HILL v. EQUIFAX INFORMATION SERVICES, LLC. et al

Filing 82

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 9/26/2014; that Plaintiff's Motion to Substitute Party Defendant (Docket Entry 67 ) is GRANTED and that FIA Card Services, N.A. replace Defendant Bank of America. The C lerk is directed to modify the Caption of this case to reflect the substitution. FURTHER that Plaintiff's Motion for Leave to Amend and Join Allstate as Party Defendant (Docket Entry 68 ) and Motion to Substitute His Proposed Third Amended Complaint (Docket Entry 73 ) are DENIED. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ARTHUR HILL,
Plaintiff,
v.
EQUIFAX INFORMATION SERVICES,
LLC., BANK OF AMERICA,
Defendants.

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1:13CV153

MEMORANDUM OPINION AND ORDER
This case comes before the Court on Plaintiff’s Motions to
Substitute Party Defendant (Docket Entry 67), for Leave to Amend
and Join Allstate as Party Defendant (Docket Entry 68), and to
Substitute His Proposed Third Amended Complaint (Docket Entry 73).1
For the reasons that follow, the Court will grant Plaintiff’s
Motion to Substitute Party Defendant,2 but will deny his other two
instant Motions.3

1

Plaintiff’s Motion to Substitute His Proposed Third Amended
Complaint effectively constitutes yet another request to amend his
pleading(s), i.e., to file a fourth amended complaint. This Court
thus will refer to such matters accordingly.
2

Because of the lack of opposition, the Court treats
Plaintiff’s Motion to Substitute Party Defendant as generally
subject to granting as a matter of course under Local Rule 7.3(k).
No reason appears to depart from that general rule.
3

For reasons stated in Deberry v. Davis, No. 1:08CV582, 2010
WL 1610430, at *7 n.8 (M.D.N.C. Apr. 19, 2010) (unpublished), the
undersigned Magistrate Judge will enter an order, rather than a
recommendation, as to the instant Motions. See also Everett v.
Prison Health Servs., 412 Fed. Appx. 604, 605 & n.2 (4th Cir. 2011)
(“Everett moved for leave to amend her complaint ... to add
Appellee Prison Health Services, Inc. (‘PHS') as a defendant based
on information obtained during discovery, and to add a state-law
claim of medical malpractice against PHS. After a hearing, the

BACKGROUND
Plaintiff’s proposed third amended complaint seeks to assert
new state law claims based on allegations that Defendant Equifax
Information Services, LLC. (“Equifax”) reported an unauthorized
Bank of America credit card on Plaintiff’s credit report.
Entry 68-1, ¶¶ 8-24.)

(Docket

Plaintiff alleges that his wife owned a Bank

of America credit card, and Defendant Bank of America4 listed
Plaintiff on the card as an authorized user without his consent.
(Id., ¶¶ 19-20.)

Plaintiff asserts that he disputed his liability

for the credit card with Defendant Equifax three times prior to
this litigation.
Equifax

(Id., ¶ 17.)

allegedly

refused

Plaintiff’s credit report.

Despite these disputes, Defendant

to

remove

the

(Id., ¶ 23.)

credit

card

from

Plaintiff alleges he

contacted Defendant Bank of America on three separate occasions to
discuss the credit card, and ultimately Plaintiff had himself
removed from the credit card – confirmed by a letter from Defendant
Bank of America.

(Id., ¶¶ 11, 17-20.)

Both credit reporting

magistrate judge denied Everett's motion. Everett timely objected,
thereby preserving the issue for review by the district court....
[T]he district court could not modify or set aside any portion of
the magistrate judge's order unless the magistrate judge's decision
was ‘clearly erroneous or contrary to law.’ Fed.R.Civ.P. 72(a); 28
U.S.C.A. § 636(b)(1)(A) (2006 & Supp.2010).”).
4

Plaintiff’s proposed third amended complaint substitutes FIA
Card Services, N.A. as a Defendant for Bank of America, but
Plaintiff refers to FIA as Bank of America in the body of the
pleading. For purposes of this Memorandum Opinion, the Court will
use the name “Bank of America” to refer to said Defendant.
2

agencies Trans Union LLC (“Trans Union”) and Experian removed the
Bank of America credit card from Plaintiff’s credit reports as
requested, but Defendant Equifax refused to do so.

(Id., ¶ 23.)

