Silva-Borero v. Equifax, Inc.

• Decision Date: 29 July 2019
• Docket Number: CIV. NO. 19-00265 JMS-RT
• Parties: RAYNELL L. SILVA-BORERO, Plaintiff, v. EQUIFAX, INC., Defendant.
• Court: U.S. District Court — District of Hawaii

RAYNELL L. SILVA-BORERO, Plaintiff, v. EQUIFAX, INC., Defendant.

CIV. NO. 19-00265 JMS-RT

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

July 29, 2019

ORDER (1) GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS; AND (2) DISMISSING COMPLAINT WITH LEAVE TO AMEND

I. INTRODUCTION

On May 28, 2019, pro se Plaintiff Raynell L. Silva-Borero filed a Complaint against Defendant Equifax, Inc. ("Equifax"), and an Application to proceed in forma pauperis ("IFP Application"). ECF Nos. 1-2. As set forth below, the court GRANTS Plaintiff's IFP Application and DISMISSES the Complaint, with leave to amend, for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2).

II. IFP APPLICATION

As set forth in the IFP Application, Plaintiff's income is limited to bi-weekly gross wages of $741.39, and Plaintiff has neither money in a bank account nor any assets. IFP Application ¶¶ 2-5. The IFP Application further indicates that Plaintiff has monthly expenses totaling $490 for water, electricity, and phone service, and owes $250 per month for a personal loan. Id. ¶6. The court finds that Plaintiff has made the required showing under 28 U.S.C. § 1915(a) to proceed in forma pauperis (i.e., without prepayment of fees); therefore, the court GRANTS Plaintiff's IFP Application.

III. BACKGROUND

As alleged in the Complaint, Plaintiff exhausted administrative remedies by sending Equifax several documents in which Plaintiff asserted facts and requested that Equifax provide "proofs of claim," essentially disputing such facts. ECF No. 1 at PageID # 4-5. By failing to respond to those documents, Equifax "accepted" the asserted facts, and is therefore liable to Plaintiff for "$75,000,000.00" including "triple damages, punitive damages and all court costs." Id.

Copies of the referenced documents are attached to the Complaint. One document states that Plaintiff is a victim of a 2017 Equifax data breach. ECF No. 1-1 at PageID #8. In that document, Plaintiff further states that "I am . . . injured by this data breach in that I DO NOT know who may have my personal data or where my data is being used as a result of the fraudulent data breach." Id.

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///Plaintiff also asked that Equifax provide twelve "Proofs of Claim,"¹ and warned that Equifax's "non-response and or failure to provide Proof of Claim" will (1) "constitute agreement" that Plaintiff is entitled to the requested remedies, and (2) "will equate to commercial acquiescence to the terms" set forth in a "final Affidavit and Notice of Default." ECF No. 1-1 at PageID #8-9.

Equifax apparently did not respond, because Plaintiff then sent two "Affidavit[s] of Certificate of Non-Response" and an "Affidavit and Notice of Default." Id. at PageID #13, 17-18. The "Affidavit and Notice of Default" states that by failing to respond to the prior documents, Equifax has "agreed and acquiesced" to the facts and "Proofs of Claim" set forth in those documents, and is therefore liable to Plaintiff and 148 million Americans for $75 million, including "triple and punitive damages and costs." Id. at PageID #18-19; see also ECF No. 1 at PageID #4-5.

IV. STANDARDS OF REVIEW

The court must screen the Complaint for each civil action commenced pursuant to 28 U.S.C. § 1915(a), governing IFP proceedings. The court must sua sponte dismiss a complaint or claim that is "frivolous or malicious[,] . . . fails to state a claim on which relief may be granted[,] or . . . seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B); see Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte dismiss an in forma pauperis complaint that fails to state a claim).

Screening under § 1915(e)(2) involves the same standard of review as that used under Federal Rule of Civil Procedure 12(b)(6). Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). Under Rule 12(b)(6), a complaint must "containsufficient 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 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (recognizing that a complaint that fails to allege a cognizable legal theory or alleges insufficient facts under a cognizable legal theory fails to state a plausible claim) (citing Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). However, although the court must accept as true allegations of material fact, it is "not bound to accept as true a legal conclusion couched as a factual allegation." Wood v. Moss, 572 U.S. 744, 755 n.5 (2014) (citing Iqbal, 556 U.S. at 678). That is, conclusory statements, "unadorned, the-defendant-unlawfully-harmed-me accusation[s]," and factual allegations that only permit the court to infer "the mere possibility of misconduct" fall short of meeting the plausibility standard. Iqbal, 556 U.S. at 678-79; see also Starr v. Baca, 652 F.3d 1202, 1216-17 (9th Cir. 2011); Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

