Non-Federal Defendants

Non-Federal Defendants move to dismiss Plaintiff’s claims

pursuant to Federal Rule 12(b)(6) for failure to state a claim.

For the reasons that follow, the Non-Federal Defendants’ motion is

granted in its entirety.

A. Claims Against Navient

1. FCRA

Plaintiff alleges that Navient violated the FCRA, 15 U.S.C.

§ §1681 et seq., by providing inaccurate information to credit

reporting agencies and failing to conduct a reasonable

investigation of the inaccuracies after Plaintiff disputed them.

(SAC 836-47, 855-67.) The FCRA permits a cause of action against

a furnisher of credit information, like Navient, under limited

circumstances. Pursuant to 15 U.S.C. § 1681s-2(b) (“Section 1681s-

2(b)”), a claim may be stated only if a plaintiff shows that: “(1)

the furnisher [of information] received notice of a credit dispute

from a credit reporting agency, and (2) the furnisher thereafter

acted in willful or negligent noncompliance with the statute.”

Nguyen v. Ridgewood Sav. Bank, 66 F. Supp. 3d 299, 305 (E.D.N.Y.

2014) (internal citations and quotation marks omitted; emphasis

added). Notably, the furnisher’s duty to investigate as set forth

in Section 1681s-2(b) “is triggered only after a furnisher of

information receives notice from a credit reporting agency of a

consumer’s dispute.” Mendy v. JP Morgan Chase & Co., No. 12-CV-

8252, 2014 WL 1224549, at *5 (S.D.N.Y. Mar. 24, 2014) (citing Kane

v. Guar. Residential Lending, Inc., No. 04-CV-4847, 2005 WL

1153623, at *5 (E.D.N.Y. May 16, 2005) (emphasis in the original).)

Thus, to proceed under Section 1681s–2(b), Plaintiff is required

“to show that the furnisher was told by a credit reporting agency

that the consumer’s information was disputed, as opposed to being

told by the consumer directly.” Id. (citation omitted)(emphasis

added).

Here, because he fails to plead that Navient received

notification from a consumer reporting agency regarding the

accuracy of information furnished by Navient, as required by

Section 1681s-2(b), Plaintiff lacks standing to bring his FCRA

claim. See, e.g., Prakash v. Homecomings Fin., No. 05-CV-2895,

2006 WL 2570900 at *3, 4-5 (E.D.N.Y. Sept. 5, 2006) (“[P]laintiff

lacks standing to bring his claims under the Fair Credit Reporting

Act” where “nowhere in the complaint or opposition to the instant

motion does plaintiff allege that defendant [data furnisher]

received notice of the dispute from a credit reporting agency.”)

Plaintiff merely alleges that he “disputed the accuracy of the

derogatory information reported by the Defendant” and that

“Defendant has not responded to Plaintiff’s notice of dispute.”

(SAC 858-59, 864.) Such allegations are insufficient to

demonstrate that Navient received the requisite notification from

a credit reporting agency that Plaintiff’s information was

disputed. Thus, Plaintiff fails to allege facts which demonstrate

that Navient’s duty to investigate under Section 1681s-2(b) was

triggered. Therefore, because Plaintiff’s SAC does not

sufficiently allege facts to state a FCRA claim, the Court grants

the Non-Federal Defendants’ motion to dismiss Plaintiff’s FCRA

claims against Navient, which claim is DISMISSED without

prejudice.

2.CFPA

As discussed supra, there is no private right of action

under the CFPA. See Nguven, 2015 WL 2354308, at *11. Accordingly,

Plaintiff’s CFPA claim against Navient is DISMISSED with

prejudice.

3. Fair Debt Collection Practices Act

Navient contends that the Fair Debt Collection Practices

Act (“FDCPA”) does not apply to it as it is not a debt collector

under the statute. The FDCPA was established to eliminate abusive,

deceptive, and unfair debt collection practices by debt

collectors. 15 U.S.C. § 1692d(e). “To establish a violation of

the FDCPA, a plaintiff must satisfy three elements: (i) the

plaintiff must be a consumer; (ii) the defendant must be a debt

collector; and (iii) the defendant must have committed some act or

omission in violation of the FDCPA.” Allen v. United Student Aid

Funds, Inc., No. 17-CV-8192, 2018 WL 4680023, at *4 (S.D.N.Y. Sept.

28, 2018), reconsideration denied, 2019 WL 4686529 (S.D.N.Y. Sept.

26, 2019) (internal quotations and citation omitted). Indeed, “a

defendant can only be held liable for violating the FDCPA if she

is a ‘debt collector’ within the meaning of the [FDCPA].” Id.

(quoting Feldman v. Sanders Legal Grp., 914 F. Supp. 2d 595, 599

(S.D.N.Y. 2012) (further citation omitted)). The Act defines a

“debt collector” as a person “who regularly collects . . . debts

owed . . . another” or a person involved “in any business the

principal purpose of which is the collection of any debts.” 15

U.S.C. § 1692a(6). Explicitly excluded from that definition is

“any person collecting or attempting to collect any debt owed or

due . . . to the extent such activity . . . concerns a debt which

was not in default at the time it was obtained by such person.”

Id. Thus, “[w]hen a loan servicer obtains an account prior to its

default, that loan servicer operates as a creditor, not a debt

collector, for the purposes of the FDCPA.” Allen, 2018 WL 4680023

at *4 (citation omitted) (finding Navient was not a debt collector

under the FDCPA when it began servicing plaintiff’s loans prior to

default).

Here, Plaintiff fails to establish that Navient is a

“debt collector” pursuant to the FDCPA, having failed to plead any

facts establishing that Navient acquired his Loans after they went

into default. Therefore, because Plaintiff has not plausibly

alleged that Navient was a “debt collector” within the meaning of

the FDCPA, his FDCPA claim is DISMISSED with prejudice.

