Seckinger v. Bank of America
Filing
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ORDER granting 9 Motion to Dismiss the Complaint and Motion to Strike the Brief in Support of the Complaint. Plaintiff has twenty one days from the date this Order is served to amend his Complaint. Signed by Magistrate Judge G. R. Smith on 4/6/2016. (loh)
El
El
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
MALLIE J. SECKINGER, SR,
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Plaintiff,
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Case No. CV415-306
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BANK OF AMERICA, N.A.,'
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Defendant.
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ORDER
In this Fair Credit Reporting Act (FCRA) case, defendant Bank of
America (BOA) moves to dismiss plaintiff Mallie Seckinger's Complaint
or, in the alternative, strike his brief in support and order him to
replead. Doe. 10. Seckinger counters only that pro se litigants are
afforded liberties not accorded represented parties. Doe. 14.
I. BACKGROUND
Last year, Seckinger sued defendant and the three major credit
reporting agencies (Equifax, Experian, and TransUnion) for a "disputed
credit card issue." Doc. 1 at 2. BOA, says plaintiff, "knowingly and
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Seckinger sued "Bank of America." Doc. 1 at 1. "Bank of America, N.A.," says
defendant, is the proper entity, as plaintiff appears to acknowledge. See doe. 3 at 1
("The Defendant is Bank of America, NA."). The Clerk is DIRECTED to conform
the docket caption to the one used above. All future filings shall conform.
U
maliciously reported false information to the Credit repositories
thereby violating. . . 15 U.S.C. ยง 1681." Id. "The defendant had full
prior knowledge that the information it provided specific to the this [sic]
legal action was hopelessly flawed yet failed on multiple occasions to
report this fact to the credit repositories." Id.
Beyond conclusory statements about damages suffered (see, e.g.,
doe. 1 at 2), that's the Complaint in its entirety. Seckinger also,
however, filed a "Brief in Support of Complaint." Doe. 3. That filing is
2-3 pages of factual allegations, 24 pages of legal argument, and 431
pages of supporting documentation. Id.
From the brief, the Court discerns that plaintiff opened a credit
card account with Wachovia in 2006 that BOA "inherited" when it
purchased Wachovia. Doc. 3 at 2. Seckinger discovered "irregularities"
with the account, which BOA ultimately closed after he paid a
"settlement amount."
Id. at 2-3. Two months after closing, BOA
"unilaterally" resurrected the account without notifying Seckinger. Id.
at 3. Although he "never used the account either during the time it was
closed or after it was resurrected," plaintiff thereafter "began receiving
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multiple past due notices. Id. He asked BOA to "correct its error," but it
did not, and instead continued "aggressive collection efforts." Id.
Those failed. BOA then charged off the debt, sold it three times to
three different debt collectors, and reported the charge off to the Internal
Revenue Service. Doc. 3 at 4. Seckinger "requested a copy of [his]
personal credit report in November 2013 from each of the three credit"
reporting agencies, and all three showed "that the account had been
superstitiously [sic] resurrected . . . reported as delinquent for five
months and then charged off."
Id.
He notified the agencies of the
misreporting and "attached documentation as irrefutable proof as to the
true facts." Id. at 5. The agencies nevertheless "failed to correct the
mistakes. . . in subsequent credit reports." Id.
Almost two years after discovering the alleged reporting
inaccuracies on November 21, 2013, Seckinger filed this action. Doc. 1
(filed November 13, 2015). BOA moved to dismiss, arguing that the
Complaint (doc. 1) does not "identify what specific provision of the FCRA
[plaintiff] claims that the Bank violated," much less "allege sufficient
facts to state" an FCRA claim. Doc. 10. Given plaihtiffs voluminous
"brief in support of complaint" (458 pages of argument and supporting
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documents), BOA presses for, at a minimum, repleading under Fed. R.
Civ. P. 12(e). Id. at 7.
IL ANALYSIS
Seckinger's Complaint in isolation unquestionably fails to "state a
claim to relief that is plausible on its face."
Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007) (reinterpreting the pleading standard
of Fed. R. Civ. P. 8(a)(2), which requires that a complaint contain "a
short and plain statement of the claim showing that the pleader is
entitled to relief") . 2 "A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged." Iqbal,
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Rule 8(a)(2) requires not only "fair notice" of the nature of the claim but also
"'the grounds upon which it rests."' Twombly, 550 U.S. at 555 (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)); Id. at 558 ("Rule 8(a)(2) still requires a showing,
rather than a blanket assertion, of entitlement to relief."). To satisfy this pleading
burden a plaintiff must allege facts that allow more than the mere "possibility" of
recovery. Id. at 557 (a complaint must cross the line from possibility to
"plausibility"); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("The plausibility standard
is not akin to a 'probability requirement,' but it asks for more than a sheer possibility
that a defendant acted unlawfully"). Thus, "a formulaic recitation of the elements of
a cause of action will not do." Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678
("Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.").
Seckinger's Complaint contains no more than vague pronouncements of injuries
suffered (e.g., plaintiff has suffered "extensive financial harm" because BOA
"impedled his] ability to make a living and provide for his family") and conclusory
statements about BOA's intentions ("Defendant has made multiple conscious and
well informed decisions.. . to be in willful noncompliance. . . with the [FCRA]."). He
supplies no facts, much less "sufficient fact[sJ . . . to state a claim to relief." Id.
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556 U.S. at 678 (emphasis added). "While legal conclusions can provide
the framework of a complaint, they must be supported by factual
allegations." Id. at 679. Courts "are not bound to accept as true a legal
conclusion couched as a factual allegation."
Id. at 678 (quoting
Twombly, 550 U.S. at 555) (internal citation omitted).
Seckinger's complaint contains almost no facts and leaves the
Court, not to mention BOA, unable to determine what specifically he
contends occurred. Plaintiff fails to identify which specific provision of
the FCRA the defendant allegedly violated, much less state
nonconclusory factual allegations that plausibly suggest that he is
entitled to relief. His complaint, therefore, is deficient under Rule
8(a)(2).
This is not the end of the analysis, however, for "pro se pleadings
are held to a less strict standard than pleadings filed by lawyers and thus
are construed liberally." LaCroix v. W. Dist. of Ky., 627 F. App'x 816,
818 (11th Cir. 2015). "Even so, a pro se pleading must suggest (even if
inartfully) that there is at least some factual support for a claim; it is not
enough just to invoke a legal theory devoid of any factual basis." Jones v.
Fla. Parole Comm'n, 787 F.3d 1105, 1107 (11th Cir. 2015). And, as BOA
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correctly notes, "[e]ven a pro se litigant is required to comply with the
rules of procedure." LaCroix, 627 F. App'x at 818. Nevertheless, "when
a more carefully drafted complaint might state a claim, a district court
should give a pro se plaintiff at least one chance to amend the complaint
before the court dismisses the action." Jenkins v. Walker, 620 F. App'x
709, 711 (11th Cir. 2015) (citing Bank v. Pitt, 928 F.2d 1108, 1112 (11th
Cir. 1991), overruled in part by Wagner v. Daewoo Heavy Indus. Am.
Corp., 314 F.3d 541 2 542 & n. 1 (11th Cir. 2002) (en banc)); see also Fed.
R. Civ. P. 15(a)(2) (courts should grant leave to amend "freely. . . when
justice so requires").
Seckinger's "brief in support" makes clear that an amended
complaint "might state a claim." Jenkins, 620 F. App'x at 711. BOA
allegedly reopened a closed credit card account, reported Seckinger's
phantom delinquency to credit bureaus, then sold the once-again charged
off account to multiple debt collectors. See doe. 3 at 2-4. Plaintiffs brief
provides a level of factual detail that, while absent from the Complaint,
may well state a FCRA claim if taken as true
The Court, however, will not blend two documents -- a complaint
and a "brief in support" -- into an amended pleading in service of
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leniency to pro se litigants. That muddies the water and puts the Court
in position of "de facto counsel for a party." LaCroix, 627 F. App'x at
818. Only Seckinger can cull the relevant facts from his brief (he need
not include legal conclusions or supporting documents), input them into
an Amended Complaint, and otherwise satisfy Rule S's pleading
standard. While his complaint must set forth sufficient facts showing
that he is entitled to relief, it must also be "short and plain." Rule
8(a)(2).
III. CONCLUSION
Hence, plaintiff Mallie Seckinger has 21 days from the date this
Order is served to amend his Complaint. Defendant Bank of America's
Fed. R. Civ. P. 12(e) motion for more definite statement is GRANTED.
Doc. c
SO ORDERED, this
day of April, 2016,
UNITED TAES MAOISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
FA
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