Williams-Steele v. TransUnion et al

Filing 88

REPORT AND RECOMMENDATION re: 64 MOTION for Judgment On The Pleadings. filed by TransUnion. For the reasons set forth above, I recommend that the defendants motion for judgment on the pleadings (Docket no. 64) be granted and the Complaint b e dismissed. In addition, I recommend that the counterclaim be dismissed without prejudice to a showing that the Court has subject-matter jurisdiction. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of Court, with extra copies delivered to the chambers of the Honorable Ge orge B. Daniels, U.S.D.J., Room 1310, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Objections to R&R due by 4/28/2014. (Signed by Magistrate Judge James C. Francis on 4/11/2014)Copies Mailed By Chambers (djc) Modified on 4/11/2014 (djc).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
BEATRICE SHIRLEY WILLIAMS-STEELE, : 12 Civ. 0310 (GBD) (JCF)
:
Plaintiff,
:
REPORT AND
:
RECOMMENDATION
- against :
:
TRANS UNION, EXPERIAN, and
:
EQUIFAX,
:
:
Defendants.
:
- - - - - - - - - - - - - - - - - -:
TO THE HONORABLE GEORGE B. DANIELS, U.S.D.J.
Beatrice Shirley Williams-Steele, proceeding pro se, brings
this action against Trans Union and two other credit reporting
agencies alleging violations of the Fair Credit Reporting Act (the
“FCRA”), 15 U.S.C. § 1681 et seq.

The claims relate to alleged

errors in the plaintiff’s credit reports, which the defendants
issued.
Trans Union has moved for judgment on the pleadings pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure.

This

defendant has also counterclaimed for breach of a Settlement
Agreement that it entered into with Ms. Williams-Steele in April
2011 to resolve a prior lawsuit involving FCRA claims.

For the

reasons that follow, I recommend that the defendant’s motion to
dismiss be granted and its counterclaim be dismissed without
prejudice.

1

Background
In her prior case, the plaintiff alleged violations of the
FCRA against Trans Union, Experian, and Equifax.
Civ. 6749 (“Prior Compl.”)).

(Complaint in 10

She claimed her credit report

contained inaccurate information, including an erroneous tax lien
(Prior Compl., ¶ IIIC).

On April 14, 2011, Ms. Williams-Steele

entered into a Settlement Agreement with Trans Union in which the
parties

agreed

to

settle

all

$4,000.00 to the plaintiff.
(“Settlement”), ¶ 2).

claims

for

a

total

payment

of

(Settlement Agreement and Release

In return, the plaintiff agreed to release

Trans Union from any claims “of any kind or nature, known or
unknown, which Plaintiff had, now has, or may have, on account of,
arising out of, based upon or in any manner connected with, any
matter, cause or thing whatsoever at any time up to and including
the date of execution of this Agreement,” including claims “which
relate in any manner to Plaintiff’s credit history information as
reported by Trans Union.”

(Settlement, ¶ 4).

As part of the

Settlement Agreement, the plaintiff also acknowledged that all
information in her April 2011 Trans Union consumer disclosure was
accurate and would not be the basis for any future actions.
(Settlement, ¶ 5; April 2011 Consumer Disclosure (“April 2011
Consumer Disc.”), attached as Ex. A to Settlement).
On January 12, 2012, Ms. Williams-Steele filed the instant
2

action.

(Complaint (“Jan. 2012 Compl.”)).

In this Complaint, she

alleges that a tax lien was wrongfully reported on her credit
report, that certain credit accounts should have been included, and
that some contact information, namely her phone number and an
alternate address, was inaccurate.

(Jan. 2012 Compl., ¶ IIIB, C).

On November 14, 2013, Trans Union filed its motion for
judgment

on

the

pleadings.

The

defendant

argues

that

the

plaintiff’s claims regarding the tax lien and the missing credit
accounts are barred by the terms of the Settlement Agreement.
(Defendant Trans Union, LLC’s Memorandum in Support of Motion for
Judgment on the Pleadings Pursuant to Rule 12(c) (“Def. Memo.”) at
1).

The defendant also contends that the plaintiff’s claim

regarding the inaccurate contact information is not actionable
“because identifying information does not bear on a consumer’s
creditworthiness

and

so

does

information under the FCRA.”

not

constitute

credit

(Def. Memo. at 2).

reporting

Earlier, Trans

Union had asserted a breach of contract counterclaim, contending
that the plaintiff materially breached the Settlement Agreement by
filing the current action in which she asserts claims that were, or
could have been, raised in the previous lawsuit.
2).