4. Breach of Contract

Plaintiff claims that he is an “intended third-party

beneficiary under the Servicing Contract” between the DOE and

Navient (SAC 923-28) and, as such, is entitled to damages for

Navient’s alleged breach of its contract with the DOE. (SAC 937-

42.) Plaintiff’s claim is misplaced. “Federal common law governs

the interpretation of federal government contracts, such as . . .

Servicing Contracts.” Travis v. Navient Corp., 460 F. Supp. 3d

269, 284 (E.D.N.Y. 2020) (citations omitted). To apply “federal

common law of contract,” courts look to “general principles of

contract law.” Id. (quoting Dobson v. Hartford Fin. Servs. Grp.,

Inc., 389 F.3d 386, 399 (2d Cir. 2004). Pursuant to these

principles, “absent a contractual relationship there can be no

contractual remedy.” Id. (quoting Suffolk Cnty. v. Long Island

Lighting Co., 728 F.2d 52, 63 (2d Cir. 1984)). A contractual

relationship exists “if the plaintiff is in privity of contract

with the defendant or is a third-party beneficiary of the

contract.” Id. (quoting Hillside Metro Assocs., LLC v. JPMorgan

Chase Bank, Nat. Ass'n, 747 F.3d 44, 49 (2d Cir. 2014)).

“Proving third-party beneficiary status requires that

the contract terms clearly evidence an intent to permit enforcement

by the third party in question.” Hyland v. Navient Corp., No. 18-

CV-09031, 2019 WL 2918238, at *8 (S.D.N.Y. July 8, 2019) (quoting

Hillside, 747 F.3d at 49 (citation omitted)). District courts in

this Circuit have held that in the absence of express language in

the servicing contract between the Government and a loan servicer,

such contracts do not confer third-party beneficiary status on

borrowers like Plaintiff. See id. (dismissing breach of contract

claim where plaintiffs “failed to identify any language in the

Servicing Contracts that clearly evidences an intent to permit

enforcement” by the third-party borrower); Travis, 460 F. Supp. 3d

at 284 (same). “It is not enough that [plaintiff] incidentally

benefit[s] from [Navient’s] performance under the Servicing

Contracts. Such incidental benefit does not rise to the level of

intent to permit enforcement.” Hyland, 2019 WL 2918238 at *8.

Thus, as Plaintiff fails to identify any language in the servicing

contract between the DOE and Navient evidencing an intent to permit

enforcement by borrowers, he cannot claim that he is anything more

than an incidental beneficiary. As such, Plaintiff cannot allege

a breach of contract claim against Navient. Accordingly,

Plaintiff’s breach of contract claim is DISMISSED with prejudice.

5. Unjust Enrichment

“To prevail on a claim for unjust enrichment in New

York, a plaintiff must establish (1) that the defendant benefitted;

(2) at the plaintiff's expense; and (3) that equity and good

conscience require restitution.” Beth Israel Med. Ctr. v. Horizon

Blue Cross & Blue Shield of N.J., Inc., 448 F.3d 573, 586 (2d Cir.

2006) (quoting Kaye v. Grossman, 202 F.3d 611, 616 (2d Cir. 2000)).

Notably, “[t]he theory of unjust enrichment lies as a quasi-

contract claim. It is an obligation the law creates in the absence

of any agreement.” Id. (citation omitted) (emphasis in original).

“The core of an unjust enrichment claim is that the defendant has

received something that does not belong to it, and that rightly

belongs to the plaintiff.” Hyland, 2019 WL 2918238, at *14. A

loan servicer's receipt of fees from the DOE for servicing student

loans is not sufficient to state an unjust enrichment claim. See,

e.g., id. (dismissing unjust enrichment claim where the only

benefit allegedly retained by defendant was servicing fees paid by

DOE); Kilgore v. Ocwen Loan Servicing, LLC, 89 F. Supp. 3d 526,

537 (E.D.N.Y. 2015) (dismissing unjust enrichment claim premised

on the assertion that “[b]y preventing plaintiff from making

reduced monthly payments, defendant caused plaintiff's debt to

increase, and further interest to accrue on the loan principal”

because plaintiff was already obligated to make payments on his

loan). In light of the applicable case law, Plaintiff’s conclusory

allegations that he lost the benefit of an income-based repayment

plan and accrued unpaid interest causing Navient to collect a

substantially higher amount of loan servicing fees pursuant to its

agreement with the DOE (SAC 965-66, 974-76) are insufficient to

state a plausible claim of unjust enrichment. Accordingly,

Plaintiff’s unjust enrichment claim is DISMISSED with prejudice.

6. Breach of Fiduciary Duty

The elements of a breach of fiduciary duty claim under

New York law are: “(i) the existence of a fiduciary duty; (ii) a

knowing breach of that duty; and (iii) damages resulting

therefrom.” Barnett v. Countrywide Bank, FSB, 60 F. Supp. 3d 379,

390 (E.D.N.Y. 2014) (quoting Johnson v. Nextel Commc'ns, Inc., 660

F.3d 131, 138 (2d Cir. 2011) (citations omitted)). A fiduciary

relationship “exists only when a person reposes a high level of

confidence and reliance in another, who thereby exercises control

and dominance over him.” Hyland, 2019 WL 2918238 at *10 (quoting

People v. Coventry First LLC, 13 N.Y.3d 108, 115 (2009). Moreover,

the general rule is that no fiduciary duty exists between a lender

and a borrower. Genna v. Sallie Mae, Inc., No. 11-CV-7371, 2012

WL 1339482, *4 (S.D.N.Y. April 17, 2012) (dismissing breach of

fiduciary claim because no fiduciary duty exists between a third-

party loan servicer and borrower). However, while “[t]he ordinary

financial relationship between a [borrower] and a loan servicer

does not automatically give rise to a fiduciary relationship,” a

fiduciary duty may exist “where it is created by ‘specific

contractual language’ or additional special circumstances.”

