Wray

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

Divon Daniel Wray, sss—<—sSSSSSS

Plaintiff,

V. 1:25-CV-1393

(MAD/MJK)

Experian Information Solutions, Inc. et al.

Defendants.

Divon Daniel □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□

Mitchell J. Katz, U.S. Magistrate Judge

To the Honorable Mae A. D’Agostino, U.S. District Court Judge

ORDER & REPORT-RECOMMENDATION

On October 7, 2025, Divon Daniel Wray began this action by filing

a Complaint. (Dkt. 1). He also moved for leave to proceed in forma

pauperis (“IFP’). (Dkt. 2). Wray alleges violations of the Fair Credit

Reporting Act (““FCRA”). 15 U.S.C. § 1681 et seq. The Clerk sent Wray’s

Complaint and [FP application to this Court for review. (Dkts. 1, 2).

I. BACKGROUND

Wray sues Experian Information Solutions, Inc., Equifax

Information Services, LLC, and TransUnion, LLC, (“Defendants”) under

the FCRA alleging violations of 15 U.S.C. §§ 1681. (Dkt. 1 at 2-3 and 4f

7-9).! Wray claims that Defendants operate as “consumer reporting

agencies.” U/d.). Wray further alleges that on August 12, 2025, he

submitted “disputes” to Defendants relating to an allegedly fraudulent

Verizon account that appeared on his credit reports. (Dkt. 1 at 4 8).

About two months after submitting his disputes, Wray filed this

Complaint. (Dkt. 1 at 1). In his Complaint, Wray argues that

Defendants violated the FCRA in five different ways. (Dkt. 1 at J 6-

28).

First, that Defendants “failed to follow reasonable procedures to

assure maximum possible accuracy of the information they reported

regarding [Wray],” in violation of 15 U.S.C. § 1681e(b). (Dkt. 1 at 94 33-

34). As examples, Wray alleges that details of a Department of

Education account, Mohela account, and Lead Bank account are

inconsistent or absent from his credit reports. (Dkt. 1 at 4] 18-20).

1 The page numbers cited are those produced by the Electronic Case Filing “ECF”)

system.

Second, Wray claims that Defendants failed to conduct reasonable

reinvestigations after his disputes, in violation of 15 U.S.C. § 16811.

(Dkt. 1 at § 41). In his words: “Defendants merely ‘parroted’

information received from the furnishers without independently

reevaluating the extensive information and proof provided by Wray.”

(Dkt. 1 at ¥ 18).

Third, that Defendants “failed to block information resulting from

identity theft,” in violation of 15 U.S.C. § 1681c-2. (Dkt. 1 at §§] 50-51).

Fourth, that Defendants did not maintain reasonable procedures

to prevent reinsertion, and unlawfully reinserted, previously deleted

information onto his credit reports, in violation of 15 U.S.C

§ 1681(a)(5)(b). (Dkt. 1 at 420). For this argument, Wray’s Complaint

includes a list of several accounts that had been allegedly deleted and

reinserted into his various credit reports. (Dkt. 1 at 4] 21-23).

Fifth, that Defendants improperly disclosed his credit reports

because of several allegedly unauthorized credit inquiries. (Dkt. 1 at {

63).

Wray argues that Defendants’ violation of the FCRA entitle him to

“actual damages in an amount to be determined at trial, but not less

than $74,000; statutory damages for each willful violation of the FCRA

pursuant to 15 U.S.C. § 1681n; costs of this action and reasonable

attorney’s fees pursuant to 15 U.S.C. §§ 1681n and 16810;” injunctive

relief; and “other and further relief that the Court may deem just and

proper.” (Dkt. 1 at § 65) (cleaned up).

Il. FP APPLICATION

Wray declares that he is unable to pay the filing fee in his JFP

application. (Dkt. 2). After reviewing his application and supporting

documents, this Court finds that Wray is financially eligible for JF'P

status.

I. STANDARD OF REVIEW

Alongside determining whether Wray meets the financial criteria

to proceed JFP, the Court must also consider whether Wray’s complaint

sets forth sufficient allegations considering 28 U.S.C. § 1915. That

Section provides that the Court may dismiss a complaint, or a portion of

the complaint, at any time if the Court determines that the action is

(i) frivolous or malicious; (ii) fails to state a claim on which relief may be

granted; or (111) seeks monetary relief against a defendant who is

immune from such relief. 28 U.S.C. § 1915 (e)(2)(B)G)-(ai1).

To determine if an action is frivolous, the Court must consider

whether the complaint lacks an arguable basis in law or fact. Neitzke v.

Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds by Bell

Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and 28 U.S.C. § 1915.

Dismissal of frivolous actions prevents abuse of court process and

discourages the waste of judicial resources. Neitzke, 490 U.S. at 327;

Harkins v. Eldredge, 505 F.2d 802, 804 (8th Cir. 1974) (per curiam).

While true that the Court must show liberality toward pro se litigants—

and must use extreme caution in ordering sua sponte dismissal of a pro

se complaint before the adverse party has been served and has had an

opportunity to respond—the court still has a responsibility to determine

that a claim is not frivolous before permitting the action to proceed.

Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d

Cir. 2000) (per curiam) (finding that a district court may dismiss a

frivolous complaint sua sponte even when plaintiff has paid the filing

fee).

IV. DISCUSSION

The Court recommends that the District Court dismiss Wray’s

Complaint for two reasons. First, Wray has failed to allege any

“concrete” injury sufficient to confer standing. Second, Wray has not

adequately stated claims under the FCRA. Therefore, the Court

recommends that the District Court dismiss Wray’s Complaint.

A. The District Court should Dismiss Wray’s Complaint

because he has not alleged a “concrete” injury sufficient

to confer standing.

The District Court should dismiss Wray’s Complaint because he

fails to allege any injury sufficient to confer standing. To have standing,

a plaintiff must allege an injury in fact that is concrete and

particularized. Here, Wray has not pleaded a concrete and

particularized injury. So, the District Court should dismiss his

Complaint for lack of standing.

Wray’s Complaint alleges no injury sufficient to confer standing.

To establish standing, “a plaintiff must show,” among other things, “an

‘injury in fact.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157-

58 (2014) (quotation omitted). An injury must be “concrete and

particularized” and “actual or imminent,” not “conjectural or

hypothetical.” Jd. at 158. Concerning the FCRA specifically, “a bare

procedural violation, divorced from any concrete harm fails to satisfy

the injury-in-fact requirement of Article III.” Zlotnick v. Equifax Info.

Serus., LLC, 583 F. Supp. 3d 387, 391 (E.D.N.Y. 2022) (quoting Spokeo,

Inc. v. Robins, 578 U.S. 330, 341 (2016), as revised (May 24, 2016)

(cleaned up).

At the pleading stage “standing allegations need not be crafted

with precise detail, nor must the plaintiff prove the allegations of his

injury.” Fin. Guar. Ins. Co. v. Putnam Advisory Co., LLC, 783 F.3d 395,

401-02 (2d Cir. 2015) (quotation omitted). But still, a plaintiff must

answer the core question of standing: “What’s it to you?” See FDA uv. All.

for Hippocratic Med., 602 U.S. 367, 379 (2024) (citation omitted). And to

answer that question, a plaintiff must allege facts “that affirmatively

and plausibly suggest that he has standing to sue.” Amidax Trading

Grp. v. S.W.LF.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011).

Wray’s Complaint does not plausibly allege facts suggesting that

he has standing as to any of his five claims. For each FCRA claim, Wray

states the required elements. See (Dkt. 1 at §[] 31-64). He further asks

for “[actual] damages,” “[p]unitive damages,” and “[closts of this action

and reasonable attorney’s fees. (Dkt. 1 at 4 65) (cleaned up). For

example, he alleges that the Defendants’ alleged violations are

“sufficient to mislead prospective creditors acting reasonably under the

circumstances and to adversely affect credit decisions regarding the

Plaintiff’? (Dkt. 1 at 935), but he does not allege that he has actually

suffered any adverse credit decisions. Similarly, he alleges that the

Defendants’ violations “have directly and proximately caused Plaintiff

to suffer concrete damages” (Dkt. 1 at 9/44, 51) but does not plead

these damages. Wray does not allege any facts suggesting that he has

suffered any “concrete and particularized” harm sufficient to confer

standing. See Amidax, 671 F.3d at 145 (a plaintiff must allege facts

“that affirmatively and plausibly suggest that [she] has standing to

sue.”).

And without allegations linking Defendants’ actions to any harm,

Wray’s Complaint contains nothing more than a list of alleged

procedural violations followed by “unadorned, the-defendant-

unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 622, 678

(2008). Without more, this is insufficient to confer standing. See Gross

v. TransUnion, LLC, 607 F. Supp. 3d 269, 273 (E.D.N.Y. 2022) (cleaned

up) (explaining that a plaintiff fails to establish standing if “[t]he

alleged harms are not expenses, costs, any specific lost credit

opportunity, or specific emotional injuries.”).

At bottom, the District Court should dismiss Wray’s Complaint

because his conclusory allegations fail to show how Defendants’ alleged

errors caused Wray to suffer a “concrete and particularized harm.”

B. The District Court should dismiss Wray’s Complaint

because he has not pleaded sufficient facts to survive

this initial review.

Should the District Court decide that Wray has standing, the

Court recommends that the District Court dismiss the Complaint

because Wray has failed to plausibly allege sufficient facts for any claim

under the FCRA. Below, the Court will discuss each of Wray’s FCRA

allegations.

1. Wray fails to allege that Defendants followed

improper procedures while generating and

reinvestigating his credit reports.

The District Court should dismiss Wray’s Complaint because he

fails to plausibly plead that Defendants’ have violated 15 U.S.C. §§

1681e(b) and 16811. Section 1681e(b) requires a plaintiff to show that a

defendant lacked reasonable procedures to assure credit accuracy.

Section 16811 requires a plaintiff to show that a defendant lacked

reasonable procedures to reinvestigate disputed credit information.

Because Wray’s Complaint fails to plausibly allege that Defendants’

lack reasonable investigation and reinvestigations procedures, he has

failed to state a claim. Therefore, the Court recommends that the

District Court dismiss Wray’s Complaint.

Wray has not plausibly pleaded that Defendants violated Section

15 U.S.C. § 1681e(b). Section 1681e(b) creates lability if a credit

reporting agency (“CRA”) fails “to follow reasonable procedures to

assure maximum possible accuracy.” 15 U.S.C. § 1681le(b). To raise a

claim under § 1681e(b), a plaintiff must show that “(1) the consumer

reporting agency was negligent [or willful] in that it failed to follow

reasonable procedures to assure the accuracy of its credit report; (2) the

consumer reporting agency reported inaccurate information about the

plaintiff; (3) the plaintiff was injured; and (4) the consumer reporting

agency’s negligence [or willfulness] proximately caused the plaintiff's

injury.” Taylor v. Experian Info. Sols., Inc., 5:24-CV-188 (DNH/MJK),

2024 WL 618741, at *4 (N.D.N.Y. Feb. 14, 2024) (citations omitted).

Wray has not plausibly stated a claim under Section 1681(e)(b). Rather,

10

Wray simply states that he has “identified significant inconsistencies in

the reporting of accounts across all three Defendants’ credit reporting

systems, further evidencing their failure to maintain reasonable

procedures to assure maximum possible accuracy.” (Dkt. at §]7) (cleaned

up). Indeed, Wray appears to argue that because there were alleged

errors, Defendants’ must not have maintained reasonable procedures.

That is not enough. See Gaft v. Mitsubishi Motor Credit of Am., No. 07-

CV-527, 2009 WL 3148764 (S.D.N.Y. Sept. 22, 2009) (explaining that an

“inaccurate entry of credit information, in and of itself, is not a violation

of the FCRA; rather .. . [the] plaintiff must allege that the [CRA] failed,

through negligence or intention, to follow reasonable procedures to

ensure the accuracy of the information.”). Wray’s Section 16811 claim

fairs no better. Section 16811 creates procedures that CRAs must follow

to investigate disputes concerning the accuracy of reported information.

These procedures include reinvestigating a consumer’s record within a

reasonable period after a consumer “directly conveys’ a dispute about

the “completeness or accuracy of an item on his credit report” to the

consumer reporting agency. Podell v. Citicorp Diners Club, 112 F.3d 98,

101 (2d Cir. 1997) (citing 15 U.S.C. § 16811(a)). What constitutes a

11

“reasonable” reinvestigation depends on the circumstances of the

allegations. See Jones v. Experian Info. Solutions, Inc., 982 F. Supp. 2d

268, 272 (S.D.N.Y. 2018) (citation omitted).

Here, Wray fails to make any plausible claims regarding

Defendants’ reinvestigation procedures. Wray states that “Defendants’

conducted ‘sham’ reinvestigations by merely parroting information

received from furnishers without conducting an independent evaluation

of the disputed information and [his] evidence.” (Dkt. 1 at 42). But

Wray fails to allege any facts concerning the specific procedures that

Defendants took to reinvestigate his allegedly inaccurate credit reports.

See Nguyen v. Ridgewood Sav. Bank, No. 14-CV-1058, 2015 WL

2354308, at *11 (E.D.N.Y. May 15, 2015) (dismissing plaintiffs

complaints because he “fail[ed] to make any allegations regarding either

the procedures followed or investigations by Trans Union, Equifax or

Experian ... in order to support a Section 16811 claim.”). As it stands,

Wray’s Section 16811 arguments rest on “naked assertion|[s]” devoid of

“further factual enhancement” which is not enough to show “grounds”

for any “entitle[ment] to relief.” Twombly, 550 U.S. at 555, 557 (2006).

ke

12

And so, the District Court should dismiss Wray’s 15 U.S.C. §§

1681e(b) and 16811 claims because he has failed to state a claim upon

which relief can be granted.

2. Wray has failed to state a claim under 15 U.S.C. § 1681

c-2.

The District Court should dismiss Wray’s Complaint because he

fails to plausibly plead that Defendants violated 15 U.S.C. § 1681c-2

which requires a CRA to block credit information that the consumer

identifies as resulting from identity theft. Because it is unclear whether

Wray submitted the required paperwork to trigger Defendants’ duty to

block his credit information, he has failed to state a claim upon which

relief can be granted. Therefore, the Court recommends that the

District Court dismiss Wray’s Complaint.

Under Section 1681c-2, a CRA has a duty to “block the reporting

of any information” in a consumer’s file that the consumer identifies as

resulting from identity theft. To trigger the CRA’s duty to block the

reporting of information, the consumer must provide the CRA with

“(1) proof of the identity of the consumer; (2) a copy of the identity theft

report; (3) the identification of the information resulting from the

alleged identity theft; and (4) a statement by the consumer affirming

13

that the disputed information does not relate to any transaction by the

consumer.” Phipps v. Experian, No. 20-CV-3368, 2020 WL 3268488, at

*4 (S.D.N.Y. June 15, 2020) (quoting 15 U.S.C. § 1681c¢-2(a)).

Although Wray claims that he has submitted some of the required

paperwork—like a Federal Trade Commission Identity Theft Report—

he has not alleged additional facts sufficient to plausibly state that

Defendants violated their FCRA duties.? And like his 15 U.S.C. §§

1681e(b) and 16811 claims, Wray fails “to state a claim to relief that is

plausible on its face.” Twombly, 550 U.S. at 570. Therefore, the Court

recommends dismissing Wray’s complaint. See Phipps, 2020 WL

3268488, at *4 (noting that it is “unclear from the complaint whether

[the pro se plaintiff] provided [the defendant-CRA] with the required

information” and granting the plaintiff leave to amend “and plead facts

showing that he provided [the defendant-CRA] with the information

required under § 1681c-2(a) and that it failed to comply with its duties

under the statute’).

The FTC Identity Theft Report is attached to the Complaint at Dkt. 1, p. 22. A

review of this exhibit reveals that it lacks material details that are required to

plead a claim under this section of the FCRA.

14

3. Wray fails to state a claim under 15 U.S.C. § 1681b

because he does not plausibly allege that Defendants

provided his credit report to third parties.

The Court recommends that the District Court dismiss Wray’s

Complaint because he fails state a claim under 15 U.S.C. § 1681b. To

plausibly plead a Section 1681b claim, a plaintiff must show that credit

information was improperly disseminated to third parties and that the

defendant did not maintain reasonable procedures to prevent credit

information dissemination. Wray has failed to plausibly plead either.

Therefore, the Court recommends that the District Court dismiss

Wray’s Complaint.

“Section 1681b generally specifies the circumstances under which

a consumer report may be furnished and used and protects consumer

privacy by limiting access to consumer credit reports.” Moore v.

Experian, No. 23-CV-673, 2023 WL 7169119, at *5 (S.D.N.Y. Oct. 18,

2023), report and recommendation adopted, 2023 WL 7166158 (S.D.N.Y.

Oct. 31, 2023) (cleaned up). Section 1681b differs from other FCRA

provisions because “liability under Section 1681b typically attaches to

third parties who willfully or negligently ‘use or obtain’ a consumer

report for an impermissible purpose.” /d. (cleaned up). Still, liability

15

may attach to a CRA where a third party accessed or used a consumer

report for an impermissible purpose provided the CRA “either willfully

or negligently fail[ed] to maintain reasonable procedures designed to

avoid violations of’ Section 1681b. Pietrafesa v. First Am. Real Estate

Info. Servs., No. 1:05-CV-1450 (LEX), 2007 WL 710197, at *3 (N.D.N.Y.

Mar. 6, 2007) (cleaned up). To determine whether the CRA maintained

reasonable procedures, “the standard of conduct is what a reasonably

prudent person would do under the circumstances.” Hines v Equifax,

No. 19-CV-6701, 2022 WL 2841909, at *23 (E.D.N.Y July 16, 2022)

(cleaned up).

Wray does not plausibly allege a § 1681b claim against

Defendants because the Complaint does not allege that Defendants

provided his consumer report to a third party, “which is fatal to any

claim that [Defendants] impermissibly shared [his] report.” Moore, 2023

WL 7169119, at *6. On this basis alone, Wray’s Complaint is subject to

dismissal.

That said, Wray’s Complaint does provide a list of alleged credit

inquiries made without any “permissible purpose.” See (Dkt. 1 at 63-

64). But his claim still fails because he does not plausibly allege that

16

Defendants “either willfully or negligently fail[ed] to maintain

reasonable procedures” to prevent an improper furnishing of

information. Pietrafesa, 2007 WL 710197, at *38. Indeed, “[m]Jerely

stating that the violation was ‘willful’ or ‘negligent’ without more is

insufficient.” Perez v. Experian, No. 20-CV-9119, 2021 WL 4784280, at

*11 (S.D.N.Y. Oct. 14, 2021) (citation omitted).

Because Wray does not plausibly allege that his credit information

was disseminated to third parties, the District Court should dismiss his

Complaint. But even if Wray had plausibly alleged that his credit

information was disseminated to third parties, his claim would still fail

because he has not alleged that a third party sought or used his

information for an impermissible purpose. See Taylor, 2024 WL 618741.

Moreover, Wray has failed to plausibly plead facts to support the

allegations that Defendants willfully or negligently failed to maintain

reasonable procedures to prevent improper furnishing of information.

See Perl v. Am. Exp., No. 11-CV-7374, 2012 WL 1783338, at *2 (S.D.N.Y.

Jan. 19, 2012) (dismissing part of the pro se plaintiffs’ complaint

because they did not provide enough additional facts for the court to

infer willful or negligent violations of the FCRA).

17

In the end, Wray has pleaded no facts suggesting that Defendants

disseminated his credit information to third parties. Wray has also not

pleaded any facts suggesting that even if Defendants had disseminated

his credit information, they acted with anything other than good faith.

In consequence, the District Court should dismiss Wray’s Complaint

because he has failed to state a claim under 15 U.S.C. § 1681b.

4. Wray’s 15 U.S.C. § 1681i(a)(5)(A) claim fails because he

does not allege that Defendants improperly reinserted

information after reinvestigation.

The District Court should dismiss Wray’s Complaint because he

fails to plausibly allege that Defendants have violated 15 U.S.C.

§ 16811i(a)(5)(A). Section 16811(a)(5)(A) requires a plaintiff to plausibly

plead that a CRA improperly reinserted credit information into a credit

report. Wray has not done so. Therefore, the Court recommends that

the District Court dismiss Wray’s Complaint.

Section 16811i(a)(5)(A) of the FCRA requires that a consumer

reporting agency delete information disputed by a consumer from the

consumer’s file if that information cannot be verified pursuant to a

“reinvestigation under paragraph (1).” 15 U.S.C. § 16811(a)(5)(A)(); see

also id. § 1681i(a)(1). Section 1681i(a)(5)(B) provides: “If any

information is deleted from a consumer’s file pursuant to subparagraph

18

(A), the information may not be reinserted in the file by the consumer

reporting agency unless the person who furnishes the information

certifies that the information is complete and accurate.” Id.

§ 16811(a)(5)(B)G). And if a consumer reporting agency reinserts any

previously deleted information, it must “notify the consumer of the

reinsertion in writing not later than 5 business days after the

reinsertion.” Id. § 16811(a)(5)(B)(1i); see also Phipps, 2020 WL 3268488,

at *2 (S.D.N.Y. June 15, 2020) (describing FCRA reinsertion procedure).

So, to state a valid claim for failure to notify under Section

1681i(a)(5)(B), “the re-reported information must have been deleted

pursuant to a § 1681i(a)(1) reinvestigation.” Wimberly v. Experian Info.

Sols., No. 1:18-CV-6058, 2021 WL 326972 (S.D.N.Y. Feb. 1, 2021)

(quotation omitted).

Wray’s proposed reinsertion claim fails for two reasons. First,

Wray does not plausibly allege that Defendants reinserted previously

deleted information regarding a tradeline that had previously been

deleted. (Dkt. 1 at 954-60). And because the tradeline was not deleted

from Wray’s file pursuant to a reinvestigation, any alleged reinsertion

did not trigger the notice requirement. Therefore, Defendants cannot be

19

liable for failure to notify Wray of reinserted information. See Wimberly,

2021 WL 326972.

Second, even if the alleged reinsertion did trigger the notice

requirement, Wray has not pleaded any injury whatsoever for this

claim. See (Dkt. 1 at 454-60). And a plaintiff must show, among other

things, a concrete and particularized injury to “affirmatively and

plausibly suggest that he has standing to sue.” Amidax, 671 F.3d at

145. Because Wray fails to plead any injury under this count, the Court

recommends that the District Court dismiss Wray’s Complaint.

V. OPPORTUNITY TO AMEND

Generally, before the court dismisses a pro se complaint or any

part of the complaint sua sponte, the court should afford a plaintiff the

opportunity to amend at least once; however, leave to re-plead may be

denied where any amendment would be futile. See Ruffolo v.

Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present

when the problem with plaintiffs causes of action is substantive such

that better pleading will not cure it. See Cuoco v. Moritsugu, 222 F.3d

99, 112 (2d Cir. 2000) (citation omitted).

20

Here, the Court recommends that Wray be allowed to amend his

Complaint because he may be able to plead facts that give him standing

and that invoke one or more of the statutory sections that he references.

VII. CONCLUSION

WHEREFORE, based on the findings above, it is

ORDERED, that Wray’s motion to proceed in forma pauperis (Dkt. 2) is

granted; and it is further

RECOMMENDED, that the Complaint (Dkt. 1) be DISMISSED

WITHOUT PREJUDICE AND WITH LEAVE TO AMEND; and it is

further

RECOMMENDED, that if the District Court adopts this

recommendation, Wray be given forty-five (45) days to amend their

Complaint to the extent authorized, and that Wray be advised that any

amended pleading must be a COMPLETE PLEADING, WHICH WILL

SUPERSEDE THE ORIGINAL, and that Wray must include all

remaining facts and causes of action in the amended complaint. No facts or

claims from the original complaint may be incorporated by reference; and it

is further

21

RECOMMENDED, that if the District Court adopts this

recommendation, and Wray does not elect to amend their Complaint within

the imposed deadline, the case be dismissed in its entirety, with prejudice;

and it is further

RECOMMENDED, that if the District Court adopts this

recommendation, and Wray files a proposed amended complaint, the

proposed amended complaint be returned to me for review of the amended

complaint and any orders relating to service on the Defendants, and it is

ORDERED that the Clerk provide Wray with a copy of this Report-

Recommendation and Order, along with copies of the unpublished decisions

cited herein in accordance with the Second Circuit decision in Lebron v.

Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties

have fourteen (14) days within which to file written objections to the

foregoing report. Such objections shall be filed with the Clerk of the Court.

FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN

DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984

F.2d 85, 89 (2d Cir. 1998) (citation omitted); 28 U.S.C. § 636(b)(1); Fed. R.

Civ. P. 6(a), 6(e), 72.

Nyyeckel} Ke Digitally signed by

\ Mitchell J Katz

Date: 2026.02.20

Dated: February 20, 2026 1003.12 -05'00!

Hon. Mitchell J. Katz

> U.S. Magistrate Judge

2024 WL 618741

In determining whether an action is frivolous, the court must

2024 WL 618741 consider whether the complaint lacks an arguable basis in

Only the Westlaw citation is currently available. law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989),

United States District Court, N.D. New York. abrogated on other grounds byBell Ail. Corp. v. Twombly, 550

U.S. 544 (2007) and 28 U.S.C. § 1915. Dismissal of frivolous

Sharmell TAYLOR, Plaintiff, actions is appropriate to prevent abuses of court process as

V. well as to discourage the waste of judicial resources. Neitzke,

EXPERIAN INFORMATION 490 U.S. at 327; Harkins v. Eldredge, 505 F.2d 802, 804 (8th

SOLUTIONS, INC., Defendant, Cir. 1974). Although the court has a duty to show liberality

toward pro se litigants and must use extreme caution in

5:24-CV-188 (DNH/MJK) ordering sua sponte dismissal of a pro se complaint before the

| adverse party has been served and has had an opportunity to

Signed February 14, 2024 respond, the court still has a responsibility to determine that a

claim is not frivolous before permitting a plaintiff to proceed.

Attorneys and Law Firms Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362,

363 (2d Cir. 2000) (finding that a district court may dismiss

SHARMELL TAYLOR, Plaintiff, pro se. a frivolous complaint sua sponte even when plaintiff has paid

the filing fee).

ORDER and REPORT-RECOMMENDATION To survive dismissal for failure to state a claim, the complaint

Mitchell J. Katz, United States Magistrate Judge must contain sufficient factual matter, accepted as true, to

° state a claim that is “plausible on its face.” Ashcroft v.

*1 The Clerk has sent to the court for review a pro se Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

complaint filed by plaintiff Sharmell Taylor, in which she ly, 550 U.S. 544, 570 (2007)). “Threadbare recitals

has asserted claims against defendant Experian Information of the elements of a cause of action, supported by mere

Solutions INC (“Experian”) under the Fair Debt Collection conclusory statements, do not suffice.” /d. (citing Bell Atl.

Practices Act (FDCPA), 15 U.S.C. § 1692; the Fair Credit ©0/”P-» 950 U.S. at 555).

Reporting Act (FCRA), 15 U.S.C. § 1681; and state law. (Dkt.

No. 1) (“Compl.”). Plaintiff has also moved to proceed in In addition, Fed. R. Civ. P. 8(a)(2) requires that a pleading

forma pauperis (“IFP”). (Dkt. No. 2). contain a “short and plain statement of the claim showing

that the pleader is entitled to relief.” Although Rule 8 does

not require detailed factual allegations, it does “demand[ |

I. IFP Application more than an unadorned, the-defendant-unlawfully-harmed-

Plaintiff declares in her IFP application that she is unable me accusation.” Houston v. Collerman, No. 9:16-CV-1009

to pay the filing fec. (Dkt. No. 2). After reviewing her (BKS/ATB), 2016 WL 6267968, at *2 (N.D.N.Y. Oct. 26,

application and supporting documents, this court finds that 2016) (quoting Ashcroft, 556 U.S. at 678). A pleading that

plaintiff is financially eligible for IFP status. contains allegations that “ “are so vague as to fail to give

the defendants adequate notice of the claims against them’

However, in addition to determining whether plaintiff meets is subject to dismissal.” /d. (citing Sheehy v. Brown, 335 F.

the financial criteria to proceed IFP, the court must also App'x 102, 104 (2d Cir. 2009)). The court will now turn

consider the sufficiency of the allegations set forth in the — to a consideration of plaintiffs complaint under the above

complaint in light of 28 U.S.C. § 1915, which provides that standards.

the court shall dismiss the case at any time if the court

determines that the action is (i) frivolous or malicious; (ii)

fails to state a claim on which relief may be granted; or (iii) TI. Complaint

seeks monetary relief against a defendant who is immune *2 Plaintiff alleges that defendant Experian operates a

from such relief. 28 U.S.C. § 1915 (e)(2)(B)(i)-(iii). “credit collection agency.” (Compl. at 7). ' Plaintiff further

states that on October 18, 2023, she sent a “dispute”

to Experian, “disputing the reporting of transactions on

2024 WL 618741

the plaintiffs consumer report that were not authorized seeks injunctive relief in the removal of the disputed account

to be furnished by the consumer.” (/d.). On November from the consumer report. (/d.).

2, 2023, Experian “responded to the plaintiff sending out

dispute results.” (/d.). On December 3, 2023, plaintiff

reached out to Experian for the second time regarding DISCUSSION

the transactions still being reported on the consumer

report without authorization.” (/d.). On December 22, Il. The Fair Debt Collection Practices Act

2023, Experian “responded with an identical letter and the The FDCPA prohibits deceptive and misleading practices by

transactions were still being reported.” (/d. at 7-8). “debt collectors.” Anderson v. Experian, No. 19-CV-8833,

2019 WL 6324179, at *2 (S.D.N.Y. Nov. 26, 2019) (quoting

1 The page numbers cited are those produced by the 15 U.S.C. § 1692e). The statute seeks to “eliminate abusive

Electronic Case Filing (“ECF”) system. debt collection practices by debt collectors, to insure that

. . . . those debt collectors who refrain from using abusive debt

The complaint alleges four counts against Experian. First, . . we .

□ : collection practices are not competitively disadvantaged, and

plaintiff states a cause of action for “Defamation of Character . .

Per Se).” (id. at 6). Specifically, plaintiff alleges that to promote consistent State action to protect consumers

hr : h vl % ?P “fal against debt collection abuses.”’Kropelnicki v. Siegel, 290

xperian, through Plaintiit’s consumer report, made “lalse F.3d 118, 127 (2d Cir. 2002) (quoting 15 U.S.C. § 1692(e))

and damaging statements about the plaintiff.” (/d.). Plaintiff . . . ce .

h It of Exnerian's defamat tat ' (internal quotation marks omitted). “To accomplish these

states | at, as a result 0 Xpertan . amatory s a ements» goals, the FDCPA creates a private right of action for debtors

plaintiff has suffered “negligent infliction of emotional and . . gs

fi ‘al di » Id who have been harmed by abusive debt collection practices.

inancial distress." (/d.). Anderson v. Experian, 2019 WL 6324179, at *2 (citing 15

. USS.C. § 1692k).

Plaintiff next asserts a cause of action for “Negligent

Fnablement of a Fraud. “ at a ean “To establish a violation under the FDCPA, three elements

that Xperran's- allure to Investigate submitted’ dispute must be proven: ‘(1) the plaintiff [must] be a ‘consumer’

“enabled identity fraud” against her, and, as a result

| i laintif? h fered “nevlivent who allegedly owes the debt or a person who has been the

° fi ot nes sland aunt tie su □□ neengen object of efforts to collect a consumer debt, (2) the defendant

infliction of emotional and financial distress. (Id. collecting the debt must be considered a “debt collector,” and

third faction is b ht under the FDCPA (3) the defendant must have engaged in an act or omission

os “tratle wee Tous wa a “1 in violation of the FDCPA's requirements.’ ” Skvarla v.

‘ eIEDCPAT ihe a ee t collector as MRS BPO, LLC, No. 21-CV-55, 2021 WL 2941118, at *2

y he [ hb nan, crhin (S.D.N_-Y. July 12, 2021) (quoting Derosa v. CAC Fin. Corp.,

he “ee ° □ : oe ay, 278 F. Supp. 3d 555, 559-60 (E.D.N.Y. 2017). “The term

the 30-day period under SC. § B(b).” (ld. at 6-7). ‘debt collector’ is defined under the FDCPA as a person who,

among other requirements, is engaged in any ‘business the

Plaintiff's final cause of action is brought under the FCRA. La .

: . principal purpose of which is the collection of any debts, or

(Id. at 7). She states that Experian “willfully violated the

FCRAI by faili ly with 15 USC. § 1681b th who regularly collects or attempts to collect ... debts owed or

[FCR un oom wit eel aya © due ... another.’ ” Perez v. Experian, No. 20-CV-9119, 2021

oer ° sven" cy aA Wr 4784280, at *12 (S.D.N.Y. Oct. 14, 2021), report and

efinitions; rules of construction.” (/d. at 7). recommendation adopted, 2021 WL 5088036 (S.D.N.Y. Nov.

. , 2, 2021)(quoting 15 U.S.C. § 1692a(6)).

In her request for relief, plaintiff seeks compensatory

damages ae a eee aa and ee ae *3 Plaintiff's complaint fails to state facts suggesting a claim

to an mnabuity {0 utilize the re it system, ]” as well as for for relief under the FDCPA. Experian, the sole defendant

causing “emotional and financial damages due to reported . . . Lg . .

inf ‘on by” E C Lat 4) Plaintiff al k named in this action, is “not normally identified as a

m ean y “penn omp" . soon “k he debt collector.” Anderson v. Experian, 2019 WL 6324179,

Punitive aoa ae ee | fect □□ ‘. at *2; see alsoPerez v. Experian, 2021 WL 4784280,

va fs aoe fay L ue □ at *13 (“Equifax, Experian, and Trans Union are credit

Punish and deter future similar conduct.” (/d.). Last, plaintt reporting agencies that do not collect debts, and therefore

2024 WL 618741

do not fall within the meaning ‘debt collector’ under the WL 855870 (S.D.N.Y. Mar. 23, 2022)). However, liability

FDCPA, but instead under the term ‘consumer reporting § may attach to a CRA where a third party accessed or used

agency’ [(“CRA”)] as defined in § 1681la(f).”); compare15 a consumer report for an impermissible purpose, if the CRA

1692a(6) (defining debt collector) withl15 U.S.C. § — “either willfully or negligently fail[ed] to maintain reasonable

168 1a(f) (defining consumer reporting agency). Plaintiffdoes procedures” designed to avoid violations of” Section 1681b.

not credibly allege that Experian is a “debt collector.” Rather, Pietrafesa v. First Am. Real Estate Info. Servs., No. 05 Civ.

plaintiff's allegations suggest her challenges to the consumer 1450 (LEK/RFT), 2007 WL 710197, at *3 (N.D.N.Y. Mar.

report issued by Experian in its capacity as a CRA. (Compl. at 6, 2007); see alsoPodell v. Citicorp Diners Club, 859 F.

