Stewart et al v. Equifax Inc. et al
MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that plaintiffs' motion to proceed in forma pauperis [ECF No. # 3 ] is GRANTED. IT IS FURTHER ORDERED that the Clerk shall provide plaintiffs with a court-form for filing a non-prisoner civil action. IT IS FURTHER ORDERED that plaintiffs shall file an amended complaint on the court-form within thirty (30) days of the date of this Memorandum and Order. IT IS FURTHER ORDERED that plaintiffs' motion for appointment of counsel [Doc. # 2 ] is D ENIED at this time. IT IS FURTHER ORDERED that plaintiffs' request to certify a class is DENIED. IT IS FURTHER ORDERED that plaintiffs' failure to comply with this Memorandum and Order will result in a dismissal of this action without prejudice. Signed by District Judge Ronnie L. White on 11/27/2017. (Attachments: # 1 Form)(NEB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JAMES and EILEEN STEWART,
EQUIFAX, INC., et al.,
No. 4:17-CV-2433 RLW
MEMORANDUM AND ORDER
Plaintiffs seek leave to proceed in forma pauperis in this civil action under 28 U.S.C.§
1915. Plaintiffs' motions to proceed in forma pauperis will be granted. However, plaintiffs will
be required to file an amended complaint in this action. Plaintiffs' failure to file an amended
pleading will result in a dismissal of this action, without prejudice.
Standard of Review
Under 28 U.S.C. § 1915(e), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted.
To state a claim for relief, a complaint must plead more than "legal conclusions" and
"[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A plaintiff must
demonstrate a plausible claim for relief, which is more than a "mere possibility of misconduct."
Id. at 679. "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
alleged." Id. at 678. Determining whether a complaint states a plausible claim for relief is a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. Id. at 679.
When reviewing a complaint under 28 U.S.C. § 1915(e), the Court accepts the well-pled
facts as true. Furthermore, the Court liberally construes the allegations.
Plaintiff James Stewart asserts that he is bringing this action against Equifax, Inc., as well
as its parent companies and subsidiaries, on behalf of himself and his mother, Eileen Stewart 1•
Plaintiff states that he and his mother Eileen Stewart are individual consumers residing in the St.
Louis, Missouri area.
Plaintiff James Stewart claims that Equifax, Inc. and the other defendants acted in
violation of Missouri state law, in "negligence," when the Company failed to protect the
Stewart's credit and personal information. Plaintiffs seek "fair compensation" in "an amount
that will ensure that the plaintiffs who are consumers harmed by its data breach" will be
Plaintiffs are acting pro se, or without an attorney in this action. Although plaintiffs seek
to certify a class action against Equifax, Inc., the motion to certify must be denied. Under Federal
Rule of Civil Procedure 23(a)(4), a class representative must "fairly and adequately protect the
interests of the class." Unfortunately, a pro se litigant carmot fairly and adequately represent a
class of persons in Federal Court. A litigant may bring his own claims to federal court without
counsel, but not the claims of others. See 28 U.S.C. § 1654; see also 7A Wright, Miller & Kane,
Mrs. Eileen Stewart is identified as in Mr. Stewart's care, as she is currently 89 years old.
Federal Practice and Procedure: Civil 3d § 1769.1 ("class representatives cannot appear pro
Additionally, plaintiffs' claim for state law negligence, as currently stated, appears to be
preempted by the Fair Credit Reporting Act ("FCRA"). See 15 U.S.C. § 1681h(e)3 .
The Court will allow plaintiffs thirty (30) days to amend their complaint in this action on
a court-provided form. Plaintiffs are warned that the filing of an amended complaint replaces the
original complaint, and so it must include all claims plaintiffs wish to bring. E.g., In re Wireless
Telephone Federal Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005). Plaintiffs
must submit the amended complaint on a court-provided form, and the amended complaint must
comply with Rules 8 and 10 of the Federal Rules of Civil Procedure.
Last, the Court will review plaintiffs' motion for appointment of counsel. The Court
notes plaintiffs have demonstrated, at this point, that they can adequately present their claims to
Additionally, neither the factual nor the legal issues in this case are complex.
Therefore, the Court will deny plaintiffs' request for counsel at this time.
IT IS HEREBY ORDERED that plaintiffs' motion to proceed in forma pauperis [ECF
No. #3] is GRANTED.
IT IS FURTHER ORDERED that the Clerk shall provide plaintiffs with a court-form
for filing a non-prisoner civil action.
The Court notes that there are more than 200 pending class action cases against Equifax, Inc.
across the nation similar to the instant case. Currently there are motions for transfer and
consolidation pending before the Judicial Panel on Multidistrict Litigation ("JPML"), brought
pursuant to 28 U.S.C. § 1407. It appears that the majority of individual cases in District Courts
have been stayed pending oral argument on the§ 1407 motions on November 30, 2017.
The Court is aware that under the FCRA, there remains civil liability for negligent
noncompliance of the Act, 15 U.S.C. § 16810, and willful noncompliance of the Act, 15 U.S.C. §
IT IS FURTHER ORDERED that plaintiffs shall file an amended complaint on the
court-form within thirty (30) days of the date of this Memorandum and Order.
IT IS FURTHER ORDERED that plaintiffs' motion for appointment of counsel [Doc.
#2] is DENIED at this time.
IT IS FURTHER ORDERED that plaintiffs' request to certify a class is DENIED.
IT IS FURTHER ORDERED that plaintiffs' failure to comply with this Memorandum
and Order will result in a dismissal of this action without prejudice.
thi~y of November, 2017.
RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE
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