Charles v. Equifax Information Services, LLC.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------X

DARIO J. CHARLES, :

:

Plaintiff, :

v. : ORDER

: 19-CV-3579 (WFK) (ST)

TRANSUNION, LLC, :

:

Defendant. :

---------------------------------------------------------------X

---------------------------------------------------------------X

DARIO J. CHARLES, :

:

Plaintiff, :

v. : ORDER

: 19-CV-3604 (WFK) (ST)

EXPERIAN INFORMATION SOLUTIONS, INC., :

:

Defendant. :

---------------------------------------------------------------X

---------------------------------------------------------------X

DARIO J. CHARLES, :

:

Plaintiff, : ORDER

v. : 19-CV-3913 (WFK) (ST)

:

EQUIFAX INFORMATION SERVICES, LLC, :

:

Defendant. :

---------------------------------------------------------------X

WILLIAM F. KUNTZ, II, United States District Judge:

In these three related Fair Credit Reporting Act (“FCRA”) actions, Dario J. Charles (“Plaintiff”)

sues three credit reporting agencies, alleging they failed to properly investigate a past debt he

claims was not his. The actions were consolidated for discovery. The agencies now move,

unopposed, for summary judgment.1 Because Plaintiff lacks standing, the Court declines to

reach the merits of the motions and instead remands the actions sua sponte for lack of subject

matter jurisdiction.

1 The motions are ECF No. 46 in 19-CV-3579 (“TransUnion Mot.”), ECF No. 41 in 19-CV-3604 (“Experian Mot.”),

and ECF No. 38 in 19-CV-3913 (“Equifax Mot.”).

BACKGROUND

These actions concern a past due Verizon tradeline that Plaintiff allegedly failed to pay

for nearly 30 months. See Experian Mot. at 3. Plaintiff claims he closed the tradeline in 2018.

TransUnion Mot. at 6. Verizon nonetheless began reporting the tradeline to the agencies in early

2019. See Experian Mot. at 3; see also TransUnion Mot. at 6; Equifax Rule 56.1 Stmt. ¶ 31,

ECF No. 38-3 (Dkt. No. 19-CV-3913). At the time, Plaintiff owed $667.00. TransUnion Mot. at

6.

Between April and May 2019, Plaintiff contacted the agencies to dispute the tradeline

reports. Id. at 7; Experian Mot. at 4; Equifax Rule 56.1 Stmt. ¶ 33. After investigating his

claims, the agencies each verified the accuracy of its reporting of the tradeline and mailed their

conclusions to Plaintiff. TransUnion Mot. at 7; Experian Mot. at 4; Equifax Rule 56.1 Stmt. ¶¶

42, 47, 51-52.

On May 29, 2019, Plaintiff, proceeding pro se, filed three separate but nearly identical

complaints against TransUnion, Experian, and Equifax in the District Court of the County of

Nassau, New York, First District, Civil Part, alleging the agencies violated Sections 1681e(b)

and 1681i of the FCRA by failing to investigate and remove a past due Verizon tradeline he

claims was not his. As a result, Plaintiff claims he suffered “actual damages including . . .

damage to his reputation, embarrassment, humiliation and other mental and emotional distress.”

Between June and July of 2019, the agencies removed the actions to federal court and the

cases were consolidated for purposes of discovery. Discovery concluded on December 31, 2020.

In October 2021, the agencies moved for summary judgment. Plaintiff did not oppose the

motions.

DISCUSSION

The Court lacks subject matter jurisdiction over the three actions because Plaintiff has

failed to demonstrate standing. It therefore remands them to state court and does not reach the

merits of the agencies’ motions. Moreover, because amendment cannot cure the jurisdictional

issues with Plaintiff’s claims, the Court denies Plaintiff leave to amend.

I. Standing

Article III of the United States Constitution “confines the federal judicial power to the

resolution of ‘Cases’ and ‘Controversies.’” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203

(2021). “This limitation is effectuated through the requirement of standing.” Cooper v. U.S.

Postal Servs., 577 F.3d 479, 489 (2d Cir. 2009). To demonstrate standing, a plaintiff must show

“(1) injury in fact, which must be (a) concrete and particularized, and (b) actual or imminent; (2)

a causal connection between the injury and the defendant’s conduct; and (3) that the injury is

likely to be redressed by a favorable decision.” Kreisler v. Second Ave. Diner Corp., 731 F.3d

184, 187 (2d Cir. 2013). Where, as here, a case is at the summary judgment stage, there must be

“proof of injury-in-fact beyond the sufficiency of Plaintiff’s allegations of an injury.” Ergas v.