Delgado v. Ocwen Loan Servicing, LLC, No. 13-CV-4427, 2014 WL

4773991, at *24, (E.D.N.Y. Sept. 24, 2014) (citing Dolan v.

Fairbanks Capital Corp., 930 F. Supp. 2d 396, 422 (E.D.N.Y. 2013).)

Plaintiff’s allegation that Navient breached its alleged

duty “to act in a way which benefitted Plaintiff” is unavailing.

(SAC 989.) He does not plead the existence of “specific contract

language” or “special circumstances” that would give rise to a

fiduciary relationship. Rather, Plaintiff claims that he “placed

special reliance and confidence in Navient based on the

representations made [ ] about Navient’s expertise regarding

student loan repayment” (SAC 1019-21.) He asserts that “Navient

holds itself out as an authority on student loan repayment options

and encourages borrowers to contact it if they have any questions

about their student loans.” (SAC 1005-07.) These allegations,

however, “do not establish that Navient has undertaken a fiduciary

duty to act or give advice for the benefit of its borrowers.”

Hyland, 2019 WL 2918238 at *11 (finding allegations that “Navient

actively held itself out as a source of guidance and expertise

with respect to student loan repayment and encouraged borrowers to

rely on its advice and representations . . . [did] not establish

that Navient exercised the level of ‘control and dominance’

necessary for the existence of a fiduciary relationship”). Because

Plaintiff has failed to plausibly allege the existence of a

fiduciary relationship between himself and Navient, he is unable

to state a claim of breach of fiduciary duty. Accordingly,

Plaintiff’s breach of fiduciary duty claim is DISMISSED with

prejudice.

7. Defamation

Plaintiff bases his defamation claim on an October 4,

2017 letter Navient sent to “the loan owner and regulatory agency

[HESC], in response to Plaintiff’s dispute of the loans.” (SAC

1084-85.) The letter states that “[o]n August 20, 201[7],

[Plaintiff] contacted Navient Customer Service to verbally request

forbearance.” (SAC 1086-87.) Plaintiff claims that “this is

incorrect and [he] never requested a forbearance from Navient on

August 20, 2017.” (SAC 1088-89.) Additionally, Plaintiff claims

that statements in the letter that Navient “never refused payments”

and that Plaintiff failed to comply with SRSY’s instructions on

having his loan serviced were defamatory. (SAC 1093-107.)

Navient contends that Plaintiff fails to plead a

defamation claim since: (a) Plaintiff’s claim is time-barred; (b)

truth is a defense; (c) the common interest privilege protects the

statement; and, (d) Plaintiff has not pled special damages. (Non-

Federal Defendants’ Br. at 20-23.) Finding that the common

interest privilege applies to the October 4th letter, the Court

need not address Navient’s other defenses to Plaintiff’s

defamation claim.

“In order to establish a defamation claim under New York

law, a claimant must allege: (1) a defamatory statement of fact,

(2) that is false, (3) published to a third party, (4) of and

concerning the plaintiff, (5) made with the applicable level of

fault on the part of the speaker, (6) either causing special

damages or constituting defamation per se, and (7) not protected

by privilege.” Prowley v. Hemar Ins. Corp. of Am., No. 05-CV-981,

2010 WL 1848222, at *6 (S.D.N.Y. May 7, 2010) (citing Ello v.

Singh, 531 F. Supp. 2d 552, 575 (S.D.N.Y. 2007)). New York

recognizes a qualified “common interest privilege” when the

defamatory statement is made between persons who share a common

interest in the subject matter. Liberman v. Gelstein, 80 N.Y.2d.

429, 437 (1992). “[A] qualified privilege arises when a person

makes a good-faith, bona fide communication upon a subject in which

he or she has an interest, or a legal, moral or societal interest

to speak, and the communication is made to a person with a

corresponding interest.” Demas v. Levitsky, 738 N.Y.S.2d 402, 410

(3d Dep’t 2002) (citation omitted). “The privilege creates a

rebuttable presumption of good faith that constitutes a complete

defense to defamation.” Hussey v. N.Y.S. Dep’t of Law/Office of

Atty. Gen., 933 F. Supp. 2d 399, 414 (E.D.N.Y. 2013).

“At the pleadings stage, a plaintiff can overcome the

common interest privilege by alleging that the defamatory

statement was motivated solely by [common law or constitutional]

malice.” Thorsen v. Sons of Norway, 996 F. Supp. 2d 143, 173

(E.D.N.Y. 2014) (emphasis and citation omitted). “Common-law

malice mean[s] spite or ill will, and will defeat the privilege

only if it is the one and only cause for the publication.” Fuji

Film U.S.A., Inc. v. McNulty, 669 F. Supp. 2d 405, 412 (S.D.N.Y.

2009)(citing Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92,

98 (2d Cir. 2000) (alterations in original) (citations and

quotation marks omitted). “Constitutional or actual malice means

publication with [a] high degree of awareness of [the

publication’s] probable falsity or while the defendant in fact

entertained serious doubts as to the truth of [the] publication.”

Id. (citing Konikoff, 234 F.3d at 99) (alterations in original)

(quotation marks omitted). “Mere conclusory allegations, or

charges based upon surmise, conjecture, and suspicion are

insufficient to defeat the qualified privilege.” Id. (citation

omitted); see also Panghat v. N.Y. Downtown Hosp., 85 A.D.3d 473,

474 (N.Y. App. 1st Dep’t 2011) (finding that defendants statements

were “protected by the common interest privilege,” since

“[p]laintiff merely asserted in conclusory fashion that the

statements at issue were made with malice, which is insufficient

to overcome the privilege”).

