Thompson v. Equifax Info. Servs.

CARLENE THOMPSON, Plaintiff, v. EQUIFAX INFORMATION SERVICES LLC, EXPERIAN INFORMATION SOLUTIONS, INC. and TRANS UNION, LLC, Defendants.

No. 20-CV-6101 (RPK) (ST)

United States District Court, E.D. New York

February 24, 2022

REPORT AND RECOMMENDATION

STEVEN TISCIONE, Magistrate Judge:

Plaintiff Carlene Thompson commenced this suit pro se against Defendants Equifax Information Services LLC (“Equifax”), Experian Information Solutions, Inc. (“Experian”) and Trans Union, LLC (“Trans Union”) (collectively “Defendants”) alleging claims under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681 et seq., and common law defamation. See generally Pl. Compl., ECF No. 1.

Defendants have jointly moved for a judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), which Plaintiff opposes. See Def. Br., ECF No. 22-1; Pl. Opp. Br ECF No. 23; Def. Repl. Br., ECF No. 26. On June 2, 2021, the Honorable Rachel P. Kovner referred the motion to this Court for a Report and Recommendation. See Order 20-cv-6101 (E.D.N.Y. July 2, 2021).

For the reasons set forth below, this Court respectfully recommends that Defendants' joint motion for a judgment on the pleadings be GRANTED, and Plaintiff's complaint be dismissed without prejudice.

BACKGROUND

I. Factual Background

The following facts are taken from the Complaint and declarations submitted in support of the instant motion, ^[1] and are assumed to be true for purposes of the motion. See, e.g., Littlejohn v. City of New York, 795 F.3d 297, 306 (2d Cir. 2015) (motion to dismiss); Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010) (motion for judgment on the pleadings). Because Plaintiff is proceeding pro se, the Court also considers and incorporates factual allegations made for the first time in her response opposing the motions. See, e.g., Saudager v. Walgreens Co., No. 18-CV-437, 2019 WL 498349, at *1 n.1 (S.D.N.Y. Feb. 8, 2019) (“A district court deciding a motion to dismiss may consider factual allegations made by a pro se party in his papers opposing the motion.”) (quoting Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013)).

Plaintiff is a “consumer” and Defendants Equifax, Experian and Trans Union are “consumer reporting agencies” (“CRAs”) as defined under the FCRA. Pl. Compl. ¶¶ 6, 7-9, ECF No. 1. On October 25, 2013, Plaintiff filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court, Eastern District of New York. See Bankruptcy Petition, Ex. A. attached to the Stieber Decl., ECF No. 22-2. In December 2020, Plaintiff “obtained her ‘credit files' from Defendants” which showed that she “had public records in the United States Bankruptcy Court, Eastern District of New York.” Id. These “credit files” indicated that the source of “this public record information was The United States Bankruptcy Court, Eastern District of New York.” Id. ¶ 34.

According to Plaintiff, Defendants did not obtain her bankruptcy information directly from the District Court. Id. at ¶ 36. Rather, Defendants obtained the information from a third-party vendor, LexisNexis. Id. at ¶ 37. Plaintiff alleges that “the information about this supposed bankruptcy was misleading and falsely represented, ” id. at ¶¶ 23, 38, and that “this error originated with Defendant's [ sic ] public records vendors, and not with ‘The United States Bankruptcy Court Eastern District of New York.'” Id. at ¶ 39.

Thereafter, Plaintiff sent a letter to Defendants requesting a description of the result of their investigation concerning her credit report. Id. at ¶ 40. In response, Defendants provided Plaintiff a reinvestigation response in addition to turning over her consumer file. See id. at ¶ 41. Plaintiff alleges that neither her “credit files” nor “personal credit reports” disclose that LexisNexis is the actual source of the information regarding her bankruptcy. Id. at ¶¶ 41, 46-47, 67, 71. According to Plaintiff, Defendants misdirected her “to courthouses and other government offices with which Defendants [have] no dealings with.” Id. at ¶ 47.