7). Because the complaint fails to allege any non-conclusory Supp. 701, 705 (S.D.N.Y. 1994) (noting that Section 1681b

allegations that Experian is a “debt collector,” or that it has “limits the purposes and uses of a credit report,” and that the

engaged in any debt collection activity, plaintiff has failed to FCRA “imposes civil liability upon [CRAs] ... who willfully

state a claim under the FDCPA. SeeAllen v. United Student or negligently violate the [FCRA]”). To determine whether

Aid Funds, Inc., No. 17-CV-8192, 2018 WL 4680023, at*5 the CRA maintained reasonable procedures, “the standard of

(S.D.N.Y. Sept. 28, 2018) (granting motion to dismiss when —_ conduct is what a reasonably prudent person would do under

plaintiff has not pled sufficient facts to classify defendants as_ the circumstances.” Hines. 2022 WL 2841909. at *23.

debt collectors).

Section 168le(a) provides that “[e]very [CRA]

IV. The Fair Credit Reporting Act shall maintain reasonable procedures designed to ...

“The FCRA regulates consumer credit reporting agencies limit the furnishing of consumer reports to the

to ensure accuracy, confidentiality, relevancy, and proper purposes listed under section 168 1b of this title.” 15

utilization of consumer credit information.” Perez v. U.S.C. § 1681e(a). The court construes plaintiff's

Experian, 2021 WL 4784280, at *5 (citing 15 U.S.C. § Section 1681b Claim as if brought pursuant to

1681(b)). “It ‘places distinct obligations on three types of both Sections 1681b and 1681le(a), and, as other

entities: consumer reporting agencies, users of consumer courts have done, analyzes these claims together.

reports, and furnishers of information to consumer reporting SeeHines v. Equifax Info. Servs., LLC, No. 19 Civ.

agencies.’ ” Jd. (quoting Redhead v. Winston & Winston, P.C., 6701, 2022 WL 2841909, at *23 (E.D.N.Y. July 16,

No. 01-CV-11475, 2002 WL 31106934, at *3 (S.D.N.Y. Sept 2022).

20, 2002) (citing 15 U.S.C. §§ 1681 et seq.)). *4 Plaintiff fails to plausibly allege a § 1681b claim against

Experian, because the complaint does not allege that Experian

Liberally construed, plaintiff's complaint alleges FCRA provided plaintiff's consumer report to a third party, “which

claims against Experian pursuant to §§ 1681b, 1681e(b), and _ jg fatal to any claim that [Experian] impermissibly shared her

1681i. The court will address each claim in turn. report.” Moore v. Experian, 2023 WL 7169119, at *6. On this

basis alone, plaintiff's complaint is subject to dismissal.

A. § 1681b

8 . . Even if the complaint could be read to allege that Experian

Section 1681b generally specifies the circumstances under . .

. . furnished a consumer report to an unnamed third party, the

which a consumer report may be furnished and used[,] and . . . .

. Loa. claim would still fail because plaintiff does not plausibly

protects consumer privacy by limiting access to consumer allece that a third sousht or used the information

credit reports.” Moore v. Experian, No. 23 Civ. 673, 2023 wor an om nabhe na ae on howe it plausibly allece

WL 7169119, at *5 (S.D.N.Y. Oct. 13, 2023), report and □ peas in onlin □ □

recommendation adopted, 2023 WL 7166158 (S.D.N.Y. Oct. a xperan omer WI y ° negheenhy ar led] to

. us . . maintain reasonable procedures” to prevent an improper

31, 2023) (internal citations and quotation marks omitted). a: . . .

□□□ .. furnishing of information. Pietrafesa, 2007 WL 710197, at

‘As distinguished from many other provisions of the FCRA

reoulatine CRAs. liability under Section 1681b ‘call *3; see alsoSelvam v. Experian Info. Sols., Inc., No. 13

NSS any YP Y Civ. 6078, 2015 WL 1034891, at *4 (E.D.NY. Mar. 10,

attaches to third parties who willfully or negligently ‘use or . . .

. □□ 2015) (granting motion to dismiss where plaintiff failed to

obtain’ a consumer report for an impermissible purpose. .

. . . . . allege how the CRA acted unreasonably). In her complaint,

1d. (internal quotation marks omitted) (quoting Rajapakse v. ier states that Experian “willfully” violated the FCRA

Shaw, No. 20 Civ. 10473, 2022 WL 1051108, at *5 (S.D.N-Y. P dal f th te ” “p "hed [its] duty thr h

Feb. 18, 2022), report and recommendation adopted,2022 and’ also TeleTences Mate xperian breached Lis] Cuty □□□□□

2024 WL 618741

negligence.” (Compl. at 6-7). However, “[m]erely stating that — will ... depend on the circumstances of a particular dispute.”

the violation was ‘willful’ or ‘negligent’ without more is = Frydman v. Experian Info. Sols, Inc., No. 14-CV-9013, 2016

insufficient.” Perez v. Experian, 2021 WL 4784280, at *11 WL 11483839, at *15 (S.D.N.Y. Aug. 11, 2016) (quoting

(citing Perl v. Plains Com. Bank, No. 11-CV-7972, 2012 Cortez v. Trans Union, LLC, 617 F.3d 688, 713 (3d Cir.

WL 760401, at *2 (S.D.N.Y. Mar. 8, 2012)); see alsoPerl 2010)), report and recommendation adopted, 2016 WL

v. Am. Exp., No. 11-CV-6899, 2012 WL 178333, at *2 5661596 (Sept. 30, 2016). The reinvestigation requirement

(S.D.N.Y. Jan. 19, 2012) (‘While [plaintiff] assert[s] that each demands “more than (a) forwarding the dispute information

[D]efendant's FCRA violation was willful, [he] do[es] so ina onto the furnisher of information and (b) relying on the

conclusory manner in [both] of the complaints .... [Plaintiff] furnisher of information's response.” Gorman y. Experian

ha[s] failed to allege any facts related to [D]efendants’ Info. Sols., Inc., No. 07-CV-1846, 2008 WL 4934047, at *5

state of mind when they allegedly [violated the FCRA]’). (S.D.N.Y. Nov. 19, 2008) (citing Cushman v. Trans Union

Accordingly, plaintiff's § 1681b claim should be dismissed. Corp., 115 F.3d 220, 225 (3d Cir. 1997)).

*5 The threshold question under both Sections 1681e(b)

B. §§ 1681e(b) and 1681i° and 1681i “is whether the challenged credit information is

3 The following discussion of the applicable law accurate; if the information is accurate, no further inquiry

is taken from U.S. Magistrate Judge James L. into the reasonableness of the consumer reporting agency's

Cott's cogent summary in Perez v. Experian, No. procedures is necessary.” Jd. (collecting cases). A credit

20-CV-9119, 2021 WL 4784280, at *1 (S.DNLY. report is inaccurate “either when it is patently incorrect or

Oct. 14, 2021), which report-recommendation was when it is misleading in such a way and to such an extent that

adopted in its entirety by U.S. District Judge Paul it can be expected to have an adverse effect.” Wimberly, 2021

A. Engelmayer in Perez v. Experian, No. 20 Civ. WL 326972, at *5 (quoting Wenning v. On-Site Manager, Inc.,

9119, 2021 WL 5088036 (S.D.N.Y. Nov. 2, 2021). No. 14-CV-9693, 2016 WL 3538379, at *9 (S.D.N-Y. June

22, 2016)). “Information provided by a consumer reporting

Section 168le(b) imposes a duty on CRAs to “assure agency is misleading where it is ‘open to an interpretation

maximum possible accuracy of the information concerning that is directly contradictory to the true information.’ ” Jd.

the individual about whom the report relates.”15 U.S.C. § (quoting Wagner v. TRW, Inc., 139 F.3d 898, 898 (5th Cir.

1681e(b). To state a claim under Section 168 1e(b), a plaintiff 1998).

must allege that: “(1) the consumer reporting agency was

negligent or willful in that it failed to follow reasonable Although plaintiff may have a cognizable cause of action

procedures to assure the accuracy of its credit report; (2) the against Experian under the FCRA, at this juncture the bare-

consumer reporting agency reported inaccurate information bone allegations contained in her complaint fail to state a

about the plaintiff; (3) the plaintiff was injured; and (4) the cjaim for purposes of this initial review. As to the threshold

consumer reporting agency's negligence proximately caused question of the accuracy of the challenged information,

the plaintiff's injury.” Wimberly v. Experian Info. Sols., No. Plaintiff states that Experian “report[cd] transactions on the

18-CV-6058, 2021 WL 326972, at *5 (S.D.N.Y. Feb. 1, 2021) plaintiffs consumer report that were not authorized to be

(quoting Khan v. Equifax Info. Servs., LLC, No. 18-CV-6367, furnished by the consumer.” (Compl. at 7). Without more,

2019 WL 2492762, at *2 (E.D.N.Y. June 14, 2019). the court cannot determine whether plaintiff is alleging that

the information in her credit report was factually inaccurate,

When the accuracy of a report is in dispute, Section 1681i oy if plaintiff's challenge is actually to the validity of a debt

outlines specific procedures that CRAs must follow to ensure assessed by a third-party lender, which ultimately appeared

the proper reinvestigation of disputed information. Section on her credit report. If the latter, plaintiff's claim must fail

1681i requires that ifa consumer notifies a CRA of adispute because “inaccuracies that turn on legal disputes are not

as to the accuracy of any item of information contained in cognizable under the FRCA.” SeeMader v. Experian Info.

his file, within 30 days of notification, the CRA “shall, free sais Ine. 56 F.Ath 264, 270 (2d Cir, 2023) (plaintiff failed

of charge, conduct a reasonable reinvestigation to determine to allege inaccuracy within the plain meaning of the FCRA

whether the disputed information is inaccurate.” 15 U.S.C. § because “[t]he bespoke attention and legal reasoning required

1681i(a)(1)(A); Jones v. Experian Info. Solutions, Inc., 982 to determine the post-bankruptcy validity of Mader's debt

F. Supp. 2d 268, 272 (S.D.N.Y. 2013). Courts in this District

have noted that “the parameters of a reasonable investigation

2024 WL 618741

means that its status is not sufficiently objectively verifiableto 413, 417-18 (2021)); see alsoIn re FDCPA Mailing Vendor

render Mader's credit report ‘inaccurate’ under the FCRA.”). Cases, 551 F. Supp. 3d 57, 62-63 (E.D.N.Y. 2021). At the

pleading stage, “standing allegations need not be crafted with

Even if the court were to interpret plaintiffs allegation to precise detail, nor must the plaintiff prove the allegations

state that the challenged information in plaintiff's creditreport of his injury.” Fin. Guar. Ins. Co. v. Putnam Advisory Co.,

was factually inaccurate, plaintiff has failed to set forth LLC, 783 F.3d 395, 401-02 (2d Cir. 2015) (quoting Baur v.

any allegations regarding the deficiencies in the procedures Veneman, 352 F.3d 625, 631 (2d Cir. 2003)). However, a

followed by Experian in assuring the accuracy ofits reporting plaintiff must allege facts “that affirmatively and plausibly

in order to state a claim under § 1681e(b). Because plaintiff | suggest that [she] has standing to sue.” Amidax Trading Grp.

“fail[s] to make any allegations regarding ... the procedures v. S.WIET. SCRL, 671 F.3d 140, 145 (2d Cir. 2011).

followed” by Experian, Neuygen v. Ridgewood Sav. Bank, No.

14-CV-1058, 2015 WL 2354308, at *11 (E.D.N.Y. May 15, Here, plaintiff has alleged injury to the extent that she

2015), her “[t]hreadbare recitals of the elements” do not state has an “inability to utilize the credit system ... due to

a plausible claim for relief under Section 168le, Jgbal, 556 reported information by” Experian. (Compl. at 4). There

US. at 678. is no suggestion, however, that plaintiff has suffered

any particularized injury, or that her information was

Assuming, again, that plaintiff had sufficiently alleged that actually disseminated to third parties. SeeZ/oinick v. Equifax

her credit information was not factually accurate, the court Information Services, LLC, 583 F. Supp. 3d 387, 391

could also construe that plaintiff is alleging Experian violated (E.D.N.Y. 2022) (‘[Wy]hile plaintiff claims that his credit

the FCRA requirement to reasonably investigate her disputes score was lowered as a result of the alleged improper

under § 1681i. However, to state such an action, plaintiff | reporting ... he fails to allege any particularized injury or

must allege that Experian was either willful or negligent in its actual dissemination to third-party creditors.”); Grauman v.

noncompliance with § 1681i. SeePerez v. Experian, 2021 WL Equifax Info. Servs., LLC, 549 F. Supp. 3d 285, 291 (E.D.N-Y.

4784280, at *11 (“The FCRA allows for a cause of action for 2021) (“Just as a plaintiff could not bring a defamation suit

willful and negligent noncompliance ‘with any requirement over a letter that merely sat in a desk drawer, these plaintiffs

imposed’ by the FCRA.”) (citing 15 U.S.C. §§ 1681n, 16810). could not bring their FCRA suit over information that had

“Tn regard to a plaintiff's obligation to allege that a defendant's —_ never left the credit reporting agency's database.”) (citation

violation was willful or negligent, various courts have held omitted).

that ... the plaintiff's complaint must allege specific facts as to

the defendant's mental state” when the defendants committed □□ Plaintiff's conclusory allegations of “emotional and financial

the violation of the FCRA. Braun vy. Client Servs. Inc., 14 distress” are further insufficient to allege a how Experian's

F. Supp. 3d 391, 397 (S.D.N.Y. 2014). Here, plaintiff has —_ purported violations caused plaintiff to suffer a “concrete”

failed to allege any facts as to Experian's “mental state’ harm. SeeGross v. TransUnion, LLC, 607 F. Supp. 3d 269,

when committing the alleged violations of the FCRA. As = 273 (E.D.N.Y. 2022) (Conclusory allegations in complaint

detailed above, plaintiff's reference to the terms “willful” and were insufficient where “[t]he alleged harms are not □□□□□□□□□

“negligence” in her statement of claims, without more, is costs, any specific lost credit opportunity, or specific

insufficient. (Compl. at 6-7). SeePerez v. Experian, 2021 WL emotional injuries[.]”) (citing Ashcroft v. Iqbal, 556 U.S. at

4784280, at *11; Perl v. Am. Exp., 2012 WL 178333, at *2. 678); see alsoMaddox v. Bank of N.Y. Mellon Trust Co., 19

F4th 58, 66 (2d Cir. 2021) (“A perfunctory allegation of

*6 Moreover, in the FCRA context, “the Supreme Court emotional distress, especially one wholly incommensurate

made clear that ‘a bare procedural violation, divorced with the stimulant, is insufficient to plausibly allege

from any concrete harm’ fails to satisfy the injury-in-fact constitutional standing.”); Garland v. Orlans, PC, 999 F.3d

requirement of Article III. Zlotnick v. Equifax Info. Servs., 432, 440 (6th Cir. 2021) (plaintiffs injuries cannot create

LLC, 583 F. Supp. 3d 387, 391 (E.D.N.Y. 2022) (quoting standing “[b]ecause bare allegations of confusion and anxiety

Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016), as revised do not qualify as injuries in fact”); Pennell v. Glob. Tr.

(May 24, 2016)). “In 2021, the Supreme Court, in another Memt., LLC, 990 F.3d 1041, 1045 (7th Cir. 2021) (stress and

case involving the FCRA, again emphasized that the absence — confusion - without accompanying physical manifestation -

of any allegation of a concrete harm forecloses federal do not suffice for standing).

standing.” Jd. (citing TransUnion LLC v. Ramirez, 594 U.S.

2024 WL 618741

Accordingly, for the reasons stated above, the court

recommends dismissing plaintiff's claims for violations of §§

1681e(b) and 1681i of the FRCA against Experian. VI. Opportunity to Amend

Gencrally, before the court dismisses a pro sc complaint or

any part of the complaint sua sponte, the court should afford

V. State Law Claims the plaintiff the opportunity to amend at least once; however,

Section 1681h(e) of the FCRA provides that “no consumer _ leave to re-plead may be denied where any amendment would

may bring any action or proceeding in the nature of be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131

defamation, invasion of privacy, or negligence with respect to (2d Cir. 1993). Futility is present when the problem with

the reporting of information against any consumer reporting _ plaintiff's causes of action is substantive such that better

agency, any user of information, or any person who furnishes pleading will not cure it. Cuoco v. Moritsugu, 222 F.3d 99,

information to a consumer reporting agency, .... except as to 112 (2d Cir. 2000) (citation omitted).

false information furnished with malice or willful intent to

injure such consumer.” Otherwise stated, “[s]ection 168 Lh(e) Here, the court is recommending dismissal with prejudice

preempts defamation [and other state-based] claims against as to plaintiffs claims brought pursuant to the FDCPA.