Here, as alleged by Plaintiff, Navient’s October 4th

letter was sent in response to HESC’s inquiry regarding Plaintiff’s

Loan dispute. (SAC 1084-85; Ex. 15, October 4, 2017 letter to

HESC, attached to SAC (D.E. 43 at pp. 112-13).) As the guarantor

of Plaintiff’s Loan, HESC had a common interest with Plaintiff’s

loan servicer, Navient. (See SAC 1084-85.) Further, once

Plaintiff defaulted on his Loan, HESC became the Loan owner. (SAC

1084-85.) Thus, as the servicer of Plaintiff’s Loans, Navient

made a “bona fide communication” to HESC, the loan guarantor upon

a subject in which they had a corresponding interest. Therefore,

the common interest privilege applies to Navient’s communication

with HESC. Moreover, Plaintiff alleges no facts which, if proven,

would defeat this privilege. Rather, Plaintiff’s allegations that

“Defendant intentionally and/or negligently published false

statements to third parties about Plaintiff” (SAC 1078-79), and

that “[Navient] was aware that these statements were false” (SAC

1080), are conclusory and unsupported by any factual allegations.

Therefore, as Plaintiff fails to allege that Navient acted with

malice, Plaintiff’s allegations are insufficient to overcome the

common interest privilege. See Fuji, 669 F. Supp. 2d at 415-16.

Accordingly, Plaintiff’s defamation claim is DISMISSED without

prejudice.

B. Claims Against Navient and SRSY

1. FTC Act

As discussed supra, there is no private right of action

under the FTC Act. See Hourani, 158 F. Supp. 3d at 148.

Accordingly, Plaintiff’s FTC Act claims against Navient and SRSY

are DISMISSED with prejudice.

2. Intentional Infliction of Emotional Distress

Under New York law, a claim of intentional infliction of

emotional distress requires: “‘(1) extreme and outrageous conduct;

(2) intent to cause, or reckless disregard of a substantial

probability of causing, severe emotional distress; (3) a causal

connection between the conduct and the injury; and (4) severe

emotional distress.’” Conboy v. AT & T Corp., 241 F.3d 242, 258

(2d Cir. 2001) (quoting Stuto v. Fleishman, 164 F.3d 820, 827 (2d

Cir. 1999)). New York courts have imposed a very high threshold

for intentional infliction of emotional distress claims, requiring

that the conduct must be “so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of decency,

and to be regarded as atrocious, and utterly intolerable in a

civilized society.” Conboy, 241 F.3d at 258 (citing Stuto, 164

F.3d at 827) (quoting Howell v. New York Post Co., 81 N.Y.2d 115,

122 (1993)). Even “[a]ctions ‘likely [to] be considered

reprehensible by most people’ are not sufficient.” DiRuzza v.

Lanza, 685 F. App’x 34, 37 (2d Cir. 2017) (summary order) (quoting

Chanko v. Am. Broad. Cos. Inc., 27 N.Y.3d 46, 56 (2016)). “Whether

the conduct alleged may reasonably be regarded as so extreme and

outrageous as to permit recovery is a matter for the court to

determine in the first instance.” Stuto, 164 F.3d at 827.

Here, Plaintiff alleges that Navient and SRSY

“intentionally engaged in a campaign of outrageous conduct,

including harassment against Plaintiff by telephone, email . . .

and defaming Plaintiff by use of communications with 3rd parties.”

(SAC 948-50.) He asserts that Non-Federal Defendants used “vulgar

and threatening language including the threat to have Plaintiff’s

house flash banged by police officers.” (SAC 950-52.) Plaintiff

further claims that he “greatly feared for his and his family’s

life” in light of “Gerard Donovan’s history in litigation for

alleged abusive behavior, coupled with his extensive weapons

training.” (SAC 956-58.)

Even accepting as true Plaintiff’s allegations, Non-

Federal Defendants’ actions fall well short of the exceedingly

high level of conduct typically deemed sufficient to sustain a

claim for intentional infliction of emotional distress under New

York law. See Doe v. City of New York, 18-CV-670, 2018 WL 3824133,

at *11 (E.D.N.Y. August 9, 2018) (finding allegations that

defendants “pressured, bullied, threatened and intimidated”

plaintiff insufficient to satisfy extreme and outrageous conduct);

Fleming v. Hymes-Esposito, No. 12-CV-1154, 2013 WL 1285431 at *9

(S.D.N.Y. March 29, 2013) (finding allegations of defamation,

numerous phone calls, and unauthorized visits to plaintiff’s home

failed to plead extreme and outrageous conduct). For this reason,

the Court grants the Non-Federal Defendants’ Dismissal Motion as

to Plaintiff’s intentional infliction of emotional distress claim,7

which claim is DISMISSED without prejudice.

3. Fraud

Under New York law, to state a claim for fraud a

plaintiff must demonstrate: “(1) a misrepresentation or omission

of material fact; (2) which the defendant knew to be false; (3)

7 The Non-Federal Defendants also argue that Plaintiff’s claim is

barred by the applicable one-year statute of limitations for

intentional infliction of emotional distress claims. (Non-

Federal Defs.’ Br. at 8.) In his Opposition, Plaintiff contends

that at least some of the conduct causing his alleged distress

occurred within the one-year statutory period. (Pl’s Opp. Br.

at 18-20.) Because the Court finds that Plaintiff has not

alleged conduct that is “extreme and outrageous,” the Court need

not reach the statute of limitations issue.

which the defendant made with the intention of inducing reliance;

(4) upon which the plaintiff reasonably relied; and (5) which

caused injury to the plaintiff.” Wynn v. AC Rochester, 273 F.3d

153, 156 (2d Cir. 2001). Additionally, in accordance with Rule

9(b), a party alleging fraud must plead with particularity the

circumstances constituting fraud. See FED. R. CIV. P. 9(b).

