Wimberly v. Experian Info. Sols.

• Decision Date: 01 February 2021
• Docket Number: 1:18-cv-6058-MKV
• Parties: JASON WIMBERLY, Plaintiff, v. EXPERIAN INFORMATION SOLUTIONS, Defendant.
• Court: U.S. District Court — Southern District of New York

JASON WIMBERLY, Plaintiff, v. EXPERIAN INFORMATION SOLUTIONS, Defendant.

1:18-cv-6058-MKV

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

February 1, 2021

OPINION AND ORDER DENYING MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT

MARY KAY VYSKOCIL, United States District Judge:

Plaintiff Jason Wimberly ("Plaintiff"), proceeding pro se, brings this action against Defendant Experian Information Solutions ("Defendant"), alleging violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681-1681x, and the New York Fair Credit Reporting Act ("NYFCRA"), N.Y. Gen. Bus. Law §§ 380-380-v. On December 18, 2019, the Court (Failla, J.) granted Defendant's Motion to Dismiss Plaintiff's Amended Complaint and denied Plaintiff's Motion for a Preliminary Injunction. (Opinion & Order [ECF No. 65].) Wimberly v. Experian Info. Sols., No. 18 Civ. 6058 (KPF), 2019 WL 6895751 (S.D.N.Y. Dec. 18, 2019). In so doing, the Court granted Plaintiff leave to file a motion to further amend his Complaint. (Opinion & Order 26.) Wimberly, 2019 WL 6895751, at *11.

Before the Court is Plaintiff's Motion for Leave to File a Second Amended Complaint ("Motion to Further Amend") (Mot. Further Amend [ECF No. 79]), which he filed with the Proposed Second Amended Complaint (Second Am. Compl. ("SAC") [ECF No. 79-1]) and a brief in support of the Motion to Further Amend (Pl.'s Br. [ECF No. 87]). Defendant opposes Plaintiff's Motion to Further Amend. (Def.'s Opp. [ECF No. 88].) Having carefully reviewed the Proposed Second Amended Complaint and the parties' briefs, the Court DENIES Plaintiff's Motion to Further Amend.

BACKGROUND

The Court assumes the parties' general familiarity with the underlying facts and procedural history of the case, which are set forth in the prior decision of the Court. (Opinion & Order.) Wimberly, 2019 WL 6895751. The Court discusses factual allegations in the Proposed Second Amended Complaint as they relate to particular causes of action and the Court's analysis. It bears emphasizing that Plaintiff first amended the Complaint after a conference where the parties discussed particular pleading deficiencies, yet the Amended Complaint failed to state a claim. (See Tr. Conf. Jan. 17, 2019 [ECF No. 37].)

In its prior decision, in recognition of his pro se status, the Court permitted Plaintiff to move for leave to file a Second Amended Complaint. (Opinion & Order 26.) Wimberly, 2019 WL 6895751, at *11. The Court explained, "Included with any such motion must be a proposed complaint, which would have to address, among other issues, the manner in which Defendant's reports were inaccurate, why any purported inconsistencies amounted to actionable inaccuracy, and in what way Defendant failed to follow reasonable procedures in preparing its reports." (Opinion & Order 26.) Wimberly, 2019 WL 6895751, at *11.

LEGAL STANDARDS

I. Leave to Amend Standard

"When a motion to dismiss is granted, the usual practice is to grant leave to amend the complaint." Hayden v. County of Nassau, 180 F.3d 42, 53 (2d Cir. 1999) (citing Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir. 1990)). A pro se plaintiff "should be afforded every reasonable opportunity to demonstrate that he has a valid claim." Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) (quoting Satchell v. Dilworth, 745 F.2d 781, 785 (2d Cir. 1984)). Thus, "[a] pro se complaint should not be dismissed without the Court granting leave to amend at least once when a liberalreading of the complaint gives any indication that a valid claim might be stated." Nielson v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (quoting Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)).

However, when there is no indication that a valid claim might be stated, a district court has discretion to deny leave to amend. Perri v. Bloomberg, No. 11-CV-2646, 2012 WL 3307013, at *4 (E.D.N.Y. Aug. 13, 2012) (citing Chavis, 618 F.3d at 170). In other words, leave to amend may be denied if an amendment would be futile—that is, "a proposed claim could not withstand a motion to dismiss pursuant to 12(b)(6)." Dougherty v. Town of North Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002) (citing Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)). "Determinations of futility are made under the same standards that govern Rule 12(b)(6) motions to dismiss." Nettis v. Levitt, 241 F.3d 186, 194 n.4 (2d Cir. 2001), overruled on other grounds by Slayton v. Am. Express Co., 460 F.3d 215 (2d Cir. 2006).

