Marks v. MRD Corp. et al

Filing 32

Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER:1.) Plaintiff's Motion to Amend the Complaint docket No. 19 is Allowed. 2.) Motions to Dismiss docket Nos. 13 30 are Allowed. Counts I, II, and X are Dismissed with prejudice. All other claims are Dismissed without prejudice. 3.) Defendant MRD's Motion to Repossess Motor Vehicle docket No. 21 is Denied without prejudice to being reinstituted in the courts of the Commonwealth of Massachusetts. (Franklin, Yvonne)

UNITED STATES

DISTRICT COURT

DISTRICT OF MASSACHUSETTS

PAUL MARKS,
Plaintiff

C.A.

V .

MRD

CORP.

HYUNDAI

D/B/A/
and

ROUTE

No.

15-10157-MLW

44

AMERICREDIT

FINANCIAL
SERVICES,
D/B/A/ GM FINANCIAL,

INC.

Defendants

MEMORANDUM AND ORDER

WOLF, D.J.

September 12, 2016

Paul Marks has sued defendants MRD Corporation d/b/a Route 44

Hyundai, a car dealership in Raynam, Massachusetts ("MRD"), and
AmeriCredit

Financial

("AmeriCredit")

Services,

Inc.

d/b/a

GM

Financial

(collectively, the "defendants"), for violations

of the Truth in Lending Act, 15 U.S.C. §1638 (a) (2)-(4)

("TILA")

and the Equal Credit Opportunity Act, 15 U.S.C. §1691 ^

seq, as

well as additional state law claims.

Marks alleges,

in essence,

that: (1) on May 23, 2014, he purchased a new 2014 Hyundai Elantra
automobile

from MRD;

(2)

MRD substituted the

finance

agreement

Marks executed on May 23, 2014 for a second, unsigned agreement;

(3) MRD assigned the second finance agreement to AmeriCredit; and
(4) the defendants have improperly sought to repossess the vehicle
under the second agreement.

dismiss, which Marks opposes.

Defendants have filed a motion to

Marks has filed a motion to amend

the complaint to add a claim for violation of the Fair Debt
1

Collection

against

Practices

Act,

AmeriCredit,

15

which

U.S.C.

§1692

defendants

et

seq. ,

oppose.

("FDCPA").

MRD

has

also

requested a hearing to determine whether MRD may repossess the
2014 Hyundai Elantra.
The Motion to Amend does not affect the merits of the Motion

to Dismiss.

It is,

therefore,

being allowed.

For the reasons

explained in this Memorandum, the Motion to Dismiss is also being
allowed.

The federal

claims

Credit Opportunity Act,

prejudice.

for violations of the TILA,

Equal

and the FDCPA are being dismissed with

In essence,

the central premise underlying these

claims, Marks' allegations that MRD unilaterally created a second

finance agreement, is implausible.

The pendant state claims are

being dismissed without prejudice to refiling in a court of the
Commonwealth of Massachusetts.

The request for hearing concerning

repossession in this case is being denied without prejudice to
being reinstituted in state court.
I.

PROCEDURAL HISTORY

Marks'

complaint

contains nine counts.

in

Lending

Act,

regulations;

15

U.S.C.

against

defendants

Marks alleges:

15

U.S.C.

of

and

AmeriCredit

(1) violations of the Truth

§1638 (a) (2)-(4),

and

related

(2) violations of the Equal Credit Opportunity Act,

§1691

^

seq;

(3)

violations

Massachusetts' Uniform Commercial Code;

breach

MRD

the

covenant

of

good

faith

9

of

(4) common law fraud;

(5)

and

of

fair

Article

dealing;

(6)

conversion;

(7)

violations of Massachusetts General Laws Chapter

93A and related regulations; (8) liability under the Federal Trade
Commission ("FTC") Holder Rule, 16 C.F.R. §433; and (9) violation
of

the

Massachusetts

Retail

Installment

Sales

of Motor

Vehicle

Act, Mass. Gen. Laws ch. 255B, §§2, 19A, by MRD for failing to be
licensed as a motor vehicle finance company.

MRD filed a Motion to Dismiss and supporting Memorandum (the

"MTD Memorandum").

