(PS) Hall v. Equifax Information Services ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KIYOMI HALL, No. 2:21-cv-01979 JAM AC PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 EQUIFAX INFORMATION SERVICES, 15 Defendant. 16 17 Plaintiff is proceeding in this action pro se. The action was accordingly referred to the 18 undersigned for pretrial matters by E.D. Cal. R. (“Local Rule”) 302(c)(21). On November 3, 19 2021, the court issued an order to show cause why this case should not be dismissed for failure to 20 state a claim upon which relief can be granted. ECF No. 7. The court notified plaintiff of its 21 authority to dismiss a meritless case at the outset pursuant to Fed. R. Civ. P. 12(b)(6), without 22 leave to amend. Id. at 1-2., citing Reed v. Lieurance, 863 F.3d 1196, 1207-08 (9th Cir. 2017) 23 (affirming district court’s sua sponte dismissal of claim under Rule 12(b)(6), Fed. R. Civ. P.). 24 Plaintiff was cautioned that failure respond by November 17, 2021 would lead to a 25 recommendation that the action be dismissed. Id. at 2-3. Plaintiff did not respond. The 26 undersigned now recommends this case be dismissed because it does not state a claim upon which 27 relief can be granted. 28 //// 1 I. THE COMPLAINT 2 Plaintiff is suing Equifax for the violation of two statutes: 15 U.S.C. § 6801(b), and 15 3 U.S.C. § 45. ECF No. 1 at 3. Plaintiff alleges that defendant violated plaintiff’s rights under 4 these statutes by failing to secure plaintiff’s personal data, resulting in that data being hacked. Id. 5 at 4. Plaintiff alleges that someone who lives in another state opened accounts in plaintiff’s name 6 and hacked plaintiff’s phone and e-mail. Id. Plaintiff seeks monetary damages. Id. 7 II. WHY THE COMPLAINT FAILS TO STATE A CLAIM 8 Plaintiff seeks a remedy for defendant’s alleged violation of 15 U.S.C. § 6801(b) and 15 9 U.S.C. § 45, but neither of these statues create a “private right of action.” That means that an 10 individual cannot bring a lawsuit based on these statutes. 11 The first statute plaintiff cites is known as the Gramm-Leach-Bailey Act (“GLBA”), 15 12 U.S.C.§§ 6801 et seq., and the statute’s enforcement provisions make clear that there is no private 13 right of action available. See 15 U.S.C. § 6805 (enforcement provisions); see also, Newcomb v. 14 Cambridge Home Loans, Inc., 861 F. Supp. 2d 1153, 1163 (D. Haw. 2012) (“there is no private 15 right of action under GLBA.”). 16 The second statute plaintiff cites, 15 U.S.C. § 45, codifies section 5 of the Federal Trade 17 Commission Act. It empowers the Federal Trade Commission to prevent certain acts of unfair 18 competition. Like the GLBA, the FTCA does not create a private right of action. Carlson v. 19 Coca-Cola Co., 483 F.2d 279, 280 (9th Cir. 1973); Kerr v. Am. Home Mortg. Serv’g, Inc., 2010 20 WL 3743879 (S.D. Cal. Sep. 22, 2010) (“It is well-established that there is no private right of 21 action for violation of the FTCA; only the Federal Trade Commission has standing to enforce it”); 22 Burnett v. NBS Default Servs., LLC, No. 2:19-cv367 JAM EFB PS, 2020 WL 4547165, at *2 23 (E.D. Cal. Aug. 6, 2020). 24 III. CONCLUSION 25 Therefore, IT IS HEREBY RECOMMENDED that this action be dismissed with 26 prejudice because it does not state a claim upon which relief can be granted. See Fed. R. Civ. 27 P. 41(b); Local Rule 110. 28 //// ] These findings and recommendations are submitted to the United States District Judge 2 || assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one 3 || (21) days after being served with these findings and recommendations, plaintiff may file written 4 || objections with the court. Such document should be captioned “Objections to Magistrate Judge’s 5 || Findings and Recommendations.” Local Rule 304(d). Plaintiff advised that failure to file 6 || objections within the specified time may waive the right to appeal the District Court’s order. 7 || Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 8 || DATED: November 24, 2021 ~ 9 Cthten— Lape ALLISON CLAIRE 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28