Generally, to comply with Rule 9(b)’s specificity requirements,

the complaint must: “(1) specify the statements that the plaintiff

contends were fraudulent, (2) identify the speaker, (3) state where

and when the statements were made, and (4) explain why the

statements were fraudulent.” Lerner v. Fleet Bank, N.A., 459 F.3d

273, 290-91 (2d Cir. 2006); Rombach v. Chang, 355 F.3d 164, 174

(2d Cir. 2004) (“[P]laintiffs must do more than say that the

statements . . . were false and misleading; they must demonstrate

with specificity why and how that is so.”). Conclusory allegations

of fraud will not survive Rule 9(b)’s heightened pleading standard,

and therefore, will be subject to dismissal at the motion to

dismiss stage. See Nasso v. Bio Reference Labs., Inc., 892 F.

Supp. 2d 439, 446 (E.D.N.Y. 2012) (citing Shemtob v. Shearson,

Hammill & Co., 448 F.2d 442, 444 (2d Cir. 1971)).

In the instant case, Plaintiff fails to plead fraud with

sufficient plausibility or particularity to survive a motion to

dismiss. Plaintiff claims generally that Navient and SRSY

misrepresented information it provided to Plaintiff about his

Loans, including methods of loan servicing, and the removal of

forbearances placed on his Loans. (SAC 1055-62, 1230-32.)

However, Plaintiff’s pleading does not identify the allegedly

fraudulent statements, the speaker of those statements, or specify

when and where the statements were made. See Mills v. Polar

Molecular Corp., 12 F.3d 1170, 1175 (2d Cir. 1993) (“Rule 9(b) is

not satisfied where the complaint vaguely attributes the alleged

fraudulent statements to ‘defendants.’”); Fennick v. NYCM, No. 13–

CV–0085, 2013 WL 5323630, at *5 (N.D.N.Y. Sept. 20, 2013) (“To

meet its burden of pleading a claim of fraud, the complaint must

adequately specify the misleading or fraudulent statements the

claimant alleges it relied upon as well as the location, time

frame, and identity of those responsible for making the

statements.“).

Moreover, Plaintiff fails to explain how any of the

alleged statements were fraudulent. The only specific allegation

Plaintiff makes against SYSR is that “SRSY has recently stated

that they had nothing to do with the servicing of Plaintiff’s

loans, further showing that their ‘cease and desist’ letter and

other communications stating that SRSY will service the loans

[were] false.” (SAC 1242-44.) However, the cease and desist

letter SRSY sent to Plaintiff on July 21, 2015 does not state that

SRSY will service Plaintiff’s Loans. On the contrary, the letter

states that “[SRSY] made it clear to [Plaintiff] that [SRSY]

offices are not servicing your account. Rather Navient is the

servicer of your account.” (June 18, 2015 and July 21, 2015 Cease

and Desist letters from SRSY to Plaintiff, Ex. F, D.E. 59, at p.4.)

Additionally, the June 18, 2015 cease and desist letter SRSY sent

to Plaintiff also states that “Navient currently services federal

student loans in your name.” (Ex. F at 2.) Thus, not only do

Plaintiff’s broad and generalized allegations of fraud fail to

satisfy the particularity requirements of Rule 9(b), but they are

contradicted by the cease and desist letters that Plaintiff

references in his SAC. For these reasons, Plaintiff’s fraud claim

is DISMISSED without prejudice.

4. RICO

To establish a RICO claim, a plaintiff must show: “(1)

a violation of the RICO statute, 18 U.S.C. § 1962; (2) an injury

to business or property; and (3) that the injury was caused by the

violation of Section 1962.” DeFalco v. Bernas, 244 F.3d 286, 305

(2d Cir. 2001) (citations omitted). As is relevant here, to

establish a violation of 18 U.S.C. § 1962(c), the plaintiff “must

plausibly allege that a defendant, through the commission of two

or more acts constituting a pattern of racketeering activity,

directly or indirectly participated in an enterprise, the

activities of which affected interstate or foreign commerce.” Id.

at 308. Thus, to plead a RICO claim under 18 U.S.C. § 1962(c), “a

plaintiff must show that a person engaged in (1) conduct (2) of an

enterprise (3) through a pattern (4) of racketeering activity.”

Id. at 306. Because the Court finds that the SAC does not allege

the existence of a RICO enterprise, Plaintiff’s RICO claim fails.

“The heart of any civil RICO claim is the enterprise.

There can be no RICO violation without one.” BWP Media USA Inc.

v. Hollywood Fan Sites, LLC, 69 F. Supp. 3d 342, 359 (S.D.N.Y.

2014) (citation omitted). Plaintiff claims that Navient and SRSY,

along with their members and partners, formed an association-in-

fact enterprise. (SAC 1274-80.) An association-in-fact

enterprise consists of “a group of persons associated together for

a common purpose of engaging in a course of conduct.” Boyle v.

United States, 556 U.S. 938, 946 (2009) (citation omitted). Such

an enterprise must have “‘both interpersonal relationships and a

common interest’ to show that an alleged group ‘functions as a

continuing unit.’” Abbott Labs. v. Adelphia Supply USA, No. 15-

CV-5826, 2017 WL 57802, at *3 (E.D.N.Y. Jan. 4, 2017) (quoting

Boyle, 556 U.S. at 946). In analyzing whether a complaint alleges

an association-in-fact enterprise, courts look to the “‘hierarchy,

organization, and activities of the alleged association to

determine whether its members functioned as a unit.’” BWP Media,

69 F. Supp. 3d at 360 (quoting Cont'l Petroleum Corp. Inc. v. Corp.

Funding Partners, LLC, No. 11-CV-7801, 2012 WL 1231775, at *5

(S.D.N.Y. Apr. 12, 2012)). A plaintiff must show “the

relationships between the various members and their roles in the

purported RICO scheme.” Abbott Labs., 2017 WL 57802, at *3

(internal quotation marks and citation omitted).

