# Edelman v. United States Government

> District Court, E.D. New York · December 4, 2020

URL: https://www.frixlaw.com/law-library/cases/10305331

## Case

- **Court:** District Court, E.D. New York
- **Decided:** December 4, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10305331

## How later opinions describe it (automated extraction)

- 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”
- finding no statutory basis for a private right of action under the FTCA

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------x
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.
----------------------------------x
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10305331. Public record. Not legal advice.