DEPHILLIPS v. EQUIFAX, INC. et al

Filing 13

OPINION. Signed by Judge Renee Marie Bumb on 1/17/2023. (dmr)

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[Docket No. 9]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
JOSEPH ANTHONY DEPHILLIPS,
Plaintiff,
Civil No. 22-03247 (RMB/SAK)
v.
EQUIFAX INC. and MARK BEGOR

OPINION

Defendants.

APPEARANCES
Joseph Anthony DePhillips
4814 Indian Cabin Road
Egg Harbor City, New Jersey 08215
Plaintiff, pro se
Alexander Macrae Noble
King & Spalding LLP
1185 Avenue of the Americas
New York, New York 10036
On behalf of Defendants Equifax Inc. and Mark Begor
RENÉE MARIE BUMB, United States District Judge
This matter comes before the Court on the Motion to Dismiss of Defendants
Equifax Inc. and Mark Begor, Chief Executive Officer of Equifax (collectively,
“Defendants”), which was filed on July 22, 2022. [Docket No. 9 (the “Motion”).]
Plaintiff Joseph Anthony DePhillips (“Plaintiff”), who is proceeding pro se, filed an
untimely Opposition on September 26, 2022, [Docket No. 11], and Defendants

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submitted a Reply Brief on September 30, 2022, [Docket No. 12]. Having been fully
briefed, this matter is ripe for adjudication. For the reasons that follow, Defendants’
Motion will be GRANTED, and Plaintiff’s Complaint will be DISMISSED,
WITHOUT PREJUDICE.
I.

BACKGROUND
On May 31, 2022, Plaintiff initiated this action purporting to assert a breach of

contract claim against Defendants. [Compl. ¶ III, Docket No. 1.] On the same day,
he also filed a purported motion for summary judgment. [Docket No. 4.] As far as
the Court can discern, Plaintiff’s action appears to relate to a data breach that Equifax
experienced in 2017. [See Compl. ¶ III. 1] On June 9, 2020, Plaintiff contacted
Defendants with a document advising them that the data breach injured Plaintiff
“personally, financially, socially[,] and economically” and demanding, within ten
days of receipt, a series of admissions related to the data breach. [Docket No. 1-3, at
1–2.] Defendants did not respond. [Docket No. 1-6, at 1 (notary public’s purported
“Affidavit of Certificate of Non-Response”); see also Defs.’ Br. 1.] Thereafter, Plaintiff
sent additional correspondence to Defendants construing their failure to respond as
acquiescence “to the facts stated” in Plaintiff’s correspondence. [Docket Nos. 1-4, 15.] Again, Defendants did not respond. [Docket No. 1-6, at 2–3 (notary public’s

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Additionally, the Court takes judicial notice of the data security incident that
Equifax appears to have disclosed in September 2017 and the resulting Federal Trade
Commission enforcement action and settlement agreement. See generally Equifax Data
Breach Settlement, FED. TRADE COMM’N (Dec. 2022),
https://www.ftc.gov/enforcement/refunds/equifax-data-breach-settlement.
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additional acknowledgments of non-response).]

