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Silva-Borero v. Equifax, Inc.

United States District Court, D. Hawaii

July 29, 2019

RAYNELL L. SILVA-BORERO, Plaintiff,
v.
EQUIFAX, INC., Defendant.

          ORDER (1) GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS; AND (2) DISMISSING COMPLAINT WITH LEAVE TO AMEND

          J. MICHAEL SEABRIGHT, CHIEF UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         On May 28, 2019, pro se Plaintiff Raynell L. Silva-Borero filed a Complaint against Defendant Equifax, Inc. (“Equifax”), and an Application to proceed in forma pauperis (“IFP Application”). ECF Nos. 1-2. As set forth below, the court GRANTS Plaintiff's IFP Application and DISMISSES the Complaint, with leave to amend, for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2).

         II. IFP APPLICATION

         As set forth in the IFP Application, Plaintiff's income is limited to biweekly gross wages of $741.39, and Plaintiff has neither money in a bank account nor any assets. IFP Application ¶¶ 2-5. The IFP Application further indicates that Plaintiff has monthly expenses totaling $490 for water, electricity, and phone service, and owes $250 per month for a personal loan. Id. ¶6. The court finds that Plaintiff has made the required showing under 28 U.S.C. § 1915(a) to proceed in forma pauperis (i.e., without prepayment of fees); therefore, the court GRANTS Plaintiff's IFP Application.

         III. BACKGROUND

         As alleged in the Complaint, Plaintiff exhausted administrative remedies by sending Equifax several documents in which Plaintiff asserted facts and requested that Equifax provide “proofs of claim, ” essentially disputing such facts. ECF No. 1 at PageID # 4-5. By failing to respond to those documents, Equifax “accepted” the asserted facts, and is therefore liable to Plaintiff for “$75, 000, 000.00” including “triple damages, punitive damages and all court costs.” Id.

         Copies of the referenced documents are attached to the Complaint. One document states that Plaintiff is a victim of a 2017 Equifax data breach. ECF No. 1-1 at PageID #8. In that document, Plaintiff further states that “I am . . . injured by this data breach in that I DO NOT know who may have my personal data or where my data is being used as a result of the fraudulent data breach.” Id. Plaintiff also asked that Equifax provide twelve “Proofs of Claim, ”[1] and warned that Equifax's “non-response and or failure to provide Proof of Claim” will (1) “constitute agreement” that Plaintiff is entitled to the requested remedies, and (2) “will equate to commercial acquiescence to the terms” set forth in a “final Affidavit and Notice of Default.” ECF No. 1-1 at PageID #8-9.

         Equifax apparently did not respond, because Plaintiff then sent two “Affidavit[s] of Certificate of Non-Response” and an “Affidavit and Notice of Default.” Id. at PageID #13, 17-18. The “Affidavit and Notice of Default” states that by failing to respond to the prior documents, Equifax has “agreed and acquiesced” to the facts and “Proofs of Claim” set forth in those documents, and is therefore liable to Plaintiff and 148 million Americans for $75 million, including “triple and punitive damages and costs.” Id. at PageID #18-19; see also ECF No. 1 at PageID #4-5.

         IV. STANDARDS OF REVIEW

         The court must screen the Complaint for each civil action commenced pursuant to 28 U.S.C. § 1915(a), governing IFP proceedings. The court must sua sponte dismiss a complaint or claim that is “frivolous or malicious[, ] . . . fails to state a claim on which relief may be granted[, ] or . . . seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915(e) “not only permits but requires” the court to sua sponte dismiss an in forma pauperis complaint that fails to state a claim).

         Screening under § 1915(e)(2) involves the same standard of review as that used under Federal Rule of Civil Procedure 12(b)(6). Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). Under Rule 12(b)(6), a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (recognizing that a complaint that fails to allege a cognizable legal theory or alleges insufficient facts under a cognizable legal theory fails to state a plausible claim) (citing Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). However, although the court must accept as true allegations of material fact, it is “not bound to accept as true a legal conclusion couched as a factual allegation.” Wood v. Moss, 572 U.S. 744, 755 n.5 (2014) (citing Iqbal, 556 U.S. at 678). That is, conclusory statements, “unadorned, the-defendant-unlawfully-harmed-me accusation[s], ” and factual allegations that only permit the court to infer “the mere possibility of misconduct” fall short of meeting the plausibility standard. Iqbal, 556 U.S. at 678-79; see also Starr v. Baca, 652 F.3d 1202, 1216-17 (9th Cir. 2011); Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

         Because Plaintiff is proceeding pro se, the court liberally construes her Complaint and resolves all doubts in her favor. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). The court must grant leave to amend if it appears that Plaintiff can correct the defects in her Complaint, Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000), but if a claim or complaint cannot be saved by amendment, dismissal with prejudice is appropriate. Sylvia Landfield Tr. v. City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013); see also Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008) (reiterating that a district court may deny leave to amend for, among other reasons “repeated failure to cure deficiencies by amendments previously allowed . . . [and] futility of amendment”) (citation omitted).

         V. ...


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