08-3988-cv(L), 09-4309-cv(X A P)
Trans U nion LLC v. Lindor

                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER

RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.


      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 22 nd day of September, two thousand ten.

PRESENT:         REENA RAGGI,
                 DEBRA ANN LIVINGSTON,
                                          Circuit Judges,
                                      *
                 JED S. RAKOFF,
                                          District Judge.
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TRANS UNION LLC,

                                    Defendant-Appellant-Cross-Appellee,

                               v.                                             Nos. 09-3988-cv(L),
                                                                              09-4309-cv(XAP)

RACHEL LINDOR,

                             Plaintiff-Appellee-Cross-Appellant.
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APPEARING FOR APPELLANT:                            TIMOTHY P. CREECH (Mark E. Kogan, on the
                                                    brief), Kogan, Trichon & Wertheimer, P.C.,
                                                    Philadelphia, Pennsylvania.

APPEARING FOR APPELLEE:                             KEVIN C. MALLON (James B. Fishman, on the


          *
         District Judge Jed S. Rakoff of the United States District Court for the Southern
District of New York, sitting by designation.
                                           brief), Fishman & Mallon, LLP, New York, New
                                           York.

       Appeal from the United States District Court for the Eastern District of New York

(Brian M. Cogan, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court entered on September 18, 2009, is

AFFIRMED.

       This appeal arises from the district court’s dismissal of plaintiff Rachel Lindor’s Fair

Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., claims as barred by the statute of

limitations. Defendant Trans Union LLC appeals the district court’s decision declining to

retain supplemental jurisdiction over Lindor’s related state law claims. Lindor cross-appeals,

arguing that dismissal of the FCRA claims was improper. We assume the parties’ familiarity

with the facts and the record of prior proceedings, which we reference only as necessary to

explain our decision to affirm.

       1.     Statute of Limitations

       Lindor challenges the district court’s conclusion that – as a matter of law – her FCRA

claims are barred by the applicable statute of limitations. She submits that she has raised a

triable issue of fact as to the reasonableness of her belief, prior to December 22, 2006, or

January 16, 2007, that her identity had been stolen and that the challenged judgment

therefore belonged to her. We disagree and affirm for substantially the reasons stated by the




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district court in its thorough and well-reasoned decision. See Lindor v. Trans Union LLC,

No. 08 Civ. 5143 (E.D.N.Y. Sept. 16, 2009).

       An FCRA action must be brought “not later than the earlier of – (1) 2 years after the

date of discovery by the plaintiff of the violation that is the basis for such liability; or (2) 5

years after the date on which the violation that is the basis for such liability occurs.” 15

U.S.C. § 1681p. Even assuming, as the district court did, that the phrase “discovery by the

plaintiff of the violation” requires actual knowledge of the violation, Lindor has not

identified any material difference between the facts she possessed on or before December 4,

2006, and those she possessed on December 22, 2006, and January 16, 2007, the dates she

contends the statute of limitations began to run. By December 4, 2006, Lindor was aware

that (1) Trans Union had placed a judgment on her credit report based on a debt she allegedly

owed to AT&T Wireless; (2) she had never had an account with AT&T; (3) the spelling of

the judgment debtor’s first name was different from Lindor’s; (4) the judgment debtor’s

social security number did not match Lindor’s; and (5) Trans Union was refusing to remove

the judgment from Lindor’s credit report because it had allegedly verified that the judgment

belonged to her and therefore considered her challenge frivolous. Although, on December

22, 2006, counsel for the judgment creditor advised Lindor that he thought the challenged

judgment was, indeed, against a different person and reiterated this view in a letter dated

January 16, 2007, these events provided Lindor with no new factual information. To the

contrary, the representations made by the attorney were opinions informed by the very facts


                                                3
that were already in Lindor’s possession. Lindor cites no authority, and we are aware of

none, permitting a party to disclaim actual knowledge of a violation where that party

possesses all of the material facts necessary to identify a violation. Cf. United States v.