In the instant case, outside of conclusory statements,

Plaintiff’s SAC fails to set forth any allegations supporting a

plausible claim that Navient and SRSY “associated together for a

common purpose of engaging in a course of conduct,” or functioned

as a “continuing unit.” Boyle, 556 U.S. at 946. Rather,

Plaintiff’s allegations establish no more than SRSY acted as

Navient’s attorneys by representing Donovan in his state court

action against Plaintiff and providing legal assistance to Navient

regarding Plaintiff’s harassing conduct. See Rosner v. Bank of

China, 528 F. Supp. 2d 419, 429 (S.D.N.Y. 2007) (dismissing RICO

claim where plaintiff failed to adequately allege a RICO enterprise

because no facts alleged showed how defendants “improperly

functioned as a unit”).

In his Opposition, Plaintiff claims that Navient and

SRSY were involved in the servicing of his Loans, thereby acting

as a unit. (Pl.’s Opp. Br. at 26.) However, Plaintiff’s assertion

that SRSY actually serviced his Loans is not supported by the SAC.

As discussed, supra, SRSY’s cease and desist letters, referenced

in the SAC, show that SRSY was not servicing Plaintiff’s Loans,

but assisting Navient in managing Plaintiff’s harassment of its

employees and offering to act as an intermediary between Navient

and Plaintiff in Navient’s service of Plaintiff’s Loans. (Cf. SAC

1242-44, with Ex. F; see also Ex. 15 at p.1, attached to SAC.)

Thus, the relationship that SRSY had with Navient was that of

attorney-client, a relationship necessitated by Plaintiff’s own

conduct.

Plaintiff’s further argument, that the state court’s

consent judgment ordering him to “remove information and not

publish any new information about SRSY, Gerard Donovan and Navient”

demonstrates a common interest, is unavailing. (Pl.’s Opp. Br. at

26-27.) The state court’s consent judgment, permanently enjoining

Plaintiff from harassing, defaming and threatening Donovan and

from publishing any information about any of the Non-Federal

Defendants, was the result of Donovan’s lawsuit against Plaintiff

and hardly shows that the Defendants shared a common purpose to

establish a RICO enterprise. Therefore, Plaintiff fails to

plausibly allege the existence of an association-in-fact

enterprise.

Accordingly, as Plaintiff has not satisfied the

“enterprise” element of a RICO claim, and because the Court finds

that there is no indication, even from a liberal reading of the

SAC, that a valid RICO claim might be plausibly stated, Plaintiff’s

RICO claim is DISMISSED with prejudice.8

8 Notably, courts have held that non-compliance with a regulatory

statute affording administrative remedies cannot form the basis

for a civil RICO claim. See, e.g., McCulloch v. PNC Bank Inc.,

298 F.3d 1217, 1227 (11th Cir. 2002) (“[I]n light of the HEA's

C. Claims Against Navient, SRSY and Donovan

1. Tortious Interference with Contract

To state a claim for tortious interference under New

York law, a plaintiff must show: (1) “the existence of a valid

contract between the plaintiff and a third party;” (2) the

“defendant’s knowledge of that contract;” (3) the “defendant’s

intentional procurement of a third-party’s breach of contract

without justification;” and (4) “damages.” Kirch v. Liberty Media

Corp., 449 F.3d 388, 401-02 (2d Cir. 2006). To satisfy the

intentional procurement requirement, a plaintiff must allege that

the breach would not have occurred “but for” the conduct of the

defendants. Sharma v. Skaarup Ship Mgmt. Corp., 916 F.2d 820, 828

(2d Cir. 1990); White Plains Coat & Apron Co., Inc. v. Cintas

enforcement scheme, granting the Secretary of Education

exclusive authority to remedy violations of the HEA, and the

fact that the HEA does not confer a private right of action, the

Court finds that the failure to disclose Stafford Loan

information, even if in violation of the HEA, cannot form the

basis for a civil RICO claim.”); N.Y. Instit. of Dietetics, Inc.

v. Great Lakes Higher Ed. Corp., No. 94-CV-4858, 1995 WL 562189,

at *4 (S.D.N.Y. Sept. 21, 1995) (dismissing RICO claim based on

alleged HEA violations after concluding that plaintiffs cannot

circumvent the HEA's administrative remedies by “packaging”

their HEA claim as a RICO claim). See also Norman v. Niagara

Mohawk Power Group, 873 F.2d 634, 637-38 (2d Cir. 1989)

(rejecting plaintiffs' attempt to circumvent administrative

remedies in the Energy Reorganization Act by pleading their

claim in RICO terms). Therefore, Plaintiff’s RICO claim fails

for the additional reason that the Court will not allow

Plaintiff to “circumvent the HEA's administrative remedies by

‘packaging’ [his] HEA claim as a RICO claim.” Dietetics, 1995

WL 562189, at *4.

.

Corp., 8 N.Y.3d 422, 425 (2007)(defendant must have “induc[ed] or

otherwise caus[ed]” the third-party not to perform the contract)

(quoting Restatement (Second) of Torts § 766).) Additionally,

“the law requires some factual specificity in pleading tortious

interference.” RSM Production Corp. v. Fridman, 643 F. Supp. 2d

382, 405 (S.D.N.Y. 2009), aff’d 387 Fed. App’x. 72 (2010) (citation

omitted) (affirming dismissal of tortious interference with

contract claim where plaintiff failed to plausibly plead that

defendants’ conduct caused the complained-of injury).

