Cope v. Hyundai Motor Finance et al
MEMORANDUM OPINION and ORDER GRANTING these motions to dismiss, docs. 8 , 28 , 45 , areGRANTED, and Cope's claims against Experian, Trans Union, and Hyundai areDISMISSED without prejudice; This lawsuit shall proceed solely against Equifax. Signed by Judge Abdul K Kallon on 07/07/2017. (KBB)
2017 Jul-07 PM 04:47
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
FRANCES D. COPE,
HYUNDAI MOTOR FINANCE,
Civil Action Number
MEMORANDUM OPINION AND ORDER
Frances Cope brings claims against Hyundai Motors Finance, Equifax
Information Services LLC, Trans Union, LLC, and Experian Information
Solutions, Inc., alleging violations under the Fair Credit Reporting Act, 15 U.S.C.
§ 1681, et seq. (“FCRA”). See generally docs. 1; 21; 50. The court has for
consideration motions to dismiss from Experian, doc. 8, Hyundai, doc. 28, and
Trans Union, doc. 45, which are fully briefed, docs. 27; 39; 52; 53; 54; 56, and ripe
for review, and multiple filings by Cope. For the reasons stated more fully below,
the motions to dismiss are due to be granted.
As an initial matter, Cope has filed two motions to strike dismissal, docs. 49;
51, five amendments to her complaint, docs. 21; 25; 50; 59; 61, and two identical
surreplies to Trans Union’s motion to dismiss, docs. 58 and 60. First, as to the
motions to strike dismissal, doc. 49; 51, the court construes the first, doc. 49, to be
Cope’s contention that she believes she has valid claims against Trans Union.
Similarly, the second motion to strike, doc. 51, is Cope’s contention that she
believes she has valid claims against all Defendants. As the court informed Cope
previously, such a contention is not a proper matter for a motion. See doc. 48
(“Plaintiff’s motions not to dismiss Experian Information Services, doc. 38, and
Hyundai Motor Finance, doc. 39, are basically Cope’s contention that she believes
she has valid claims against these two defendants, and are not proper matters for a
motion.”). Therefore, these motions are DENIED. The court will treat these filings
as Cope’s response to the motions to dismiss.
Second, Cope’s amendments to her complaint submitted in docs. 21 and 50,
where, inter alia, Cope corrects the names of Defendants Experian and Trans
Union, are GRANTED.
Third, as to Cope’s amendments submitted in docs. 25; 59; and 61, the court
reminds Cope of Fed. R. Civ. P. 15(a), which restricts Cope to amend her pleading
“once as a matter of course” within “21 days after serving it” or “21 days after
service of a responsive pleading or 21 days after service of a motion under Rule
12(b), (e), or (f), whichever is earlier.” Thereafter, Cope may only amend “with the
opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). As
a result, after her first amendment to her complaint, doc. 21, which she properly
filed within 21 days of the first responsive pleading entered in this case, to file any
subsequent amended complaints, docs. 25; 59; 61, Cope needed to obtain written
consent from Defendants or seek the court’s leave. In light of Cope’s failure to do
so, the subsequent amended complaints, docs. 25; 59; 61, are STRICKEN from
the record.1 Accordingly, Trans Union’s motion to dismiss or, in the alternative,
strike, doc. 63, Hyundai’s motion to strike or, alternatively, dismiss, doc. 68, and
Cope’s motion to dismiss amendments, doc. 71, are GRANTED.
Finally, as to Cope’s identical surreplies, docs. 58 and 60, Cope previously
filed multiple responses to Trans Union’s motion to dismiss, see docs. 49; 53; 54,
and now, without seeking leave of court to file additional briefings, Cope filed the
surreplies at issue after the briefing schedule deadlines had passed, see doc. 47.
Cope has presented no valid reason as to why she could not have included the
information presented in her surreplies in her previous responses. See generally
docs. 58 and 60. “Surreplies typically will be permitted only in unusual
Docs. 59 and 61 are identical amended complaints Cope filed one month after the defendants
filed their motions to dismiss. See docs. 45; 59; 61. Even considering these two documents — in
which Cope states that she has sent “3 disputes on separate dates to the 3 Credit Bureaus,” that
the credit bureaus [CRAs] have not removed the alleged inaccurate information, and that “[t]his
is a process that works if the Bureau’s carry-out the proper investigation,” docs. 59 and 61,
unfortunately for Cope, she does not connect the dots for the court and still fails to plead
sufficient facts to allow the court to “draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678. “A district court need not . . . allow an
amendment (1) where there has been undue delay, bad faith, dilatory motive, or repeated failure
to cure deficiencies by amendments previously allowed; (2) where allowing amendment would
cause undue prejudice to the opposing party; or (3) where amendment would be futile.” Bryant v.
Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). These amendments are futile because they
contain no new allegations. Cope is placed on notice that she must first seek leave from the court
before any future attempts to amend her complaint.
circumstances, such as where a movant raises new arguments or facts in a reply
brief, or where a party wishes to inform the Court of a new decision or rule
implicating the motion under review.” Coker v. Enhanced Senior Living, Inc., 897
F. Supp. 2d 1366, 1373 (N.D. Ga. 2012). After all, “[t]o allow such surreplies as a
regular practice would put the court in the position of refereeing an endless volley
of briefs.” Garrison v. Ne. Georgia Med. Ctr., Inc., 66 F. Supp. 2d 1336, 1340
(N.D. Ga. 1999), aff’d sub nom. Garrison v. Ne. Georgia Med. Ctr., 211 F.3d 130
(11th Cir. 2000). Accordingly, Trans Union’s motion to strike, doc. 64, is
GRANTED, and Cope’s surreplies, docs. 58 and 60, are STRICKEN from the
Consequently, Cope’s original complaint, doc. 1, with the accompanying
amendments submitted through docs. 21 and 50, constitute the complaint against
which the court will assess Defendants’ motions to dismiss.
MOTIONS TO DISMISS2
In her Complaint, Cope pleads that she had an automobile installment
account with Hyundai Motors. Doc. 1 at 22. After three years without any issues,
although Cope paid all of her payments timely, Hyundai started charging Cope late
fees. See generally doc. 1. Following a complaint Cope filed with the Consumer
“When considering a motion to dismiss, all facts set forth in the plaintiff’s complaint ‘are to be
accepted as true and the court limits its consideration to the pleadings and exhibits attached
thereto.’” Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (quoting GSW,
Inc. v. Long Cty., 999 F.2d 1508, 1510 (11th Cir. 1993)). In other words, the “facts” here are
taken directly from the Complaint and its amendments, docs. 1; 21; 50.
Financial Protection Bureau (CFPB), Hyundai removed the late fees. Id. at 22.
However, Hyundai has continued to charge Cope unwarranted late fees, see id. (“I
have to constantly go back and obtain my bank records and fax to them to
straighten out.”). Moreover, Hyundai has reported incorrectly to Equifax that
Cope’s payments are late, id. at 6, 22, and despite Cope’s request to Equifax,
Equifax has failed to disallow Hyundai from reporting the false late payments. Id.
Cope pleads also that Equifax is “constantly reporting inaccurate
information.” Id. at 6. Despite sending Equifax a letter stating that her Hyundai
account was “paid in full from the dealership,” Equifax “totally removed” the
account instead of correcting the alleged inaccurate information and showing the
account as “paid in full” as Cope had requested. Id. at 6–7. These actions
negatively affected Cope’s credit score. Id. at 7.
Similarly, Cope pleads that Experian and Trans Union have also reported
information inaccurately “and did not remove within the last year,” despite Cope
disputing her Credit file. See id.; see also doc. 21.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.”
“[T]he pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-
harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mere “labels and conclusions”
or “a formulaic recitation of the elements of a cause of action” are insufficient.
Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted). “Nor does
a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Id. (citing Twombly, 550 U.S. at 557).
Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a
complaint fails to state a claim upon which relief can be granted. “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678
(citations omitted) (internal quotation marks omitted). A complaint states a facially
plausible claim for relief “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citation omitted). The complaint must establish “more
than a sheer possibility that a defendant has acted unlawfully.” Id.; see also
Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to
relief above the speculative level.”). Ultimately, this inquiry is a “context-specific
task that requires the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679.
Defendants each move to dismiss this case on the grounds that Cope has
failed to sufficiently plead claims upon which relief can be granted, pursuant to
Fed. R. Civ. P. 12(b)(6). The court will address each motion below.