As for the proposed claims against Allstate, Plaintiff’s
allegations stem from Allstate supposedly improperly requesting his
credit report.

(Id., ¶¶ 100-11.)

Plaintiff alleges that, in May

of 2012, he learned that Allstate had made two inquiries to Trans
Union regarding his credit report.

(Id., ¶¶ 101-02.)

Plaintiff

allegedly contacted Allstate to determine why Allstate had inquired
about

his

credit

information.

(Id.,

¶

104.)

According

to

Plaintiff, after contacting Allstate, he checked his credit report
again and found that Allstate had acquired his credit file from
Trans Union again.

(Id., ¶ 105.)

Plaintiff contends Allstate

improperly pulled his credit report as part of its defense efforts
in a lawsuit Plaintiff filed against one of Allstate’s insureds.
(Id., ¶¶ 107-11.)
Plaintiff filed this action, pro se, in February of 2013.
(Docket Entry 1.)

In his first complaint, Plaintiff sued three

defendants for alleged violations of the Fair Credit Reporting Act
(“FCRA”),

15

U.S.C.

§§

1681

et

seq.

(Docket

Entry

1).

Subsequently, Plaintiff amended his complaint once as a matter of
course (Docket Entry 6), and then again without leave of court
(Docket Entry 11). United States District Court Judge Catherine C.
Eagles accepted Plaintiff’s second amended complaint nunc pro tunc.

3

(Docket Entry 55.)

In the process of amending his pleading(s),

Plaintiff has added several defendants and claims and, although the
number

of

defendants

and

claims

have

varied

throughout

this

litigation (due to both voluntary and involuntary dismissals),
Plaintiff currently only has claims left against Defendants Bank of
America and Equifax.5 Plaintiff’s Second Amended Complaint asserts
claims for violations of the FCRA and the North Carolina Unfair and
Deceptive Trade Practices Act (“NCUDTPA”), as well as for a civil
conspiracy. (Docket Entry 11, ¶¶ 52-84.)
This Court set forth the scheduling order for the parties in
a text order.

(Text Order dated Apr. 8, 2014.)

That scheduling

order included a deadline for the parties to submit any motions to
seek leave to amend or add parties by May 23, 2014, along with a
warning that a late submission would result in application of both
Federal Rules of Civil Procedure 15(a)(2) and 16(b)(4).

(See id.)

On May 23, 2014, Plaintiff submitted two motions to the Court.
(Docket Entries 67, 68.)

The first, Plaintiff’s instant Motion to

Substitute Party Defendant, sought to substitute FIA Card Services,
N.A. for

Defendant

(Docket Entry 67.)

Bank

of

America

as

the

proper

defendant.

The second, Plaintiff’s instant Motion for

Leave to Amend and Join Allstate as a Party Defendant, sought to

5

During the pendency of the instant Motions, Plaintiff filed
a Consent Motion to Dismiss all claims against Trans Union.
(Docket Entry 80.) Judge Eagles granted that Motion and dismissed
Plaintiff’s claims against Trans Union. (Docket Entry 81.)
4

amend his pleadings via a third amended complaint.
68.)

(Docket Entry

Plaintiff’s proposed third amended complaint affected three

changes.

First, it included Allstate as an additional defendant

and added claims against Allstate.

Second, the proposed third

amended complaint included new claims against Trans Union relating
to

alleged

improper

credit

report

disclosures

to

Allstate.

Finally, the proposed third amended complaint added claims against
Defendant Bank of America - for civil conspiracy and for violation
of the NCUDTPA.
Defendant Bank of America objected to Plaintiff’s Motion for
Leave to Amend and Join Allstate as a Party Defendant and argued
that the proposed third amended complaint failed as futile for two
reasons: 1) that the FCRA preempts the NCUDTPA and civil conspiracy
claims; and 2) that Plaintiff failed to adequately plead his new
claims. (Docket Entry 71.) Plaintiff replied to Defendant Bank of
America’s objections twofold.

(Docket Entries 72, 73.)

First,

Plaintiff filed a Reply arguing that the FCRA does not preempt his
claims.

(Docket Entry 72.)

Second, Plaintiff submitted his

instant Motion to Substitute His Proposed Third Amended Complaint,
in which he proffered a fourth amended complaint.
73.)

Plaintiff

requested

that

the

proposed

(Docket Entry
fourth

amended

complaint replace his proposed third amended complaint in order to
overcome Defendant Bank of America’s objections that he had failed
to state a claim.

