United States District Court, S.D. New York
Ahron Braun, Plaintiff, Pro se, Monroe, NY.
For Defendant: Richard David Lane, Esq., Marshall Dennehey Warner Coleman & Goggin, New York, NY.
OPINION AND ORDER
KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE.
Plaintiff Ahron Braun (" Braun" ), proceeding pro se, brings this Action against Defendant United Recovery Systems, LP (" URS" ), alleging that Defendant impermissibly accessed his credit report in violation of the Fair Credit Reporting Act (" FCRA" ), 15 U.S.C. § § 1681 et seq. Defendant moves to dismiss Plaintiff's First Amended Complaint. For the following reasons, Defendant's Motion to Dismiss is granted in part and denied in part.
A. Factual Background
The following facts are taken from Plaintiff's Amended Complaint. For the purposes of Defendant's Motion, the Court must accept as true all allegations contained therein. At some point, Plaintiff " received his Experian consumer credit report." (Am. Compl. ¶ 7.) " Experian is a credit reporting agency." ( Id. ¶ 18.) Within his Experian credit report, Plaintiff " found entries by an entity" with which " he was unfamiliar . . . ." ( Id. ¶ 7.) " Plaintiff discovered after examination of his Experian credit report that Defendant had obtained [it] on March 14, 2011." ( Id. ¶ 8; see also Pl.'s Ex. A.) Following this discovery, Plaintiff sent a letter to Defendant, requesting " proof as [to] what permissible purpose [Defendant] may have had in obtaining . . . Plaintiff's credit report," and in the absence of such proof, that " the inquiries on Plaintiff's credit report . . . be removed . . . ." (Am. Compl. ¶ 9; see also Pl.'s Ex. B.) Plaintiff also " informed [Defendant] that Plaintiff never incurred any financial obligation with [Defendant]." (Am. Compl. ¶ 9; see also Pl.'s Ex. B.)
However, " Defendant failed to respond with any reason as to why, and where, [Defendant] may have had [a] permissible purpose to obtain . . . Plaintiff's consumer credit report." (Am. Compl. ¶ 10.) Following Defendant's failure to respond, Plaintiff " mailed a dispute letter to Experian," not named as a defendant in this Action, in which Plaintiff " informed [Experian] that Plaintiff never gave permission for . . . Defendant to obtain his credit reports
and requested that Experian should verify and remove the erroneous inquiries from his credit file." ( Id. ¶ 11; see also Pl.'s Ex. C.) However, like Defendant, Experian also " failed to respond as to what permissible purpose . . . Defendant may have had to obtain Plaintiff's credit report." (Am. Compl. ¶ 12.) Plaintiff then " mailed a Notice of Pending Lawsuit to Defendant" on or about May 22, 2012, in " an effort to mitigate damages and reach a settlement" for what Plaintiff characterizes as Defendant's violation of the FCRA. ( Id. ¶ 13; see also Pl.'s Ex. D.) Plaintiff also sent Defendant this notice so that Defendant would " cease violating Federal and State law at Plaintiff's expense" before Plaintiff took " civil action against" it. (Am. Compl. ¶ 13; see also Pl.'s Ex. D.) But " Defendant still failed to respond to Plaintiff's Notice." (Am. Compl. ¶ 14.)
Plaintiff alleges that he " has never had any signed contracts, 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 firm offer of credit from . . . Defendant," and that he further " did not owe any debt, was not named as an 'authorized user' on any account, [and] did not appl[y] for any license or other benefit" that could have provided Defendant with a permissible purpose to obtain his credit report. ( Id. ¶ 22.) Plaintiff emphasizes that Defendant lacked a permissible purpose to access his credit report because " there was no account and/or debt which gave it a permissible purpose to legitimately obtain" it. ( Id. ¶ 23; see also id. ¶ 34 (" There was no account that . . . Defendant had any right to collect to have had permissible purpose to obtain Plaintiff's credit report . . . ." ).) As a result of Defendant's alleged actions, Plaintiff claims that he has " suffered damage by loss of credit, loss of the ability to purchase and benefit from credit, and lowering of credit lines, and having to pay higher auto insurance premiums." ( Id. ¶ 27.)
