United States District Court, S.D. New York
Ahron Braun, Plaintiff, Pro se, Monroe, NY.
For Defendant: Gregory Raymond Saracino, Esq., Milber Makris Plousadis & Seiden, LLP, White Plains, NY.
OPINION AND ORDER
KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE.
Plaintiff Ahron Braun (" Braun" ), proceeding pro se, brings this Action against Defendant Client Services Inc. (" Client Services" ), 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. (Dkt. No. 5) ¶ 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 the Defendant had obtained [it] on May 4, 2010." ( Id. ¶ 8; see also Pl.'s Mem. & Opp'n to the Def.'s Mot. To Dismiss & Mem. of Law (" Opp'n" ) (Dkt. No. 16), 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 Opp'n, Ex. B.) Plaintiff also " informed [Defendant] that Plaintiff never incurred any financial obligation with [Defendant]." (Am. Compl. ¶ 9; see also Opp'n, 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 report and requested that Experian should verify and remove the erroneous inquiries from his credit file." ( Id. ¶ 11; see also Opp'n, Ex. C.) However, like Defendant, Experian also " failed to respond as to what permissible purpose . . . Defendant may have had to obtain Plaintiff's consumer credit report." (Am. Compl. ¶ 12.) Plaintiff then " mailed a Notice of Pending Lawsuit to Defendant" on or about June 11, 2012, in " an effort to mitigate damages and reach a settlement" for what Plaintiff characterizes as Defendant's violation of the FCRA. ( Id. ¶ 13.) 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. ( Id. ¶ 14.) But " Defendant failed to respond to Plaintiff's Notice." ( Id.)
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 [a] 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 July 2, 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 27, 2012, Plaintiff filed an Amended Complaint. ( See Dkt. No. 5.) 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 December 11, 2012, the Action was reassigned to this Court. ( See Dkt. No. 6.) On April 1, 2013, Defendant filed its Motion to Dismiss, ( see Dkt. Nos. 13-15), followed by Plaintiff's Response on April 29, 2013, ( see Dkt. Nos. 16-17), and Defendant's Reply on May 15, 2013, ( see Dkt. No. 18).
A. Standard of Review