1. Experian and Trans Union
To sufficiently plead an FCRA claim against a credit reporting agency
(“CRA”), Cope must plead that the CRA failed: (1) to follow reasonable
procedures to assure maximum possible accuracy of the information concerning
the individual about whom the report relates; or (2) to properly reinvestigate
information that a consumer disputes as incomplete or inaccurate. Doc. 8 at 2
(citing 15 U.S.C. §§ 1681e(b); 1681i; 1681n; 1681o). Here, however, Cope’s
complaint against Experian and Trans Union fails to plead more than “‘naked
assertion[s]’ devoid of ‘further factual enhancement,’” Iqbal, 556 U.S. 662, 678
(2009). For example, Cope only pleads that Experian and Trans Union “also
reported information inaccurately ‘and did not remove within the last year,’”
despite Cope disputing her credit file. Docs. 1 at 7; 21. As Experian and Trans
Union note, Cope’s complaint lacks “any allegations sufficient to identify what
section(s) of the FCRA was allegedly violated,” and fails to recite “even threadbare
elements of any cause of action,” doc. 8 at 2–3; see also doc. 45 at 4 (“Nowhere in
the multiple pleadings does Plaintiff cite a specific provision of the FCRA”).
Moreover, the FCRA “does not make reporting agencies strictly liable for all
inaccuracies,” doc. 8 at 3 (quoting Cahlin v. Gen. Motors Acceptance Corp., 936
F.2d 1151, 1156 (11th Cir. 1991)); see also doc. 45 at 5 (same), and Cope has not
provided any basis to establish liability in this case. Accordingly, Experian’s and
Trans Union’s motions to dismiss are due to be granted.
Hyundai contends that Cope’s claims against it fail because: (1) as a private
party, Cope has no cause of action under 15 U.S.C. § 1681s-2(a), and (2) she has
insufficiently pleaded her claim under 15 U.S.C. § 1681s-2(b). Doc. 28 at 2. The
FCRA imposes two separate duties on furnishers of information. “First, § 1681s–
2(a) requires furnishers to submit accurate information to [credit reporting
agencies] CRAs. Second, § 1681s–2(b) requires furnishers to investigate and
respond promptly to notices of customer disputes.” Green v. RBS Nat’l Bank, 288
F. App’x 641, 642 (11th Cir. 2008). Generally, the FCRA “does not provide a
private right of action to redress violations of tendering false information regarding
an individual’s account.” Id. However, “[t]he FCRA does provide a private right of
action for a violation of § 1681s–2(b), . . . if the furnisher received notice of the
consumer’s dispute from a consumer reporting agency.” Id.
Dismissal is warranted on Cope’s claim against Hyundai because of Cope’s
failure to plead that any of the defendant CRAs notified Hyundai of any dispute by
Cope. See generally doc. 1. Instead, Cope states only that Hyundai has reported
incorrect information to Equifax, id. at 6, 22, and that despite her request that
Equifax disallow Hyundai from reporting falsely, Equifax has failed to do so.3 Id.
However, absent an assertion that Equifax or any of the other CRAs actually
notified Hyundai of any disputes Cope had regarding the subsequent incorrect
reporting and that Hyundai failed to take sufficient action thereafter, Cope fails to
sufficiently plead a claim against Hyundai. See doc. 28 at 3, 8–10. Even in the
amended complaints the court has struck, see supra docs. 25; 59; 61, Cope fails to
plead any such information. Therefore, Hyundai’s motion to dismiss is due to be
CONCLUSION AND ORDER
For the aforementioned reasons, the motions to dismiss, docs. 8; 28; 45, are
GRANTED, and Cope’s claims against Experian, Trans Union, and Hyundai are
DISMISSED without prejudice. This lawsuit shall proceed solely against Equifax.
DONE the 7th day of July, 2017.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
Cope pleads also that at some point, she notified the Consumer Financial Protection Bureau
(CFPB) that Hyundai had wrongfully charged her late fees, and thereafter Hyundai removed the
late fees. Doc. 1 at 22. The CFPB is not a CRA, and, as such, Cope cannot rely on this allegation
to support her private cause of action claim against Hyundai. Moreover, even with this
contention, Cope’s claim would fail because Cope does not assert that Hyundai failed to properly
respond to any notifications from CFPB. See generally id. Cope pleads, rather, that despite the
initial correction, Hyundai has continued to charge her unwarranted late fees, see id. (“I have to
constantly go back and obtain my bank records and fax to them to straighten out.”).
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