Agu v. Rhea

• Decision Date: 15 December 2010
• Docket Number: 09-CV-4732 (JS)(AKT)
• Parties: JUDE AGU, Plaintiff, v. JOHN RHEA, et al Defendants.
• Court: U.S. District Court — Eastern District of New York

JUDE AGU, Plaintiff,

v.JOHN RHEA, et al Defendants.

09-CV-4732 (JS)(AKT)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Dated: December 15, 2010

MEMORANDUM & ORDER

APPEARANCES:

For Plaintiff: Jude Agu, pro se

For Defendants:

Robbins Defendants Roger A. Goodnough, Esq. Torre, Lentz, Gamel, Gary & Rittmaster, LLP

Experian George E. Spencer, Esq. Jones Day

Equifax Stephanie Cope, Esq. King & Spalding Richard Thomas Marooney, Jr., Esq. King & Spalding

Trans Union Timothy P. Creech, Esq. Kogan, Trichon & Wertheimer, P.C. Portfolio Recovery Thomas R Dominczyk, Esq. Maurice & Needleman, P.C.

BOA Defendants Brian Scott Goldberg, Esq. Casey D. Laffey, Esq. Reed Smith LLP

Arrow Financial Concepcion A. Montoya, Esq. Hinshaw & Culbertson LLP

Collecto, Inc. Jeff J. Imeri, Esq. Marshall Dennehey Warner

SEYBERT, District Judge:

Plaintiff Jude Agu, pro se, filed suit against ten separate defendants, alleging various debt-related statutory and common law causes of action. Through six separate motions, each of the Defendants has moved to dismiss.¹ For the following reasons, all of those motions are GRANTED.

BACKGROUND

This action² arises from several distinct debts. The Court recounts Plaintiff's allegations debt-by-debt.

I. The Bank of America Debts

In early 2005, Plaintiff applied for a credit card with SunTrust Bank. (Pl. Opp. Br. at 1.) SunTrust accepted his application, and did not tell him that the credit line he applied for "belongs to Bank of America." (Id.) In November 2005, Plaintiff applied for, and received, another credit card, this time from Bank of America. (Id.) Plaintiff contends that he applied only for a single credit card with Bank of America, but that Bank of America then "opened more than one credit line accounts for Plaintiff without [his] knowledge, agreement and consent." (Am. Compl. ¶ 3.)

Sometime in 2006, Plaintiff claims that Bank of America began to mistakenly report that he owed them "more than once." (Pl. Opp. Br. at 1.) In fact, Plaintiff claims, he was up to date on his credit payments. (Id. at 4.) According to Plaintiff, he contacted several Bank of America representatives, all of whom assured him that it was a mistake. (Id. at 1.) But, Plaintiff relates, Bank of America failed to correct this mistake and incorrectly reported to Defendants Experian Information Solutions, Inc., Equifax Information Services LLC, and Trans Union LLC (collectively "Reporting Agency Defendants")that he owed money "on a second account, " thereby damaging his credit. (Id.) Plaintiff contacted the Reporting Agency Defendants to sort out this alleged mistake, but obtained no relief. (Id.) In 2007 and 2008, Defendants Portfolio Recovery Associates, LLC, Arrow Financial Services, LLC (together with Collecto, Inc., the "Collection Defendants"), began trying to collect the Bank of America debt(s), including by posting them on Plaintiff's credit reports. (Id.) Plaintiff alleges that he then contacted the Collection Defendants, asking them to validate that the debt they sought to collect actually exists, but received no response. (Am. Compl. at 5-6.)

Plaintiff asserts that, through its actions, Bank of America, and its former Chief Executive Officer, Kenneth Lewis: (1) violated the Truth-in-Lending Act by opening up credit lines in Plaintiff's name without his consent; and (2) defamed his character. (Am. Compl. at 3.) In addition, Plaintiff's opposition brief purports to assert numerous other claims based on, among other things, allegations that Bank of America posted a debt "more than once." (Pl. Opp. Br. at 6-7.)

As to the Reporting Agency Defendants, Plaintiff alleges that, by posting "false and derogatory" credit reports, these Defendants: (1) violated the Fair Credit Reporting Act; and (2) defamed his character. (Am. Compl. at 2.)

And with respect to the Collection Defendants, Plaintiff alleges that, by not properly validating the debt they sought to collect, these Defendants violated the Fair Debt Collection Practices Act. (Am. Compl. at 5-6.)

II. The New York Institute of Technology Debt

Plaintiff raises substantively identical claims against each of the Collection Defendants. However, Plaintiff's action against Collecto, Inc. (sued as "Collection Company of America") apparently arises out of a debt to the New York Institute of Technology, not Bank of America. (Pl. Opp. Br. Ex. 8.) Because Plaintiff barely mentions this debt in his papers, the Court has limited information about it.