Americredit later joined the Motion to Dismiss.

Marks filed an Opposition (the "MTD Opposition").

Marks also filed

a Motion to Amend the Complaint with a proposed Amended Complaint.

On July 25, 2015, defendants filed an Opposition (the "Amendment

Opposition").

On January 12, 2016, the court granted Marks leave

to file a reply.

Marks filed the Reply on March 14, 2016, 48 days

late.

MRD subsequently filed a motion requesting the court to either
hold a hearing to allow MRD to repossess the 2014 Hyundai Elantra

for non-payment of the loan or, in the alternative, order Marks to

make 12 past-due loan payments (the "Motion to Repossess").

Marks

filed an opposition.
II.

APPLICABLE
A.

STANDARDS

Motion to Amend

A party may amend a pleading as a matter of right if the
amendment is filed within 21 days of an answer or motion pursuant
to Federal Rule of Civil Procedure 12(b).

See Fed.

R.

Civ.

P.

15(a)(1)(B).

In all other circumstances,

party leave to amend its pleadings,
leave when justice so requires,"
also Foman v.

Davis,

371 U.S.

the court may permit a

and it "should freely give

Fed. R. Civ.

178,

182

P. 15(a) (2); see

(1962).

Leave to amend

should be allowed unless there is an "apparent or declared reason-

such as undue delay, bad faith or dilatory motive on the part of
the movant,

repeated failure to cure deficiencies by amendments

previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, futility of amendment, etc."
371 U.S.

at

182;

see also Glassman v.

F.3d 617, 622 (1st Cir. 1996).

Foman,

Computervision Corp.,

90

When considering whether amendment

would be futile, "the district court applies the same standard of

legal sufficiency as applies to a Rule 12(b) (6) motion."

Glassman,

90 at 623 ("There is no practical difference, in terms of review,
between a denial of a motion to amend based on futility and the

grant of a motion to dismiss for failure to state a claim.").
B.

Motion to

Federal

Rule

Dismiss

of

Civil

Procedure

8(a)(2)

requires

that

a

complaint include a "short and plain statement of the claim showing
that the pleader is entitled to relief."
does

not

require

"detailed factual

"more than labels and conclusions,
the elements of a

This pleading standard

allegations,"

but

requires

and a formulaic recitation of

cause of action will not do."

Corp. V. Twombly, 550 U.S. 544, 555 (2007).

Bell Atlantic

A court may disregard

"bald

assertions,

epithets."

unsupportable

and

opprobrious

In re Citiqroup, Inc., 535 F.Sd 45, 52 (1st Cir. 2008);

see also Penalbert-Roia v.
Cir.

conclusions,

Fortuno-Burset,

631 F.3d 592,

595

(1st

2011).

"The plaintiff's factual allegations are ordinarily assumed
to be true in passing on the adequacy of the complaint, which need

not

plead evidence."

Penalbert-Roia,

631

F.3d

at

595.

"But

'ordinarily' does not mean 'always': some allegations, while not
stating ultimate legal conclusions, are nevertheless so threadbare

or

speculative that

they fail

to

conclusory and the factual.'"
Twombly,

550 U.S.

refused to

544,

557 n.

cross

Id.
5

'the

line between the

(quoting Bell Atl.

(2007)).

"lay down a mechanical rule,"

Corp.

v.

The First Circuit has

stating instead that

"sometimes a threadbare factual allegation bears insignia of its

speculative character and, absent greater concreteness, invites an

early challenge—which can be countered by a plaintiff's supplying
of the missing detail."

Id.

A motion to dismiss should be denied if a plaintiff has shown

"a plausible entitlement to relief."
That is,

Twombly,

550 U.S. at 559.

the complaint "must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on
its

face.

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."

Ashcroft V.
U.S.

at

Iqbal, 556 U.S. 662, 678

570).

'probability

"The

plausibility

requirement, '

but

(2009)

(quoting Twombly, 550

standard

asks

it

is

more

for

not

akin

than

a

possibility that a defendant has acted unlawfully." Id.
Twombly,

550 U.S.

556).

to

a

sheer

(quoting

"Where a complaint pleads facts that are

merely consistent with a defendant's liability, it stops short of
the line between possibility and plausibility of entitlement to
relief."

inquiry

Id.

