Flury v. CSC Credit Services et al

Filing 24

ORDER denying 17 Motion file Amended Complaint; denying 21 Motion to Strike; granting 23 Stipulation of Dismissal. Having dismissed the only two defendants, denied the motion to amend, and no reasonable basis for amendment appearing, this action is concluded. The clerk shall enter final judgment. Signed by Judge Frederick J Martone on 9/29/11. (See attached PDF for complete information.)(KAH)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 ) ) ) Plaintiff, ) ) vs. ) ) CSC Credit Services; Dealer Services) ) Corporation, ) ) Defendants. ) ) Van E. Flury, No. CV-11-1166-PHX-FJM ORDER 16 17 The court has before it plaintiff’s motion to amend the complaint (doc. 17), defendant 18 Dealer Services Corporation’s (“DSC”) response (doc. 19), and plaintiff’s motion to strike 19 DSC’s response (doc. 21). 20 Plaintiff filed this case under the Fair Credit Reporting Act, 15 U.S.C. § 1681 21 (“FCRA”), against CSC Credit Services and Dealer Services Corporation, contending that 22 they had obtained four consumer credit reports without a permissible purpose in violation of 23 15 U.S.C. § 1681b(a). On July 5, 2011, DSC filed a motion to dismiss the case (doc. 5), 24 arguing that plaintiff had failed to allege any conduct that would establish the elements of 25 a FCRA violation and that a forum selection clause dictates that this action be brought in 26 Indiana. Two days later, plaintiff filed a notice of voluntary dismissal of DSC. Plaintiff has 27 now filed a motion to amend the complaint in order to do nothing more than reinstate his 28 1 claims against DSC. DSC objected to the proposed amendment on the basis of futility and 2 again relies upon its earlier motion to dismiss the complaint. Plaintiff has replied with a 3 motion to strike DSC’s response, arguing that it is not allowed since DSC is no longer a party 4 to this case. Plaintiff has now also filed a stipulation of dismissal of defendant CSC Credit 5 Services, the only other defendant in this action (doc. 23). 6 DSC charges that plaintiff has a long history of filing frivolous lawsuits and our 7 review of this court’s docket confirms that charge. Plaintiff has filed eleven lawsuits against 8 various defendants over the last four years, and with the exception of one case that ended in 9 a default judgment, plaintiff has voluntarily dismissed every action once the defendant 10 moved to dismiss the case or otherwise responded to the complaint. We have now been 11 presented with the same scheme. 12 We reject plaintiff’s motion to strike. Plaintiff cannot use gamesmanship to avoid a 13 ruling on the merits of DSC’s motion to dismiss. Having considered DSC’s response to the 14 motion to amend as well as its motion to dismiss, we agree that the proposed amendment 15 would be futile. 16 First, rather than comply with LRCiv 15.1, which requires that a motion to amend 17 must be accompanied by a copy of the proposed amended pleading, plaintiff simply stated 18 that “[t]he only amendment to the complaint would be to re-add Dealer Services Corporation, 19 as a co-defendant.” Motion at 17. This is not sufficient to satisfy Rule 15.1, particularly in 20 light of the voluntary dismissal of this defendant only one month earlier. 21 Instead, plaintiff asserts the same defective allegation against DSC contained in the 22 original complaint. He asserts only that DSC obtained his consumer credit report “without 23 a permissible purpose.” Compl. ¶ 5. This conclusory allegation is unsupported by a single 24 factual allegation, and is wholly insufficient to state a claim for relief. See Bell Atl. Corp. 25 v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (2007). Therefore, the proposed 26 amendment would be futile and the motion to amend is denied. 27 28 IT IS ORDERED GRANTING the stipulation of dismissal against CSC Credit Services, Inc. (doc. 23). -2- 1 2 IT IS FURTHER ORDERED DENYING plaintiff’s motion to amend (doc. 17), and DENYING plaintiff’s motion to strike (doc. 21). 3 Having dismissed the only two defendants, denied the motion to amend, and no 4 reasonable basis for amendment appearing, this action is concluded. The clerk shall enter 5 final judgment. 6 DATED this 29th day of September, 2011. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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