Kaiser, 609 F.3d 556, 564 (2d Cir. 2010) (“[I]f there was conscious avoidance, that is

deliberate failure to learn information, then that is the equivalent of actual knowledge . . . .”);

United States v. Aina-Marshall, 336 F.3d 167, 170 (2d Cir. 2003) (observing that conscious

avoidance doctrine is implicated where “a defendant asserts the lack of some specific aspect

of knowledge required for conviction, and . . . the appropriate factual predicate for the charge

exists, i.e., the evidence is such that a rational juror may reach the conclusion beyond a

reasonable doubt that the defendant was aware of a high probability of the fact in dispute and

consciously avoided confirming that fact” (internal citation and quotation marks omitted)).

Because that is precisely what occurred here, we agree with the district court that the statute

of limitations on Lindor’s FCRA claims began to run before December 22, 2006. Lindor’s

FCRA claims filed on December 22, 2008, were therefore properly dismissed as untimely.

       2.      Equitable Tolling

       Equally unavailing is Lindor’s contention that her untimely claims are saved by

equitable tolling. “Equitable tolling is a rare remedy to be applied in unusual circumstances,

not a cure-all for an entirely common state of affairs.” Wallace v. Kato, 549 U.S. 384, 396

(2007). Accordingly, we apply the doctrine only upon a showing that “extraordinary

circumstances prevented a party from timely performing a required act, and that the party


                                                4
acted with reasonable diligence throughout the period [s]he [sought] to toll.” Walker v.

Jastremski, 430 F.3d 560, 564 (2d Cir. 2005) (second alteration in original; internal quotation

marks omitted). Here, the district court concluded that, even assuming equitable tolling

applied to FCRA claims, such relief was not warranted in Lindor’s case because “there

[were] no facts . . . concerning [her] failure to file that [could] be considered ‘special’ . . . ,

let alone ‘extraordinary.’” Lindor v. Trans Union LLC, No. 08 Civ. 5143, slip op. at 21

(E.D.N.Y. Sept. 16, 2009). This determination manifests no abuse of discretion. See Zerilli-

Edelglass v. N.Y. City Transit Auth., 333 F.3d 74, 81 (2d Cir. 2003) (reviewing district

court’s denial of application for equitable tolling for abuse of discretion).           The only

justifications Lindor offered for the untimely filing were that she thought (1) that the

judgment listed on her credit report resulted from identity theft and not error on Trans

Union’s part, and (2) that Trans Union would not have listed the judgment if the judgment

were not hers. On this record, the district court acted well within its discretion in concluding

that “[t]his is an ordinary case of a plaintiff missing the statute of limitations.” Lindor v.

Trans Union LLC, No. 08 Civ. 5143, slip op. at 21 (E.D.N.Y. Sept. 16, 2009).

       3.      Dismissal of State Law Claims

       Trans Union does not dispute that where a district court dismisses a plaintiff’s federal

claims, it acts well within its discretion in declining to exercise supplemental jurisdiction

over any remaining state law claims. See Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir.

1994) (noting that where federal claims in action premised on federal question jurisdiction


                                                5
“are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state

claims should be dismissed as well” (internal quotation marks omitted)). Nevertheless, Trans

Union argues that dismissal of Lindor’s state law claims was improper because the

allegations in the complaint and a stipulation in the parties’ joint pretrial order established

non-discretionary diversity jurisdiction over the claims. We are not persuaded.

       Subject matter jurisdiction ordinarily must be established at the time an action is

commenced. See Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 574-75 (2004).

In Durant, Nichols, Houston, Hodgson & Cortese-Costa, P.C. v. Dupont, 565 F.3d 56 (2d

Cir. 2009), however, we held that because the existence of diversity jurisdiction does not

depend on a complaint’s compliance with the procedural requirements set forth in Fed. R.