(quoting Twombly,

focuses

on

the

550 U.S.

at 557).

reasonableness

of

the

"The relevant

inferences

of

liability that the plaintiff is asking the court to draw from the
facts alleged in the complaint."

Ocasio-Hernandez,

640 F. 3d at

13.

"Under

Rule

12(b)(6),

the

district

court

may

properly

consider only facts and documents that are part of or incorporated
into the complaint."

Rivera v. Centro Medico de Turabo, Inc., 575

F.3d 10, 15 (1st Cir. 2009); Rodi v. Southern New England School
of

Law,

389

F.3d

5,

15

(1st

Cir.

2004)

(considering

letters

attached to the complaint in evaluating a motion to dismiss).
However,

there

are

"narrow

exceptions

for

documents

the

authenticity of which are not disputed by the parties; for official

public records; for documents central to plaintiff['s] claim; or
for

documents

Watterson v.

complaint's

sufficiently

Page,

factual

987

referred

F.2d 1,

allegations

3-4

are

to

(1st

in
Cir.

the

complaint."

1993) .

expressly

linked

When

"a

to—and

admittedly dependent upon—a document (the authenticity of which is
not

challenged),

that

document

effectively

merges

into

the

pleadings and the trial court can review it in deciding a motion
to dismiss under Rule 12(b)(6)."
Trust Co.,

137 F.Sd 12, 17

Beddall v. State Street Bank and

(1st Cir. 1998).

When such documents

contradict an allegation in the complaint, the document trumps the
allegation.

See Clorox Co. P.R. v. Proctor & Gamble Consumer Co.,

228 F.Sd 24,

32

III.

(1st Cir.

2000).

FACTS

Unless

otherwise

Complaint are as follows.
and traded-in his

indicated,

the

facts

alleged

in

the

Marks purchased a 2014 Hyundai Elantra

2013 Hyundai Elantra on May 23,

2014.

MRD

induced Marks to make the purchase by representing that his new

monthly loan payments would not exceed $520 and his first payment
would not be due for 90 days.

When Marks arrived at the dealership,

the terms of the financing offer changed to $561.48 per month

starting

financing,

45

days

from

sale.

believing it was

Marks

complete.

agreed

He

to

the

sale

executed a

and

retail

installment contract setting out these terms

(the "Agreement")*

Approximately one month after the purchase,

MRD emailed Marks

stating he needed a co-signer for the loan.

MRD subsequently

called Marks' employer daily despite Marks' requests that it not
do so.

Marks was terminated as a result.

At some point, MRD began

threatening to repossess the 2014 Hyundai Elantra.

Marks

alleges

that,

at

some

point,

he

learned

that

the

Agreement had never been assigned, that MRD unilaterally created
a

second

loan,

AmeriCredit.

and

that

MRD

assigned

this

second

loan

to

Marks never signed an installment agreement for the

second loan held by AmeriCredit and did not receive any disclosures

concerning the second loan.

In September 2014, Marks received his

first billing statement from AmeriCredit,

was past due on the loan.
IV.

informing him that he

He has not received a notice of default.

DISCUSSION

A.

The Motion to Amend

Marks

right.

asserts

that

he

is

entitled

to

amend

as

a

matter

of

See Motion to Amend at 1 (asserting the motion is brought

pursuant to Rule 15(a)(1)(B)).
dismiss

was

12(b)(6).

brought

pursuant

However,
Federal

defendants'

Rule

of

Civil

motion to
Procedure

Therefore, Marx had 21 days after that date to amend as

a matter of right.

See F.R.

Civ.

P.

15(a) (1) (B)

("A party may

amend its pleading once as a matter of course within . . . if the
pleading is one to which a responsive pleading is required . . .
21 days after service of a motion under Rule 12(b) . . .").

Marks

filed his Motion to Amend 35 days after MRD filed the Motion to
Dismiss.

Therefore, Marks is not entitled to amend as a matter of

right.

