Williams-Steele v. TransUnion et al

Filing 99

MEMORANDUM DECISION AND ORDER Adopting 93 Report and Recommendations. Motions terminated: 84 MOTION for Judgment on the Pleadings filed by Experian. Magistrate Judge Francis's Report and Recommendation is adopted in full. Defendant 's motion for judgment on the pleadings is GRANTED. Plaintiffs claims are DISMISSED with prejudice. Defendant's counterclaim is DISMISSED without prejudice. The Clerk of the Court is directed to close the motion at ECF No. 84, and this case. SO ORDERED. (Signed by Judge George B. Daniels on 2/10/2015) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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BEATRICE SHIRLEY WILLIAMS-STEELE,

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MEMORANDUM DECISION
AND ORDER
12 Civ. 0310 (GBD) (JCF)

TRANSUNION, EXPERIAN, and EQUIFAX,
Defendants.

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GEORGE B. DANIELS, United States District Judge:

Pro se Plaintiff Beatrice Shirley Williams-Steele brought this action against Defendant
Experian Information Solutions, Inc. ("Experian") and two other credit reporting agencies,
alleging violations of the Fair Credit Reporting Act (the "FCRA"), 15 U.S.C. § 1681 et seq.
Plaintiff seeks damages in the amount of $3 million for injuries caused by the allegedly incorrect
reporting of information on her credit report. (See Compl. § V, ECF No. 2.) Plaintiff claims that
her phone number, address, work history, and Social Security number were inaccurate; a tax lien
against her was wrongly reported; and a credit account' was wrongly excluded. (See id. §§ 1118,
C, V.) Defendant Experian filed a counterclaim for breach of a settlement agreement it entered
into with the Plaintiff, and subsequently moved for judgment on the pleadings pursuant to Federal
Rule of Civil Procedure 12(c). (Countercl., ECF No. 76; Mot., ECF No. 84.) Before this Court is
Magistrate Judge James C. Francis IV's June 6, 2014 Report and Recommendation ("Report"), in
which he recommended that this Court grant Experian's motion to dismiss Plaintiffs claims, and

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Although Plaintiff brought claims against all Defendants regarding the reporting of various accounts, (see Comp!.
§ C), her allegation as to Experian only concerns her Saks Fifth Avenue credit account. (See Pl.'s April 7, 2014 Aff.
("Aff.") at 4, ECF No. 86.)

that this Court dismiss Experian's counterclaim without prejudice.

(Report, ECF No. 93.)

Magistrate Judge Francis's Report is adopted in its entirety.
Relevant Facts
In a prior action, Plaintiff resolved substantially similar FCRA claims concerning her credit
report by entering into a settlement agreement with Experian dated April 5, 2011, in which she
received $7,500.00. (Settlement Agreement and Release (the "Agreement"), Ex. B. to Countercl.
(filed under seal),~~ 1-7, ECF No. 81.) Plaintiff acknowledged under the terms of this Agreement
that "any and all claims, demands, damages, actions, causes of action or suits of any kind or nature,
known or unknown" relating to the claims then brought against Experian would be released. (Id.
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1.) Plaintiff further certified in the Agreement that all information contained in an April 4, 2011

Experian disclosure (the "2011 Disclosure") was accurate. (Id. ~ 5.) On January 12, 2012, Plaintiff
filed the instant action. 2 (Comp!. at 4.)
Standard of Review
This Court may accept, reject, or modify, in whole or in part, the findings set forth in the
Report. 28 U.S.C. § 636(b)(l)(C). When there are objections to the Report, the Court must make
a de nova determination of those portions of the Report to which objections are made. Id.; see also

Rivera v. Barnhart, 423 F. Supp. 2d 271, 273 (S.D.N.Y. 2006). The district judge may also receive
further evidence or recommit the matter to the magistrate judge with instructions. See Fed. R. Civ.
P. 72(b); 28 U.S.C. § 636(b)(l)(C). The Court need not conduct a de nova hearing on the matter.

See United States v. Raddatz, 447 U.S. 667, 675-76 (1980). Rather, it is sufficient that the Court
"arrive at its own, independent conclusion" regarding those portions of the Report to which

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As in the Report, this Court will construe the allegations, to the extent it is able, as relating to Experian. (See
Report at 5.)

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objections were made. Nelson v. Smith, 618 F. Supp. 1186, 1189-90 (S.D.N.Y. 1985) (quoting

Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir. 1983)). When no party files objections to a
Report, the Court may adopt the Report if "there is no clear error on the face of the record." Adee

Motor Cars, LLC v. Amato, 388 F. Supp. 2d 250, 253 (S.D.N.Y. 2005) (quotation omitted).
Magistrate Judge Francis advised the parties that failure to file timely objections to the
Report would preclude appellate review. (Report at 12); see also 28 U.S.C. § 636(b)(l); Fed. R.
Civ. P. 72(b ). Neither party objected to the Report. As there is no clear error, this Court adopts
the Report in its entirety.
Identifying Information
Magistrate Judge Francis recommended that this Court dismiss the claims relating to
allegedly incorrect information on Plaintiff's credit report, including: (1) her telephone number,
(2) an alternate address, (3) an additional employer, and (4) her Social Security number. (Report
at 6-9.)
Under the FCRA, a "consumer report" consists of "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 ofliving" which is used or expected to be used to determine the consumer's eligibility for
credit, insurance, or employment, among other purposes. See 15 U.S.C. § 168la(d)(l). 3 Here, as
noted in the Report, the correct reporting of Plaintiff's telephone number and additional address
has no bearing on Plaintiff's credit worthiness or eligibility for credit, and therefore the alleged
inaccuracies are not actionable. (See Report at 7 (citing Ali v. Vikar Mgmt. Ltd., 994 F. Supp. 492,

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The consumer reporting agency must "follow reasonable procedures to assure maximum possible accuracy of the
information concerning the individual about whom the report relates," and may be held liable for willful or negligent
noncompliance with this requirement. See 15 U.S.C. §§ 168le(b); 1681n; 16810.