Civ. P. 8(a)(1), “where the facts necessary to the establishment of diversity jurisdiction are

subsequently determined to have obtained all along, a federal court may . . . allow a

complaint to be amended to assert those necessary facts,” id. at 64 (ellipsis in original;

internal quotation marks omitted); accord Herrick Co. v. SCS Commc’ns, Inc., 251 F.3d 315,

329 (2d Cir. 2001); see also Jacobs v. Patent Enforcement Fund, Inc., 230 F.3d 565, 568 (2d

Cir. 2000) (“[W]e conclude that the defect in plaintiffs’ pleadings does not negate

jurisdiction and that, since it has been established that the requisite diversity existed at the

time of the initial pleadings, defendant HRC was bound to answer the complaint, and the

judgment of default that issued on its failure to do so is not void for lack of jurisdiction.”).

Unlike the plaintiff in Durant, see 565 F.3d at 61, Lindor – whose complaint did not purport


                                               6
to allege diversity jurisdiction – never moved pursuant to 28 U.S.C. § 1653 to amend her

complaint to make the allegations required to support such jurisdiction.1 Nor did the district

court find that facts established during the course of the proceedings demonstrated that

diversity jurisdiction existed all along such that Lindor could be directed to amend the

complaint. See Jacobs v. Patent Enforcement Fund, Inc., 230 F.3d at 568.

       While Trans Union contends that the parties are bound by a stipulation in their joint

pretrial order stating that the district court would retain diversity jurisdiction over the case

if the federal claims were dismissed, Trans Union failed to advise the court of that stipulation

– much less that it wanted the stipulation enforced – while the motion for summary judgment

was pending. During argument on the motion for summary judgment, the district court noted

that it was unlikely to retain supplemental jurisdiction over Lindor’s state claims if her

federal claims were dismissed. Trans Union’s only objection, however, was that the state

claims would eventually be returned to federal court on account of Trans Union’s right of

removal. It was not until Trans Union moved to alter or amend the September 18, 2009

judgment, see Fed. R. Civ. P. 59(e), that it sought to enforce the joint pretrial stipulation. We

discern no abuse of discretion in the district court’s rejection of this belated argument. Nor



       1
          Although Lindor’s complaint alleges that she is “an adult resident of the State and
City of New York,” and that “Trans Union is a Delaware corporation, . . . qualified to do
business in the State of New York,” the complaint does not contain any allegations regarding
Trans Union’s principal place of business. For this reason, the factual allegations in the
complaint are insufficient to support diversity jurisdiction. See 28 U.S.C. § 1332(c) (noting
that for purposes of diversity jurisdiction, corporation is deemed to be citizen of both its state
of incorporation and state of its principal place of business).

                                                7
do we identify manifest injustice in the possibility that Trans Union may be sued in a state

forum under circumstances where complete diversity is lacking and where it therefore has

no right of removal. Cf. Great N. Ry. Co. v. Alexander, 246 U.S. 276, 282 (1918) (“[I]n the

absence of a fraudulent purpose to defeat removal, the plaintiff may by the allegations of his

complaint determine the status with respect to removability of a case, arising under a law of

the United States, when it is commenced, and that this power to determine the removability

of his case continues with the plaintiff throughout the litigation, so that whether such a case

nonremovable when commenced shall afterwards become removable depends not upon what

the defendant may allege or prove or what the court may, after hearing upon the merits, in

invitum, order, but solely upon the form which the plaintiff by his voluntary action shall give

to the pleadings in the case as it progresses towards a conclusion.”).

       Accordingly, we reject as without merit Trans Union’s challenge to the district court’s

decision not to retain supplemental jurisdiction over Lindor’s state law claims.

       4.     Conclusion

       For the foregoing reasons, the September 18, 2009 judgment of the district court is

AFFIRMED.

                                           FOR THE COURT:
                                           CATHERINE O’HAGAN WOLFE, Clerk of Court




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