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Silva-Borero v. Equifax, Inc.

United States District Court, D. Hawaii

October 10, 2019

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

          ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND

          J. Michael Seabright, Chief United States District Judge

         I. INTRODUCTION

         On August 26, 2019, pro se Plaintiff Raynell L. Silva-Borero filed both a First Amended Complaint (“FAC”) against Defendant Equifax, Inc. (“Equifax”), and her Affidavit, which the court construes to be an exhibit attached to the FAC. ECF Nos. 12, 13. Pursuant to Local Rule 7.1(c), the court finds this matter suitable for disposition without a hearing. For the reasons set forth below, the court DISMISSES the FAC with leave to amend, for failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2).

         II. BACKGROUND

         A. The Complaint

         On May 28, 2019, Plaintiff filed her original Complaint and an Application to Proceed in forma pauperis (“IFP Application”). ECF Nos. 1-2. The Complaint alleged that Plaintiff was a victim of a 2017 Equifax data breach, and that she is injured “in that [she does] not know who may have [her] personal data or where [her] data is being used as a result of the fraudulent data breach.” ECF No. 1-1 at 3. The Complaint further alleged that Plaintiff sent to Equifax various “Proofs of Claim” and “Affidavits”; that by failing to respond, Equifax “agreed and acquiesced” to the facts and “Proofs of Claim” set forth in those documents; and that Equifax is therefore liable to Plaintiff and 148 million Americans for $75 million, including “triple and punitive damages and costs.” Id. at 3-4, 8, 12-14.

         On July 29, 2019, this court granted Plaintiff's IFP Application, dismissed the Complaint for failure to state a claim, and granted Plaintiff leave to amend (the “July 29 Order”). ECF No. 11. More specifically, the July 29 Order found that

Plaintiff fails to identify any specific tort Equifax committed and fails to allege facts to support some unspecified tort. To the extent Plaintiff may be attempting to assert a fraud claim, the Complaint fails to allege facts with the requisite particularity to state a plausible claim. . . . . . .
Further, . . . Plaintiff fails to identify or provide a copy of any applicable contract between the parties. . . .
Plaintiff appears to base this action solely on Equifax's failure to respond to Plaintiff's documents. But absent some duty or contractual obligation, Equifax's failure to respond does not create a cognizable claim.

Id. at 6-7. The July 29 Order explained that if Plaintiff chooses to amend, she must write short, plain statements telling the court:

(1) the specific basis of this court's jurisdiction; (2) the legal right Plaintiff believes was violated; (3) the name of the defendant who violated that right; (4) exactly what that defendant did or failed to do; (5) how the action or inaction of that defendant is connected to the violation of Plaintiff's rights; (6) what specific injury Plaintiff suffered because of that defendant's conduct; and (7) what relief Plaintiff seeks.

Id. at 9-10 (internal footnote omitted). And the July 29 Order explained that in order to establish the court's subject-matter jurisdiction based on diversity-which requires complete diversity of the parties' citizenship and that the matter in controversy exceed $75, 000-Plaintiff must, in part, “include good faith allegations of injury or damages of at least $75, 000.” Id. at 9 n.3.

         B. The FAC

         On August 26, 2019, Plaintiff filed her FAC-a generic “Complaint for a Civil Case” form that she filled out. ECF No. 12. Plaintiff checked the box indicating that subject-matter jurisdiction is based on diversity and alleges that she is a citizen of Hawaii, Equifax is incorporated and has its principal place of business in Georgia, and the amount in controversy is $75 million. Id. at 4-5. The FAC alleges that Equifax's failure to notify Plaintiff in September 2017 of the data breach “prevented [Plaintiff] from doing something” ...


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