Based on these allegations, Plaintiff claims that Defendants negligently and willfully: (1) failed to follow reasonable procedures to assure maximum possible accuracy of the information in consumer reports, pursuant to 15 U.S.C. § 1681e(b); (2) failed to comply with the reinvestigation requirements of 15 U.S.C. § 1681i(A); and (3) failed to disclose information, pursuant 15 U.S.C. § 1681g(A)(2). Id. at ¶¶ 60-144. As a result, Plaintiff alleges she suffered “emotional distress and financial loss, ” id. at ¶ 58, including, but not limited to, “credit damage, higher interest rates, damage to reputation, informational injury, embarrassment, humiliation and other emotional and mental distress, ” id. at ¶ 87. See also id. at ¶ 59 (“As a result of the acts and conducts allege[d] above, Plaintiff has endured fear, humiliation, embarrassment, mental pain, suffering, inconvenience, and financial injury, including lost business profits.”); Pl. Opp. Br., 20 (“As a result, [Plaintiff] was denied credit, including a mortgage refinance, was assessed higher interest rates on the credit [s]he did obtain, and encountered difficulty purchasing insurance and obtaining employment.”).

Plaintiff also alleges that Defendants “published statements through writing using Plaintiff's personal information to falsely reflect that Plaintiff was responsible for a federal tax lien, various accounts, and deleting the accounts [s]he was responsible for which proves [P]laintiff has some good credit.” Pl. Compl. ¶ 147, ECF No. 1. Defendants published statements are allegedly false because they do not accurately reflect “Plaintiff's accounts, ... credit information, and debt repayment history” and “Defendants knew the statements were false when made and had no factual basis for making the statements.” Id. at ¶¶ 148-149. Plaintiff claims through this conduct, Defendants defamed her. Id. at ¶¶ 145-153.

II. Procedural History

Plaintiff commenced the instant action on December 14, 2020, asserting eight claims under the FCRA and one common law claim for defamation against Defendants. See generally id. Defendants filed Answers to the Complaint on February 23 and 24 and March 5, 2021, respectively. See Trans Union Answer, ECF No. 9; Equifax Answer, ECF No. 10; Experian Answer, ECF. No. 10. Discovery is ongoing. See ECF No. 32.

On June 1, 2021, Defendants jointly moved for a judgment on the pleadings pursuant to Rule 12(c). See generally Def. Br., ECF No. 22-1. Defendants argue that Plaintiff fails to state a claim for violations of the FCRA because (1) she has not sufficiently alleged an injury-in-fact or causation to confer Article III standing and (2) Defendants accurately reported the existence of Plaintiff's bankruptcy and the source of this information. Id. Defendants further argue that Plaintiff's defamation claim should be dismissed because it is preempted by the FCRA. Id. In support of their joint motion, Defendants submit, among other things, the Declarations of Courtney S. Stieber, Esq. and Cealagh P. Fitzpatrick, Esq., which attach Plaintiff's bankruptcy petition filed with the Eastern District of New York and the consumer file Experian and Equifax provided to Plaintiff. See generally Stieber Decl., ECF No. 22-2; Fitzpatrick Decl., ECF No. 22-3.

Plaintiff filed opposition to Defendants' motion on June 28, 2021. See generally Pl. Opp. Br., ECF No. 23. The opposition largely reiterates the allegations pleaded in the Complaint and includes caselaw almost entirely outside the Second Circuit to argue (1) that although the challenged credit information may technically be accurate it is nonetheless misleading, (2) Article III standing exists based on alleged procedural violations of the FCRA and damage to her credit score, and (3) her defamation claim is not preempted by the FCRA where she has alleged malice and willfulness. Id. On July 9, 2021, Defendants filed a reply in support of their motion arguing, among other things, that Plaintiff still fails to sufficiently identify any inaccuracy or misleading information regarding her reported bankruptcy and any alleged damage to Plaintiff's credit score is insufficient to establish an injury-in-fact or causation. See generally Def. Repl. Br., ECF No. 26.

On June 2, 2021, the Honorable Rachel P. Kovner referred the motion to this Court for a Report and Recommendation. See Order, 20-CV-6101 (E.D.N.Y. July 2, 2021).

LEGAL STANDARD

Rule 12(c) provides that “[a]fter the pleadings are closed -- but early enough not to delay trial -- a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). A court applies the same standard to a motion for judgment on the pleadings as that used for a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). See Jaffer v. Hirji, 887 F.3d 111, 114 (2d Cir. 2018). In evaluating the sufficiency of a complaint, a court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the non-moving party id., but gives “no effect to legal conclusions couched as factual allegations, ” Stadnick v. Vivint Solar, Inc., 861 F.3d 31, 35 (2d Cir. 2017) (citation omitted). A pleading “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting BellAtl. Corp. v. Twombly, 550 U.S. 544 (2007)). “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...” Id. (citing Twombly, 550 U.S. at 556). It is not enough for a plaintiff to allege facts that are consistent with liability; the complaint must “nudge[ ]” claims “across the line from...