Because Plaintiff is proceeding pro se, the court liberally construes her Complaint and resolves all doubts in her favor. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). The court must grant leave to amend if it appears that Plaintiff can correct the defects in her Complaint, Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.2000), but if a claim or complaint cannot be saved by amendment, dismissal with prejudice is appropriate. Sylvia Landfield Tr. v. City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013); see also Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008) (reiterating that a district court may deny leave to amend for, among other reasons "repeated failure to cure deficiencies by amendments previously allowed . . . [and] futility of amendment") (citation omitted).

V. DISCUSSION

A. The Complaint Fails to State a Claim²

Neither the Complaint nor the attached documents identifies any cognizable legal theory or asserts any specific, let alone plausible, claim for relief.

In the document setting forth the "Proofs of Claim," Plaintiff asserts that in connection with the "fraudulent data breach," Equifax committed "torts." ECF No. 1-1 at PageID #8. But Plaintiff fails to identify any specific tort Equifax committed and fails to allege facts to support some unspecified tort. To the extent Plaintiff may be attempting to assert a fraud claim, the Complaint fails to allege facts with the requisite particularity to state a plausible claim. See Fed. Rule of Civ. Proc. 9(b) (requiring that "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity"); seealso In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1547-48 (9th Cir. 1994) (en banc), superseded on other grounds by 15 U.S.C. § 78u-4 ("Rule 9(b) requires particularized allegations of the circumstances constituting fraud."). Thus, the Complaint fails to state a plausible tort claim.

Further, the Complaint alleges that by failing to respond, Equifax is "in default under contract." ECF No. 1 at PageID #4. But Plaintiff fails to identify or provide a copy of any applicable contract between the parties. The documents Plaintiff sent to Equifax do not constitute binding contracts because there is no indication that Equifax agreed to Plaintiff's terms. See Carson v. Saito, 53 Haw. 178, 182, 489 P.2d 636, 638 (1971) (recognizing that as a "fundamental principle of law[,] there must be mutual assent or a meeting of the minds on all essential elements or terms in order to form a binding contract") (quoting Honolulu Rapid Transit Co. v. Paschoal, 51 Haw. 19, 26, 449 P.2d 123, 127 (1968)); see also In re Estate of Tahilan v. Friendly Care Home Health Servs., Inc., 731 F. Supp. 2d 1000, 1006 (D. Haw. 2010) (explaining that mutual assent must include "an offer, an acceptance, and consideration") (citing Douglass v. Pflueger Haw., Inc., 110 Haw. 520, 525, 135 P.3d 129, 134 (2006)).

Plaintiff appears to base this action solely on Equifax's failure to respond to Plaintiff's documents. But absent some duty or contractual obligation,Equifax's failure to respond does not create a cognizable claim. Plaintiff has alleged neither.

Rather, Plaintiff contends that "no more than (affidavits) is necessary to make the prima facie case." ECF No. 1-1 at PageID #13, 17 (citing United States v. Kis, 658 F.2d 526, 536 (7th Cir. 1981), abrogated on other grounds by Church of Scientology of Cal. v. United States, 506 U.S. 9 (1999)). To the extent Plaintiff relies on Kis to support the contention that based solely on her "Affidavit of Certificate of Non-Response," Plaintiff has stated a claim for relief, such reliance is misplaced. Kis recognized that in the context of an action for issuance of an Internal Revenue Service ("IRS") summons, an agent's affidavit is generally sufficient to prove the requisite four elements of a prima facie case establishing the existence of necessary conditions for such summons. 658 F.2d at 536. Here, the instant action does not involve an IRS summons. Moreover, Kis does not hold that an agent's affidavit alone was sufficient to create a claim. Rather, Kis held that the affidavit was sufficient to prove the four elements of a legally cognizable claim for enforcement of an IRS summons.

In short, even construed liberally, Plaintiff's Complaint neither asserts a claim or cognizable legal theory nor alleges facts under a cognizable legal theory sufficient to state a plausible claim for relief. See UMG Recordings, Inc., 718 F.3dat 1014; Balistreri, 901 F.2d at 699. The Complaint is DISMISSED for failure to state a claim.

B. Leave to Amend

Because Plaintiff may be able to assert a plausible claim for relief, Plaintiff is granted leave to amend her...