CRAs unless the alleged false information is furnished with There is no plausible suggestion that defendant Experian was

malice or willful intent to injure the plaintiff.’ Thompson operating outside of its capacity as a credit reporting agency

v. Equifax Info. Servs. LLC, No. 20-CV-6101, 2022 WL withrespect to the conduct at issue, and the court does not find

2467662, at *10 (E.D.N.Y. Feb. 24, 2022) (citing Frydman it plausible that plaintiff could amend to state a claim against

v. Experian Info. Sols., Inc., No. 14-CV-9013, 2016 WL Experian in any capacity as a “debt collector.”

11483839, at *17 (S.D.N.Y. Aug. 11, 2016), report and

recommendation adopted, 2016 WL 5661596 (S.D.N.Y. Sept. With respect to plaintiffs FCRA and state law claims,

30, 2016) (“[Section 168 lh(e)] essentially affords ... qualified the court is recommending dismissal without prejudice,

immunity against the types of state law claims asserted by __ providing plaintiff the opportunity to amend her complaint. If

[plaintiff] unless he can establish that [defendants] acted — the court approves this recommendation and allows plaintiff

‘with malice or willful intent to injure’ him”) (citations — to submit a proposed amended complaint, plaintiff should be

omitted)); Ogbon v. Beneficial Credit Services, Inc., 10 warned that any amended complaint must be a complete and

Civ. 3760, 2013 WL 1430467, at *10 (S.D.N.Y. Apr. 8, separate pleading. Plaintiff must state all of her claims in the

2013) (“Thus, defendants have qualified immunity against new pleading and may not incorporate by reference any part

defamation actions, which can only be overcome where of her original complaint.

plaintiff shows that defendants acted with malice or willful

intent.”) (collecting cases). WHEREFORE, based on the findings above, it is

*7 As previously discussed, plaintiff has failed to allege ORDERED, that plaintiff's motion to proceed IFP (Dkt. No.

anything more than conclusory statements to suggest that —_9) ig GRANTED,“ and it is

Experian furnished any information with “malice” or “willful

intent to injure” plaintiff. Accordingly, plaintiffs state 4

law claims related to the contents of her credit report Although her TEP Application has been granted,

. . plaintiff will still be required to pay fees that she

are preempted. Moreover, even if her claims were not □ a

preempted, her allegations lack the sufficient specificity may incur in this action, including copying and/or

required of such claims to put Experian on notice. See, witness fees.

e.g.,Mitchell v. Experian Info. Sols., Inc., No. 22-CV-5883, | RECOMMENDED, that plaintiffs claims pursuant to the

2023 WL 2990479, at *3 (E.D.N.Y. Apr. 18, 2023) (‘In Fair Debt Collection Practices Act be DISMISSED WITH

assessing whether a defamation claim has been plead with © PREJUDICE, and it is

sufficient particularity, courts look to whether [the] complaint

references the alleged defamatory statement, identifies who RECOMMENDED, that the complaint be DISMISSED

made the statement, when it was made, the context in which WITHOUT PREJUDICE in all other respects, and it is

it was made, whether it was made orally or in writing and

whether it was made to a third party.”) (citation omitted). . RECOMMENDED, that if the District Court adopts this

Accordingly, plaintiff's state law claims should be dismissed. recommendation, plaintiff be given forty-five (45) days to

2024 WL 618741

amend her complaint to the extent authorized, and that

plaintiff be advised that any amended pleading must be a 5 The Clerk shall also provide plaintiff with copies of

COMPLETE PLEADING, WHICH WILL SUPERSEDE all unreported decisions cited herein in accordance

THE ORIGINAL, and that plaintiff must include all with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009)

remaining facts and causes of action in the amended (per curiam).

complaint. No facts or claims from the original complaint may Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the

be incorporated by reference, and it is parties have fourteen (14) days within which to file written

objections to the foregoing report. Such objections shall be

RECOMMENDED, that if the District Court adopts this g1eq with the Clerk of the Court. FAILURE TO OBJECT

recommendation, and plaintiff does not elect to amend her TO THIS REPORT WITHIN FOURTEEN DAYS WILL

complaint within the imposed deadline, the case be dismissed PRECLUDE APPELLATE REVIEW. Roldan y. Racette,

in its entirety, with prejudice, and it is 984 F.2d 85, 89 (2d Cir, 1993) (citing Small v. Sec'y of Health

and Hum. Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §

RECOMMENDED, that if the District Court adopts this 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.

recommendation, and plaintiff files a proposed amended

complaint, the proposed amended complaint be returned to

me for review of the amended complaint and any orders All Citations

relating to service on the defendants, and it is

Not Reported in Fed. Supp., 2024 WL 618741

*8 ORDERED, that the Clerk of the Court serve a copy

of this Order and Report-Recommendation on plaintiff by

regular mail. >

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

Filings (1)

Title PDF Court Date Type

1. Docket 5:24-CV-00188 — N.D.NY. Feb. 07, 2024 Docket

Taylor v. Experian Information Solutions, Inc.

History (4)

Direct History (2)

1. Taylor v. Experian Information Solutions, Inc. =

2024 WL 618741 , N.D.N.Y. , Feb. 14, 2024

Report and Recommendation Adopted by

2. Taylor v. Experian Information Solutions, Inc.

2024 WL 986483 , N.D.N.Y. , Mar. 07, 2024

Related References (2)

3. Taylor v. Experian

2024 WL 2420542 , N.D.N.Y. , May 01, 2024

Report and Recommendation Adopted by

4. Taylor v. Experian

2024 WL 2399917 , N.D.N.Y. , May 23, 2024

2009 WL 3148764

Brian Olson, King & Spalding LLP, Atlanta, GA, Richard

2009 WL 3148764 Thomas Marooney, Jr., King & Spalding, New York, NY,

Only the Westlaw citation s currently available. John/Janc Doc Employce(s) of Mitsubishi Motor Credit,

United States District Court, Equifax.

E.D. New York.

Timothy P. Creech, Kogan Trichon & Wertheimer P.C.,

Mark GAFT, Plaintiff, Philadelphia, PA, for Transunion.

Vv.

MITSUBISHI MOTOR CREDIT Allen G. Gibbs, Sandra D. Brown, Jones Day, New York, NY,

OF AMERICA, et al., Defendants. for Experian.

No. 07—CV-527 (NG)(LB).

OPINION AND ORDER

Sept. 29, 2009.

GERSHON, District Judge.

West KeySummary *1 On February 2, 2007, plaintiff Mark Gaft filed a

complaint alleging that defendants Equifax Information

1 Res Judicata @ Finance and banking Services L.L.C. (“Equifax”) and Mitsubishi Motor Credit

of America (“MMCA”) had misreported plaintiff's credit

An alleged identity theft victim's claims history in violation of the Fair Credit Reporting Act, 15

against credit reporting agencies under the Fair US.C. §§ 1681a-1681x, (the “FRCA”), and the Fair Debt

Credit Reporting Act (FRCA) and Fair Debt Collection Practices Act, 15 U.S.C. §§ 1592a-1592p (the

Collection Practices Act (FDCPA), for allegedly “FDCPA”). Plaintiff also alleged that defendants’ actions

misreporting his credit history, were not barred violated state common law doctrines. On June 28, 2007,

by res judicata. Although the alleged victim's plaintiff filed an Amended Complaint adding similar claims

claims concerned the same general subject against defendants Experian Information Solutions, Inc.

matter as a prior action, iec., the improper (“Experian”) and Trans Union LLC (“Trans Union”).

attribution of an extension credit stemming from

an identity theft, it was not clear that each fact The instant lawsuit follows a prior action by plaintiff against

alleged by the alleged victim existed or could these defendants filed in this court on April 21, 2005,

have been sued upon at the time of the prior Gaft v. Equifax, et al., 05—cv-1941 (“Gaft I” ). Following

action. Even if the debt in question existed and settlements with certain defendants, Gaft J was dismissed with

was known to the alleged victim at the time of prejudice.

the prior litigation, the current claim would not

be barred because the allegations alleged a new All defendants have filed motions to dispose of this litigation.

misrepresentation that was not adjudicated by the

prior litigation.

BACKGROUND

12 Cases that cite this headnote

Gaft I

In Gaft [, plaintiff alleged that numerous defendants,

Attorneys and Law Firms including defendants in this action, who were engaged in

Mark Gaft, Brooklyn, NY, pro se. “consumer credit transactions” or who were “credit reporting

agencies,” wrongly reported that plaintiff had been extended

Melissa A. Pena, Norris, McLaughlin & Marcus, PA, New accounts of credit and owed certain debts when, in fact,

York, NY, for Mitsubishi Motor Credit. plaintiffhad never applied for these accounts. Plaintiff alleged

that the improper reporting stemmed from identity theft.

Specifically, plaintiff alleged that MMCA wrongly informed

2009 WL 3148764

defendant credit reporting agencies that MMCA had made

ten loans to plaintiff. Plaintiff alleged that the credit reporting *2 Plaintiff contends that, following his discovery of the

agencies improperly published the ten incorrect MMCA _ Eleventh Account on a credit report published by Equifax,

accounts, as part of plaintiff's credit history, as debts owed. he “officially disputed the accuracy of his Credit Report with

Based on these allegations, plaintiff sought damages for Equifax,” but that Equifax “failed or otherwise refused to

common law negligence and violations of the FCRA. provide copies of any validation to the plaintiff as demanded

in plaintiff [sic] letter of request pursuant to the [Fair Credit

On October 28, 2005, plaintiff amended his original Gaff Reporting] Act.”? Plaintiff alleges that he later discovered

7 complaint, intentionally omitting claims against MMCA the Eleventh Account on credit reports published by Trans

and later informing the court that the action had been [pion and Experian and he amended his complaint to add

dismissed as to MMCA.! On March 6, 2006, plaintiff these parties as defendants. Plaintiff contends that the false

executed settlement agreements with defendants Equifax — reporting was a product of the defendants' negligence, gross

and Trans Union dismissing those defendants from Gaji I. negligence and disregard of their statutory obligations.

Pursuant to those settlements, plaintiffreceived consideration

in exchange for (1) plaintiffs acknowledgement thata version 3 Plaintiff does not allege that he disputed the

of his credit report, in the form attached as an exhibit to Eleventh Account with Trans Union or Experian.

the stipulated settlement, was “accurate and correct’; and (ii)

releasing defendants Equifax and Trans Union from claims or Plaintiff also avers, without detail, that he is the target of an

causes of action which were raised, or which couldhave been ternal fraud” perpetrated by unknown persons employed

raised in that action. by MMCA who have access to plaintiff's credit information.

l Plaintiff did not specify whether the dismissal of Finally, plaintiff contends that defendants' actions with

respect to the inaccuracies alleged in Gaff J and the instant

MMCA was with or without prejudice and no action “caused [him] to suffer 11 or more acts of fraud

stipulation of dismissal was ever filed with the committed against him.”

court.

On March 27, 2006, following the settlement agreements, the | Based on these allegations, plaintiff claims that each

court dismissed, with prejudice, the entirety of Gaft J with defendant (i) failed to meet its duties, under the FCRA,

leave to reopen the action within 60 days.~ On July 31,2006, investigate plaintiffs written dispute and correct

more than 60 days later, plaintiff moved, pro se, to reopen _— ©tToneous information; (ii) engaged in a pattern of “willful

the litigation as to non-settling parties. The court denied the | 2oncompliance” with the duties set forth under the FCRA

request as untimely. by repeatedly reporting 11 erroneous credit events; (iii)

misrepresented debts owed by plaintiff in violation of the

2 FDCPA; (iv) made false statements concerning erroneous

It appears that Experian, named as a defendant debts owed amounting to “Slander of Title”; (v) committed

m Gafi 1, never appeared in that action, but was fraud by “accepting a fraudulent credit application” causing

dismissed pursuant to the court's March 27, 2006 plaintiff to be named “as the debtor of the defendant

Order dismissing “the remaining defendants.” Mitsubishi on 11 or more separate occasions”; (vi) committed

negligence per se by violating the FCRA; and (vii) acted with

Gaft II gross negligence by violating the FCRA. Plaintiff seeks both

a money judgment and injunctive relief against defendants.

Plaintiff now brings the above-captioned action, pro se,

against MMCA, Equifax, Trans Union and Experian alleging | Defendants Equifax, Trans Union and Experian each move

that, sometime during 2007, following the dismissal of the for judgment on the pleadings pursuant to Rule 12(c) of the

prior action, plaintiff discovered an eleventh inaccurate debt Federal Rules of Civil Procedure. Defendant MMCA moves

(the “Eleventh Account”), purportedly owed to Mitsubishi, for summary judgment pursuant to Rule 56 of the Federal

which was improperly reported by Equifax, Trans Unionand Rules of Civil Procedure. For the sake of judicial economy

Experian. Plaintiff alleges that he has no knowledge of this these motions will be addressed together.

debt.

2009 WL 3148764

genuine issue as to any material fact and that the moving

DISCUSSION party is entitled to judgment as a matter of law.” Fed.R.Civ.P.

56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322,

Legal Standards 106 S.Ct. 2548, 91 L-Ed.2d 265 (1986). A “genuine” issue

of material fact exists where “the evidence is such that a

Motions for Judgment on the Pleadings reasonable jury could return a verdict for the non-moving

The motions for judgment on the pleadings pursuant to Rule _ party.” Anderson y. Liberty Lobby, Inc., 477 U.S. 242, 248,

12(c) of the Federal Rules of Civil Procedure by defendants 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). MMCA, as the

Experian, Equifax and Trans Union are evaluated under the —s moving party, bears the burden of showing that it is entitled

same standard as a motion to dismiss under Rule 12(6) to summary judgment. Huminski v. Corsones, 386 F.3d 116,

(6). See Nicholas v. Goord, 430 F.3d 652, 658 n. 8 (2d. 132 (2d Cir.2004). “When the burden of proof at trial would

Cir.2005). On a motion to dismiss, the allegations in the _ fall on the nonmoving party, it is ordinarily sufficient for the

complaint are accepted as true. See Grandon v. Merrill Lynch movant to point to a lack of evidence to go to the trier of fact

& Co., 147 F.3d 184, 188 (2d Cir.1998). The court may on an essential element of the nonmovant's claim.” Jaramillo

properly consider any statements or documents which have —__y. Weyerhauser Co., 536 F.3d 140, 145 (2d Cir.2008). The

been incorporated by reference into a complaint, although —_ burden then shifts to the nonmovant to put forth admissible

mere discussion or limited quotation of a document does not _ evidence sufficient to create a genuine issue of material fact

constitute incorporation. See Holmes v. Poskanzer, No. 08— __ for trial. Jd. A court must draw all “justifiable inferences” in

CV-14750, 2009 WL 2171326, at *1 (2d Cir. July 21,2009); the nonmovant's favor, and construe all of the facts in the light

Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir.1989). However, — most favorable to the nonmovant. Anderson v. Liberty Lobby,

even “where a document is not incorporated by reference, the 477 USS. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In

court may nevertheless consider it where the complaint relies —_ the case of Gaft, who is pro se, the court is further obliged to

heavily upon its terms and effect, which renders it integralto — “read his supporting papers liberally, and ... [to] interpret them

the complaint.” Chambers v. Time Warner, Inc., 282 F.3d 147, to raise the strongest arguments that they suggest.” Burgos v.

152 (2d Cir.2002). Hopkins, 14 F.3d 787, 790 (2d Cir.1994), Even a pro se party,

however, “may not rely simply on conclusory allegations or

*3 When considering a motion to dismiss, the court “view[s] speculation to avoid summary judgment, but instead must

all reasonable inferences that can be drawn from [the] offer evidence to show that its version of the events is not

allegations and [appropriate] documents in the light most — wholly fanciful.” Auguste v. New York Presbyterian Medical

favorable to the plaintiff .” See Dangler v. N.Y.C. Off Track Center, 593 F.Supp.2d 659, 663 (S.D.N.Y.2009) (quoting

Betting Corp., 193 F.3d 130, 138 (2d Cir.1999) (internal Morris v. Lindau, 196 F.3d 102, 109 (2d Cir.1999)).

quotations and citations omitted). While a complaint need

not include “detailed factual allegations” to survive a motion

for judgment on the pleadings, it cannot be a conclusory MMCA's 56.1 Statement

recitation of the elements of a cause of action.” Ashcroft

v. Igbal, — U.S. ——, —, 129 8.Ct. 1937, 1949, 173 *4 Local Rule 56.1 provides that a motion for summary

L.Ed.2d 868 (2009). Rather, a plaintiff must assert enough judgment is to be accompanied by a “short, concise

facts to state a claim to relief that is “plausible” on its face, —tatement ... of the material facts as to which the moving

rather than merely possible. Jd. at 1950. A document filed party contends there is no genuine issue to be tried.” Local

pro se must be “liberally construed and a pro se complaint, —_ Rute 56.1(a). The party opposing the motion is to provide a

however inartfully pleaded, must be held to less stringent —_ responsive statement of “additional material facts as to which

standards than formal pleadings drafted by lawyers .” Boykin it is contended that there exists a genuine issue to be tried.”

v. Keycorp, 521 F.3d 202, 214 (2d Cir.2008) (internal at (b) (emphasis omitted). Each statement by the movant

quotation marks omitted). or the opponent “must be followed by citation to evidence

which would be admissible, set forth as required by Federal

MMCA's Motion for Summary Judgment Rule of Civil Procedure 56(e).” Id. at @). To the extent a

. . . . Rule 56.1 statement cites to an affidavit, the affidavit must

Summary judgment is appropriate where “the pleadings,

depositions, answers to interrogatories, and admissions on be a sworn statement of fact based on personal knowledge

file, together with affidavits, if any, show that there is no that would be admissible in evidence at trial.” Cameron v.