(Id.)

Plaintiff submitted the proposed fourth

5

amended complaint, which sought to add further factual allegations,
but not additional claims or parties, on July 2, 2014, over a month
past the scheduling order deadline.

(Id.)

Defendant Bank of

America opposed the proposed fourth amended complaint (Docket Entry
77), and Plaintiff has not replied (see Docket Entries dated July
7, 2014, to present).
DISCUSSION
Typically, courts should freely grant leave to amend “when
justice so requires.”
provides

the

Court

Fed. R. Civ. P. 15(a)(2).
with

discretion

amendment, but not without limits.
182 (1962).

on

whether

This standard
to

allow

an

Foman v. Davis, 371 U.S. 178,

The United States Court of Appeals for the Fourth

Circuit has elaborated that a court may properly deny leave to
amend when “‘the amendment would be prejudicial to the opposing
party, there has been bad faith on the part of the moving party, or
the amendment would be futile.’” Edwards v. City of Goldsboro, 178
F.3d 231, 242 (4th Cir. 1999) (quoting Johnson v. Oroweat Foods
Co., 785 F.2d 503, 509 (4th Cir. 1986)).

An amendment is futile if

the proposed amended complaint would not survive a motion to
dismiss. Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d 462, 471 (4th
Cir. 2011).
The motion to dismiss standard requires a plaintiff to plead
“factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”

6

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

“‘[W]holly vague and

conclusory allegations are not sufficient to withstand a motion to
dismiss.’”

Doe v. Virginia Dep’t of State Police, 713 F.3d 745,

754 (4th Cir. 2013) (quoting Catholic League for Religious and
Civil Rights v. City and Cnty. of S.F., 624 F.3d 1043, 1080 (9th
Cir.

2010)).

The

Court

must

also

experience and common sense.’”
186,

193

(4th

Cir.

2009)

draw

upon

“‘its

judicial

Francis v. Giacomelli, 588 F.3d

(quoting

Iqbal,

556

U.S.

at

679).

Moreover, although the Supreme Court has reiterated the importance
of affording pro se litigants the benefit of liberal construction,
Erickson v. Pardus, 551 U.S. 89, 94 (2007), the Fourth Circuit has
“not read Erickson to undermine [the] requirement that a pleading
contain more than labels and conclusions[,]” Giarratano v. Johnson,
521 F.3d 298, 304 n.5 (4th Cir. 2008) (internal quotation marks
omitted) (dismissing pro se complaint).
A

motion

to

amend that

seeks to add

additional parties

implicates both Federal Rules of Civil Procedure 15 and 20. Hinson
v. Norwest Fin. S.C., Inc., 239 F.3d 611, 618 (4th Cir. 2001) (“[A]
court determining whether to grant a motion to amend to join
additional plaintiffs must consider both the general principles of
amendment provided by Rule 15(a) and also the more specific joinder
provisions of Rule 20(a).”); see also Aleman v. Chugach Support
Servs., Inc., 485 F.3d 206, 218 n.5 (4th Cir. 2007) (affirming the
denial of the plaintiffs’ motions to amend and add a defendant,

7

citing Hinson); Whitfield v. Jenkins, No. 5:10-CT-3151-D, 2012 WL
214467, at *2 (E.D.N.C. Jan. 24, 2012) (unpublished) (analyzing a
motion to amend to include new defendants under Rule 20). Finally,
if a litigant seeks leave to amend after the applicable deadline in
a scheduling order, then Federal Rule of Civil Procedure 16(b)(4)
requires a demonstration of good cause.

Nourison Rug Corp. v.

Parvizian, 535 F.3d 295, 298 (4th Cir. 2008).
Because
complaints,

Plaintiff
at

has

different

submitted
times

two

different

relative

to

the

amended

applicable

scheduling order deadline, and has sought to add a party as well,
a variety of different analyses must apply.

Plaintiff timely

submitted the proposed third amended complaint, so only Rule
15(a)(2) (and Rule 20, as concerns the addition of a party) applies
thereto,

but

Plaintiff

submitted

the

proposed

fourth

amended

complaint after the scheduling order’s deadline, so both Rules
15(a)(2) and 16(b)(4) govern it.
amended

complaint,

the

In regards to the proposed third

applicable

addition of Allstate as a defendant.

joinder

rules

preclude

the

Further, the FCRA preempts

the NCUDTPA claim, and the civil conspiracy claim fails to allege
factual matter showing a common agreement and a sufficient injury.
As to the proposed fourth amended complaint, Plaintiff has failed
to show good cause for leave to amend after the scheduling order
deadline, and his claims remain futile.

