Taylor v. Experian Info. Sols.

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SHARMELL TAYLOR, Plaintiff, v. EXPERIAN INFORMATION SOLUTIONS, INC, Defendant.

No. 5:24-CV-188 (DNH/MJK)

United States District Court, N.D. New York

February 14, 2024

SHARMELL TAYLOR, Plaintiff, pro se

ORDER AND REPORT-RECOMMENDATION

MITCHELL J. KATZ, U.S. Magistrate Judge

The Clerk has sent to the court for review a pro se complaint filed by plaintiff Sharmell Taylor, in which she has asserted claims against defendant Experian Information Solutions INC (“Experian”) under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692; the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681; and state law. (Dkt. No. 1) (“Compl.”). Plaintiff has also moved to proceed in forma pauperis (“IFP”). (Dkt. No 2).

I. IFP Application

Plaintiff declares in her IFP application that she is unable to pay the filing fee. (Dkt. No. 2). After reviewing her application and supporting documents, this court finds that plaintiff is financially eligible for IFP status.

However, in addition to determining whether plaintiff meets the financial criteria to proceed IFP, the court must also consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that 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) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915 (e)(2)(B)(i)-(iii).

In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in 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 is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldredge, 505 F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to 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 a plaintiff to proceed. Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss a frivolous complaint sua sponte even when plaintiff has paid the filing fee).

To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp., 550 U.S. at 555).

In addition, Fed.R.Civ.P. 8(a)(2) requires that a pleading 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[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Houston v. Collerman, No. 9:16-CV-1009 (BKS/ATB), 2016 WL 6267968, at *2 (N.D.N.Y. Oct. 26, 2016) (quoting Ashcroft, 556 U.S. at 678). A pleading that contains allegations that “‘are so vague as to fail to give the defendants adequate notice of the claims against them' is subject to dismissal.” Id. (citing Sheehy v. Brown, 335 Fed.Appx. 102, 104 (2d Cir. 2009)). The court will now turn to a consideration of plaintiff's complaint under the above standards.

II. Complaint

Plaintiff alleges that defendant Experian operates a “credit collection agency.” (Compl. at 7).^[1] Plaintiff further states that on October 18, 2023, she sent a “dispute” to Experian, “disputing the reporting of transactions on the plaintiff's consumer report that were not authorized to be furnished by the consumer.” (Id.). On November 2, 2023, Experian “responded to the plaintiff sending out dispute results.” (Id.). On December 3, 2023, plaintiff “reached out” to Experian “for the second time regarding the transactions still being reported on the consumer report without authorization.” (Id.).

On December 22, 2023, Experian “responded with an identical letter and the transactions were still being reported.” (Id. at 7-8).

The complaint alleges four counts against Experian. First, plaintiff states a cause of action for “Defamation of Character (Per Se).” (Id. at 6). Specifically, plaintiff alleges that Experian, through plaintiff's consumer report, made “false and damaging statements about the plaintiff.” (Id.). Plaintiff states that, as a result of Experian's defamatory statements, plaintiff has suffered “negligent infliction of emotional and financial distress.” (Id.).

Plaintiff next asserts a cause of action for “Negligent Enablement of Identity Fraud.” (Id. at 6). She states that Experian's failure to investigate her submitted dispute “enabled identity fraud” against her, and, as a result of Experian's negligence, plaintiff has suffered “negligent infliction of emotional and financial distress.” (Id.).

Plaintiff's third cause of action is brought under the FDCPA. (Id. at 6). Plaintiff alleges that Experian, “a debt collector as defined by the [FDCPA], violated the Act by not removing the debt or the portion of the debt the plaintiff dispute with in the 30-day period under 15 U.S.C. § 1692g(b).” (Id. at 6-7).

