     14-853-cv
     Obot v. Sallie Mae


                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
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. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1                 At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
 3   New York, on the 11th day of February, two thousand fifteen.
 4
 5   PRESENT:
 6                AMALYA L. KEARSE,
 7                DEBRA ANN LIVINGSTON,
 8                SUSAN L. CARNEY,
 9                     Circuit Judges.
10   _____________________________________
11   Otu A. Obot,
12
13                              Plaintiff-Appellant,
14                        v.                                              14-853
15
16   Sallie Mae,
17
18                     Defendant-Appellee.
19   _____________________________________
20
21   FOR PLAINTIFF-APPELLANT:                                     Otu A. Obot, pro se, Amherst, NY.
22
23   FOR DEFENDANT-APPELLEE:                                      Michael Del Valle, Sessions,
24                                                                Fishman, Nathan & Israel LLC,
25                                                                Amherst, NY.
26
27            Appeal from a judgment of the United States District Court for the Western District of New

28   York (Arcara, J., Schroeder, M.J.).


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

 2   DECREED that the judgment of the district court is AFFIRMED.

 3          Appellant Otu A. Obot, proceeding pro se, appeals the district court’s dismissal of his

 4   action challenging fees and penalties accrued on his student loans, and seeking damages for

 5   alleged constitutional and statutory violations, for failure to state a claim. We assume the parties’

 6   familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

 7          We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6),

 8   construing the complaint liberally, accepting all factual allegations in the complaint as true, and

 9   drawing all reasonable inferences in the plaintiff’s favor. Chambers v. Time Warner, Inc., 282

10   F.3d 147, 152 (2d Cir. 2002). The complaint must plead “enough facts to state a claim to relief

11   that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and “allow[ ]

12   the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,”

13   Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although all factual allegations contained in the

14   complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.”                Id.

15   “Threadbare recitals of the elements of a cause of action, supported by mere conclusory

16   statements, do not suffice,” and pleadings that “are no more than conclusions . . . are not entitled to

17   the assumption of truth.” Id. at 678, 679.

18          Here, the record and relevant case law reveal that the district court correctly ruled that Obot

19   failed to state a claim because Sallie Mae was neither a government actor, as required to maintain

20   his constitutional claims, nor a debt collector, as required to maintain his claim under the Fair Debt

21   Collection Practices Act, 15 U.S.C. § 1692, et seq., see id. § 1692a(6)(F)(iii) (defining “debt

22   collector” to exclude “any person collecting . . . a debt which was not in default at the time it was


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 1   obtained”). It also properly ruled that his claims under the Fair Credit Reporting Act, 15 U.S.C. §

 2   1681, et seq., as amended by the Fair and Accurate Credit Transactions Act of 2003, Pub. L.

 3   108-159, 117 Stat. 1952, failed because he alleged no facts to suggest that he had noticed a dispute

 4   to a credit reporting agency regarding Sallie Mae’s reporting of his delinquent student loan

 5   obligations. See 15 U.S.C §§ 1681n, 1681o (authorizing a private right of action); 1681s-2(b)

 6   (outlining duties triggering that private right of action, and conditioning those duties on notice of

 7   dispute to credit reporting agency). Except as discussed below, we affirm for the reasons stated in

 8   the magistrate judge’s well-reasoned and thorough Report and Recommendation, adopted in its

 9   entirety by the district court.

10           Obot’s contention that the wrong legal standard was employed to judge the sufficiency of

11   his pleadings is without merit. The Report and Recommendation correctly recited the binding

12   standard for review of Rule 12(b)(6) motions pronounced by the Supreme Court in Twombly, 550

13   U.S. at 570, and Iqbal, 556 U.S. at 678.

14           Obot’s assertion that the district court abused its discretion by ignoring Sallie Mae’s

15   alleged defaults is similarly without merit. The record indicates that Obot filed his complaint on

16   June 24, 2013, and that, on July 16 and 17, 2013, Sallie Mae timely moved for, and the district

17   court granted, an extension to August 19, 2013. Sallie Mae timely filed its motion to dismiss on

18   August 19, 2013. There is thus no indication in the record to support Obot’s contention that he

19   was entitled to a default judgment.

20           Despite Obot’s claims to the contrary, none of the additional claims discussed in his brief

21   appear in his original complaint, and an amended complaint was never filed with the district court.

22   The “amended pleading” contained in his response to Sallie Mae’s motion to dismiss, which


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 1   purported to add claims pursuant to Federal Rule of Civil Procedure 15(a), did not comply with the

 2   requirements of that rule.     Moreover, even if considered, these claims are without merit.

 3   Generally, “[a] pro se complaint should not be dismissed without the Court granting leave to

 4   amend at least once when a liberal reading of the complaint gives any indication that a valid claim

 5   might be stated.” Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (internal quotation marks

 6   omitted). We have thus reversed the dismissal of pro se claims where allegations first raised in an

 7   opposition, taken alone or in conjunction with those contained in the complaint, are sufficient to

 8   state a claim. See id. at 62-64; Garay v. Novartis Pharm. Corp., 576 F. App’x 24, 25-26 (2d Cir.

 9   2014) (summary order). That is not the case here. Consideration of the “amended pleading”

10   simply confirms that amendment of the complaint would be futile, as Obot failed to allege a basis

11   for any of his additional claims sufficient to meet the Rule 8(a)(2) pleading requirements, much

12   less plead facts sufficient to survive a Rule 12(b)(6) motion to dismiss.

13          We have considered all of Obot’s arguments and find them to be without merit.

14   Accordingly, we AFFIRM the judgment of the district court.

15
16                                                 FOR THE COURT:
17                                                 Catherine O=Hagan Wolfe, Clerk




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