Belfon v. Credit Check Total Consumerinfo.Com, Inc.
| Decision Date | 01 October 2018 |
| Docket Number | 2:18-cv-00408 (ADS)(SIL) |
| Parties | LAWRENCE BELFON, Plaintiff, v. CREDIT CHECK TOTAL CONSUMERINFO.COM, INC., Defendant. |
| Court | U.S. District Court — Eastern District of New York |
APPEARANCES:
Edward B. Geller, Esq.
Counsel for the Plaintiff
15 Landing Way
Bronx, NY 10464
Kerianne Tobitsch, Esq., Of Counsel
On January 19, 2018, Lawrence Belfon ("Belfon" or the "Plaintiff") commenced this action against Credit Check Total ConsumerInfo.com, Inc. (the "Defendant") in response to a purportedly inaccurate credit monitoring report. The Plaintiff alleges numerous New York State law causes of action, namely breach of contract, negligence, intentional infliction of emotional distress, and a violation of New York General Business Law § 349 ("GBL § 349"). Belfon seeks compensatory damages, punitive damages, attorneys' fees and costs.
Presently before the Court is a motion by the Defendant, pursuant to Federal Rule of Civil Procedure ("FED. R. CIV. P." or "Rule") 12(b)(6), seeking to dismiss the complaint for failure to state a claim upon which relief may be granted.
For the following reasons, the Defendant's motion to dismiss is granted.
Unless otherwise noted, the following facts are drawn from the Plaintiff's complaint, and for the purposes of the instant motion, are construed in favor of the Plaintiff.
On or before July 3, 2017, the Plaintiff, a resident of Valley Stream, New York, purchased the Defendant's credit monitoring services through a website owned by the Defendant. Complaint ("Compl."), Docket Entry ("Dkt.") 1, ¶ 1-6. To purchase this service, the Defendant paid a $1.00 initial fee and agreed to pay $29.95 per month, beginning July 13, 2017. The Plaintiff also agreed to the "Terms of Use" for users of the Defendant's credit monitoring service. Id. ¶ 5. The Plaintiff made the $1.00 initial payment with a credit card. Id. ¶ 10.
On July 3, 2017, the Plaintiff received a credit monitoring statement from the Defendant that provided a report from all three major credit bureaus, Experian, Equifax, and TransUnion (the "Report"). The Report allegedly stated that TransUnion reported an account with Time Warner Cable listed as the original creditor and a phone number for a collection agency, which was collecting on the account. Equifax ostensibly reported that the same account was with the collection agency and did not display the original creditor. The Plaintiff contends that the TransUnion portion of the Report is confusing because the Plaintiff might assume that the original creditor is reporting the account, rather than the collection agency. Id. ¶ 6-9.
On these facts, Belfon contends that by providing inaccurate information in its credit monitoring service, the Defendant breached its contract with the Plaintiff. He alleges causes ofactions for breach of contract, intentional infliction of emotional distress, negligence, and deceptive acts or practices in violation of GBL § 349.
The Court notes that the Plaintiff filed his opposition brief with the Court 17 days after the deadline specified by Local Civil Rule 7.1(b). In the Defendant's Notice of Plaintiff's Non-Opposition, the Defendant states that the Plaintiff received consent for a one-week extension of the deadline to file his opposition brief. Dkt. 7 at 1. The Court has received no such request for an extension of time. The Defendant also notes that the Plaintiff emailed an unfiled version of their brief six days after the deadline, id. at 1-2, but that no such copy was filed with the Court until another 11 days. Belfon contends that the late filing was due to an inadvertent clerical error. Dkt. 11 at 1.
Although the Plaintiff's counsel failed to comply with the requisite procedural rules, there is no indication that these failures were anything but inadvertent mistakes nor is there any allegation of prejudice on the part of the Defendant. In light of that, the Court will consider the Plaintiff's untimely opposition brief.
In considering a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the Plaintiff. See, e.g., Trs. of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016); Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013); Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006); Bold Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995); Reed v. Garden City Union Free Sch. Dist., 987 F. Supp. 2d 260, 263 (E.D.N.Y. 2013).
Under the Twombly standard, the Court may only dismiss a complaint if it does not contain enough allegations of fact to state a claim for relief that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). The Second Circuit has expounded that, after Twombly, the Court's inquiry under Rule 12(b)(6) is guided by two principles:
First, although a court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions, and [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss and [d]etermining 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.
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 664, 129 S. Ct. 1937, 1940, 173 L. Ed. 2d 868 (2009)).
A complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to survive a motion to dismiss. FED. R. CIV. P. 8(a)(2). Under Rule 8, a complaint is not required to allege "detailed factual allegations." Kendall v. Caliber Home Loans, Inc., 198 F. Supp. 3d 168, 170 (E.D.N.Y. 2016) (quoting Twombly, 550 U.S. at 555). DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 113 (2d Cir. 2010) (quoting Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998)). The Court "[is] not bound to accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555.
The Defendant attached three exhibits to its motion to dismiss: (1) the complaint; (2) the Terms of Use Agreement as it appeared on July 2, 2017; and (3) the Terms of Use Agreement asit appeared on July 28, 2017. As a preliminary matter, the Court must first address whether the Terms of Use may be properly considered by the Court for the purposes of adjudicating this motion.
"[F]ederal courts have complete discretion to determine whether or not to accept the submission of any material beyond the pleadings offered in conjunction with a Rule 12(b)(6) motion." Giugliano v. F32 Capital Partners, LLC, No. 14-cv-7240, 2015 WL 5124796 (E.D.N.Y. Sept. 1, 2015) (Spatt, J.) (internal citation and quotation marks omitted); Halebian v. Berv, 644 F.3d 122, 131 n.7 (2d Cir. 2011) (). In adjudicating this motion, the Court is permitted to consider:
(1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents "integral" to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in [the] defendant's motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence.
Envtl. Servs. v. Recycle Green Servs., 7 F. Supp. 3d 260, 270 (E.D.N.Y. 2014) (Spatt, J.) (quoting In re Merrill Lynch & Co., 273 F. Supp. 2d 351, 356-57 (S.D.N.Y. 2003)), aff'd in part and vacated in part on other grounds sub nom. Dabit v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 395 F.3d 25 (2d Cir. 2005), vacated on other grounds, 547 U.S. 71, 126 S. Ct. 1503, 164 L. Ed. 2d 179 (2006)); accord Healthnow New York, Inc. v. Catholic Health Sys., Inc., No. 14-cv-986S, 2015 WL 5673123 (W.D.N.Y. Sept. 25, 2015); Oberstein v. SunPower Corp., No. 07-cv-1155, 2010 WL 1705868, at *3 (E.D.N.Y. Apr. 28, 2010).
The Court finds that both copies of the Terms of Use are integral to the complaint. See, e.g., Wilson v. Kellogg Co., 111 F. Supp. 3d 306, 311 (E.D.N.Y. 2015) (). The Plaintiff refers to a "contract" or "agreement" several times throughout the complaint. See, e.g., Compl. ¶¶ 5 (), 11 ("Plaintiff thereby performed according to the valid 'contract' between Plaintiff and Defendant."), 15 ("By accepting that payment, Defendant executed the Agreement but failed to uphold the Agreement."). While these allegations do not mention the Terms of Use by name, the Plaintiff is undoubtedly referring to it in the formation of its claim. The complaint indicates that the Plaintiff "'relie[d] heavily upon [the Terms of Use's] terms and effect,' thereby rendering the...
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