III. The Robbins Federal Credit Union Debt

In 2004, Plaintiff opened a bank account and credit line with Robbins Federal Credit Union ("Robbins"). (Pl. Opp. Br. at 1.) Sometime in 2008, Robbins obtained a judgment against Plaintiff in a Georgia court. (Id.) Plaintiff contends that Robbins did so without properly serving him, or otherwise giving him notice of the lawsuit. (Id.; Am. Compl. at 4.)

Based on these events, Plaintiff seeks to hold Robbins, and its Chief Executive Officer, John Rhea, liable on the grounds that Robbins committed "fraud upon the court, " defamed his character, and punished him with legal bills. (Am. Compl. at 4.)

DISCUSSION

I. Standard of Review on a Motion to Dismiss

In deciding Fed. R. Civ. P. 12(b)(6) motions to dismiss, the Court applies a "plausibility standard, " which is guided by "[t]wo working principles, " Ashcroft v. Iqbal, _ U.S. _, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). First, although the Court accepts all factual allegations as true, and draws all reasonable inferences in the plaintiff's favor, this "tenet" is "inapplicable to legal conclusions"; thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Harris, 572 F.3d at 72 (quoting Ashcroft); Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Management LLC, 595 F.3d 86, 91 (2d Cir. 2010). Second, only complaints that state a "plausible claim for relief" can survive Rule 12(b)(6). Id. Determining whether a complaint does so is "a context specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

Pro se plaintiffs enjoy a somewhat more liberal pleading standard. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) ("[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.") (internalquotations and citations omitted). However, pro se plaintiffs must still "comport with the procedural and substantive rules of law, " Javino v. Town of Brookhaven, 06-CV-1245, 2008 U.S. Dist. LEXIS 17323, at *3 (E.D.N.Y. Mar. 4, 2008).

II. Subject Matter Jurisdiction

The Amended Complaint asserts only diversity jurisdiction, not federal question jurisdiction. (Am. Compl. at 2.) But the Amended Complaint then purports to assert claims under three federal statutes: TILA, FCRA, and the FDCPA.

The Court is mindful that it has "an independent obligation to determine whether subject-matter jurisdiction exists." See generally Hertz Corp. v. Friend, _ U.S. _, 130 S. Ct. 1181, 1193, _ L. Ed. 2d _ (2010). Undertaking this obligation, it is clear that the Amended Complaint adequately sets forth multiple statutory grounds for federal question jurisdiction. Accordingly, the Court reads Plaintiff's pro se Amended Complaint for the "strongest [jurisdictional] arguments"³it suggests, and, having done so, finds that Plaintiff has sufficiently asserted federal question jurisdiction over this action. Accordingly, the Court declines Defendants' suggestions that it should dismiss the entire Amended Complaint for lack of subject matter jurisdiction.

III. The Claims Against Bank of America

To begin with, the parties dispute who the proper Defendant(s) are. Plaintiff sued Bank of America and its former CEO, Kenneth Lewis. Bank of America has not appeared. Instead, its wholly-owned subsidiary, FIA Card Services, N.A. ("FIA"), has appeared. FIA contends that it--and not Bank of America--is the proper Defendant, because it was the company that administered the relevant credit lines. Additionally, FIA contends that Plaintiff improperly named Mr. Lewis as a Defendant.

The Court does not reach this issue.⁴ Whether construed against Bank of America, FIA, Mr. Lewis (collectively, the "BOA Defendants"), or all three purported Defendants together, Plaintiff's allegations fail to state a claim.

With respect to Plaintiff's claim that the BOA Defendants "opened more than one credit line accounts for Plaintiff without Plaintiffs' [sic] knowledge, agreement and consent" (Am. Compl. at 3), Plaintiff pleads no facts to render such a claim plausible. On the contrary, Plaintiff's ownstatements, and the documents he attached to his opposition papers, reflect that he voluntarily opened up and maintained credit card accounts at both Bank of America and SunTrust Bank, and that the BOA Defendants administered both of these accounts. (Pl. Opp. Br. at 1; Pl. Sur-Reply at Ex. 1.) Conversely, Plaintiff pleads no facts, and identifies no documents, pointing to the BOA Defendants opening an additional account without his consent.

Indeed, considering Plaintiff's papers together with other documents properly subject to judicial notice, it appears that Plaintiff's claim does not actually concern opening a credit account without "knowledge, agreement and consent." Rather, it appears that Plaintiff attempts to assert a TILA claim based on the BOA Defendants' alleged failure to inform him that it administered his SunTrust credit account. Plaintiff, however, identifies no authority indicating that the TILA prohibits this conduct.⁵ And the Court's own research could find none. Thus, this claim must be dismissed.

Plaintiff's opposition papers also contend that the BOA Defendants mistakenly reported that he owed them "more than once." (Id.) But Plaintiff did not plead these allegations in his Amended Complaint, and it is "axiomatic that ...