3

(Def. Memo. at

Discussion
A. Legal Standard
The standard for addressing a motion for judgment on the
pleadings pursuant to Rule 12(c) is the same as that used in
evaluating a motion to dismiss under Rule 12(b)(6).

L-7 Designs,

Inc. v. Old Navy, LLC, 647 F.3d 419, 429 (2d Cir. 2011).

A court

therefore must accept the factual allegations in the complaint as
true and draw all reasonable inferences in the plaintiff’s favor.
Id. A complaint need not contain detailed factual allegations, but
it must contain more than mere “‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
v. Twombly, 550 U.S. 544, 555 (2007)). Where a complaint’s factual
allegations permit the court to infer only that it is possible, but
not plausible, that misconduct occurred, the complaint fails to
meet the requirements of Rule 8.
P. 8(a)(2)).

Id. at 679 (citing Fed. R. Civ.

In ruling on a motion to dismiss, the court’s task

“‘is merely to assess the legal feasibility of the complaint, not
to assay the weight of the evidence which might be offered in
support thereof.’” GVA Market Neutral Master Ltd. v. Veras Capital
Partners Offshore Fund, Ltd., 580 F. Supp. 2d 321, 327 (S.D.N.Y.
2008) (quoting Eternity Global Master Fund Ltd. v. Morgan Guaranty
Trust Co. of New York, 375 F.3d 168, 176 (2d Cir. 2004)).
4

Pro se complaints are held to less stringent standards than
those drafted by lawyers.

Haines v. Kerner, 404 U.S. 519, 520-21

(1972); Boykin v. KeyCorp, 521 F.3d 202, 213-14 (2d Cir. 2008)
(citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)).

In fact,

pleadings of a pro se party should be read “‘to raise the strongest
arguments that they suggest.’”

Green v. United States, 260 F.3d

78, 83 (2d Cir. 2001) (quoting Graham v. Henderson, 89 F.3d 75, 79
(2d Cir. 1996)).

Even after Iqbal, which imposed heightened

pleading standards for all complaints, pro se complaints are to be
liberally construed. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
2009). Dismissal of a pro se complaint is nevertheless appropriate
where a plaintiff has clearly failed to meet minimum pleading
requirements.

See Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir.

1997); accord Honig v. Bloomberg, No. 08 Civ. 541, 2008 WL 8181103,
at *4 (S.D.N.Y. Dec. 8, 2008), aff’d, 334 F. App’x 452 (2d Cir.
2009).
B. The Plaintiff’s Claims
1. Tax Lien Claim
Ms.

Williams-Steele

alleges

that

a

tax

lien

erroneously

appears on her credit report (Jan. 2012 Compl., ¶ IIIC), and that
the “whole point of the [prior] law suit was to have that removed.”
(Affirmation in Opposition to Motion, dated Nov. 18, 2013 (“Affirm.
in Opp.”) at 3).

In the Settlement Agreement, which resolved the
5

prior lawsuit, the plaintiff acknowledged that “all information
contained within [her April 2011 Trans Union consumer disclosure]
is accurate with the exception of the Bronx Registry #906389
account

[the

tax

lien],

which

Ms.

Williams-Steele

states

is

inaccurate . . . , and will not provide the basis for any future
claims against Trans Union.”

(Settlement, ¶ 5).

Although this language is ambiguous, the most natural reading1
-- that the plaintiff agrees she will not bring future claims based
on anything in her April 2011 disclosure, including the tax lien -prohibits her from bringing this claim.

In any event, under the

FCRA, the tax lien, which was satisfied in April 2008 (April 2011
Consumer Disc. at 1)), lawfully appears on her report.

See 15

U.S.C. § 1681c(a)(3) (stating consumer report may not contain
“[p]aid tax liens which, from date of payment, antedate the report
by more than seven years”).

Accordingly the defendant is entitled

1

This paragraph of the Settlement could be read either of two
ways: (1) that Ms. Williams-Steele agrees that everything in her
April 2011 disclosure, with the exception of the tax lien, is
accurate, and nothing in the disclosure, including the tax lien,
will provide the basis for future claims, or (2) that Ms. WilliamsSteele agrees that everything in the disclosure is accurate and
will not serve as the basis for future claims, with the exception
of the tax lien, the accuracy of which she contests, and which
still may serve as the basis for a future claim.
Though the
language is unclear, the former interpretation is more plausible,
since it makes little sense for Trans Union to have settled that
lawsuit while still giving Ms. Williams-Steele the option of
bringing this claim again.
6

to report the plaintiff’s tax lien until April 2015, when it must
be removed.