2009 WL 3148764

Coach Apparel Store, No. 07-CV-3991, 2009 WL 536068, at —_ offer the report which was presented by plaintiff or specify

*3 (S.D.N_Y. Mar.3, 2009). A court may disregard “portions “who” made the determination that the account was reported

of an affidavit that are not based upon the affiant's personal = prior to the settlement. Without more, these averments

knowledge, contain inadmissible hearsay or make generalized | by MMCA concerning the content of the “report,” and

and conclusory statements.” Hollander v. Am. Cyanamid Co., determinations about the “report,” are inadmissible evidence

172 F.3d 192, 198 (2d Cir.1999). barred as hearsay and by the best evidence rule. 4 See Sarno

v. Douglas Elliman Gibbons & Ives, Inc., 183 F.3d 155,

Plaintiff, who appears pro se, did not submit a Rule 56.1 169 (2d Cir.1999) (hearsay assertion that would not be

Statement in opposition to MMCA's motion. Although — admissible if testified to at trial is not competent material for

ordinarily a party's failure to oppose an adverse party's Rule 4 Rule 56 affidavit); New York ex rel. Spitzer v. St. Francis

56.1 statement is grounds for admitting all proposed facts in Hosp. ., 94 F.Supp.2d 423, 428 (S.D.N.Y.2000) (disregarding,

that statement, the court has discretion to overlook failures to on summary judgment, statements concerning documents

conform to the Local Rules, including Rule 56.1, especially because the documents “themselves are the best evidence of

where the party is pro se. See, e.g., Buller v. Potter, No. 06- their contents”). Therefore, for the purposes of determining

2009 WL 804722, at n. 1 (E.D.N.Y. Mar. 26, MMCA's motion, this portion of the 56.1 statement will be

2009). Therefore, the court will not deem MMCA's Rule 56.1 disregarded by the court.

Statement admitted in its entirety; rather, the facts as set forth

by MMCA will be deemed admitted only whereastatementof 4

fact in MMCA's Rule 56.1 Statement is supported by citations MMCA has made no showing pursuant to Rule

to admissible evidence. See Alfano v. NGHT, 623 F.Supp.2d 1004 of the Federal Rules of Evidence that the

355, 362 (E.D.N.Y.2009). report in question is unavailable.

Defendant MMCA states in its Rule 56.1 Statement that .

Res Judicata

plaintiff, at an August 27, 2007, conference before the court,

produced a “report” listing the false account which serves *§ Defendants Equifax and Trans Union argue that the

as the basis of his claims and “it was determined that the Amended Complaint is barred by the doctrine of res judicata

account [in the report] was reported prior to the settlement —_ecause it involves claims arising out of the same transactions

and dismissal of the First Action, and that Gaft knew it was which were litigated and settled pursuant to the March 6,

reported.” To support this statement, MMCA cites to the 2006, settlements in Gaff I. Similarly, defendants Experian

sworn affidavit of its counsel, which states, and MMCA argue that each was voluntarily dismissed from

Gaft I and, therefore, plaintiff is barred from bringing claims

which could have been raised in the prior action.

A case management conference was

conducted in this matter on August Under the doctrine of res judicata, a “final judgment on the

27, 2007.... One question was what merits of an action precludes the parties ... from relitigating

was the “new” account that was issues that were or could have been raised in that action.”

reported for the first time in 2007. Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101

Gaft produced what he claimed was S.Ct. 2424, 69 L.Ed.2d 103 (1981). “To prove that a claim

that new report. However, upon is precluded under this doctrine, a party must show that (1)

examination by counsel, it was the previous action involved an adjudication on the merits;

determined that the account was (2) the previous action involved the parties or those in privity

reported prior to the settlement and with them; and (3) the claims asserted in the subsequent action

dismissal of the First Action, and that were, or could have been, raised in the prior action.” Pike v.

Gaft knew it was reported. Freeman, 266 F.3d 78, 91 (2d Cir.2001).

The dismissal with prejudice in Gaft [| which arose out of

(Affidavit of Kathleen Cavanaugh at § 14.) Notably, in Settlement agreements, can “operate| ] as a final judgment for

support of its motion for summary judgment, MMCA does TS judicata purposes.” Marvel Characters v. Simon, 310 F.3d

not provide a transcript of the case management conference, 280, 286-87 (2d Cir.2002). Further, it cannot be disputed that

2009 WL 3148764

defendants Experian, Equifax and Trans Union were parties previously verified the accuracy of this account as reported

in Gaft > The only question with respect to these defendants | by Equifax and Trans Union and that claims based on

is whether the claims asserted here were, or could have been, _—‘this account are barred by the March 6, 2006, settlement

raised in Gaft I. Of course, claims which are identical to those 2greements. While the settlement agreements have been

discontinued with prejudice are barred. See Boguslavsky v.So. incorporated by reference into the Amended Complaint and

Richmond Securities, Inc., 225 F.3d 127, 130 (2d Cir.2000). _4f€ appropriately considered here, see Poskanzer, 2009 WL

However, res judicata does not bar later “claims which did 2171326, at *1, the court rejects defendants Equifax's and

not even then exist and which could not possibly have been Tans Union's argument. Neither the Amended Complaint

sued upon in the previous case.” Marvel Characters, 310F.3d 10r the settlement agreements identify the disputed account

at 287 (internal quotations omitted). as MMCA account 8500500, and Equifax and Trans Union

fail to explain how they identified the Eleventh Account as

5 Defendant MMCA is discussed infra. MMCA account 8500500. ° In any event, even assuming that

the Eleventh Account is MMCA account 8500500, and was

To determine whether a claim that was not raised in the subject to the settlement agreements, to the extent plaintiff's

prior action could have been raised there “depends in part —_ajjegations concern a new misrepresentation of that account,

on whether the same transaction or connected series of gifferent from what he verified as “accurate and correct,” he

transactions is at issue, whether the same evidence is needed is not barred by res judicata from bringing suit.

to support both claims, and whether the facts essential to

the second were present in the first.” /d. (internal quotations —_¢

omitted) (emphasis in original). A court should also consider Although plaintiff states, in his opposition papers,

“whether an independent judgment in a separate proceeding that he “concurs” that an erroneously reported

would impair or destroy rights or interests established by the outstanding debt “was part of the original

. □□ settlement agreement,” it is unclear whether he

judgment entered in the first action.”’Swre—Snap Corp. v. State

Street Bank & Trust Co., 948 F.2d 869, 874 (2d Cir.1991). is identifying the Eleventh Account as part of

the settlement or, alternatively, agreeing that the

Although plaintiffs claims here concern the same general prior settlements concerned some erroneously

subject matter as in the prior action, ie., the improper reported debts. Further, plaintiff's statement does

attribution of an extension credit, stemming from an identity not preclude the claim that defendants have

theft, to plaintiff, it is not clear that each fact alleged by breached the settlement agreement by publishingd

plaintiff existed or could have been sued upon at the time anew musrepresentation concerning an account that

of Gaft I. Specifically, the Amended Complaint alleges that, was previously verified as accurate.

following the settlement of Gaft J MMCA reported a “new Defendant Experian also argues that res judicata bars this

debt”, “an 11th... lease or loan, which the plaintiffonce again suit. Experian claims that plaintiff requested, from Experian,

had no knowledge of.” (Am. Compl. §/ 11 (emphasis added).) a credit report dated May 1, 2007, and argues that this

In addition, plaintiff states that this “new debt’, the Eleventh credit report proves that the Eleventh Account existed at the

Account, was “discovered” some time in 2007, which post- time of Gaft I and that the claims raised here could have

dates the settlement and dismissal of Gaft I. Accepting these __ been raised in the prior action. However, plaintiff's pleadings

allegations as true, with all reasonable inferences to the make no reference to, and do not indicate reliance on, the

plaintiff, the court cannot conclude, based on the pleadings, May 1, 2007, Experian report. Therefore, this document is

that the claims here existed at the time of Gaft J or are barred extrinsic to the pleadings and not appropriately considered on

by the settlement agreements in that action. a motion pursuant to Rule 12(c) of the Federal Rules of Civil

Procedure.

*6 Therefore, to the extent plaintiff's claims arose after the

dismissal of Gaft I, and are not limited by the terms of the Finally, defendant MMCA also argues that res judicata bars

settlement agreements in Gajft J, those claims are not barred __ claims against it by plaintiff. This argument is without merit.

by res judicata. First, MMCA, cannot avail itself of the court's Order, dated

March 27, 2006, dismissing Gaft [ with prejudice, as to

Defendants Equifax and Trans Union argue that the Eleventh — the “remaining defendants”, because MMCA had not been

Account is “MMCA account number 8500500”, that plaintiff | included in the Gaft Jamended complaint and was no longer a

2009 WL 3148764

party to that action as of the date of the court's Order. Second, argue, then its appearance after the conclusion of the prior

although MMCA was voluntarily dismissed by plaintiff from litigation could be a breach of the settlement agreement. The

Gaft [, correspondence, dated November 14, 2005, informing _ point is that, on the pleadings, these factual issues cannot be

the court of plaintiff's dismissal of MMCA does not state determined.

whether the dismissal was with or without prejudice and

no stipulation of dismissal pursuant to Rule 41(a)(1) of the Nonetheless, most of the claims must be dismissed for legal

Federal Rules of Civil procedure was ever filed with, or insufficiency, as discussed below.

endorsed by, the court. “In light of Rule 41(a)(2)'s statement

that voluntary dismissal by order of the court is without

prejudice unless the court orders otherwise, the court assumes Violations of the Fair Credit Reporting Act

that [plaintiff] has agreed only to voluntary dismissal without

prejudice.” Pouliot v. Paul Arpin Van Lines, Inc.,235F.R.D. The FCRA mandates certain conduct pertaining to the

537, 544 (D.Conn.2006); see also White v. City of New York, reporting of accurate consumer credit information and creates

No 85-CV-8127, 1986 WL 6164, at *1 (S.D.N.Y. May 27, a private cause of action for willful non-compliance, seel5

1986). Where a dismissal is without prejudice, res judicata S.C. § 1681n, and negligent non-compliance, see15 U.S.C.

does not apply. See Camarano v. Irvin, 98 F.3d 44,47 16810, with the duties under the statute. See Casella v.

Cir.1996); Elfenbein v. Gulf & Western Industries, Inc., 590 Equifax Credit Info. Svcs., 56 F.3d 469, 473 (2d Cir.1995).

F.2d 445, 449 (2d Cir.1978). Plaintiff alleges that all defendants failed to comply, either

willfully or negligently, with the duties imposed by the

*7 It is worth noting, however, that plaintiff barred,asa FORA.

matter of law, from seeking damages from Equifax and Trans

Union based on allegations that defendants are publishing

credit information which plaintiff previously verified as | Furnishers of Credit Information

“accurate and correct” pursuant to the March 6, 2006, MMCA is a “furnisher of information to credit reporting

settlements. Further, plaintiff is similarly barred from seeking agencies” as defined by the FCRA and its conduct is governed

damages, in this action, from defendants Equifax, Trans by Section 1681s of that Act. Section 1681s—2(a) relates

Union and Experian based on allegations which could have to MMCA's duty to report information and the ongoing

been raised in, but were omitted from, Gaft I. duty to correct inaccurate information. Plaintiff, however,

cannot pursue a claim under Section 1681s—2(a) of the FCRA

because the plain language of the statute limits enforcement

of this subsection to government agencies and officials. See

Merits 15 U.S.C. § 1681s2-(a); Ryder v. Wash. Mut. Bank, FA, 371

In addition to arguing that plaintiffs claims are barred F-Supp.2d 152, 154 (D.Conn.2005).

by principles of preclusion, defendants also argue that the

claims should be dismissed on the merits. In making this *8_ A private right of action may be available to plaintiff

argument, defendants rely upon attached credit reports which, 482inst MMCA under Section 1681s—2(b), which provides:

as discussed above, cannot be considered incorporated into

the complaint or integral to it because it cannot be determined

on the existing record whether the attached reports are the After receiving notice pursuant to

reports upon which the plaintiff is relying. Indeed, with section 6ll(a)(2) [, 15 U.S.C. §

respect to the report attached by Equifax, the contents of the 1681i(a)(2),] of a dispute with regard

report are completely redacted. But, even where the reports to the completeness or accuracy

attached by the other defendants include a Mitsubishi debt, of any information provided by a

the court cannot assume that the debt listed is the one plaintiff person 7 to a consumer reporting

is suing over. Moreover, as the plaintiff in opposition to the agency, the person shall—(A) conduct

motions argues, either the reported debt he complains of is an investigation with respect to the

“new,” that is, could not have been the basis for a claim disputed information; (B) review all

in the prior litigation, or, if it could have been included, relevant information provided by the

and was included, in the settlement agreement, as defendants consumer agency ...; (C) report the

2009 WL 3148764

results of the investigation to the of disputed information, 15 U.S.C. § 1681i; the duty to

consumer agency; and (D) if the follow reasonable procedures to ensure the accuracy of credit

investigation finds that the information information, 15 U.S.C. § 1681e; and the duty to follow proper

is incomplete or inaccurate, report procedures in disposing of credit information, 15 U.S.C. §

those results to all other consumer 1681w.

reporting agencies ....

Plaintiff alleges that Experian, Trans Union and Equifax

violated the FCRA by failing to “perform a mandatory

7 investigation into plaintiffs written dispute concerning ...

“The term ‘person’ means any individual, erroneous debt.” Following a dispute of credit information

partnership, corporation, trust, estate, cooperative, by a consumer, Section 1681i of the FCRA requires

association, government or governmental that a consumer reporting agency “conduct a reasonable

subdivision or agency, or other entity.” 15 U.S.C. reinvestigation to determine whether the disputed information

§ is inaccurate and record the current status of the disputed

15 U.S.C. § 1681s—2(b)(1). Section 1681i(a)(2) requires a information” within 30 days of receipt of notice of the dispute.

consumer reporting agency which receives notice ofa dispute □□ U.S.C. § 1681i(1)(A). As stated above, the agency is also

to provide notification to the provider of the information Tequired to “provide notification of the dispute to any person

within five days of receipt. 15 U.S.C. § 1681i(a)(2)(A). Thus, | Who provided any item of information in dispute.” /d. at §

according to the statute, the duties of MMCA are triggered 1681 i(2)(A). Then, within five days of completion of the

only by notice from the consumer reporting agency and are _—‘reinvestigation, the agency must “provide written notice ...

limited to a duty to investigate the accuracy ofthe information _ of the results of a reinvestigation” to the consumer. ° Td. at §

previously provided. See Prakash v. Homecomings Financial, 1681i(6)(A). In addition, upon request, an agency is required

No. 05—CV-2895, 2006 WL 2570900, at *2—*3 (E.D.N.Y. to provide a description of the procedure used to determine

Sept. 5, 2006). Here, plaintiff has not alleged that MMCA the accuracy and completeness of the credit information. Jd.

failed to complete an investigation with respect to the § 1681i(7).