Invoking the subject matter

jurisdiction of this Court pursuant to 28 U.S.C. § 1332, 2 Plaintiff claims that
Defendants are “in default under contract” and, thus, owe Plaintiff $75,000,000 in
“agreed to and acquiesced” damages, which he also asks this Court to treble. [Compl.
¶¶ II.B.3, IV.] Plaintiff provides little additional detail setting forth the underlying
factual basis for his legal claim.
In Defendants’ Motion, they argue that Plaintiff’s Complaint should be
dismissed for two reasons. First, Plaintiff’s Complaint should be dismissed pursuant
to Federal Rule of Civil Procedure 12(b)(6) because Plaintiff fails to state a claim upon
which relief can be granted. [Docket No. 9-1, at 4–7 (“Defs.’ Br.”).] Second, the
Complaint should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1)
because the Court lacks subject matter jurisdiction to hear Plaintiff’s claim. [Id. at 7–
8.] They also argue that, to the extent Plaintiff is seeking summary judgment on his
claim—as he “move[s] for summary judgment on all counts in [the Complaint] and
request[s] oral argument” in Docket No. 4—such application must be dismissed as
procedurally deficient pursuant to Federal Rule of Civil Procedure 56 and Local Civil
Rule 56.1. [Defs.’ Br. 8–9.]
In his Opposition, Plaintiff attempts to argue that he has set forth sufficient
information to establish that Defendants have “stolen [his] private/personal
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Plaintiff is a citizen of the State of New Jersey, and Defendants are citizens of
the State of Georgia. [Compl. ¶¶ I, II.B.] The Court notes that Plaintiff has not
identified any basis for federal question jurisdiction pursuant to 28 U.S.C. § 1331. [See
generally id.]
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information,” and he stresses that his pre-litigation correspondence proves that “this
court case is already Won.” [Docket No. 11, at 2.]
In Defendants’ Reply, they argue that Plaintiff’s Opposition should be rejected
as untimely, that it should be disregarded because it “fails to advance a single relevant
factual or legal argument in response” to their Motion, and that Plaintiff’s purported
motion for summary judgment does not comply with the Federal Rules of Civil
Procedure. [Defs.’ Reply, Docket No. 12, at 1–3.]
II.

LEGAL STANDARDS
A pleading is generally sufficient if it contains “a short and plain statement of

the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). To
comply with this rule requiring a plaintiff to provide the “grounds” of his entitlement
to relief, the plaintiff must allege more than mere labels and conclusions or a
“formulaic recitation of the elements of a cause of action,” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007), and he must provide “more than an unadorned, thedefendant-unlawfully-harmed-me accusation,” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “[T]he complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” Id.
When considering a motion to dismiss for failure to state a claim upon which
relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must
accept as true all well-pleaded allegations in the complaint, including all reasonable
inferences that can be drawn therefrom, and view them in the light most favorable to
the plaintiff. Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005) (citations omitted).
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The motion should be granted if the court cannot grant the relief requested under any
set of facts that could be proved. Id. at 351 (citation omitted). A court need not credit
any “bald assertions” or “legal conclusions” in the complaint. In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1429–30 (3d Cir. 1997) (citation omitted).
Similarly, a pleading must contain “a short and plain statement of the grounds
for the court’s jurisdiction.” FED. R. CIV. P. 8(a)(1). A motion to dismiss under
Federal Rule of Civil Procedure 12(b)(1) must be granted if the court lacks subject
matter jurisdiction to hear a claim. In re Schering Plough Corp. Intron/Temodar Consumer
Class Action, 678 F.3d 235, 243 (3d Cir. 2012).

“Challenges to subject matter

jurisdiction under Rule 12(b)(1) may be facial or factual.” Lincoln Ben. Life Co. v. AEI
Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015) (citation omitted). “A facial attack concerns
an alleged pleading deficiency whereas a factual attack concerns the actual failure of a
plaintiff’s claims to comport factually with the jurisdictional prerequisites.” Id.
(cleaned up) (citation omitted). The burden of establishing the court’s jurisdiction is
on the party asserting its existence. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342
n.3 (2006).
III.

DISCUSSION
Plaintiff’s Complaint is deficient for two intertwined reasons and, thus, must be

dismissed. First, it does not appear from Plaintiff’s pleadings that the Court can
exercise subject matter jurisdiction to adjudicate this dispute. Plaintiff bases the
Court’s subject matter jurisdiction on diversity of citizenship pursuant to 28 U.S.C. §

