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Moses Perl v. American Express

July 9, 2012

MOSES PERL,
PLAINTIFF,
v.
AMERICAN EXPRESS, DEFENDANT. MOSES PERL, PLAINTIFF,
v.
COHEN & SLAMOWITZ, LLP, DEFENDANT.



The opinion of the court was delivered by: Ramos, D.J.:

OPINION AND ORDER

Pro se Plaintiff Moses Perl has filed two in forma pauperis lawsuits against Defendants who allegedly accessed his credit report. See Perl v. American Express, No. 12-cv-4380 (ER) ("American Express"); Perl v. Cohen & Slamowitz, LLP, No. 12-cv-4796 (ER) ("Cohen"). In both cases, Mr. Perl alleges violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq. In Cohen, Mr. Perl also alleges violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq.

This Court concludes that Mr. Perl has failed to state a claim upon which relief can be granted in his FCRA claims and therefore sua sponte DISMISSES without prejudice the entire complaint in American Express and Count 1 in Cohen. This Order does not address the FDCPA claims (Counts 2 and 3) in Cohen.

DISCUSSION

Procedural Standard

The Court has the authority to screen sua sponte an in forma pauperis complaint at any time pursuant to 28 U.S.C. § 1915(e)(2)(B). The Court may dismiss such a complaint, or some portion thereof, if it fails to state a claim upon which relief could be granted. § 1915(e)(2)(B)(ii). Even though the law authorizes dismissal on that ground, courts "remain obligated to construe pro se complaints liberally." E.g., DiPetto v. U.S. Postal Serv., 383 Fed. Appx. 102, 103 (2d Cir. 2010); Johnson v. J.P. Morgan Chase Bank, N.A., et al., No. 11 Civ. 662 (DLC), 2011 WL 497923, at *1 (S.D.N.Y. Feb.10, 2011). Thus, pro se complaints should be read with "special solicitude" and should be interpreted to raise the "strongest claims that they suggest." E.g., DiPetto, 383 Fed. Appx. at 103 (internal punctuation omitted); see also Johnson, 2011 WL 497923, at *1.

Nonetheless, a pro se complaint must still provide a defendant with fair notice of what the plaintiff's claims are and each of the grounds upon which they rest. See Valenzuela v. Riverbay Corp., No. 06 Civ. 903 (DLC), 2007 WL 414487, at *2 (S.D.N.Y. Jan. 31, 2007); see generally Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 346 (2005). A pleading that offers only "labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks omitted).

"Even though all allegations contained in the complaint are assumed to be true" on a motion to dismiss, that "tenet is 'inapplicable to legal conclusions.'" Zapolski v. Fed. Republic of Germany, 425 Fed. Appx. 5, 6 (2d Cir. 2011) (quoting Iqbal, 129 S.Ct. at 1949) (affirming sua sponte dismissal of pro se, in forma pauperis complaint). Rather, "[t]he complaint must plead 'enough facts to state a claim [for] relief that is plausible on its face.'" Zapolski, 425 Fed. Appx. at 6 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); accord DiPetto, 383 Fed. Appx. at 103 ("pro se complaints must contain sufficient factual allegations to meet the plausibility standard"). A claim has "'facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Zapolski, 425 Fed. Appx. at 6 (quoting Iqbal, 129 S.Ct. at 1949).

FCRA Counts

Mr. Perl's purported FCRA causes of action each rest upon the Defendants' alleged violation of Section 1681b. That section protects consumer privacy by limiting access to consumer credit reports. To state a claim for civil liability based on Section 1681b, a plaintiff must allege both that the defendant used or obtained the plaintiff's credit report for an impermissible purpose, see 15 U.S.C. § 1681b(f); see also Stonehart v. Rosenthal, No. 01-cv-651 (SAS), 2001 WL 910771, at *3 (S.D.N.Y. Aug.13, 2001), and that the violation was willful or negligent, see 15 U.S.C. §§ 1681n, 1681o; see also, e.g., Casella v. Equifax Credit Info. Servs., 56 F.3d 469, 473 (2d Cir. 1995).

In a recent decision dismissing similar claims, Farkas v. RJM Acquisitions Funding, Inc., No. 12-cv-735 (ER), this Court held that a plaintiff must allege specific facts to satisfy the state of mind element. See also Perl v. American Express, No. 11-cv-7374 (KBF), 2012 WL 178333 (S.D.N.Y. Jan. 19, 2012) (dismissing FCRA claims of plaintiffs Israel and Gittel Perl).

In each of the instant cases, Mr. Perl adequately alleges that his report was obtained for an impermissible purpose by alleging that he "never had any business dealings or any accounts with, made application for credit from, made application for employment with, applied for insurance from, or received a bona fide offer of credit from," Defendants. Compl. at ¶ 16, American Express; Compl. at ¶ 21, Cohen. But he fails adequately to allege willfulness or negligence.

While Mr. Perl asserts that each Defendant's FCRA violation was willful, he does so in a conclusory manner in both of the complaints. See generally Iqbal, 129 S.Ct. at 1949 ("A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." (internal quotation marks omitted)). Willfulness as used in the relevant provision of the FCRA, Section 1681n, means knowledge or recklessness. See, e.g., Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 56--60 (2007); see generally 15 U.S.C. § 1681n. Mr. Perl has failed to allege any facts related to Defendants' state of mind when they allegedly obtained his credit reports.

In American Express, all he alleges is that he does not know what permissible purpose American Express might have had and that he did not have an account with American ...


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