Augustin v. Capital One US Card

Filing 33

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATIONS: Accordingly, the Court adopts Magistrate Judge Scanlon's recommendation to grant Capital One's motion to dismiss and grants Augustin leave to amend his complaint to incorporate the additional evidence presented in his opposition and objection. The amended complaint must be filed within thirty days of the date of this Order. Ordered by Chief Judge Carol Bagley Amon on 9/23/2015. (Fernandez, Erica)

FILED

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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IN Cl Ef' K'!1 OFFJC

U.1. Dl$7>'iC• GOURTe'b.N.Y.

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SEP 24 2015

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PIERRE AUGUSTIN,
Plaintiff,
-againstCAPITAL ONE and CAPITAL ONE
FINANCE,

NOT FOR PUBLICATION
MEMORANDUM & ORDER
14-CV-179 (CBA) (VMS)

Defendants.

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AMON, Chief United States District Judge:

Plaintiff Pierre Augustin, proceeding pro se, filed this action alleging that defendants
Capital One and Capital One Finance (collectively, "Capital One") willfully violated the Fair
Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq., by accessing his consumer credit
report without a permissible purpose and without his consent on May 3, 2012, and February 27,
2014. 1 (D.E. # 23, Second Am. Compl.) After Augustin moved for entry of default against
Capital One on May 28, 2014, (D.E. # 12), Capital One appeared and moved for judgment on the
pleadings, arguing that Augustin's complaint fails to allege facts sufficient to support a claim
that Capital One willfully violated the FCRA, (D.E. # 26, Defs.' Mem.). On October 6, 2014,
this Court referred Capital One's motion to the Honorable Vera M. Scanlon, United States
Magistrate Judge, for a Report and Recommendation ("R&R").
On July 27, 2015, Magistrate Judge Scanlon issued the R&R, which makes several
recommendations. (D.E. # 28, R&R.) First, the R&R recommends that the Court treat Capital
One's motion for judgment on the pleadings as a motion to dismiss. (Id. at 4.) Second, the R&R
finds that to the eJCtent Augustin's complaint "might be understood to raise a claim for invasion

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Augustin filed his initial complaint on January 8, 2014. (D.E. #I, Comp!.) Augustin filed his amended complaint
on April 7, 2014. (D.E. # 7, Am. Comp!.) After Capital One appeared, Augustin filed his second amended
complaint on August 6, 2014. (D.E. # 23, Second Am. Comp!.)

of privacy," this claim should be dismissed because New York "does not recognize the commonlaw tort of invasion of privacy" unless the claim is "for the use of a person's name or likeness for
advertising purposes." (Id. at 16.) Neither party objects to these conclusions and, finding no
clear error, the Court adopts the R&R's recommendations on these issues. Third, the R&R
recommends that the Court grant Capital One's motion to dismiss because Augustin "failed to
provide factual allegations that would render it facially plausible that [Capital One's] conduct
was the product of willfulness or reckless disregard, rather than the product of mistake." @at
13.) Finding "no indication that [Augustin] could state a valid claim for a willful violation" of
the FCRA, the R&R recommends that the complaint be dismissed with prejudice. (Id. at 17.)
When deciding whether to adopt an R&R, a district court "may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.
§ 636(b)(l). To accept those portions of the R&R to which no timely objection has been made,
"a district court need only satisfy itself that there is no clear error on the face of the record."
Jarvis v. N. Am. Globex Fund. L.P., 823 F. Supp. 2d 161, 163 (E.D.N.Y. 2011) (internal
quotation marks and citation omitted). When specific objections are made, "[t]he district judge
must determine de novo any part of the magistrate judge's disposition that has been properly
objected to." Fed. R. Civ. P. 72(b)(3). "However, to the extent that a party makes only
conclusory or general objections, or simply reiterates the original arguments, the court reviews
the Report and Recommendation only for clear error." Soley v. Wasserman, 823 F. Supp. 2d
221, 228 (S.D.N.Y. 2011) (internal quotation marks and citation omitted). Although the Court is
mindful that "[t]he objections of parties appearing prose are generally accorded leniency,"
Williams v. Woodhull Med. & Mental Health Ctr., 891 F. Supp. 2d 301, 310 (E.D.N.Y. 2012)
(internal quotation marks and citation omitted), "even a prose party's objections to a Report and

