Varlack v. TD Bank North

Background

Tynearia Asia Varlack, appearing without a lawyer, sued TD Bank North, JP MORGAN CHASE NE, Early Warning, and Chex Systems. She invoked federal-question jurisdiction and referred to constitutional or statutory consumer rights and the Fair Credit Reporting Act (FCRA). She alleged that accounts she did not open were opened using her name and Social Security number and reported in her consumer file. She identified injuries including loss of credit, stress, and harm to her reputation. She sought audits, deletions, and monetary damages.

The court had previously allowed Varlack to proceed without paying filing fees. It reviewed the complaint under the screening rules for such cases, which require dismissal of claims that are frivolous, fail to state a claim, or seek relief from an immune defendant. The court also considered whether the complaint met the requirement to give enough facts to make a claim plausible.

Section 1983 Claims

The court dismissed Varlack’s claims of federal constitutional violations under 42 U.S.C. § 1983 for failure to state a claim. A claim under that statute requires a violation of a federal right by a person acting under color of state law—that is, using authority connected to state government. Varlack sued four private entities and did not allege facts showing that any of them acted under color of state law. The court therefore concluded that the defendants did not appear to be state actors for purposes of these claims.

Fair Credit Reporting Act Claims

The court explained that the FCRA regulates entities that provide information to consumer reporting agencies. The court stated that an individual may sue a furnisher of information for certain willful or negligent violations of 15 U.S.C. § 1681s-2(b), including failing to investigate after receiving notice from a consumer reporting agency that the consumer disputes the information. The court stated that an individual may not bring a private lawsuit for violations of subsection (a), which concerns the duty to report accurate information.

The court found that Varlack had not alleged that any defendant furnished inaccurate information, that she reported the inaccuracy to a consumer reporting agency, or that a defendant failed to investigate after receiving notice from such an agency. The court therefore found that she failed to state a claim under the FCRA provision that provides a private right of action. Because she was representing herself and might be able to provide additional facts, the court granted her leave to amend rather than dismissing the FCRA claims at that point.

Order and Required Amendment

The court granted Varlack 60 days to file an amended complaint. The amended complaint must replace, rather than supplement, the original complaint, so any facts or claims she wants the court to consider must be repeated. The court directed her to provide facts about the relevant people, each defendant’s actions or failures to act, the approximate dates and locations of events, her injuries, and the relief sought. The filing must be captioned “Amended Complaint” and include docket number 1:23-CV-7216 (LTS).

The order states that if Varlack does not comply within the allowed time and cannot show good cause for the failure, the court will dismiss the Section 1983 and FCRA claims for failure to state a claim and will decline to consider the state-law claims under its supplemental jurisdiction. No summonses would issue at that time. The court also certified that an appeal would not be taken in good faith and denied fee-free status for purposes of an appeal.