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497 (S.D.N.Y. 1998) ("[N]o restriction is put on the use of information that is not a 'consumer
report' as defined by 15 U.S.C. § 168la(d)(l). Address information on a consumer, for example,
is not a consumer report because it is not information that bears on any of the characteristics
described in 15 U.S.C. § 168la(d)(l).")).) Plaintiffs claim that her "[p]lace of employment [is]
not [a ]ccurate" is not actionable for the same reasons. (See Pl.' s April 7, 2014 Aff. ("Aff. ") at 23, ECF No. 86.) The Report correctly concluded that the erroneous inclusion of an additional
employer to Plaintiffs work history would not be "prejudicial to an assessment of the plaintiffs
eligibility for credit under the FCRA," nor would this information adversely affect the other factors
listed in 15 U.S.C. § 168 la(d)(l ). (See Report at 8); see also Ali, 994 F. Supp. at 497. Accordingly,
Plaintiffs FCRA claims involving her telephone number, alternate address, and employment
history should be dismissed.
The Report also properly found that the Plaintiff could not assert an FCRA claim as to the
inclusion of four, allegedly incorrect, digits of her Social Security number. (See Report at 8-9.)
This claim is barred by Plaintiffs prior settlement Agreement, in which Plaintiff confirmed that
the information contained in the 2011 Disclosure-which included these same four digits-was
accurate. (See Agreement ii 5; compare Aff., Ex. 1 at 2 (reflecting the allegedly incorrect numbers
in the credit report at issue), with Agreement, Ex. A at 9 (reflecting the same last four digits in the
2011 Disclosure). ) 4
Unreported Credit Account
As correctly explained in the Report, the terms of the Agreement additionally bar Plaintiffs
claim that Experian's failure to include the Saks Fifth Avenue account on her credit report

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The credit report at issue also clearly explains that Experian, "[a]s a security precaution," does not report the Social
Security number that the consumer provides, but a variation thereof. (See Report at 9 (citing Aff., Ex. 1 at 2).)

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adversely affected her credit score. (See Report at 10.) Under the Agreement, Plaintiff released
Experian from "any and all claims ... which were or could have been asserted" in the prior action.
(Agreement

iii! 1-2 (emphasis added).) Plaintiff does not dispute that the Saks Fifth Avenue

account predated the April 5, 2011 Agreement, and she consequently was able to bring a claim
concerning this account in her prior lawsuit. (See Comp!.

iJ V

(noting the "1995-2009" dates of

the Saks Fifth Avenue account).) In accordance with the Agreement's express language, the
instant claim is precluded. (See Report at 10.)
Tax Lien
In her opposing affidavit, Plaintiff confirms that Experian did not erroneously report a tax
lien on her credit report. (Aff. at 4 ("As to the lien[, it] wasn't reported by Experian [but] by Trans
Union.").) Because this claim is neither relevant to nor asserted against Experian, Magistrate
Judge Francis properly concluded that Plaintiffs tax lien claim should be dismissed. (See Report
at 10.)
Counterclaim
Finally, this Court sees no error in Magistrate Judge Francis's recommendation to dismiss,
without prejudice, Experian's counterclaim for breach of the Agreement. (See Report at 11.)
Federal courts may exercise original jurisdiction over federal question or diversity cases, neither
category of which encompasses Experian's state law counterclaim.

See 28 U.S.C. §§ 1331,

1332(a); (see also Report at 11 ). This Court is statutorily empowered to exercise supplemental
jurisdiction over Experian's contract claim, but it is not obligated to do so, particularly where this
Court has dismissed the claims over which it has original jurisdiction. See 28 U.S.C. § 1367(c);

Pitchell v. Callan, 13 F.3d 545, 549 (2d Cir. 1994) ("[A] district court's exercise of pendent
jurisdiction is purely discretionary .... [Plaintiffs] certainly have no right to insist that the District

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Court retain jurisdiction of pendent state law claims after federal claims have been dismissed.").
Because all federal claims against Experian have been dismissed, this Court declines to exercise
jurisdiction over its remaining state law counterclaim.
Conclusion
Magistrate Judge Francis's Report and Recommendation is adopted in full. Defendant's
motion for judgment on the pleadings is GRANTED. Plaintiffs claims are DISMISSED with
prejudice. Defendant's counterclaim is DISMISSED without prejudice. The Clerk of the Court
is directed to close the motion at ECF No. 84, and this case.

Dated: New York, New York
February 10, 2015
SO ORDERED.

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. DANIELS

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