The court is addressing the motion as a request for leave to

amend,

which

should be

"freely give[n]
8

.

.

.

when

justice so

requires."

Fed.

R.

Civ.

P.

15(a) (2).

The

proposed Amended

Complaint attached to Marks' Motion to Amend adds the following
factual allegations:

At some time prior to January 26, 2015, either Route 44
or AmeriCredit hired Statewide Investigations
Monte, California to repossess the 2014 Elantra.

of

El

On or about January 26, 2015, a representative of
Statewide Investigations entered Mr. Mark's property and
attempted to repossess the vehicle.
At no time prior to January 26, 2015, or as of the date
of this filing, did either Route 44 or AmeriCredit
delivered

to

Mr.

Marks

a

written

notice

of

default

or

right to cure.

The Defendant, AmeriCredit has and continues to report
inaccurate data regarding the second finance agreement
to credit bureaus.

Mr.

Marks has suffered a

decreased

credit rating as a result of this conduct.

Proposed Amended Compl. SISI32-35.

The proposed Amended Complaint

adds related allegations to Counts III and VII of the Complaint.
See id. S154, 74-74, 76(h)-(i).

Finally, it also adds a claim for

violation of the Fair Debt Collection Practices Act

(the "FDCPA"),

asserting that AmeriCredit violated the Act by threatening to, and
attempting to, repossess the 2014 Hyundai Elantra, and by filing
false information with credit bureaus.

See id.

S11187-92.

Defendants argue that the Motion to Amend should be denied
because:

(1)

Marks

delayed

amendment would be futile.
because

the

new

alleged attempt

before

to

amend;

and

(2)

They assert that the motion is untimely

allegations

to

seeking

repossess

relate

the

primarily

2014

Hyundai

to

defendants'

Elantra,

which

occurred only four days after the original Complaint was filed.
See Amendment Opposition at 3.
until

five

months

after

Motion to Dismiss.

the

See id.

The Motion to Amend was not filed

events

and

at 3-4.

several

weeks

after

the

They also assert that other

newly alleged facts were known by Marks when he filed the original
complaint.

See id. at 4.

would be futile because:

Defendants also argue that amendment

(1) the added allegations do not bolster

Marks' initial claims; and (2) the proposed Amended Complaint fails
to state a

claim under the

FDCPA.

Marks did not file a separate memorandum of law in support of

the Motion to Amend,
Rules

of

the

as required by Rule 7.1(b)(1)

United States

District Court

Massachusetts (the "Local Rules").

for

of the Local

the

See Local Rule 7.1(b)(1).

Motion to Amend could be denied for this reason alone.

Rule

1.3.

("Failure

to

District

comply with

any

of

the

of

The

See Local

directions

or

obligations set forth in . . . these Local Rules may result in
dismissal, default, or the imposition of other sanctions as deemed
appropriate by the judicial officer.").
However,

the Motion to Amend is being allowed.

will not be prejudiced by the amendment.

Defendants

The period of time

between the complaint and the motion to amend does not constitute
sufficient delay to prejudice the defendants,

parties have yet to conduct discovery.
No. CIV. A.

See Nasson v. Van Winkle,

91-11823-WF, 1994 WL 175049, at *1
10

especially as the

(D. Mass. Apr. 19,

1994) .

The court is addressing defendants' futility arguments in

the analysis of the Motion to Dismiss.

See Glassman, 90 F. 3d at

623 (explaining futility standard is the same as the standard for
assessing a motion to dismiss under Rule 12(b)(6)); Springer v.
Spencer, No. CIV. 13-10083-FDS, 2014 WL 2515694, at *5

June 3, 2014)

("If the more-detailed amended complaint would not

withstand a motion to dismiss,

not either,

(D. Mass.

then the original complaint would

and therefore there

is no reason to consider them

separately. Accordingly, to determine whether amendment is futile,
the

Court

will

address

defendants'

motion

to

dismiss

and

plaintiffs' motion to amend in tandem.").
B.

The Motion to Dismiss

Defendants argue that the case should be dismissed because

Marks

does

not

dispute

that

he

executed

the

Agreement,

took

delivery of the 2014 Hyundai Elantra, and has not made payments on

the loan.