8

A. Third Amended Complaint
i.

Allstate

Because Plaintiff seeks to add a new defendant (Allstate), the
Court must consider the joinder requirements of Rule 20 as part of
the Rule 15 analysis. See Hinson, 239 F.3d at 618; Whitfield, 2012
WL 214467, at *2.

Rule 20 permits the joinder of defendants when

“(A) any right to relief is asserted against [Defendants] jointly,
severally, or in the alternative with respect to or arising out of
the same transaction, occurrence, or series of transactions or
occurrences; and (B) any question of law or fact common to all
[D]efendants will arise in the action.”
(emphasis added).

Fed. R. Civ. P.

20(a)(2)

This standard requires a case by case analysis,

designed to permit the trial of all reasonably related claims in
one proceeding.

See Saval v. BL Ltd., 710 F.2d 1027, 1031 (4th

Cir. 1983).
Plaintiff’s proposed third amended complaint raises entirely
new

and

separate

occurrences

where,

allegations

against

Allstate

allegedly,

Allstate

related

improperly

to

requested

Plaintiff’s credit report from Trans Union. (Docket Entry 68-1, ¶¶
100-11.) Plaintiff’s allegations against Allstate bear no relation
to Plaintiff’s disputes with Defendants Bank of America or Equifax.
(Compare Docket Entry 68-1, ¶¶ 8-24 with 100-11.)

In fact, now

that Trans Union no longer remains a defendant (see Docket Entry
81),

no

connection

whatsoever

exists

9

between

Defendants

and

Allstate.

As such, Plaintiff does not assert a right to relief

against all Defendants that arises from the “same transaction,
occurrence, or series of transactions or occurrences[,]” so Rule
20(a)(2) does not permit Allstate’s joinder.

See Whitfield, 2012

WL 214467, at *2 (“Rule 20(a)(2) does not provide a license to join
multiple defendants into a single lawsuit where the claims against
the defendants are unrelated.”).

Accordingly, the Court denies

Plaintiff’s request to join Allstate as a Defendant.
ii. The NCUDTPA claim
“The FCRA is a comprehensive statutory scheme designed to
regulate the consumer reporting industry.”
F.3d 808, 812 (4th Cir. 2010).

Ross v. F.D.I.C., 625

In order to ensure a standard set

of regulations and to avoid a “patchwork system of conflicting
regulations” for the consumer reporting industry, Congress enacted
15 U.S.C. § 1681t(b). Id. at 813. Section 1681t(b)(1)(F) provides
that “[n]o requirement or prohibition may be imposed under the laws
of any State . . . with respect to any subject matter regulated
under . . . section 1681s–2 of this title, relating to the
responsibilities of persons who furnish information to consumer
reporting agencies.”

This statute preempts state statutory claims

against those who furnish information to credit reporting agencies.
See Ross, 625 F.3d at 813 (“Because Ross’s NCUDTPA claim seeks to
use § 75–1.1 as a ‘requirement or prohibition’ under North Carolina
law concerning ‘subject matter regulated under section 1681s–2,’ it

10

is squarely preempted by the plain language of the FCRA.”); Johnson
v. MBNA Am. Bank Nat’l Ass’n., No. Civ. 1:05CV00150, 2006 WL
618077, at *6-9 (M.D.N.C. Mar. 9, 2006) (unpublished) (holding that
section 1681t preempts only state statutory claims, and granting
summary judgment against plaintiff’s NCUDTPA claim as preempted).
Just like in Ross and Johnson, the plain language of section
1681t(b)(1)(F)

preempts

Plaintiff’s

proposed

NCUDTPA

claim.6

Accordingly, Plaintiff’s proposed NCUDTPA claim is futile.
iii. Civil Conspiracy
In North Carolina, a claim for civil conspiracy must show
“‘(1) an agreement between two or more individuals; (2) to do an
unlawful act or to do a lawful act in an unlawful way; (3)
resulting in injury to plaintiff inflicted by one or more of the
conspirators; and (4) pursuant to a common scheme.’” Strickland v.
Hedrick, 194 N.C. App. 1, 19, 669 S.E.2d 61, 72 (2008) (quoting
Privette v. University of N.C., 96 N.C. App. 124, 139, 385 S.E.2d
185, 193 (1989)).