Plaintiff’s claims that the Non-Federal Defendants

tortuously interfered with his contract with the DOE fail because

his SAC lacks the specificity required to state a claim for

tortious interference with a contract. Plaintiff’s conclusory

allegation that the Non-Federal Defendants’ conduct “induced DOE

and others to breach the FFEL Loan Master Promissory Note Contract

and or Direct Loan” (SAC 875-76; 1154-55; 1894-95), does not

satisfy his pleading burden as mere recitation of the legal

standard “without any relevant supporting facts is insufficient to

state a cause of action for tortious interference with contractual

relations.” RSM, 643 F. Supp. 2d at 410 (quoting Granite Partners,

L.P. v. Bear Stearn & Co. Inc., 17 F. Supp. 2d 275, 294 (S.D.N.Y.

1998)). Moreover, Plaintiff fails to include any factual

allegations as to any actions taken by the Non-Federal Defendants

to “intentional[ly] procure[ ]” the DOE’s breach of the Note.

While Plaintiff refers to Navient’s alleged failure to provide him

with a toll-free number and its refusal to process payments,

deferments and forbearances (SAC 885-87), he does not allege how

this conduct was the “but for” cause of DOE’s alleged breach of

the Note. See Sharma, 916 F.2d at 828; Hyland, 2019 WL 2918238,

at *10 (“While Navient’s alleged misrepresentations may have made

it more difficult for the plaintiffs to take advantage of their

contractual rights, this does not establish that the Department

breached its contractual obligations to borrowers.”). Thus, in

the absence of alleged facts demonstrating that “but for” the Non-

Federal Defendants’ actions, the DOE would not have breached its

contract with Plaintiff, Plaintiff’s tortious interference with

contract claim fails warranting its DISMISSED without prejudice.

2. Conspiracy to Violate Civil Rights

In order to sustain a claim of conspiracy to interfere

with another’s civil rights, pursuant to 42 U.S.C. § 1985(2)

(“Section 1985(2)”), a plaintiff must allege “(1) a conspiracy

between two or more persons, (2) to deter a witness ‘by force,

intimidation, or threat’ from attending any court of the United

States or testifying freely therein, which (3) causes injury to

the claimant.” Grant v. Abbott House, No. 14-CV-8703, 2016 WL

796864, at *6 (S.D.N.Y. Feb. 22, 2016) (quoting Herrera v. Scully,

815 F. Supp. 713, 726 (S.D.N.Y. 1993); (42 U.S.C. § 1985(2)).

Additionally, claims which apply to state court proceedings,

require a showing that the co-conspirators’ actions were motivated

by discriminatory “racial, ethnic, or class-based animus.” Zemsky

v. City of N.Y., 821 F. 2d 148, 151 (2d Cir. 1987). It is well-

settled that “in order to maintain an action under Section 1985,

a plaintiff ‘must provide some factual basis supporting a meeting

of the minds, such that defendants entered into an agreement,

express or tacit, to achieve the unlawful end.’” Webb v. Goord,

340 F.3d 105, 110–11 (2d Cir. 2003) (quoting Romer v. Morgenthau,

119 F. Supp. 2d 346, 363 (S.D.N.Y. 2000)). Furthermore, even where

a plaintiff is proceeding pro se, a “‘constitutional conspiracy

claim must be pled with at least some degree of particularity.’”

Dove v. Fordham Univ., 56 F. Supp. 2d 330, 338 (S.D.N. Y. 1999)

(quoting Laverpool v. N.Y.C. Transit Auth., 760 F. Supp. 1046,

1056 (E.D.N.Y. 1991)), aff’d sub nom. Dove v. O’Hare, 210 F.3d 354

(2d Cir. 2000).

Here, Plaintiff alleges that Defendants conspired

“through threats of force and intimidation to deny [him] of his

due process rights” and his “right to free speech.” (SAC 1036-

38, 1046-48.) Specifically, Plaintiff alleges that Navient

conspired “to dissuade Plaintiff from testifying” in the state

court proceeding with Donovan by threatening “to have people come

to Plaintiff’s house to handle him, destroy his aquariums and fish,

defame [him] and file false police reports against [him].” (SAC

1040-45.) He claims that “[t]his [conspiracy] has taken place

through emails between the DOE and Navient, as well as other

communications with co-defendants.” (SAC 1038-39.) However,

wholly missing are any allegations that there was a “meeting of

the minds” among any of the Defendants. The Second Circuit has

repeatedly held that similar “conclusory, vague, or general

allegations of conspiracy to deprive a person of constitutional

rights cannot withstand a motion to dismiss.” Gyadu v. Hartford

Ins. Co., 197 F.3d 590, 591 (2d Cir. 1999) (per curiam); see, e.g.,

Sylla v. City of N.Y., No. 04-CV-5692, 2005 WL 3336460 *7 (E.D.N.Y.

2005) (dismissing conspiracy claim for failure to allege a meeting

of the minds among defendants). Thus, Plaintiff’s Section 1985(2)

claim must be dismissed for failure to state a claim.

Plaintiff’s conspiracy claim further fails because he has

not alleged that a class-based discriminatory animus motivated the

Non-Federal Defendants’ actions. Aside from a passing reference

to his ethnicity and religion (SAC 134-37), Plaintiff’s SAC

contains no factual allegations that the co-conspirators’ actions

were motivated by discriminatory “racial, ethnic, or class-based

animus.” See Zemsky, 821 F.2d at 151. Therefore, Plaintiff fails

to state a Section 1985(2) conspiracy claim against the Non-Federal

Defendants resulting in it being DISMISSED without prejudice.