In particular, they argue that Marks' allegations that

MRD unilaterally created a second retail installment agreement are
false and insupportable.

Marks

does

allege

that

MRD

terminated

the Agreement

and

unilaterally created a second retail finance agreement that Marks
never executed.

Court must

See Am. Compl. SI28.

accept

all

As explained earlier, the

"well-pleaded facts

as

true"

and grant

plaintiffs "the benefit of all reasonable inferences."
Barnstable

v.

O'Connor,

786

F.3d
11

130,

138

(1st

Cir.

Town of
2015) .

However,

the

court

need

not

accept

unsupportable conclusions . . . "
properly considered documents

"bald

assertions[

Citiqroup, 535 F. 3d at 52.
contradict

an

When

allegation in the

complaint, the document trumps the allegation.
F.3d a t

or]

See Clorox, 228

32.

For

example,

in

Penalbert-Rosa,

the

plaintiff

sued

the

governor of Puerto Rico and his chief of staff, alleging that she
had been terminated from her employment as part of a political

purge.

See 631 F.3d at 594-95.

dismissal

of

the

complaint,

The

First Circuit affirmed

concluding

that

"nothing

beyond

speculation supports the [] assertion that the governor or his
chief of staff participated in the decision to dismiss Penalbert."
Id.

at

596.

Similarly, in Maldonado v. Fontanes, 568 F.3d 263 (1st Cir.

2009), the plaintiff sued a Mayor for a program that seized and
killed household pets.

Maldonado, 568 F.3d at 266.

The First

Circuit reversed the district court's denial of the mayor's motion

to dismiss the plaintiff's claim that the Mayor violated her right
to substantive due process.
There

is

a

See id. at 274.

generalized

allegation

planned, personally participated in,
raids in concert with others,

as
the
persons
responsibilities as
"These

bare

that

the

Mayor

and executed the

but the others are named

with
specific
administrative
to the public housing complexes.

assertions,

conspiracy in Twombly,
'formulaic

The court explained:

recitation

much

like

the

pleading

of

amount to nothing more than a
of

the

elements'

of

a

constitutional [tort]," Iqbal, at 1951 (quoting Twombly,
12

550 U.S. at 555), and are insufficient to push the
plaintiffs' claim beyond the pleadings stage. Moreover,
the complaint alleges, without any more details, that

the Mayor was among all the other public and private
employees "snatching pets from owners." Although these
bare allegations may be "consistent with" a finding of
liability against the Mayor for seizure of the same pets,
such allegations "stop[ ] short of the line between
possibility and plausibility of 'entitlement to relief"
on the larger substantive due process claim. Iqbal, at
1960 {quoting Twombly, 550 U.S. at 557)
(internal
quotation marks omitted).
Id.

The

instant

Maldonado.

case

is

comparable

to

Penalbert-Rosa

and

Marks asserts that he "learned that [MRU] attempted to

unilaterally create a second credit contract with AmeriCredit" and
that he never signed any documents or received any disclosures
related to this alleged "second loan."

Am. Compl. SISI28-30.

The

Amended Complaint does not describe how Marks "learned" of the
purported second loan.
the accusation,

When defendants challenged the adequacy of

Marks did not

respond by supplying any further

details that would support the claim.
F.3d a t

See Penalbert-Rosa,

631

595.

Marks' allegations about the second loan are too "threadbare
[and] speculative" for the court to accept as true.

See id.

Marks

admits that he signed the Agreement when he purchased the 2014

Hyundai Elantra.

See Am. Compl.

authenticity of the Agreement,

516.

He does not dispute the

which is not conditioned on any

subsequent events and contains a statement, which Marks separately

13

signed, stating that the Agreement can only be amended in writing.
See Agreement.^

The Agreement states that it was being assigned

to AmeriCredit.

Elantra,

See id.

Marks took possession of the 2014 Hyundai

and the Amended Complaint states that the vehicle was

successfully registered.

The

Amended

See Am. Compl. SI19.

Complaint

confirms

that

Marks

Agreement would be assigned to AmeriCredit,
billing

statement

threatened

to

from

AmeriCredit,

repossess

the

2014

the

that he received a

that

Hyundai

understood

defendants
Elantra,

and

have
that

defendants assert that Marks has defaulted on loan payments.

