Loney v. GE Capital Retail Bank et al

Filing 42

ORDER denying 17 Motion to Dismiss for Failure to State a Claim. Signed by Senior Judge W. Earl Britt on 8/23/2013. Copy mailed to plaintiff via US Mail at address on record. (Marsh, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NO: 7:13-CV-00093-BR
JOYCE LONEY,
Plaintiff,
v.
GE CAPITAL RETAIL BANK, et al.,
Defendants.

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ORDER

This matter is before the court on the motions to dismiss of defendants Trans Union LLC
(“Trans Union”), Hilco Receivables, LLC (“Hilco”), Apex Financial Management, LLC
(“Apex”), and Equable Ascent Financial, LLC (“EAF”). (DE ## 12, 17.) Plaintiff filed a
response in opposition to the joint motion of Hilco, Apex, and EAF.1 (DE # 34.) Those movants
filed a reply to plaintiff’s response. (DE # 37.)
On 8 May 2013, defendants removed this action to this court from North Carolina state
court. Plaintiff is proceeding pro se, and in the complaint, she alleges a number of federal and
state law claims arising out of the reporting and collection of a credit card debt plaintiff allegedly
owed defendant GE Capital Retail Bank. (See DE # 1-3.) Since the filing of the instant motions
to dismiss, plaintiff has stipulated to, and the court has ordered, the dismissal of plaintiff’s claims
against some of the defendants, including Trans Union. (DE ## 32, 33, 35, 36, 38-41.) The
remaining defendants are Hilco, Apex, EAF, and Midland Credit Management, Inc.

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Plaintiff’s response was filed outside the deadline set forth in the Clerk’s letter issuing notice of the motion
to her. Although the court will consider this untimely response, the court admonishes plaintiff that in the future, she
must comply with the Federal Rules of Civil Procedure, the local rules of this court, and any deadline set by the
court.

Because plaintiff’s claims against Trans Union have been dismissed, Trans Union’s
motion to dismiss is DENIED as moot.
Turning to Hilco, Apex, and EAF’s motion to dismiss, these defendants contend that
plaintiff’s complaint should be dismissed in its entirety for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6). The thrust of defendants’ argument is that plaintiff has
not alleged sufficient facts to support her claims and has failed to plead the elements of many of
her claims. (See Mem., DE # 18, at 1-2.) In her response to the motion to dismiss, plaintiff
further specifies her factual and legal allegations against these defendants. The court agrees with
defendants that it should not look beyond plaintiff’s complaint to determine whether she has
stated any claims. (See Reply, DE # 37, at 2-3.) However, given that discovery has been stayed
during the pendency of the motion to dismiss and prejudice to defendants is not obvious, plaintiff
should be given the opportunity to cure any deficiencies in her pleading and clarify her
remaining claims. The court will permit plaintiff to file an amended complaint. See Willis v.
Greenville Cnty. Disabilities, Civil Action No. 6:10-697-RBH-BHH, 2010 WL 2044708, at *2
(D.S.C. May 3, 2010) (memorandum and recommendation) (in face of defendant’s argument that
plaintiff’s complaint should be dismissed for failure to state a claim in keeping with the
requirements of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal,
556 U.S. 662 (2009), recognizing court’s preference for “allow[ing] the plaintiff to cure any
deficiency in the pleading through amendment”), adopted, 2010 WL 2044704 (D.S.C. May 21,
2010). In the amended complaint, plaintiff should name as defendants only those defendants
who have not been dismissed and provide sufficient factual and legal allegations to support all
her claims against those defendants. Plaintiff is warned that in the future, the court will not

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consider any allegations that are outside of the amended complaint.
Accordingly, defendants Hilco, Apex, and EAF’s motion to dismiss is DENIED
WITHOUT PREJUDICE. Plaintiff shall file an amended complaint on or before 23 September
2013.
This 23 August 2013.

__________________________________
W. Earl Britt
Senior U.S. District Judge

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