II. Rule 12(b)(6) Motion to Dismiss Standard

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), "a complaint 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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). While a sufficiently pleaded complaint "does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal quotation marks, alterations, and citations omitted); see also Iqbal, 556 U.S. at 678 (noting that"[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" (citing Twombly, 550 U.S. at 555)).

In ruling on a motion to dismiss, the Court must "accept as true all factual allegations," Hernandez v. United States, 939 F.3d 191, 198 (2d Cir. 2019) (quoting Nielsen, 746 F.3d at 62), and "construe all reasonable inferences that can be drawn from the complaint in the light most favorable to the plaintiff," Arar v. Ashcroft, 585 F.3d 559, 567 (2d Cir. 2009) (citing Roth v. Jennings, 489 F.3d 499, 501 (2d Cir. 2007); and Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009)). However, the Court is "not required to credit conclusory allegations or legal conclusions couched as factual allegations." Dale v. UnitedHealthcare Ins. Co., 974 F.3d 183, 188-89 (2d Cir. 2020) (quoting Nielsen, 746 F.3d at 62); see also Edwards v. Sequoia Fund, Inc., 938 F.3d 8, 12 (2d Cir. 2019); Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir. 2013).

A complaint filed by a pro se plaintiff "must be construed liberally with 'special solicitude' and interpreted to raise the strongest claims that it suggests." Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013) (quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)); see also Wilson v. Dalene, 699 F. Supp. 2d 534, 554 (E.D.N.Y. 2010) (noting that courts are "required to afford [a pro se plaintiff] leniency, holding his complaint to 'less stringent standards than formal pleadings drafted by lawyers'" (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007))). Nevertheless, the complaint must satisfy the Twombly-Iqbal plausibility standard. See Costabile v. N.Y.C. Health & Hosps. Corp., 951 F.3d 77, 80-81 (2d Cir. 2020). "[T]o survive a Rule 12(b)(6) motion, a pro se plaintiff must support his claims with 'specific and detailed factual allegations, not stated in wholly conclusory terms.'" Wightman-Cervantes v. ACLU, No. 06 Civ. 4708, 2007 WL 1805483, at *1 (S.D.N.Y. June 25, 2007) (quoting Friedl v. City of New York, 210 F.3d 79, 85-86 (2d Cir. 2000)).

In deciding a Rule 12(b)(6) motion, the Court "may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint," DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (citing Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); and Hayden, 180 F.3d at 54), as well as any document "upon which the complaint solely relies and which is integral to the complaint," Roth, 489 F.3d at 509 (emphasis and alteration omitted) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991)). "A document is integral to the complaint 'where the complaint relies heavily upon its terms and effect.'" Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (quoting Chambers, 282 F.3d at 153).

"The Court's obligation to construe pro se submissions liberally does not require the Court to accept allegations that are contradicted by documents incorporated by reference in the complaint." Edwards v. Elmhurst Hosp. Ctr., Nos. 11 CV 5348(RRM)(LB), 11 CV 5349(RRM)(LB), 2013 WL 839554, at * (E.D.N.Y. Feb. 4, 2013) (citing Fisk v. Letterman, 401 F. Supp. 2d 362, 368 (S.D.N.Y. 2005); and Matusovsky v. Merrill Lynch, 186 F. Supp. 2d 397, 399-400 (S.D.N.Y. 2002)). Thus, "[w]hen documents attached to the complaint as exhibits or incorporated by reference in the complaint contain statements that contradict the allegations in the complaint, the documents control and the Court need not accept the allegations as true." Endemann v. Liberty Ins. Corp., 390 F. Supp. 3d 362, 370 (N.D.N.Y. 2019) (collecting cases); see L-7 Designs, Inc v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (noting that allegations are "assume[d] to be true unless contradicted by more specific allegations or documentary evidence").

DISCUSSION

In the Proposed Second Amended Complaint, Plaintiff alleges causes of action for (1) failure to follow procedures to assure maximum possible accuracy under the FCRA and theNYFCRA (Counts I and II) (SAC 11-18); (2) reporting obsolete information under the FCRA and the NYFCRA (Counts III and IV) (SAC 18-21); (3) failure to disclose information in Plaintiff's file under the FCRA and the NYFCRA (Counts V and VI) (SAC 21-26); (4) failure to notify Plaintiff of reinsertion of previously deleted material under the FCRA (Count VII) (SAC 26-27); (5) failure timely to notify furnishers of a dispute under the...