In this case, the facts do not suggest a

coordinated effort or common agreement to injure Plaintiff, and
thus the Plaintiff has failed to state a claim upon which relief
can be granted.

See Henderson v. LeBauer, 101 N.C. App. 255, 261,

399 S.E.2d 142, 145 (“The existence of a conspiracy requires proof

6

Plaintiff previously conceded that preemption might bar his
NCUDTPA claim against former Defendant Dell Financial Services.
(See Docket Entry 52 at 11.) The Court (per Judge Eagles) analyzed
the issue, accepted his concession, and dismissed the claim. (See
Docket Entry 55 at 7-8).
11

of an agreement between two or more persons.”).
For example, Plaintiff alleges that, while disputing his
liability on the credit card, Defendant Bank of America confirmed
Plaintiff’s liability to Defendant Equifax, and that Defendant
Equifax continued to report it on his credit.
¶¶ 16, 23.)
harmed

(Docket Entry 68-1,

Although these allegations assert that each party

Plaintiff

–

Defendant

Bank

of

America

by

wrongfully

reporting him liable and Defendant Equifax by wrongfully displaying
that information on his credit report – the conduct does not
necessarily give rise to an inference of a common agreement to harm
Plaintiff.

Cf. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57

(2007) (holding that in regard to a violation of the Sherman Act:
“[A]n allegation of parallel conduct and a bare assertion of
conspiracy will not suffice. Without more, parallel conduct does
not suggest conspiracy . . . .”).
Further,

in

other

respects,

Plaintiff’s

allegations

demonstrate that Defendants Bank of America and Equifax actually
worked against each other.

Plaintiff admits that he requested

Defendant Bank of America to remove him from the credit card, and
that Defendant Bank of America complied.
11.)

(Docket Entry 68-1, ¶

Despite that removal, Plaintiff alleges that Defendant

Equifax continued to report him as an authorized user.

12

(Id., ¶ 14-

Later, after the closing of that credit card account,7

15.)

Defendant Equifax and only Defendant Equifax continued to report
the card on Plaintiff’s credit report.

(Id.)

This activity does

not indicate a common agreement.
Moreover, Plaintiff alleges that only one Defendant caused the
injury, i.e., that either (1) Equifax did not send Defendant Bank
of America the credit card dispute to verify the information, or
(2) Defendant Equifax did send the dispute and Defendant Bank of
America did not conduct a reasonable investigation.

(Id., ¶ 16.)

Accordingly, any wrongful activity occurred at the hands of one
party and not both – either Defendant Bank of America never
received the dispute, and the fault lies with Defendant Equifax, or
Defendant Bank of America received the dispute and provided false
information, such that Defendant Bank of America bears fault. Such
circumstances refute the notion that a common agreement existed
between Defendants Bank of America and Equifax to injure Plaintiff.
Beyond

the

foregoing,

allegations of a conspiracy.
“Defendants

Equifax

conspiracy

to

and

injure

Plaintiff

offers

only

conclusory

For example, Plaintiff states that

[Bank

of

consumers

America] have

engaged

such

Plaintiff

as

the

in

a
by

agreement[,]” and “[t]he wrongful acts done by Equifax and [Bank of
America] in furtherance of their conspiracy injured the Plaintiff.”

7

Plaintiff does not state who closed the account.
Entry 68-1, ¶ 15.)
13

(Docket

(Id., ¶¶ 172, 173.)

These allegations lack sufficient factual

support, as seen above, to rise above the level of speculative.
Taken as a whole, the proposed third amended complaint does not
plausibly suggest a common agreement to injure Plaintiff.

Absent

a common agreement, no conspiracy claim can proceed.
In addition, Plaintiff has failed to allege that he suffered
any injury as a result of the conspiracy.

Plaintiff asserts only

that the conspirators intended he suffer damage to his credit,
reputation, or receive higher costs for financing than he otherwise
would have, without alleging factual matters showing that he
actually suffered any of those injuries.

(Id., ¶ 176.)

Because

Plaintiff has not alleged that he actually suffered an injury, he
lacks a crucial element of a conspiracy, and has failed to state a
claim.