Therefore, the plaintiff’s tax lien claim is not

actionable under the FCRA until that time and should be dismissed.
2. Credit Account Claim
The plaintiff’s claim regarding missing credit accounts is
precluded by the terms of the Settlement Agreement.

The plaintiff

alleges that four accounts, which currently do not appear on her
credit

report,

should

be

reported.

(Compl.,

¶

IIIC).

The

plaintiff believes that listing these accounts on her report would
result in an increased credit score.

(Compl., ¶ IV).

These

accounts -- Saks Fifth Avenue, Lord & Taylor, American Express, and
Macy’s -- predate her prior suit (Compl., ¶ V), and she raised a
similar claim there regarding three of them -- Saks Fifth Avenue,
Lord & Taylor, and American Express.

(Prior Compl., IIIC, IV).

Accordingly, the claim relating to those accounts is precluded by
the express terms of the Settlement Agreement, in which she
released Trans Union from any claims she “had, now has, or may have
. . . based directly or indirectly upon facts, events, transactions
or occurrences related, alleged, embraced by or otherwise referred
to at any time in the Lawsuit.”

(Settlement, ¶ 4).

The plaintiff’s claim regarding the Macy’s account is also
precluded by the terms of the Settlement Agreement, though for
different reasons.

That account, as mentioned above, predates her
7

prior suit and appeared on her April 2011 Trans Union Consumer
Disclosure.

(April 2011 Consumer Disc. at 2).

In the Settlement

Agreement, the plaintiff acknowledged that she had reviewed that
Consumer Disclosure and agreed to its accuracy. (Settlement, ¶ 5).
She also agreed that the information on the April 2011 Consumer
Disclosure would “not provide the basis for any future claims
against Trans Union.”

(Settlement, ¶ 5).

Because of this, the

only way the Macy’s account could serve as the basis for a new
claim is if the information relating to the account changed between
the time the parties entered into the Settlement Agreement and when
Ms. Williams-Steele filed the instant Complaint.
Yet, there is no difference between the information associated
with the Macy’s account reflected on the Consumer Disclosure2 that
served as the basis for the instant Complaint (December 2011 Trans
Union Consumer Disclosure (“Dec. 2011 Consumer Disc.”) at 2;
Compl., ¶ IIIC) and that reflected on the April 2011 Consumer
Disclosure, which the plaintiff approved as part of the Settlement
Agreement.

(April 2011 Consumer Disc. at 2; Settlement, ¶ 5).

Both consumer reports refer to the same account number, the same
balance ($0), the same date updated (July 2009), the same date

2

The consumer report was incorporated by reference in the
plaintiff’s Complaint (Compl., ¶ IIIC), and was provided to the
Court by counsel for the defendant.
8

opened (June 2003), the same date paid (September 2003), and the
same comment (“acct info disputed by consumr [sic]”).

Both

consumer disclosures reflect that there had been no late payments
in the past ninety days and bear an “OK” symbol for the previous
five months.

(Dec. 2011 Consumer Disc. at 2; April 2011 Consumer

Disc. at 2).

Since there were no changes in the information

relating to her Macy’s account between the resolution of the prior
action and the filing of the instant Complaint, this claim could
have been raised in the prior suit and, as a result, is precluded
by the terms of the Settlement Agreement and should be dismissed.
3. Contact Information Claim
Ms. Williams-Steele alleges that certain contact information
on her credit report is inaccurate.

Specifically, she claims that

her December 2011 Consumer Disclosure listed her telephone number
without an area code and listed an allegedly inaccurate address
under “Other Addresses.”
¶ IIIC).

(Dec. 2011 Consumer Disc. at 1; Compl.,

Since this claim was neither asserted in her prior

Complaint nor addressed in the Settlement Agreement, it is not
barred by the terms of that Agreement.

Nevertheless, it is not

actionable.
Under the FCRA, a consumer reporting agency must “follow
reasonable procedures to assure maximum possible accuracy of the
information

concerning

the

individual
9

about

whom

the

report

relates.”

15 U.S.C. § 1681e(b).

A “consumer report” is “any

written, oral, or other communication of any information by a
consumer

reporting

agency

bearing

on

a

consumer’s

credit

worthiness, credit standing, credit capacity, character, general
reputation, personal characteristics, or mode of living” that is
used, or is expected to be used, to determine eligibility for
purposes such as credit, insurance, or employment.
1681a(d)(1).