Eleventh Account—the duty imposed by statute. 8 Therefore,

plaintiff's FRCA claims against MMCA must fail. See Willey 9 Specifically, a consumer reporting agency is

v. J.P. Morgan Chase, N.A., No. 09-CV—1397, 2009 WL required to provide to the consumer,

1938987, at *4 (S.D.N.Y. July 7, 2009) (finding a failure (i) a statement that the reinvestigation is

to state a claim where plaintiff did not set forth “factual completed; (ii) a consumer report that is based

allegations that describe any insufficiency” in defendant's upon the consumer's file as that file is revised

procedures). as a result of the reinvestigation; ... (iv) a notice

that the consumer has the right to add a statement

8 Although plaintiff alleges that MMCA failed to to the consumer's file disputing the accuracy or

conduct an investigation concerning the “previous completeness of the information; and (v) a notice

Identity Theft or fraud” which was “brought before that the consumer has the right to request under

the Court,” MMCA's duty under the FCRA is subsection (d) of this section that the consumer

limited to an investigation of the propriety of the reporting agency furnish notifications under that

Eleventh Account as reported to Equifax. In any subsection.

event, plaintiff has offered no evidence, beyond 15 U.S.C. § 16811(6)(B).

reliance on his pleadings, of MMCA's failure to *9 Plaintiff's claims that defendants have failed to

investigate any complaints by plaintiff, as required investigate are insufficient. As an initial matter, plaintiff failed

by Rule 56 of the Federal Rules of Civil Procedure. to allege that he informed either Experian or Trans Union of

any disputed item. Therefore, those defendants had no duty to

Credit Reporting Agencies investigate under the FCRA. See Caltabiano v. BSB Bank &

The FCRA mandates that consumer reporting agencies meet Trust Co., 387 F.Supp.2d 135, 140 (E.D.N.Y.2005).

multiple duties with respect to consumers and their credit

information, including the duty to perform investigations

2009 WL 3148764

Plaintiff does allege that he “disputed the accuracy of — For the reasons stated above, plaintiff has failed to state a

his Credit Report with Equifax”; however, plaintiff also claim, as a matter of law, against any defendant for failure to

states that Equifax responded to plaintiff that “Equifax had = comply with the duties mandated by the FCRA.

investigated the matter and was certain that the debt was

[ ] that of the plaintiff.” Plaintiff fails to allege that Equifax

failed to provide any of the information required by Section Violations of the Fair Debt Collection Practices Act

16811(6)(B). See supra note 8. Further, plaintiff does not

allege that Equifax failed to comply with its statutory duty *10 Plaintiff also alleges that all defendants have violated

to inform defendant MMCA of the disputed item. For these the FDCPA which was enacted in order to eliminate abusive

reasons, plaintiff's claim concerning Equifax's failure to practices in the collection of consumer debts. Specifically,

investigate is deficient. plaintiff alleges that defendants violated section 807(2)(A)

of the FDCPA by misrepresenting the character, amount and

The FCRA, under Section 1681 e, also mandates that — Jegal status of the debt owed by plaintiff. Section 807(2)(A)

consumer reporting agencies “follow reasonable procedures _ prohibits a “debt collector” from using “any false, deceptive,

to assure maximum possible accuracy” of a credit report. or misleading representation or means in connection with the

Seel5 U.S.C. § 1681 e(b). A Section 1681 e claim requires —cg/lection of a debt.”15 U.S.C. § 1692e (emphasis added).

plaintiff to “show that (1) the consumer reporting agency —_4 “debt collector” is defined as “any person who uses any

was negligent or willful in that it failed to follow reasonable instrumentality of interstate commerce or the mails in any

procedures to assure the accuracy of its credit report; (2) the business the principal purpose of which is the collection of

consumer reporting agency reported inaccurate information —_any debts, or who regularly collects or attempts to collect,

about the plaintiff; (3) the plaintiff was injured; and (4) the — directly or indirectly, debts owed or due or asserted to be

consumer reporting agency's negligence proximately caused — gwed or due another.”/d. at § 1692a. However, the statute

the plaintiff's injury.” Gorman v. Experian Info. Solutions, specifically exempts from the definition of “debt collector”

Inc ., No. 07-CV-1846, 2008 WL 4934047, at *4 (S.D.N.Y. any creditor attempting to collect debts it is owed. Id.

Noy. 18, 2008).

Plaintiff's allegations under the FDCPA are insufficient for

Here, the Amended Complaint alleges that defendant two reasons: first, no defendant, as alleged, is a “debt

consumer reporting agencies reported inaccurate information □□ collector” within the meaning of the FDCPA. Second,

causing damage to plaintiff's “reputation, Credit worthiness, _ plaintiff has not alleged that defendants have engaged in any

and personal health.” (Am.Compl.{| 23.) However, an attempt to collect a debt from plaintiff. Therefore, plaintiff's

inaccurate entry of credit information, in and of itself, is claims under the FDCPA are dismissed. See Fashakin v.

not a violation of the FCRA; rather, to state a claim under Nextel Comm'ns, No. 05-CV-—3080, 2006 WL 1875341, at *7

Section 1681(b), plaintiff must allege that the consumer (— DN.Y. July 5, 2006).

reporting agencies failed, through negligence or intention,

to follow reasonable procedures to ensure the accuracy of

the information. See Gorman, 2008 WL 4934047, at *4.

Plaintiffs Amended Complaint is devoid of any allegations State Law Claims

concerning the reasonableness of the procedures used by the In addition to the FCRA and FDCPA claims, plaintiff also

defendant consulner reporting agencies. Therefore, plaintiff's brings four state law claims: (i) slander of title; (ii) fraud; (iii)

claim that defendants failed to comply with their duties under gross negligence and (iv) negligence per se.

the FCRA, to the extent that claim refers to any duty to follow

reasonable procedures to ensure the accuracy of information,

must fail. See Willey, 2009 WL 1938987, at *4. Limitation on Liability/Preemption

As an initial matter, the court notes that two sections of the

Finally, plaintiff makes no mention of, nor does he allege, | FCRA potentially preempt plaintiff's claims. First, Section

facts related to any defendants’ duty to properly dispose of —1681h(e) provides:

consumer credit information.

2009 WL 3148764

2006 WL 2570900, at *5 (“Though § 1681t(b)(1)(F) appears

to preempt all state law claims, Congress did not withdraw

Limitation on liability. Except as § 1681h(e)—which preempts certain state law claims, but

provided in sections 1681n and impliedly permits others—when it added § 1681t(b)(1)(F) to

168le, no consumer may bring any the code in 1996.”); see also Kane, 2005 WL 1153623, at *5—

action for proceeding in the nature *11 (collecting cases). As discussed below, with respect to the

of defamation, invasion of privacy, claims against MMCA, it is unnecessary for the court to adopt

or negligence with respect to the an approach to resolve the tension between these preemption

reporting of information against any provisions.

consumer reporting agency ... or

any person who furnishes information Slander of Title

to a consumer except as to false ,

. . . . . Plaintiff alleges that each defendant made “false and

information furnished with malice or . □ :

willfil intent to injure such customer. malicious statements amounting to slander of title. Even

assuming that this claim is not pre-empted by the FCRA,

plaintiffs pleadings are insufficient.

15 U.S.C. §§ 1681h(e) (emphasis added). In addition, Section In New York, to state a claim for slander of title a plaintiff

of the FCRA, which applies only to furnishers must allege that (i) defendant made a “communication falsely

of credit information, provides: casting doubt on the validity of [the] complainant's title’; (ii)

which was “reasonably calculated to cause harm; and (iii)

“result[ed] in special damages.” 39 College Point Corp. v.

No requirement or prohibition may Transpac Capital Corp., 27 A.D.3d 454, 455, 810 N.Y.S.2d

be imposed under the laws of any 520 (N.Y., 2d Dept., 2006). However, a plaintiff cannot

State ... with respect to any subject make a claim of slander of title where the plaintiff does

matter regulated under ... section not have title to the property about which a communication

1681s—2, relating to responsibilities or was made. See White & Baxter, Inc. v. Jade Square and

persons who furnish information to Tower, Lid., 62 A.D.2d 963, 963, 404 N.Y.S.2d 105 (N.Y., Ist

consumer reporting agencies, except Dept., 1978). The essence of plaintiff's claims are that he has

that this paragraph shall not apply [to been misattributed an extension of credit, and the associated

specific sections of the Massachusetts debt, for something that he never applied for or owned.

Annotated Laws and the California Because plaintiff makes no allegations that any defendant has

Civil Code. ] disparaged a title that plaintiff actually holds, the slander of

title claim must fail as to all defendants.

15 U.S.C. § 1681t(b)(1)P).

Fraud

Of these two provisions, only Section 1681h(e) might apply Plaintiff alleges that each defendant committed an act of

to plaintiff's state law claims against the consumer reporting _‘fraud by “acting in concert with one another” and “accepting

agency defendants. That section “does not preempt every 4 fraudulent credit application” which resulted in plaintiff

possible action, as it allows plaintiffs to maintain tort actions, b¢ig improperly named “on 11 or more separate occasions

including defamation and negligence claims, but requires 8 the true debtor for a loan or lease from the defending

plaintiffs to prove malice or willful intent for such claims.” creditor Mitsubishi.” Plaintiff alleges, “on information and

Kane y. Guaranty Residential Lending, Inc., No. 04-CV-— belief’, that this fraud stemmed from “unknown unidentified

4847, 2005 WL 1153623, at *6 (E.D.N.Y. May 16, 2005). employees or agents” of MMCA who have improperly

gathered, and misused, plaintiffs credit information. Even

*11 By contrast, both Section 1681h(e) and Section 1681t(b) | 28Suming that this claim is not pre-empted by the FCRA,

(1)(F) may apply to claims against MMCA. Because these _ Plaintiff's pleadings are insufficient.

provisions appear to be contradictory, courts have devised

multiple approaches in order to reconcile them. See Prakash,

2009 WL 3148764

In New York, a claim of fraud requires plaintiff to plead a _ possibility, that defendants knew the Eleventh Account to be

material false misrepresentation or omission of an existing _ false, or that the defendants acted with conscious or reckless

fact, which defendants made with knowledge of its falsity disregard for its falsity. See Marekh v. Equifax, et al., No.

and intent to defraud, and which plaintiff relies upon to 00—-CV6246, 2001 WL 65602, at *1 (2d Cir. Jan.25, 2001);

his detriment. Guilbert v. Gardner, 480 F.3d 140, 147 (2d Whelan v. Trans Union Credit Reporting Agency, 862 F.Supp.

Cir.2007). Fraud claims under New York common law are 824, 834 (E.D.N.Y.1994).

also subject to the heightened pleading requirements of Rule

9(b) of the Federal Rules of Civil Procedure. See Steinberg 10 In New York, gross negligence “is conduct that

v. Sherman, No. 07-CV-1001, 2008 WL 2156726, at *5 evinces a reckless disregard for the rights of others

(S.D.N.Y. May 8, 2008). “The pleadings must adequately and smacks of intentional wrongdoing.” Sutton

specify the statements that were allegedly false or misleading, Park Development Corp. Trading Co. v. Guerin &

provide particulars as to the alleged falsity of the statements, Guerin Agency, 297 A.D.2d 430, 432, 745 N.Y.S.2d

state the time and place the statements were made, and 622 (N.Y, 3rd Dept., 2002).

identity [of] the persons who made them.” Hunt v. Enzo

Biochem, 530 F.Supp.2d 580, 593 (S.D.N.Y.2008). Il In New York, “negligence per se” requires that

the plaintiff establish “(1) that he or she is among

*12 Here plaintiffs fraud pleading is insufficient. First, the class of people for whose particular benefit a

plaintiff has failed to plead any reliance on the purportedly statute has been enacted; (2) that a private right

false statement of the defendants. Second, plaintiff has failed of action would promote the legislative purpose

to state, with particularity, the purportedly false statement behind the statute; and (3) that creation of the right

(i.e., the Eleventh Account), for example, the account number would be consistent with the overall legislative

and any details related to that account. For these reasons, scheme.” Fagan v. AmerisourceBergen Corp., 356

plaintiffs common law fraud claim is dismissed as to all F.Supp.2d 198, 214 (E.D.N.Y.2004). Under this

defendants. theory, if a defendant violates a statute it is per se

negligence and then the plaintiff only need show

that the violation of the statute proximately caused

Negligence Actions injury to the plaintiff. See German by German v.

Plaintiff alleges two claims based in negligence; specifically, Fed. Home Loan Mortg. Corp., 896 F.Supp. 1385,

that each defendant's failure to comply with “a manifest duty 1396 (S.D.N.Y.1995). However, this standard is

imposed upon them by [the FCRAJ" constituted (1) “gross inconsistent with the limitation imposed by Section

negligence”, and (ii) “negligence per se.” As stated above, a 1681h(e) requiring a demonstration of willful or

negligence action stemming from the reporting of consumer malicious intent to injure the plaintiff.

credit information is limited by Section 1681(e) of the

FRCA, which requires that the plaintiff allege that defendants . .

: as : Consumer Reporting Agencies

published false information “with malice or willful tntent to A reading of the Amended Complaint, with all reasonable

injure” plaintiff. Seel5 U.S.C. § 1681h(e). Malice, m the inferences in favor of the pro se plaintiff, leads the court

context of the FRCA, holds the same meaning as it does to conclude that plaintiff may be alleging that, although

in a libel action, in other words, “the speaker knew [the . :

. . : each credit reporting agency defendant knew plaintiff was

report] was false or acted with reckless disregard for its truth the victim of identity theft in 2006 resulting in false items

or falsity.” George v. Equifax Mortg. Services, No. 06—CV— . □□□ . .

971, 2008 WL 4425299, at *9 (E.D.N.Y. Sept. 30, 2008). “ppeams on plaintif's credit report, which was □□□□□□□□

: by a litigation and settlement, Mitsubishi acted with “gross

“Willful,” in the context of the FRCA, “require[s] a showing . a . .

negligence,” in 2007, by reporting a new false item—the

that the agency knowingly and intentionally committed an act Eleventh Account—to Equifax and then, subsequent to the

in conscious disregard of the rights of others.” /d. (internal . oe, . . .

filing of the original Complaint in this action, again reporting

citations omitted), that account to Experian and Trans Union. (See Am. Compl.

§] 22.) The credit reporting agencies then allegedly acted with

Therefore, here, plaintiff's claims “gross negligence” ° and “eross negligence” by incorporating this new, false item into

“negligence per se” i require plaintiff to allege facts which, their credit reports.

if true, demonstrate, with plausibility, rather than the mere

2009 WL 3148764

Plaintiff has alleged facts which, if truc, could show that cach by MMCA. Indeed, Gaft has not identified any evidence,

of the credit reporting agencies acted with reckless disregard beyond the pleadings, whether through affidavits, documents

for the reporting of false information on plaintiff's credit or deposition testimony, that the law would regard as damages

reports. caused by MMCA through reckless or conscious disregard,

or malice, concerning the falsity of the Eleventh Account.

*13 Therefore, with respect to defendants Trans Union, Therefore, even assuming that the negligence claims against

Equifax and Experian, to the extent plaintiff is alleging that MMCA are not preempted, summary judgment is appropriate.

defendants acted with malice or reckless disregard for the

truth of the Eleventh Account because defendants were on

notice of a prior identity theft, plaintiff has stated a claim Conclusion

for gross negligence as required by Section 1681h(e) of the

FRCA. For the foregoing reasons, each of plaintiff's federal claims

under the Fair Credit Reporting Act and the Fair Debt

Collecting Practices Act are dismissed. In addition, plaintiff's

Furnishers of Credit Information state law claims for fraud and slander of title are dismissed.

Unlike the credit reporting agency defendants, which have Defendants Experian's, Equifax's and Trans Union's motions

moved for judgments on the pleadings, MMCA has moved _to dismiss plaintiff's negligence claims are denied. Defendant

for summary judgment. As discussed above, ifthe nonmoving © MMCA's motion for summary judgment against plaintiff's

party will bear the burden of proof at trial, but there is an _ negligence claims is granted.

absence of evidence in the record as to an essential element

of his claim, summary judgment is appropriate. See Shah v. SO ORDERED.

Kuwait Airways Corp., No. 088—CV—7371, 2009 WL 2877604,

at *2 (S.D.N.Y. Sep.9, 2009) (Lynch, J.) Here, MMCA argues

that there is no evidence in the record creating □□ issue of fact All Citations

as to whether plaintiff suffered damages proximately caused .

Not Reported in F.Supp.2d, 2009 WL 3148764

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

Filings (6)

Title PDF Court Date Type

1. Defendant Equifax Information Services LLC's a E.D.N.Y. Aug. 16, 2007 Pleading

Answer and Affirmative Defenses to Plaintiff's Ae

Amended Complaint

Mark GAFT, Plaintiff, v. MITSUBISHI MOTOR CREDIT

OF, America, Equifax; Trans Union; and Experian,

Defendants.

2007 WL 4770827

2. Answer, and Affirmative Defenses E.D.N.Y. Aug. 16, 2007 Pleading

Mark GAFT, Plaintiff, v. MITSUBISHI MOTORS CREDIT ‘mt

OF AMERICA, INC., Together with Their Employees

& Agents; Equifax, Together with Their Employees &

Agents; Trans Union, Together with Their Employees

& Agents; Experian, Together with Their Employees &

Agents, Defendants.

2007 WL 4771052

3. Answer Of Defendant, Trans Union LIc To aa E.D.N.Y. Aug. 16, 2007 Pleading

Amended Complaint An

Mark GAFT, Plaintiff, v. MITSUBISHI MOTOR CREDIT

OF AMERICA; Equifax; Trans Union; and Experian,

Defendants.

2007 WL 4771053

4. Defendant Experian Information Solutions, Inc.'s Gm E.D.N.Y. July 31, 2007 Pleading

Answer and Affirmative Defenses to Amended ai

Complaint

Mark GAFT, Plaintiff, v. MITSUBISHI MOTOR CREDIT

OF AMERICA, Together with Its Employees & Agents;

Equifax, Together with Its Employees & Agents;

Transunion, Together with Its Employees & Agents;

Experian Information Solutions, Inc., Together with Its

Employees & Agents, Defendants.

2007 WL 4771051

5. Defendant Equifax Information Services LLC's Ga £.D.N.Y. Mar. 05, 2007 Pleading

Answer and Affirmative Defenses ‘aa

Mark GAFT, Plaintiff, v. MITSUBISHI MOTOR CREDIT,

John/Jane Doe Employee(s) of Mitsubishi Motor Credit,

and Equifax, Defendants.