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Recommendation must be specific and clearly aimed at particular findings in the magistrate's
proposal," Brown v. Smith, No. 09-CV-4522, 2012 WL 511581, at *2 (E.D.N.Y. Feb. 15, 2012)
(internal quotation marks and citation omitted).
Augustin timely objected to the R&R, arguing that Capital One's failure to provide a
permissible purpose for pulling his credit report provides evidence that its conduct was willful
and that he does not need to provide Capital One any personal information. (D.E. # 30, Pl.'s
Obj. at 1-2). As Capital One notes in its response to Augustin's objections, these objections
were already raised before the magistrate judge. (D.E. # 32, Defs.' Resp. at 2.) The Court
therefore reviews the remainder of the R&R for clear error. See Soley, 823 F. Supp. 2d at 228.
The Court finds no clear error in the R&R's conclusion that Augustin fails to state a
claim for willful violation of the FCRA. The Court therefore grants Capital One's motion to
dismiss Augustin's complaint. However, in light of Augustin's prose status and the additional
evidence presented in Augustin's objection, the Court grants Augustin leave to amend his
complaint. "Generally, leave to amend should be 'freely given,' and a pro se litigant in
particular 'should be afforded every reasonable opportunity to demonstrate he has a valid
claim."' Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) (citing Fed. R. Civ. P. 15(a) and
Satchell v. Dilworth, 745 F.2d 781, 785 (2d Cir. 1984)). Although, as the R&R explains,
Augustin "has already been afforded two opportunities to amend his pleadings," (R&R at 17),
the letters attached to Augustin's opposition and objection suggest that granting leave to amend
would not be futile. 2 A number of these letters are dated before February 27, 2014, indicating

2
Augustin attached two sets of letters to his opposition, including two letters from Augustin, (Pl. 's Opp'n Ex. A
(undated letter and letter dated May 31, 2014)), and two response letters from Capital One, (Pl.'s Opp'n Ex. B
(letters dated February 19, 2014, and June 23, 2014)). Neither party objects to the R&R's consideration of the
letters appended to Augustin's opposition, (R&R at 13-14), and consideration of these letters is proper because a
"district court deciding a motion to dismiss may consider factual allegations made by a pro se party in his papers
opposing the motion." Walker v. Schult, 717 F.3d 119, 122 n. l (2d Cir. 2013) (citing Gill v. Mooney, 824 F.2d 192,
195 (2d Cir. 1987)). Augustin attached additional letters from Capital One to his objection. (Pl.'s Obj. at 3, 5-6

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that Augustin could potentially reframe his complaint to raise a claim that Capital One was on
notice that it had no permissible purpose to pull Augustin's credit report before the second
alleged pull. Such notice may be sufficient to support a reasonable inference that Capital One
willfully violated the FCRA. See Perl v. Am. Express, No. l !-CV-7374, 2012 WL 178333, at
*3 (S.D.N.Y. Jan. 19, 2012) (holding that a plaintiff alleged sufficient facts to "permit a
reasonable inference that the defendant committed a knowing or reckless violation of the FCRA"
where the defendant "repeatedly informed the relevant plaintiff that it could not find any record
of an account belonging to him"); Smith v. Safeco Ins., No. 13-CV-2788, 2013 WL 5609323, at
*2 (N .D. Ill. Oct. 11, 2013) (indicating that a claim for willful violation could be raised if a
company pulled an individual's credit report after the individual notified the company that he did
not wish to obtain insurance from them). Given this possibility, the Court grants Augustin leave
to amend his complaint.
CONCLUSION

Accordingly, the Court adopts Magistrate Judge Scanlon's recommendation to grant
Capital One's motion to dismiss and grants Augustin leave to amend his complaint to incorporate
the additional evidence presented in his opposition and objection. The amended complaint must
be filed within thirty days of the date of this Order.
SO ORDERED.
Dated: Brooklyn, New York
SeptemberJj', 2015

s/Carol Bagley Amon
~ Bag~y Afitor{/
Carol

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Chief United States District Judge

(letters dated January 30, 2014; February 25, 2014; and February 26, 2014).) Although the additional letters in
Augustin's objection were not presented to Magistrate Judge Scanlon, "[t]he Court has discretion ... to consider
evidence not submitted to the magistrate judge." Hous. Works. Inc. v. Turner, 362 F. Supp. 2d 434, 438 (S.D.N.Y.
2005) (citing Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir. 1998)); see also 28 U.S.C. § 636(b)(l).

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