15 U.S.C. §

The FCRA allows for a civil cause of action for

willful and negligent noncompliance “with any requirement imposed”
by the FCRA.

15 U.S.C. §§ 1681n, 1681o.

Therefore, the defendant

may be held liable if it failed, either willfully or negligently,
to follow reasonable procedures in assuring accuracy in preparing
information that potentially could be used in connection with
determining her eligibility for credit.

15 U.S.C. § 1681a(d)(1).

Neither a missing area code nor an allegedly inaccurate alternate
address

bear

on

any

of

the

factors

listed

in

15

U.S.C.

§

1681a(d)(1), or is likely to be used in determining eligibility for
any credit-related purpose; therefore, these alleged errors are not
actionable.

See Ali v. Vikar Management, Ltd., 994 F. Supp. 492,

497 (S.D.N.Y. 1998) (“[N]o restriction is put on the use of
information that is not a ‘consumer report’ . . . .

Address

information on a consumer, for example, is not a consumer report
because

it

is

not

information
10

that

bears

on

any

of

the

characteristics described in 15 U.S.C. § 1681a(d)(1).”).

The

plaintiff’s claim regarding inaccurate contact information should
be dismissed.
C. The Counterclaim
The only issue that remains is the defendant’s counterclaim
for breach of the Settlement Agreement.

The Settlement Agreement

provides that “Trans Union may recover any and all reasonable
attorneys’ fees, costs, and expenses incurred in enforcing any term
of this Agreement or for breach thereof in addition to any other
damages to which Trans Union may be entitled.” (Settlement, ¶ 12).
As discussed above, the plaintiff violated the express terms of the
Settlement Agreement, and the defendant claims it has been damaged
to the extent it has incurred fees and costs responding to the
plaintiff’s Complaint and enforcing the Settlement Agreement.
(Def. Memo. at 9).
A court is required to dismiss an action if it determines at
any time that it lacks subject-matter jurisdiction.
P. 12(h)(3).

Fed. R. Civ.

Because this counterclaim is based on breach of a

settlement agreement -- a state common-law contract claim -- it
does

not

appear

to

qualify

as

an

action

“arising

Constitution, laws, or treaties of the United States.”
§ 1331.

under

the

28 U.S.C.

Similarly, although the parties may be citizens of

different states, it is unlikely that the fees and costs Trans
11

Union

incurred

jurisdiction.

meet

the

$75,000

28 U.S.C. § 1332(a).

threshold

for

diversity

While the Court is empowered

to exercise supplemental jurisdiction over this counterclaim, see
28 U.S.C. § 1367, a district court typically should decline to do
so if all federal claims have been dismissed. Haynes v. Zaprowski,
521 Fed. Appx. 24, 28 (2d Cir. 2013) (quoting Lerner v. Fleet Bank,
N.A., 318 F.3d 113, 130 (2d Cir. 2003)).
that

the

counterclaim

be

dismissed

Accordingly, I recommend
unless

the

defendant

demonstrates why this Court would have subject-matter jurisdiction
over it.
Conclusion
For

the

reasons

set

forth

above,

I

recommend

that

the

defendant’s motion for judgment on the pleadings (Docket no. 64) be
granted and the Complaint be dismissed. In addition, I recommend
that the counterclaim be dismissed without prejudice to a showing
that the Court has subject-matter jurisdiction.
U.S.C. § 636(b)(1)

Pursuant to 28

and Rules 72, 6(a), and 6(d) of the Federal

Rules of Civil Procedure, the parties shall have fourteen (14) days
from this date to file written objections to this Report and
Recommendation.

Such objections shall be filed with the Clerk of

Court, with extra copies delivered to the chambers of the Honorable
George B. Daniels, U.S.D.J., Room 1310, and to the chambers of the
undersigned, Room 1960, 500 Pearl Street, New York, New York 10007.
12

Failure to file timely objections will preclude appellate review.
Respectfully submitted,

~

o

c· ~AM.u.:

JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE

Dated: New York, New York
April 11, 2014
Copies mailed this date to:
Beatrice Shirley Williams-Steele
1085 Nelson Avenue, 4A
Bronx, New York 10452
Camille R. Nicodemus, Esq.
Schuckit & Associates, P.C.
4545 Northwestern Drive
Zionsville, IN 46077

13