2007 WL 1174640

6. Docket 1:07cv00527 — E.D.N.Y. Feb. 07, 2007 Docket

GAFT v. MITSUBISHI MOTOR CREDIT ET AL

History (2)

Direct History (1)

1. Gaft v. Mitsubishi Motor Credit of America v=

2009 WL 3148764 , E.D.N.Y. , Sep. 29, 2009

Related References (1)

2. Gaft v. Transunion

2010 WL 180933 , E.D.N.Y. , Jan. 14, 2010

2015 WL 2354308

*1 Plaintiffs Thomas Nguyen (“Mr.Nguyen’) and Tiffany

2015 WL 2354308 Nguyen (“Ms . Nguyen’), proceeding pro se, commenced

Only the Westlaw citation is currently available. the above-captioned actions against Defendants, alleging

United States District Court, violations of the Fair Credit Reporting Act, 15 U.S.C. §

ED. New York. 1681 et seg. (““FCRA”), Wall Street Reform and Consumer

Protection Act, 12 U.S.C. § 5301 et seg. (“CFPA”),

Thomas NGUYEN, Plaintiff, particularly the section relating to the Bureau of Consumer

V. Financial Protection, §§ 5481-5620, 42 U.S.C. §§ 1983 and

RIDGEWOOD SAVINGS BANK 1985, and the New York State Fair Credit Reporting Act.

and Peter Boger, Defendants. The three Complaints name different Defendants but raise

thomas Nguyen, Plaintiff, overlapping claims. '

Vv.

Chase Bank USA, N.A. and James Dimon, Defendants. | These actions are three of seven filed by Mr.

Thomas Nguyen and Tiffany Nguyen, Plaintiffs, Nguyen in the Eastern District of New York in

v. the last fifteen months, many of which have becn

Santander Bank, N.A., Roman Blanco, dismissed. See Nguyen v. Bush, No. 15—CV-641

Citibank, N.A., Michael Corbat, Experian € D.N.Y. filed Feb. 6, 2015) (see Docket Entry

Information Solutions, Inc., Donald Robert, No. 6 (dismissing complaint in full without leave

to amend)); Nguyen v. Milliken, No. 15—CV-—587

Trans Union LLC, and Equifax, Inc., Defendants. (E.D.NY. filed Jan. 30, 2015) (see Docket Entry

Nos. 14-CV-1058 (MKB), 14-CV-— No. 5 (dismissing complaint in full with leave to

3464 (MKB), 14-CV-3989 (MKB). amend)); Nguyen v. Santander Bank, No. 14-CV-—

3989 (E.D.N.Y. filed June 26, 2014) (dismissing

Signed May 15, 2015. complaint at September 17, 2014 status conference,

with leave to amend); Nguyen v. JPM Chase Bank,

Attorneys and Law Firms No. 14-CV—03464 (E.D.N.Y. filed June 2, 2014)

(same); Nguyen v. China Nat'l Offshore Oil Corp.

Thomas Nguyen, Brooklyn, NY, pro se. (CNOOC), No. 14-CV-3327 (E.D.N.Y. filed May

Tiffany Nguyen, Brooklyn, NY, pro se 29, 2014) (dismissing complaint at September 17,

? a? 2014 status conference, in full with prejudice as any

Adam Matthew Marshall, Cullen and Dykman LLP, Garden amendment would be futile) appeal dismissed No.

City, NY, Marianne McCarthy, Cullen and Dykman Bleakley 14-3871 (2d Cir. Mar. 6, 2015); Nguyen v. Bank

Platt, LLP, Garden City, NY, Christopher B. Turcotte, The of America, No. 14—CV—1243 (E.D.N-Y. filed Feb.

Law Office of Christopher B. Turcotte, New York, NY, 26, 2014) (see Docket Entry No. 22 (dismissing

James A. Kassis, Rahil Darbar, Schenck Price Smith & King complaint in full with leave to amend)); Nguyen

LLP, Florham Park, NJ, Raymond Alexander Garcia, Stroock v. Ridgewood Savings Bank, No. 14~CV—1058

& Stroock & Lavan, New York, NY, Jennifer Kathleen (E.D.N -Y. filed Feb. 28, 2014) (see Docket Entry

Messina, Jones Day, New York, NY, Matthew Samberg, Jones No. 22 (dismissing complaint in full with leave to

Day, Pittsburgh, PA, Camille Renee Nicodemus, Schuckit amend)).

& Associates, P.C., Zionsville, IN, Christina Marie Conroy, Currently before the Court are seven separate motions to

Paul Allan Straus, King & Spalding, New York, NY, for — dismiss filed by Defendants Ridgewood Savings Bank and

Defendants. Peter Boger, (Ridgewood Mot. to Dismiss, No. 14-CV—1058

Docket Entry (“S8DE”) No. 37), Chase Bank USA, N.A. and

James Dimon, (Chase Mot. to Dismiss, No. 14-CV—3464

MEMORANDUM & ORDER Docket Entry (“64DE”) No. 19), Santander Bank, N.A. and

Roman Blanco, (Santander Mot. to Dismiss, No. 14-CV—

MARGO K. BRODIE, District Judge. 3989, Docket Entry (“89DE”) No. 46), Citibank, N.A. and

Michael Corbat, (Citibank Mot. to Dismiss, 89DE No. 61),

2015 WL 2354308

Experian Information Solutions, Inc. and Donald Robert, 2 Michael Corbat, CEO of Citigroup; Experian Information

(Experian Mot. to Dismiss, 89DE No. 54), Trans Union LLC, Solutions, Inc. (“Experian”), incorrectly identified as

(Trans Union Mot. to Dismiss, 89DE No. 50), and Equifax, Experian, Inc.; Donald Robert, Chairman of Experian plc; 3

Inc., (Equifax Mot. to Dismiss, 89DE No. 58). Defendants Trans Union LLC (“Trans Union’); and Equifax, Inc.

move pursuant to Rules 8, 9, and 12(b)(6) of the Federal Rules (“Equifax”). Mr. Nguyen's daughter, Tiffany Nguyen, is also

of Civil Procedure. Also before the Court is Mr. Nguyen's a Plaintiff in action 14-CV—3989. The three Complaints

requests for default judgments against Ridgewood and Boger, name different Defendants but raise overlapping claims and

(58DE Nos. 32-33), and against Experian and Robert. (See frequently contain overlapping allegations. Mr. Nguyen's

Am. Compl. in No. 14-CV—3989 (“3989 Am. Compl.”) § submissions often reference all three actions, and the

17, 89DE No. 25; see also Letter dated Nov. 18, 2014 from |= Amended Complaints filed in 14-CV—1058 and 14-CV—

Mr. Nguyen seeking default judgments against Experian and § 3989 include reference to the other actions in the captions.

Robert, 89DE No. 32.) In addition, Mr. Nguyen submitted an identical “addendum”

to his Amended Complaints in actions 14-CV—3464 and 14—

Experian Information Solutions, Inc. submitted CV-3989.

a single motion to dismiss, noting that it

was incorrectly identified in the Complaint as 3 Experian ple is the parent company of Experian

“Experian Inc.” and “CEO Don Robert.” (Cover Information Solutions, Inc. (Corporate Disclosure

Letter dated January 12, 2015 at 1, 89DE No. 53.) Statement § 1, No. 14-CV-—3989, Docket Entry No.

Robert did not join Experian's motion to dismiss, 36.)

(see generally Experian Mot. to Dismiss), though *2 On September 17, 2014, the Court dismissed the

Experian's counsel has entered an appearance Complaints in 14-CV-3464 and 14-CV-3989 in. their

on Robert's behalf, (S9DE No. 69), and the entirety pursuant to Rule 8 of the Federal Rules of

memorandum of law in support of the motion seeks Civil Procedure, for failure to plead with specificity the

dismissal as to Robert for failure to state a claim, violation Plaintiffs allege, and permitted Plaintiffs to file

(Experian Mem., 89 DE No. 55 at 4-5, 12). amended complaints. (See Nos. 14-CV—3464 and 14-CV—

For the reasons discussed below, Defendants’ motions to 3989, Minute Entry dated Sept. 17, 2014.) By Memorandum

dismiss are granted as to Plaintiffs' federal claims, and and Order dated December 17, 2014, the Court dismissed

Mr. Nguyen's motions for default judgments are denied. the Complaint in 14-CV—1058 for failure to state a

As Plaintiffs have previously been given the opportunity to claim pursuant to Rule 12(b)(6) of the Federal Rules

amend their complaints in each action, and have failed to of Civil Procedure. Plaintiffs subsequently filed Amended

correct the deficiencies identified by the Court, the Amended Complaints, and Defendants now move to dismiss the

Complaints are dismissed with prejudice as to all of Plaintiffs’ | Amended Complaints in all of the above-captioned actions.

federal claims.

b. Factual background

I. Background The following facts are taken from Plaintiffs' Amended

Complaints, (Am. Compl. in No. 14—CV—1058 (“1058 Am.

a. Procedural background Compl.”), 58DE No. 23; Am. Compl. in No. 14-CV-3464

Plaintiff Mr. Nguyen, proceeding pro se, filed the («3464 Am. Compl.”), 64DE No. 12; 3989 Am. Compl.), an

above-captioned actions challenging various actions of — jgentical Addendum to the Amended Complaint submitted in

Ridgewood Savings Bank (“Ridgewood”); Peter Boger, actions 14—CV—3989 and 14-CV—3464 on October 24, 2014,

Chairman, President and Chief Executive Officer (“CEO”) of (Am. Compl. Add., 64DE No. 14 and 89DE No. 27), and

Ridgewood; Chase Bank USA, N.A. (“Chase”), incorrectly 4 Supplemental Addendum to the Amended Complaint filed

identified as JPMC Chase Bank in the initial Complaint; in 14-CV-3989 on October 31, 2014, in which Mr. Nguyen

James Dimon, Chairman and Chief Executive Officer “repeats and re-alleges ... the entire amended complaint in 14—

(“CEO”) of JPMorgan Chase & Co., incorrectly identified as [CV]-3464.” (Suppl. Am. Compl. Add. § 22, 89DE No. 28).

Jamie Dimon; Santander Bank, N.A. (“Santander”); Roman

Blanco, Chairman and CEO of Santander; Citibank, N.A. fy sum, Plaintiffs appear to allege that Santander, Chase,

(“Citibank”), incorrectly identified as Citibank (Citigroup); Citibank and Ridgewood provided incorrect or inaccurate

2015 WL 2354308

information about Mr. Nguyen's accounts to Equifax, on a total credit limit of $71,000> and reached a different

Experian and Trans Union, which affected Mr. Nguyen's conclusion, placing him in the “top of .01% tail [sic ] on

credit score. Both Plaintiffs also experienced difficulty normal distribution curve of favorable credit rating and credit

obtaining credit from Defendant banks at various times. score.” (Id.)

i. Allegations against Santander, Blanco, Equifax, Plaintiffs allege that this reflects Mr. Nguyen's total

Experian and Trans Union credit limit on all of his revolving accounts.

On or about February 19, 2007, Mr. Nguyen was approved for *3 In March or April of 2013, Mr. Nguyen alerted

. ” . : . .

a GoldOption” credit account with Santander, with a credit Janet Sanders, “Brooklyn Tech's payroll secretary.” 6 «Beth

line of $15,000, and another “GoldOption” credit account □

. oe . Johnson's UFT chapter leader” and Teresa Samuels, “UFT

with a credit line of $26,500 held by Bank of America, but 5 . cert □□□

. . Brooklyn Rep.” that something was wrong “inside.” (/d. §

serviced by FIA Card Services. (3989 Am. Compl. 4 2.) Mr.

: □ 10.) In September of 2013, Mr. Nguyen spent one week

Nguyen alleges that he attempted to pay down his two credit . . . oa □□

ye gs . in Maimonides hospital in Brooklyn. Ud. § 9.) Plaintiffs

accounts with his disposable income, but “[D]efendants were . .

. . . . . . allege that Santander and Bank of America's actions with

using unfair, deceptive, abusive acts or practices ... to drive . .

. gy respect to Mr. Nguyen's credit accounts caused financial and

[Mr. Nguyen] into destitution.” In or about June of 2007, Mr. . □

. psychological damage, and slowed Mr. Nguyen's recovery

Nguyen went to a Bank of America branch to attempt to make time. (Id.)

a payment on his Santander credit card account, and alleges “_

that Santander never received his $1000 payment 4 □□□ 6 chibi

3.) Mr. Nguyen contacted a manager at one of the banks, and Exhibits annexed to the Supp emental Addendum

. “ » to the Amended Complaints in 14-CV—3989 and

was eventually informed that “they found the money.” (/d.) □

eee gs 9 14-CV-—3464 indicate that in 2012, and perhaps

Mr. Nguyen alleges that his “credit-performance” on the i h teach

Santander account “is considered AAA+++.” (Id.) ater, Mr. Nguyen was a math teacher at Brooklyn

Technical High School. (Letter dated March 1,

4 2012 from Randy J. Asher, Principal of Brooklyn

It is unclear from the allegations in the Amended Technical High School to Mr. Nguyen, annexed to

Complaint what connection Mr. Nguyen believes Supp. Am. Compl. Add. at Ex. 2.)

that Santander and Bank of America have I b 5014 throush October 2014. Plaintiff

beyond offering credit accounts with the name n or about January ous cto ? auntills

“GoldOption.” allege that Santander committed a series of deceptive, unfair,

and abusive acts or practices including various forms of

Mr. Nguyen alleges that from November 19, 2008 to the fraud against Mr. Nguyen's checking account and a separate

present, Santander, Bank of America, and FIA Card Services, _Jine of credit. (Id. 4 6.) Mr. Nguyen alerted the Consumer

acting in conspiracy with one another, committed unfair, Financial Protection Bureau (““CFPB”) and sent a letter to

deceptive, abusive acts or practices “against” his accounts, Blanco regarding the issue, and received a letter in reply

forcing him “eventuall d gradually int life of hell .

lm een ya oraenay ao wae ons from a bank representative on February 24, 2014.7 Ud.) On

for so many years until” September 1, 2013, when Mr. .

. . _ . March 29, 2014, Mr. Nguyen attempted to withdraw $20

Nguyen sustained atrial fibrillation and other heart conditions. . .

. from his account ending in—1223 at Santander, and received

(Id. § 4.) At some point, Mr. Nguyen apparently requested . . . Lo.

. . ce a receipt regarding a different account, ending in —3496,

that someone examine the “GoldOption portfolio,” and “the Loe .

. ,, indicating that there was a larger balance in the account

office of President and CEO represented by Tom Jordan

contacted Experian. (/d. § 5.) Mr. Nguyen was also sent than he Knew was 10 his—1223 account.” (Id. | 6c; Ex.

a “suspicious, terrorizing, and threaten [sic ] letter .” id.) | SF 5.) Plaintiffs allege that this was a set-up” and a scam.

Plaintiffs allege that from October 16, 2013 through the date 3989 Am. Compl. {j 6c.) Plaintiffs allege that Santander,

the present actions were filed, Experian, Bank of America acting in concert with Bank of America and FIA Card

and Santander “conspired in committed [sic ]a fraudulent act, Services, deceptively and fraudulently violated the FCRA

criminal deception, grossly abusive” practice by “fabricating” 24 engaged in unfair and deceptive practices in relation to

the credit utilization ratio reported to Mr. Nguyen. (/d.) Mr, | Mt. Nguyen's credit accounts. (/d. | 9.) Mr. Nguyen further

Nguyen recalculated his own credit utilization ratio, based _States that he “has suffered loss and damages including, but

not limited to, financial loss, financial injuries, expenditure

2015 WL 2354308

of time and resources, emotional distress, A—Fib, mental | Blanco and [Vice President, Manager of Customer Relations

anguish, humiliation, and embarrassment, entitling him to JoAnn] Gruber and then hung up [.]” Ud. § 6e.) On another

actual immediate relief.” (/d.) occasion, Mr. Nguyen received a call from “Jeff,” on behalf

of Santander, at 8:00 AM on a Saturday. (/d.)

7 Plaintiffs state that they have attached the letter to

the Complaint, but the copy filed is illegible. (See ii. Allegations against Citibank and Michael Corbat

Ex. SF, annexed to 3989 Am. Compl.) Plaintiffs a+ the end of the 3989 Amended Complaint, Plaintiffs allege

appear to object to computation of balances on that Citibank and Corbat “were contacted” and discussed the

Mr. Nguyen's account statements, alleging that the Plaintiffs’ allegations against them including conspiracy to

accounting is fraudulent. (3989 Am. Compl. {| 6; commit murder. (/d. 20.) Plaintiffs refer to the Addendum to

Ex. SF 3-4.) the Amended Complaint. (/d.) Therein, Plaintiffs allege that

8 It is not clear from the Complaint what relationship Citibank acted with non-party Expedia “et al” in a conspiracy

there is between the two accounts, and why Mr. with “several “State Actors to committing [sic ] murder or

Nguyen would receive a receipt for the account committing [sic | to terrorize us in the post 9/11 era, etc. in

ending in—3496 when he attempted to withdraw pursuant to FCRA” and several sections of the United States

$20 from the account ending in—1223. Code. (Am.Compl.Add .1.)