Am. Compl. SISI22, 24, 31.

See

The only plausible inference from these

facts is that the parties'

dispute is governed by the Agreement

and not by the implausible claim that there was a second agreement
with different material terms.

Marks asserts three federal claims in the Amended Complaint.

Count I alleges that defendants violated the TILA and the related

Regulation Z by failing to disclose accurately the finance charge,
the

amount

Compl. SI38.

financed,

and the

annual

percentage

rate.

See Am.

It also alleges that defendants violated the Act by

"failing to deliver any disclosures to Mr. Marks

in

a

form

he

1 Both parties attach copies of the Agreement to their memoranda
See Motion to Dismiss, Ex. 1; Amendment Opposition, Ex. 3; MTD

Opposition. The court may consider the Agreement because it is
incorporated into the Complaint and central to Marks' claims.
See Watterson,

987 F.2d at 3-4.

14

could
539.

keep

prior

to

consummation

of

the

transaction."

Id.

These allegations are contradicted by the Agreement.

The Agreement contains a conspicuous section entitled "TruthIn-Lending Disclosures" that identifies all of the information the
Amended

Complaint

Agreement.

alleges

was

not

provided

to

Marks.

See

Directly above Marks' signature on the Agreement is a

statement that reads in relevant part "You confirm that before you

signed this contract, we gave it to you, and you were free to take
it

and review it.

You confirm that

filled-in copy when you signed it."

Agreement refute Marks' allegations.
Count

II

you received a

completely

The express terms of the

See Clorox, 228 F.3d at 32.

alleges that MRD granted credit to Marks

in the

Agreement, but then withdrew the credit when it could not assign
the loan to AmeriCredit.
never

disclosed

contends

that

its

See Am. Compl. 542.
offer

of

credit

It asserts that MRD
was

conditional,

that MRD violated the Equal Credit Opportunity Act by

giving Marks credit approval and then terminating it.
5542-48.

and

As

explained

earlier,

Marks'

allegations

See id.
that

MRD

unilaterally terminated the Agreement and created a second loan
are implausible.

Therefore, Count II does not allege a claim on

which relief could be granted.

Finally, Count X alleges that AmeriCredit violated the FDCPA

by "threatening and attempting to repossess the vehicle without
notice of default," in violation of 15 U.S.C. §1692(f)(6), and by
15

"communicating false credit information to the credit bureaus," in
violation of 15 U.S.C.

5591-92.
"debt

§§1692(e)(2),

(8).

See Amended Complaint

These two sections of the FDCPA govern the actions of

collectors."

collector

may

See,

not

use

e.g.,

any

15

U.S.C.

false,

§1692(e)

deceptive,

or

("A

debt

misleading

representation or means in connection with the collection of any
debt.").

are

However,

"[c]reditors collecting on their own accounts

generally excluded

from the

statute's

Verizon New England Inc., 595 F.3d 26, 41
15 U.S.C.

§1692a(6) (F) (ii) ) .

reach."

Chiang v.

(1st Cir. 2010)

(citing

The Amended Complaint alleges that

AmeriCredit had taken assignment of the loan.

See Am. Compl. 589.

Consequently, it is alleged that it was attempting to collect on
its own account.

a

plausible

Therefore, the Amended Complaint does not allege

claim

Penalbert-Rosa,

631

that

AmeriCredit

F.3d

at

595;

violated
Schatz

the

See

Republican

v.

FDCPA.

State

Leadership Committee, 669 F.3d 50, 55 (1st Cir. 2012)

Marks also alleges in Count VIII of the Amended Complaint
that "AmeriCredit is liable for any claims against [MRD]" pursuant
to the FTC's "Holder Rule."

See Am. Compl. 5579-81.

Rule" is not an independent cause of action.
that

a

claims

holder of a
and

defenses

consumer credit contract
which

the

debtor

could

The "Holder

Instead, it provides
is

"subject to all

assert

against

2 Marks does not allege that AmeriCredit called his employer.
Rather, he asserts MRD did that.
See Am. Compl. 523.
16

the

seller of goods or services obtained" through the contract.
C.F.R. §433.2(a).