Eastpoint Recov. Grp., Inc., No. 20-CV-333S, 2022 U.S. Dist. LEXIS 84493, at *27 (W.D.N.Y.

May 10, 2022). A plaintiff who fails to demonstrate injury-in-fact lacks standing, and federal

courts lack jurisdiction to consider their claims. TransUnion, 141 S. Ct. at 2203. If the court

lacks subject matter jurisdiction, it may dismiss the action sua sponte. See Plante v. Dake, 621

Fed. Appx. 67, 69 (2d Cir. 2015) (summary order); see also In re Indu Craft, Inc., 630 Fed.

Appx. 27, 29 (2d Cir. 2015) (“It is proper . . . for a district court to dismiss an action for lack of

subject matter jurisdiction [sua sponte] where ‘it is unmistakably clear that the court lacks

jurisdiction’”) (summary order).

Although Congress may identify and elevate intangible harms by statute, bare procedural

violations of a statute do not satisfy the injury-in-fact requirement of Article III. See

TransUnion, 141 S. Ct. at 2200; see also Spokeo, Inc v. Robins, 578 U.S. 330 (2016) (“[A]

plaintiff [does not] automatically satisf[y] the injury-in-fact requirement whenever a statute

grants a person a statutory right and purports to authorize that person to sue to vindicate that

right.”). In TransUnion, the Supreme Court explained that a procedural violation of the FCRA,

without more, is not an injury in fact because it fails to establish concrete harm beyond the

statutory violation itself. TransUnion, 141 S. Ct. at 2205. Instead, “whether a harm qualifies as

‘concrete’ hinges on ‘whether the alleged injury to the plaintiff has a close relationship to a harm

traditionally recognized as providing a basis for a lawsuit in American courts.” Maddox v. Bank

of N.Y. Mellon Trust Co., N.A., 19 F.4th 58, 63 (2d Cir. 2021) (quoting TransUnion LLC, 141 S.

Ct. at 2204). Simply put, “an injury in law is not an injury in fact.” TransUnion LLC, 141 S. Ct.

at 2205.

Following TransUnion, the Second Circuit has reiterated that “plaintiffs must show the

statutory violation caused them a concrete harm, regardless of whether the statutory rights

violated were substantive or procedural.” Maddox, 19 F.4th at 64 n.2. Courts in this district

have accordingly dismissed FCRA actions for lack of standing where the complaint fails to

allege concrete reputational or monetary harm. See, e.g., Gross v. Transunion, LLC, No. 21-cv-

1329 (BMC), 2022 U.S. Dist. LEXIS 105117, at *7 (E.D.N.Y. June 13, 2022) (Cogan, J.)

(finding TransUnion’s alleged credit error did not cause plaintiff “concrete and particularized

harm” because the alleged harms were “not expenses, costs, any specific lost credit opportunity,

or specific emotional injuries”); Zlotnick v. Equifax Info. Servs., LLC, No. 21-CV-7089 (GRB)

(JMW), 2022 U.S. Dist. LEXIS 21146, at *5 (E.D.N.Y. Feb. 3, 2022) (Brown, J.) (finding

conclusory allegations of “mental and emotional pain, anguish, humiliation, and embarrassment

of credit denial” fail to demonstrate standing in the FCRA context).

The present actions must also be dismissed. Here, Plaintiff claims he suffered damage to

his reputation, embarrassment, humiliation and other mental and emotional distress. But these

allegations are conclusory and fail to demonstrate concrete or particularized harm. See Gross v.

Transunion, LLC, 2022 U.S. Dist. LEXIS 105117, at *7 (finding conclusory allegations of harm

to “credit worthiness” as well as “embarrassment, humiliation, and other emotional injuries” do

not confer standing); see also Maddox, 19 F.4th at 66 (“A perfunctory allegation of emotional

distress . . . is insufficient to allege constitutional standing.”).