In January 2014 “and thereafter,’ Mr. Nguyen contacted —_a¢ or about the time Mr. Nguyen's father passed away in

Experian, Trans Union and Equifax to “personally address[ | January of 2014, Mr. Nguyen called Citibank “at about 2

the issue and offer[ ][an] amicable solution.” (/d. § 16.) On 3 am” requesting an increase in his credit line, which was

March 1, 2014, Plaintiffs allege that Experian committed —pefiseg. (Supp.Am.Compl.Add.§ 15.) Mr. Nguyen allegedly

unspecified fraud. (/d. § 17.) Mr. Nguyen “gave the evidence purchased flights from Expedia to Vietnam to attend his

to expose Experian [sic ] crime to the [Federal Trade father's funeral. Mr. Nguyen alleges that Citibank acted in

Commission (“FTC”) ] and CFPB.” (/d.) Also in March — ¢gnjunction with Expedia to commit unfair and deceptive acts

2014, Trans Union answered Mr. Nguyen's letter with an against him, forcing him to extend his credit account over the

inaccurate credit report, in which Trans Union “deceptively credit limit. (Id.)

sandbag[ged]” Mr. Nguyen's credit score by “suppress[ing |

my payment's info[rmation] and data with JPM Chase [and] —_A¢ some unspecified time, Mr. Nguyen brought to Citibank's

Ridgewood....” (dd. {| 18.) Plaintiffs also allege that Equifax attention an unauthorized charge on his account. (/d.)

used unfair practices against Mr. Nguyen for many years, Citibank removed the charge from his account initially, but

apparently related to reporting a low credit utilization ratio —_Jater recharged the credit account. (Id.)

and otherwise using or misusing Mr. Nguyen's FICO credit

score. (/d.) Mr. Nguyen also apparently received two calls On April 23, 2014, Citibank refused Ms. Nguyen a credit

from Equifax's counsel in August, although he does not card account “because of terrorist activity,” but still sent her

specify the year. (/d.) Plaintiffs complain that one of the calls Gregit card in the mail. (id. § 19.) Plaintiffs allege this

was unprofessional because it was received at 9:26PM ona —_congtitutes “discrimination, character defamation, abuse of

Sunday evening, while Mr. Nguyen was serving food to his power” and is “criminally fraud [sic ].” id.)

brother in a nursing home. (/d.)

*4 On April 28, 2014, Santander “and/or” Experian iii. Allegations against Chase Bank and Dimon

“fraudulently” collected $16.30 “instead of the usual one Mr. Nguyen brought a separate action, not joined by Ms.

week prior to the 28th....” Ud. § 6d.) Plaintiffs allege that | Nguyen, against Chase Bank and Dimon, in which he

Mr. Nguyen suffered “fears, financial and physical injuries, alleges similar claims for fraud, unfair and deceptive business

etc.” Ud.) Since September 17, 2014, Mr. Nguyen has practices, violations of the FCPA and CFPA, and conspiracy

received more than one hundred “harass[ing] phone call[s]” pursuant to 42 U.S.C. § 1985. (3464 Am. Compl. 4 II.)

from Santander. (/d. §] 6e.) On October 20, 2014, Mr. Nguyen Mr. Nguyen alleges that Chase bank engaged in “illegal and

received a telephone call asking him to verify his social deceptive practices” between October 2005 and June 2012,

security number, and spoke with two different individuals. and that on September 13, 2013, the CFPB ordered Chase

(Id. 6e.) Mr. Nguyen “politely advised them to ask those [sic to pay more than $309 million in damages to credit card

2015 WL 2354308

customers. (3464 Am. Compl. {J 1, 8.) On September 13, he argues entitles him to relief. Ud. 4 14.) At the end of

2013, Mr. Nguyen filed a claim in Small Claims Court, Kings — his Complaint, Mr. Nguyen repeats his allegations regarding

County, for “Chase's violation” relating to Mr. Nguyen's his March or April 2013 contact with Janet Sanders, Beth

credit card account, seeking damages of $5000 (“Small Johnson's “UFT chapter leader” and Teresa Samuels. (/d. §

Claims action”). Ud. § 2.) In December 2013, Mr. Nguyen 15.)

sent Dimon a letter regarding his credit card account, because

it “was illegally charged and billed with illegal and deceptive

practice products.” (Id. § 3.) iv. Allegations against Ridgewood and Boger

Mr. Nguyen brought a third action, not joined by Ms. Nguyen,

*5 Shortly after filing his Small Claims action, Mr. Nguyen against Ridgewood and Boger, in which he alleges similar

received a telephone call requesting his appearance on claims for fraud, unfair and deceptive business practices,

“People's Court” with Dimon “or his representative.” (Jd. Violations of the FCRA and CFPA, and conspiracy pursuant

4.) Mr. Nguyen alleges that he “smelled something fishy” and '© 42 U.S.C. § 1985. (1058 Am. Compl. {| III.) The facts

determined that the offer was related to fraud and collusion, lleged in Mr. Nguyen's Complaint are set forth in Nguyen

though he does not allege who colluded and for what end R’dgewood Savings Bank (Nguyen 1), — F.Supp.3d □□

the collusion occurred. (Id. 4] 4.) On January 27, 2014, Mr, 2014 WL 7182812 (E.D.N-Y. Dec. 17, 2014), which decision

Nguyen received a letter from a lawyer stating, infer alia, _ 4ismissed Mr. Nguyen’s initial Complaint, but permitted him

“please contact me to discuss the litigation and whether we _ °° file the instant Amended Complaint.

can reach an amicable resolution.” Ud . § 5.) On March

3, 2014, Mr. Nguyen received another telephone call from *6 In or about November of 2005, Mr. Nguyen opened

the “Judge Judy Show,” asking if he would appear on the a Certificate of Deposit (“CD”) account of $8000 with

show regarding the small claims case. (/d. § 6.) Mr. Nguyen Ridgewood. (1058 Am. Compl. § 1.) In connection with the

apparently did not appear on either television show, instead account, Mr. Nguyen received a television and a camcorder.

appearing before Judge Harriet Thompson in April of 2014, (id.) On or about October 2007, Mr. Nguyen obtained a

where Mr. Nguyen indicated that he would bring the actionin Secured loan of about 90% of the CD value. (Id. { 2.)

the United States District Court after discontinuing his Small | Sometime between 2005 and 2010, Mr. Nguyen began

Claims action. (Id. §7.) making monthly payments on his loan at the Ridgewood

branch in Brooklyn, NY. Ud. § 3.) In 2013, Mr. Nguyen

Mr. Nguyen alleges that he had a “good if not perfect record ©Mtacted the Federal Deposit Insurance Corporation's

with Chase until” July of 2014. (id. 8.) He states that“Chase | (FDIC”) Consumer Response Center disputing the accuracy

broke the law and had been ordered to pay [P]laintiff, one of Ridgewood's records as to the timeliness of twenty two

of the victims.” (Id.) He also refers to a “fabricated charge- f Mr. Nguyen's payments on his loan. (/d. 4] 4—S, 18.) A

off” and indicates that this was a “false pretense” for Chase _‘Short time “before or after” December 16, 2013, Mr. Nguyen

to conspire with Credit Reporting Agencies via “fraud-ridden ©OMtacted Ridgewood seeking an additional loan, and appears

report(s).” Id.) According to Mr. Nguyen, Chase “knowingly to allege that he was denied the loan in connection with the

and willingly used false and inaccurate credit information” Sifts he received in 2005. (/d. {| 7a.) Mr. Nguyen attempted to

to cut his credit line—on a different account—from $14,000 resolve these issues in person at the branch, but the persons

to $6700, and to raise the interest rate on his account. (Id. with whom he had direct contact were no longer available. (/d.

9.) Mr. Nguyen then stopped “dealing with” Chase. (Id. 4 8.) 4] 7b.) Ridgewood then reported to Trans Union or Experian

He states that the conduct, including cutting his credit line, that Mr. Nguyen had missed payments on his loan. (/d.)

“changing Court TV shows,” and “conspiring” with different

lawyers and attorneys, were “unfair and abusive practice[s!” | Mt Nguyen alleges that Equifax, Trans Union, Experian,

and “pervert[ed] the course justice [sic ].” (Id. § 10.) Ridgewood, “and all [D]efendants in all cases” were

motivated by a discriminatory animus against him in a

Mr. Nguyen spent a week at Maimonides Hospital in ©O2SPiracy against him. (/d. { 19.)

Brooklyn as a result of Defendants’ conduct. Ud. {J 10,

15.) He suffered from “financial loss, financial injuri we .

svenditin of time and resources cmotional distress, A. ¥. Additional allegations . .

Fib, mental anguish, humiliation and embarrassment.” which In the Supplemental Addendum to his Amended Complaint

° ° ° on October 31, 2014, Mr. Nguyen includes a number of facts

2015 WL 2354308

not related to any of the Defendants in the above-captioned pleaded facts do not permit the court to infer more than the

actions. He refers to actions surrounding the September mere possibility of misconduct, the complaint has alleged

11, 2001 terrorist attacks in New York City, Mr. Nguyen's —but it has not ‘show [n]’—‘that the pleader is entitled to

former employment at Brooklyn Technical High School, Mr. __ relief.’ “ Pension Ben. Guar. Corp., 712 F.3d at 718 (alteration

Nguyen's contact with the United States Embassy in the in original) (quoting Jgbal, 556 U.S. at 679). Although

Republic of Singapore, alleged discrimination perpetrated all allegations contained in the complaint are assumed

by Randy Asher,” and the death of Mr. Nguyen's father true, this principle is “inapplicable to legal conclusions” or

in January of 2014. □□□□□□□□□□□□□□□□□□□□□ 1-14, 20, 30- “threadbare recitals of the elements of a cause of action,

31.) Mr. Nguyen also alleges that he “saw the perpetrator supported by mere conclusory statements.” 10 Tgbal, 556 U.S.

attempting or/ and conspiring to kill or/ and to terrorize” him _—_at 678. In reviewing a pro se complaint, the court must be

on three separate airline flights, though he does not indicate mindful that the plaintiffs pleadings should be held “to less

who “the perpetrator” is or include any other details about stringent standards than formal pleadings drafted by lawyers.”

what happened. (/d. {§| 16-18.) Mr. Nguyen also attached Hughes v. Rowe, 449 U.S.5,9, 101 S.Ct. 173, 66 L.Ed.2d 163

documents relating to teaching evaluations at Brooklyn (1980) (internal quotation marks omitted); Harris v. Mills,

Technical High School, (id. at 12—18), and airline itineraries, 572 F.3d 66, 72 (2d Cir.2009) (noting that even after 7womblhy,

(id. at 19-21). He did not indicate how any ofthese additional —_ the court “remain[s] obligated to construe a pro se complaint

documents were relevant to the above-captioned cases. liberally”). If a liberal reading of the complaint “gives any

indication that a valid claim might be stated,” the court must

9 Randy J. Asher appears to have been the principal grant leave to amend the complaint. Shabazz v. Bezio, 511 F.

at Brooklyn Technical High School in 2012. (See App'x 28, 31 (2d Cir.2013) (quoting Branum v. Clark, 927

Supp. Am. Compl. Add. 12.) F.2d 698, 705 (2d Cir.1991)).

IL. Discussion 10 When deciding a motion to dismiss, a court's

review is limited to the four corners of the

a. Standard of review complaint, as well as (1) documents attached to

In reviewing a motion to dismiss under Rule 12(b)(6) of the the complaint, (2) any documents incorporated in

Federal Rules of Civil Procedure, a court “must take all of the complaint by reference, (3) any documents

the factual allegations in the complaint as true.” Pension Ben. deemed integral to the complaint, and (4) public

Guar. Corp. ex rel. St. Vincent Catholic Med. Centers Ret. records. See Nielsen v. Rabin, 746 F.3d 58, 65

Plan Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717 (2d Cir.2014) (Jacobs, J. dissenting) (documents

(2d Cir.2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, attached to the complaint and those incorporated

129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)); see also Lundy v. by reference); Global Network Commc'ns, Inc. v.

Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 113 City of New York, 458 F.3d 150, 156 (2d Cir.2006)

(2d Cir.2013) (quoting Holmes v. Grubman, 568 F.3d 329, (documents integral to the complaint); Blue Tree

335 (2d Cir.2009)); Matson v. Bd. of Educ., 631 F.3d 57, 63 Hotels Inv. (Canada), Ltd. v. Starwood Hotels &

(2d Cir.2011) (quoting Connecticut v. Am. Elec. Power Co., Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d

582 F.3d 309, 320 (2d Cir.2009)). A complaint must plead Cir.2004) (public records). For the purposes of

“enough facts to state a claim to relief that is plausible on this Memorandum and Order, the Court deems

its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 Plaintiffs' supplemental submissions in support of

S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is plausible the Amended Complaints as part of the Amended

“when the plaintiff pleads factual content that allows the court Complaints.

to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Matson, 631 F.3d at 63 (quoting b. Fair Credit Reporting Act claims

Iqbal, 556 U.S. at 678); see also Pension Ben. Guar. Corp., *7 As observed in Nguyen I, the FCRA regulates consumer

712 F.3d at 717-18. A complaint need not contain “detailed — Gregit reporting agencies to ensure the confidentiality,

factual allegations,” but a plaintiff must do more than — accuracy, relevancy, and proper utilization of consumer credit

present “an unadorned, the defendant-unlawfully-harmed-me information. 15 U.S.C. § 1681(b); Nguyen I, —— F.Supp.3d

accusation.” Matson, 631 F.3d at 63 (internal quotation marks at ——, 2014 WL 7192812, at *2. Under the statute,

omitted) (quoting /gbal, 556 U.S. at 678). “[W]here the well- “consumer reporting agencies,” sometimes referred to as

2015 WL 2354308

“credit reporting agencies,” are defined as entities which, inaccurate, see§ 1681s—2(a)(2).”). Furthermore, furnishers of

for a monetary fee, “regularly engage[ ] in whole or in information have a responsibility to conduct an investigation

part in the practice of assembling or evaluating consumer _ after receiving notice of a credit dispute from a consumer

credit information or other information on consumers for the reporting agency. § 1681s—2(b); see also Redhead, 2002 WL

purpose of furnishing consumer reports to third parties.” 15 31106934, at *4 (“The FCRA imposes two [general] duties

U.S.C. § 1681a(f). “The FCRA places distinct obligations on on furnishers of information, codified at 15 U.S.C. §§ 1681s—

three types of entities: consumer reporting agencies, users of —_2(a) and (b).”).

consumer reports, and furnishers of information to consumer

reporting agencies.” Redhead v. Winston & Winston, P.C.,

No. 01-CV-11475, 2002 WL 31106934, at *3-5 (S.D.N.Y. _1- Section 1681s-2(a)

Sept. 20, 2002) (citing 15 U.S.C. § 1681, ef seg.; Aklagi *8 “[T]here is no private cause of action for violations of

v. Nationscredit Fin. Servs. Corp., 196 F.Supp.2d 1186, [Section] 1681s—2(a).” Longman, 702 F.3d at 151 (collecting

1192 (D.Kan.2002); Thomasson v. Bank One, La., N.A., 137 cases); Barberan v. Nationpoint, 706 F.Supp.2d 408, 427

11 (S.D.N.Y.2010); Trikas v. Universal Card Servs. Corp., 351

FSupp.2d 721, 722 (E.D.La.2001))). F.Supp.2d 37, 44 (E.D.N.Y.2005). Therefore, any claims

Plaintiffs attempt to bring under Section 1681s—2(a) of

A “furnisher” is “an entity that furnishes the FCRA, including those claims relating to Plaintiff's

information relating to consumers to one or more complaints directly to Defendant banks, are dismissed.

consumer reporting agencies for inclusion in a

consumer report.” 16 C.F.R. § 660.2. Plaintiffs

do not specifically allege which Defendants they 2. Section 1681s—2(b)

consider to be furnishers, and which they consider To state a claim under Section 1681s—2(b) of the statute,

to be consumer reporting agencies. Plaintiffs must allege that a furnisher of information received

notice from a consumer reporting agency of Mr. Nguyen's

i. Individual Defendants credit dispute. See Markovskaya v. Am. Home Mortg.

Plaintiffs have set forth no allegations as to Blanco, Dimon, S@”/cing, Inc., 867 F.Supp.2d 340, 344 (E.D.N.Y.2012)

Corbat, Robert or Boger (“Individual Defendants”) that (“Plaintiff's only claim can be pursuant to Section 1681s—

establish the FCRA applies to them. Plaintiffs’ FCRA claims 2(). As noted, such a claim is stated only when [p]laintiff

are therefore dismissed as to the Individual Defendants. can show that the furnisher received information regarding

a consumer's credit directly from a credit reporting agency,

and not only from the consumer.”); Dickman v. Verizon

ii. Furnishers of information Commc'ns, Inc., 876 F.Supp.2d 166, 172-74 (E.D.N.Y.2012)

Plaintiffs appear to bring claims against all Defendant banks (‘“[U|nder § 1681s—2(b), [a] defendant ha[s] no duty to

as furnishers of information, similar to those claims Mr. investigate [a] credit dispute unless defendant received notice

Nguyen brought against Ridgewood in Neuyen J, that is, that of the dispute from a consumer reporting agency.” (alterations

Defendant banks improperly provided inaccurate information in original) (internal quotation marks omitted) (quoting

to consumer reporting agencies, or failed to correct inaccurate =Prakash v. Homecomings Fin., No. 05-CV—2895, 2006

information that was provided to the consumer reporting WL 2570900, at *3 (E.D.N.Y. Sept. 5, 2006))); Kane v.

agencies. “As part of [its] regulatory scheme, the [FCRA] Guar. Residential Lending, Inc., No. 04-CV-4847, 2005 WL

imp

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