United States District Court, D. Hawaii
RAYNELL L. SILVA-BORERO, Plaintiff,
EQUIFAX, INC., Defendant.
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE
Michael Seabright, Chief United States District Judge
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).
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,
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.
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” ...