16

Therefore, it creates potential joint liability

for violations by the original seller and does not create any cause

of action.

Accordingly,

as the federal claims against MRD have

been dismissed, Marks has not alleged any plausible federal claim
under the "Holder Rule" on which relief could be granted.

Marks' remaining pendent state law claims are being dismissed

without

prejudice.

Federal

courts

have

"supplemental

jurisdiction" over state-law claims that are related to federal
claims.

See 28 U.S.C. §1367.

When a federal court dismisses the

"foundational federal claims, it must reassess its jurisdiction"

taking into consideration various factors including "interests of
fairness, judicial economy, convenience, and comity."
Am.

Fed'n,

137

F.3d 666,

672

(1st Cir.

1998).

Camelio v.

"As a general

principle, the unfavorable disposition of a plaintiff's federal
claims at the early stages of a suit, well before the commencement

of trial,

will trigger the dismissal without prejudice of any

supplemental
Corp. ,

state-law

57 F.3d 1168,

claims."

1177

Rodriguez

(1st Cir.

1995);

v.

Doral

Mortgage

s^ also Parker v.

Hurley, 474 F. Supp. 2d 261, 278 (D. Mass. 2007) aff'd, 514 F.3d
87

(1st Cir.

The

2008).

circumstances

of

pendent state law claims.
stages.

this

case

justify

dismissal

of

the

First, the case is still in the early

No answer or counterclaims have been filed.
17

Second,

interests

of

comity

and

judicial

economy

favor

requiring

litigation of state law claims in the courts of the Commonwealth
of Massachusetts.

provisions

of

Marks' claims require interpretation of various

Massachusetts

law,

including:

whether

MRD

was

required to be licensed as a "sales finance company" under Mass.
Gen.

Laws

ch.

255B,

§2

(see

Am.

Compl.

violation of the Massachusetts Retail

SISI82-86) ;

whether

a

Installment Sales of Motor

Vehicle Act imposes liability under Massachusetts Chapter 93A (see
Am. Compl.

^76(g)-(h));

and how the provisions of Massachusetts

Uniform Commercial Code Article 9 interact with the Massachusetts

Retail Installment Sales of Motor Vehicle Act,

Am. Compl. SI^51-55) .

(see

It is most appropriate that these issues be

decided by a Massachusetts trial court,
authoritative

Chapter 255B

decisions

in

the

subject to appeals and

appellate

courts

of

the

Commonwealth.

MRD requests a hearing on its right to repossess the 2014
Hyundai Elantra pursuant to Mass.

Gen.

Laws ch.

255B,

§20B(b).

See Motion to Repossess at 3 (quoting Mass. Gen. Laws ch. 255B,
§20B(b)).

This procedure is only available after the lienholder

has satisfied the notice and cure provisions of Mass.

ch. 255B, §20A and filed an action for possession.

Laws

ch.

255B,

§§20A(b),

20(B) (b).

MRD

has

not

Gen.

Laws

See Mass. Gen.

asserted

any

counterclaims in this action and has not indicated whether i t has

satisfied

the

requirements

of

§20A.
18

These

issues

are

most

appropriately

decided

by

the

courts

of

the

Commonwealth

of

Massachusetts.

Therefore,

the court is declining to exercise supplemental

jurisdiction over the remaining state law claims.

Accordingly,

the pendent state claims are being dismissed without prejudice.
V.

ORDER

In view of the foregoing,
1.
19)

it is hereby ORDERED that:

Plaintiff's Motion to Amend the Complaint

(Docket No.

is ALLOWED.

2.

The Motions to Dismiss (Docket Nos. 13 & 30) are ALLOWED.

Counts I, II, and X are DISMISSED with prejudice.

All other claims

are DISMISSED without prejudice.

3.

Defendant

MRD's

Motion

to

Repossess

Motor

Vehicle

(Docket No. 21) is DENIED without prejudice to being reinstituted
in the courts of the Commonwealth of Massachusetts.

UNITED STATES

19

DISTRICT JUDGE