See Dove v. Harvey, 168 N.C. App. 687, 691, 608 S.E.2d 798,

801 (2005) (“‘[U]nless something is actually done by one or more of
the conspirators which results in damage, no civil action lies
against anyone.’” (quoting Henderson, 101 N.C. App. at 260, 399
S.E.2d at 145 (1991))).
In sum, Plaintiff’s allegations do not sufficiently nudge his
proposed conspiracy claim across the line from conceivable to
plausible.

See Twombly, 550 U.S. at 570. Accordingly, Plaintiff’s

proposed civil conspiracy claim is futile.

14

B. Fourth Amended Complaint
Plaintiff has failed to show good cause sufficient to justify
allowing him to amend his pleadings upon motion made after the
applicable scheduling order deadline.

“[A]fter the deadlines

provided by a scheduling order have passed, the good cause standard
must be

satisfied

to

justify

leave

Nourison Rug Corp., 535 F.3d at 298.
cause falls on the moving party.
85 (M.D.N.C. 1987).
movant’s diligence.

to

amend

the

pleadings.”

The burden of showing good

Forstmann v. Culp, 114 F.R.D. 83,

This good cause analysis focuses on the
West Virginia Hous. Dev. Fund v. Ocwen Tech.

Xchange, Inc., 200 F.R.D. 564, 567 (S.D. W. Va. 2001).
In this case, Plaintiff has made no showing of good cause.
Rather, Plaintiff has attempted to unilaterally circumvent the
scheduling

order

by

requesting

his

proposed

fourth

amended

complaint replace his proposed third amended complaint in order to
overcome Defendant Bank of America’s initial objections.
Docket Entry 73 at 5.)

(See

Plaintiff neither has given any reason for

failing to include his new factual allegations in his proposed
third amended complaint, nor has he shown any reason for his
failure to obtain this information prior to the deadline in the
scheduling order. (Id.) Plaintiff has not demonstrated good cause
sufficient

for

this

Court

to

grant

his

motion

to

amend

his

complaint for the fourth time.
Having failed to show good cause, this Court need not evaluate

15

whether Plaintiff’s proposed last amendment meets Rule 15(a)(2)’s
standard.

See Forstmann, 114 F.R.D. at 85 (“If the party shows

‘good cause’ to the court's satisfaction, the party must then
demonstrate that leave to amend is proper under Federal Rule of
Civil Procedure 15.”).

However, even assuming that good cause

existed, a review of the proposed fourth amended complaint proves
that the amendment is futile.

First, the FCRA still preempts the

NCUDTPA claim. Second, Plaintiff has still failed to state a claim
for civil conspiracy.
As mentioned above, a civil conspiracy claim requires evidence
of a resulting injury to the plaintiff.
139, 385

S.E.2d

at

193.

Plaintiff’s

Privette, 96 N.C. App. at
proposed

third amended

complaint failed to adequately allege that he suffered an injury as
a result of Defendants’ actions, and the proposed fourth amended
complaint fails similarly.

The proposed fourth amended complaint

states:
Equifax and [Bank of America] knew that taking adverse action
against the owner and then reporting the credit card account
with a balance that exceeded the credit limit would give the
appearance the Plaintiff was irresponsibly managing his
credit, lower his credit score, damage his credit reputation
and portray him as a high risk to creditors. . . . Equifax and
[Bank of America] knew that reporting the account negatively
and continuing to report the account adversely would lower the
Plaintiff’s credit score and cause him to pay higher costs for
financing or not seek financing due to the negative reporting.
(Docket Entry 73, ¶¶ 27-28).
These allegations focus on what might have happened and not on
what did happen.

Absent the attendant injury, no claim for civil
16

conspiracy can proceed.
at 801.

See Dove, 168 N.C. App. at 691, 608 S.E.2d

As such, the civil conspiracy claim in the fourth amended

complaint is futile.
CONCLUSION
The additional claims in Plaintiff’s proposed third amended
complaint fail as futile, and because Rule 20(a)(2) does not permit
joinder of Allstate as a defendant.

Plaintiff has not shown good

cause for his belated proffer of a fourth amended complaint and,
alternatively, its new claims remain futile.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Substitute
Party Defendant (Docket Entry 67) is GRANTED and that FIA Card
Services, N.A. replace Defendant Bank of America.
directed

to

modify

the

Caption

of

this

case

to

The Clerk is
reflect

the

substitution.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to
Amend and Join Allstate as Party Defendant (Docket Entry 68) and
Motion to Substitute His Proposed Third Amended Complaint (Docket
Entry 73) are DENIED.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
September 26, 2014

17