Plaintiff's final cause of action is brought under the FCRA. (Id. at 7). She states that Experian “willfully violated the [FCRA] by failing to comply with 15 U.S.C. § 1681b the permissible purpose of consumer reports and 1681a(2)(A)(i) definitions; rules of construction.” (Id. at 7).

In her request for relief, plaintiff seeks compensatory damages in the amount of $4,000 for “pain and suffering due to an inability to utilize the credit system[,]” as well as for causing “emotional and financial damages due to reported information by” Experian. (Compl. at 4). Plaintiff also seeks punitive damages in the amount of $4,000 “based on the egregious and willful nature of” Experian's conduct, and to “punish and deter future similar conduct.” (Id.). Last, plaintiff seeks injunctive relief in the removal of the disputed account from the consumer report. (Id.).

DISCUSSION

III. The Fair Debt Collection Practices Act

The FDCPA prohibits deceptive and misleading practices by “debt collectors.” Anderson v. Experian, No. 19-CV-8833, 2019 WL 6324179, at *2 (S.D.N.Y. Nov. 26, 2019) (quoting 15 U.S.C. § 1692e). The statute seeks to “eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” Kropelnicki v. Siegel, 290 F.3d 118, 127 (2d Cir. 2002) (quoting 15 U.S.C. § 1692(e)) (internal quotation marks omitted). “To accomplish these goals, the FDCPA creates a private right of action for debtors who have been harmed by abusive debt collection practices.” Anderson v. Experian, 2019 WL 6324179, at *2 (citing 15 U.S.C. § 1692k).

“To establish a violation under the FDCPA, three elements must be proven: ‘(1) the plaintiff [must] be a ‘consumer' who allegedly owes the debt or a person who has been the object of efforts to collect a consumer debt, (2) the defendant collecting the debt must be considered a “debt collector,” and (3) the defendant must have engaged in an act or omission in violation of the FDCPA's requirements.' ” Skvarla v. MRS BPO, LLC, No. 21-CV-55, 2021 WL 2941118, at *2 (S.D.N.Y. July 12, 2021) (quoting Derosa v. CAC Fin. Corp., 278 F.Supp.3d 555, 559-60 (E.D.N.Y. 2017)). “The term ‘debt collector' is defined under the FDCPA as a person who, among other requirements, is engaged in any ‘business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect . . . debts owed or due . . . another.' ” Perez v. Experian, No. 20-CV-9119, 2021 WL 4784280, at *12 (S.D.N.Y. Oct. 14, 2021), report and recommendation adopted, 2021 WL 5088036 (S.D.N.Y. Nov. 2, 2021)(quoting 15 U.S.C. § 1692a(6)).

Plaintiff's complaint fails to state facts suggesting a claim for relief under the FDCPA. Experian, the sole defendant named in this action, is “not normally identified as a debt collector.” Anderson v. Experian, 2019 WL 6324179, at *2; see also Perez v. Experian, 2021 WL 4784280, at *13 (“Equifax, Experian, and Trans Union are credit reporting agencies that do not collect debts, and therefore do not fall within the meaning ‘debt collector' under the FDCPA, but instead under the term ‘consumer reporting agency' [(“CRA”)] as defined in § 1681a(f).”); compare 15 U.S.C. 1692a(6) (defining debt collector) with 15 U.S.C. § 1681a(f) (defining consumer reporting agency). Plaintiff does not credibly allege that Experian is a “debt collector.” Rather, plaintiff's allegations suggest her challenges to the consumer report issued by Experian in its capacity as a CRA. (Compl. at 7). Because the complaint fails to allege any non-conclusory allegations that Experian is a “debt collector,” or that it has engaged in any debt collection activity, plaintiff has failed to state a claim under the FDCPA. See Allen v. United Student Aid Funds, Inc., No. 17-CV-8192, 2018 WL 4680023, at *5 (S.D.N.Y. Sept. 28, 2018) (granting motion to dismiss when plaintiff has not pled sufficient facts to classify defendants as debt collectors).

IV. The...