D. Claims Against Donovan

1. Negligent Infliction of Emotional Distress

A claim of negligent infliction of emotional distress

“generally must be premised upon the breach of a duty owed to [the]

plaintiff which either unreasonably endangers the plaintiff’s

physical safety, or causes the plaintiff to fear for his or her

own safety.” Jones v. Commerce Bancorp, Inc., No. 06-CV-835, 2006

WL 1409492, at *4 (S.D.N.Y. May 23, 2006) (citation omitted).

Thus, to recover for negligent infliction of emotional distress,

there must be a duty owed from Defendant to Plaintiff. “The duty

in such cases must be specific to the plaintiff, and not some

amorphous, free floating duty to society.” Mortise v. United

States, 102 F.3d 693, 696 (2d Cir. 1996). Additionally, like

intentional infliction of emotional distress, a claim of negligent

infliction of emotional distress “must be supported by allegations

of conduct by the defendants so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of decency,

and to be regarded as atrocious, and utterly intolerable in a

civilized community.” Id. (citation omitted).

Plaintiff’s allegations fail to state a claim for

negligent infliction of emotional distress because he fails to

allege that Donovan owed him a duty. “The general rule is that

a lender does not owe tort duties to a borrower.” Hyland, 2019 WL

2918238, at * at 11 (citing Mfrs. Hanover Trust Co. v. Yanakas, 7

F.3d 310, 318 (2d Cir. 1993)). Courts have applied this rule to

both lenders and loan servicers. Id. (citing Harte v. Ocwen Fin.

Corp., 13-CV-5410, 2014 WL 4677120, at *12 (E.D.N.Y. Sept. 19,

2014)). Thus, as an employee of Plaintiff’s loan servicer, Donovan

owed no duty to Plaintiff. Further, Plaintiff’s claims that (1)

Donovan “engaged in a campaign of outrageous conduct that comprised

[of] harassing the Plaintiff in person, [and the] use of vulgar

and threatening language” (SAC 1941-42), and that (2) “[a]s a

third[-]party servicer[, Donovan was] required to fulfill the

obligations as per the Master Promissory note which [he] failed to

do” (SAC 1961-62) do not rise to the level of extreme or outrageous

conduct. (See supra Part III(B)(2)(discussing Plaintiff’s claim

of intentional infliction of emotional distress).) Therefore,

because Plaintiff fails to allege the existence of a duty or

extreme and outrageous conduct, he has not stated a claim for

negligent infliction of emotional distress; accordingly, said

claim is DISMISSED with prejudice.

2. Contempt of Court

Plaintiff alleges that Donovan is in contempt for

failing to comply with the August 3, 2017 state court consent

judgment by refusing to answer questions related to the servicing

of his Loans. (SAC 1980-87.) Pursuant to the terms of the consent

judgment, the state court “retain[s] jurisdiction over the Parties

for the purpose of enabling any Party to apply to the Court for

such further orders and directions as may be necessary or

appropriate to enforce compliance with and to punish any violations

of this Judgment.” (Ex. D, ¶ 11.) Considering the state court’s

explicit retention of jurisdiction in conjunction with the fact

that it is best qualified to interpret and enforce its own order,

this Court declines to consider Plaintiff’s contempt claim, which

is DISMISSED without prejudice.

IV. Leave to Amend

The Second Circuit has stated that “[w]hen a motion to

dismiss is granted, the usual practice is to grant leave to amend

the complaint.” Hayden v. Cnty. of Nassau, 180 F.3d 42, 53 (2d

Cir. 1999); see also FED. R. CIV. P. 15(a)(2) (“The court should

freely give leave [to amend] when justice so requires.”). In

addition, leave to replead should be liberally granted to pro se

litigants. Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010).

While the Court is mindful that Plaintiff has already

been granted two opportunities to amend the Complaint, (see Nov.

14, 2018 Elec. Order and June 10, 2019 Elec. Order), Plaintiff is

GRANTED LEAVE TO AMEND his SAC in accordance with this Memorandum

and Order. Any Amended Complaint shall be filed within thirty

(30) days from the date of this Memorandum and Order and shall be

titled “Third Amended Complaint” and shall bear Case Number 18-

CV-1243(JS)(AKT). Plaintiff is cautioned that his failure to

timely file a Third Amended Complaint will lead to the dismissal

of his SAC with prejudice and the closure of this case.

CONCLUSION

For the foregoing reasons, the Court grants both the

Federal Defendants’ and the Non-Federal Defendants’ Dismissal

Motions. With regard to the Federal Defendants, Plaintiff’s claims

for violations of the FTC Act, the CFPA, the FCRA, the FTCA, as

well as the Constitution and FOIA, are DISMISSED with prejudice;

whereas, Plaintiff’s claims pursuant to the APA and for breach of

contract are DISMISSED without prejudice. As for the Non-Federal

Defendants, Plaintiff’s claims for violations of the CFPA, the

FDCPA, the FTC Act, RICO, as well as his claims for breach of

contract, unjust enrichment, breach of fiduciary duty, and

negligent infliction of emotional distress are DISMISSED with

prejudice; whereas, his claims for violation of the FCRA,

defamation, intentional infliction of emotional distress, fraud,

tortious interference with contract, conspiracy, and contempt are

DISMISSED without prejudice.

Plaintiff is GRANTED leave to file a Third Amended

Complaint in accordance with this Memorandum and Order. Plaintiff

is ON NOTICE: Failure to timely file a Third Amended Complaint

will result in the dismissal of this action with prejudice and

judgment will enter in favor of the Defendants.

The Government is directed to mail a copy of this Order

to the pro se Plaintiff and file proof of said service.

SO ORDERED.

Joanna Seybert

/s/

JOANNA SEYBERT, U.S.D.J.

Dated: December 4, 2020

Central Islip, New York