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1332. [Compl. ¶ II.B.] For a court to exercise diversity jurisdiction, two requirements
must be met. First, the controversy must be between citizens of different states. 28
U.S.C. § 1332(a)(1); Onyiuke v. Cheap Tickets, Inc., 435 F. App’x 137, 138 (3d Cir. 2011);
S. Freedman & Co v. Raab, 180 F. App’x 316, 320 (3d Cir. 2006). Second, the amount
in controversy must “exceed[] the sum or value of $75,000, exclusive of interest and
costs.” 28 U.S.C. § 1332(a). The party’s allegations must be made in good faith. Dart
Cherokee Basin Operating Co. v. Owens, 574 U.S. 81, 87 (2014) (stating that the “sum
claimed by the plaintiff controls if the claim is apparently made in good faith”); Gas
Transmission Corp. v. Tarbuck, 62 F.3d 538, 541 (3d Cir. 1995) (stating that, in diversity
cases, “courts generally accept a party’s good faith allegation of the amount in
controversy”); Jaconski v. Avisun Corp., 359 F.2d 931, 937 (3d Cir. 1966) (stating that
jurisdictional amount in controversy is to be ascertained from “the amount demanded
by [the plaintiff], if that demand is found to have been made in good faith”).
Here, Plaintiff has failed to establish the jurisdictional amount in controversy
required pursuant to 28 U.S.C. § 1332(a). Plaintiff’s assertion that he is entitled to a
multiple of $75,000,000 as relief for a purported breach of contract claim is simply
preposterous based on the limited facts alleged.

Additionally, Plaintiff’s other

allegation—that he is “personally, financially, socially[,] and economically injured by
this data breach in that [he] now [does] NOT know who may have [his] personal data
or where [his] data is being used” [Docket No. 1-3, at 1]—does not provide sufficient
information to put Defendants on notice of Plaintiff’s injuries and damages and to
enable this Court to exercise subject matter jurisdiction.
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Without a good-faith

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allegation supporting an amount in controversy that exceeds the statutory floor, this
Court cannot proceed. See Owens, 574 U.S. at 87; see also Granger v. Equifax, Inc., No.
19-CV-03679, Jurisdictional Order, Docket No. 27, at 2 (S.D. Ind. Aug. 25, 2020)
(observing that plaintiff’s demand for $75 million in damages was “speculative” and
lacked good faith). Therefore, Plaintiff’s Complaint must be dismissed for lack of
jurisdiction. FED. R. CIV. P. 12(b)(1); In re Schering Plough Corp. Intron/Temodar
Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012).
Second, even assuming that the Court could exercise subject matter jurisdiction
here, Plaintiff has not set forth a plausible claim upon which this Court could afford
relief. Plaintiff’s claim appears to be that Defendants are in breach of contract due to
the occurrence of the data breach and Defendants’ purported adoptive admissions, [see
generally Compl.], but he does not allege the existence of a valid contract or explain
what the parties’ agreement allegedly involved. Nor do Plaintiff’s miscellaneous
letters to Defendants shed much light on his claim or suggest that the parties did, in
fact, enter into a binding agreement. Instead, they merely reveal that Plaintiff believes
that he has been harmed as a result of the data breach. Even as this Court liberally
construes Plaintiff’s pleadings, Owens v. Armstrong, 171 F. Supp. 3d 316, 328 (D.N.J.
2016), it cannot conclude that Plaintiff has set forth sufficient information to survive
Defendants’ Motion. See Evancho, 423 F.3d at 350. “[P]ro se litigants still must allege
sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc.,
704 F.3d 239, 245 (3d Cir. 2013) (citation omitted).

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Finally, again assuming that the Court could exercise subject matter jurisdiction
to adjudicate this dispute, the Court notes that Plaintiff’s purported motion for
summary judgment has not complied with the requirements of Federal Rule of Civil
Procedure 56 and Local Civil Rule 56.1. In addition to submitting such motion at the
incorrect juncture during the course of this litigation, Plaintiff has not filed a
memorandum of law in support of his positions, nor has he filed a separate statement
containing undisputed material facts. Accordingly, the purported motion will be
DENIED as moot.
IV.

CONCLUSION
For the foregoing reasons, Defendant’s Motion will be GRANTED, Plaintiff’s

purported motion for summary judgment will be DENIED, and the Complaint will
be DISMISSED, WITHOUT PREJUDICE. An accompanying Order shall issue on
today’s date.

January 17, 2023
Date

s/Renée Marie Bumb
Renée Marie Bumb
United States District Judge

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