Nor does the record support any finding of concrete or particularized harm. Although

Plaintiff states he suffered harm to his reputation, the agencies never issued a consumer report to

a third party reporting Plaintiff’s Verizon account. See Experian Mot. at 14; Equifax Mot. at 10-

11; TransUnion Mot. at 19; see also Zlotnick, 2022 U.S. Dist. LEXIS 21146, at *5 (dismissing an

FCRA case for lack of standing where plaintiff failed to allege “any particularized injury or

actual dissemination to third-party creditors.”); see also Spira v. Trans Union, LLC, No. 21-CV-

2367 (KMK), 2022 U.S. Dist. LEXIS 128085, at * (S.D.N.Y. July 19, 2022) (Karas, J.) (same).

Plaintiff also admitted he never applied for and was never denied credit when the tradeline was

reporting in 2019, and he had not pursued any employment opportunities during the time in

which his credit rating may have been adversely affected by the report. TransUnion Mot. at 19;

Equifax Rule 56.1 Stmt. ¶¶ 53-55. There is no evidence Plaintiff suffered any particularized or

concrete harm because of the alleged credit error.2 See Cohen v. Experian Information

2 Indeed, all agencies argue Plaintiff has failed to demonstrate any cognizable injury. See

Equifax Mot. at 10-12; TransUnion Mot. at 19-21; Experian Mot. at 14-15. Plaintiff does not

oppose these claims.

Solutions, Inc., No. 20-CV-3678 (BMC), 2021 U.S. Dist. LEXIS 22014 (E.D.N.Y. Feb. 4, 2021)

(Cogan, J.) (dismissing FCRA claims where no concrete harm was alleged).

In sum, Plaintiff has clearly failed to demonstrate an injury that bears a close relationship

to the harm traditionally recognized as providing a basis for standing. See Maddox, 19 F.4th at

63. His conclusory allegations are of the same cloth as those uniformly rejected by courts in this

district. Because such “[t]hreadbare” allegations fail to establish concrete injury, Zlotnick, 2022

U.S. Dist. LEXIS 21146, at *5, the Court remands the three actions to state court for lack of

jurisdiction without reaching the merits of the agencies’ motions. See Gross, 2022 U.S. Dist.

LEXIS 105117, at *5 (remand to state court is proper when plaintiff fails to demonstrate Article

III standing); see also Steinmetz v. Allied Interstate, LLC, No. 21-CV-5059 (AMD) (RER), 2022

U.S. Dist. LEXIS 124042, at *10-11 (E.D.N.Y. July 13, 2022) (Donnelly, J.) (dismissing case

without reaching the merits of defendants’ dispositive motion because plaintiff has failed to

establish Article III standing).

II. Leave to Amend

Because Plaintiff is proceeding pro se, the Court will consider whether Plaintiff may

amend his Complaint. “[D]istrict [C]ourts should generally not dismiss a pro se complaint

without granting the plaintiff leave to amend, unless it would be futile.” See Kallas v. Fiala, 591

Fed. Appx. 30, 31 (2d Cir. 2015) (summary order).

The Court denies Plaintiff leave to amend because amendment cannot cure the

jurisdictional deficiencies described above. The undisputed facts of these actions establish (1)

the agencies never issued consumer reports to any third parties reporting Plaintiff’s Verizon

account which could give rise to concrete harm; (2) Plaintiff never applied for or was denied

credit when the tradeline was reporting in 2019; and (3) Plaintiff never pursued any employment

opportunities which could have been adversely affected by any changes in his credit rating.

Equifax Rule 56.1 Stmt. ¶¶ 53-56; Experian Rule 56.1 Stmt. ¶¶ 46-50, ECF No. 43 (Dkt. No. 19-

CV-3604); TransUnion Rule 56.1 Stmt. ¶¶ 60-75, ECF No. 38-3 (Dkt. No. 19-CV3579).

Amending the Complaint cannot alter these facts. Moreover, despite having nearly two years to

substantiate his claim for emotional distress, Plaintiff has failed to put forward any evidence to

show he suffered concrete harm. Given this record, the Court finds any amendment would be

futile.

CONCLUSION

Because the Court lacks subject matter jurisdiction over the actions, it remands them to

the Nassau County District Court of New York, First District, Civil Part. The Clerk of Court is

respectfully directed to close these cases and mail a copy of this Memorandum and Order to

Plaintiff.

SO ORDERED.

s/ WFK

____________________________

HON. WILLIAM F. KUNTZ, II

UNITED STATES DISTRICT JUDGE

Dated: September 28, 2022

Brooklyn, New York