B. Procedural Background
On June 12, 2012, Plaintiff filed a Complaint against Defendant. ( See Dkt. No. 2.) On August 7, 2012, Chief Judge Loretta A. Preska, to whom this case was originally assigned, directed Plaintiff to file an Amended Complaint. ( See Dkt. No. 4.) On August 30, 2012, Plaintiff filed an Amended Complaint. ( See Dkt. No. 6.) In his Amended Complaint, Plaintiff claims that " Defendant willfully, intentionally, recklessly, and/or negligently violated the provisions of the FCRA by using false pretenses or knowingly in obtaining . . . Plaintiff's consumer credit report without a permissible purpose in violation of FCRA, 15 U.S.C. § 1681b(f)," (Am. Compl. ¶ 26); that " [w]ith no permissible purpose or Plaintiff's consent Defendant's conduct constituted a willful and reckless action rendering [Defendant] liable for actual, statutory, and even punitive damages [in] an amount to be determined by the Court pursuant to 15 U.S.C. § 1681n(a)," ( id. ¶ 28); that " [i]n the alternative, Defendant's conduct was negligent entitling Plaintiff to recover under 15 U.S.C. § 1681o," ( id. ¶ 29); that " [t]he action of Defendant obtaining the consumer credit report of . . . Plaintiff with no permissible purpose or Plaintiff's consent, was a willful violation of FCRA, 15 U.S.C. § 1681b and an egregious violation of Plaintiff's right to privacy," ( id. ¶ 30); and that " Defendant had a duty under 15 U.S.C. § 1681s2(b) [sic] to properly ascertain if there was any legitimate permissible purpose before obtaining Plaintiff's credit report and Defendant breached said duty by failing to do so," ( id. ¶ 32). On October 24, 2012, the Action was reassigned to this Court. ( See Dkt. No. 8.) On April 1, 2013, Defendant filed its Motion to Dismiss, ( see Dkt. Nos.
18-20), followed by Plaintiff's Response on April 30, 2013, ( see Dkt. Nos. 21-22), and Defendant's Reply on May 14, 2013, ( see Dkt. No. 23).
A. Standard of Review
1. Rule 12(b)(6)
Defendant moves to dismiss Plaintiff's First Amended Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. " While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations, internal quotation marks, and alterations omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure " demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). " Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Id. (internal quotation marks and alterations omitted). Instead, a complaint's " [f]actual allegations must be enough to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. at 555. Although " once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint," id. at 563, and a plaintiff must allege " only enough facts to state a claim to relief that is plausible on its face," id. at 570, if a plaintiff has not " nudged [his or her] claim across the line from conceivable to plausible, the complaint must be dismissed," id.; see also Iqbal, 556 U.S. at 679 (" Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not 'show[n]'--'that the pleader is entitled to relief.'" (citation omitted) (second alteration in original) (quoting Fed.R.Civ.P. 8(a)(2))); id. at 678-79 (" Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." ).
" [W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); see also Nielsen v. Rabin, 746 F.3d 58, 2014 WL 552805, at *2 (2d Cir. Feb. 13, 2014) (" In addressing the sufficiency of a complaint we accept as true all factual allegations . . . ." ); Aegis Ins. Servs., Inc. v. 7 World Trade Co., L.P., 737 F.3d 166, 176 (2d Cir. 2013) (" In reviewing a dismissal pursuant to Rule 12(b)(6), we . . . accept all factual allegations in the complaint as true . . . ." (internal quotation marks and alterations omitted)). Further, " [f]or the purpose of resolving [a] motion to dismiss, the Court . . . draw[s] all reasonable inferences in favor of the plaintiff." Daniel v. T& M Prot. Res., Inc., 992 F.Supp.2d 302, 2014 WL 182341, at *1 n.1 (S.D.N.Y. Jan. 16, 2014) (citing Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012)). Additionally, " [i]n ruling on a 12(b)(6) motion, . . . a court may consider the complaint[,] . . . any written instrument attached to the complaint as an exhibit[,] or any statements or documents
incorporated in it by reference," as well as " matters of which judicial notice may be taken, and documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Kalyanaram v. Am. Ass'n of Univ. Professors at N.Y. Inst. of Tech., Inc., 742 F.3d 42, 44 n.1 (2d Cir. 2014) (citation, internal quotation marks, and some alterations omitted); see also Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (" In adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial ...