Leek v. Frost Bank et al

Filing 9

Order 8 Accepting Findings and Recommendations. The court certifies that any appeal of this action would not be taken in good faith. (Ordered by Judge Sam A. Lindsay on 12/28/2020) (axm)

Case 3:18-cv-01446-L-BN Document 9 Filed 12/28/20

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DAVID W. LEEK,
Plaintiff,
v.
FROST BANK and FRIDGE &
RESENDEZ, LLC,
Defendants.

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Civil Action No. 3:18-cv-1446-L

ORDER
On September 30, 2020, United States Magistrate Judge David L. Horan entered the
Findings, Conclusions, and Recommendation of the United States Magistrate Judge (“Report”)
(Doc. 8), recommending that the court dismiss with prejudice this action filed by pro se Plaintiff
David W. Leek (“Plaintiff”) 1 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim
upon which relief may be granted. Specifically, he determined that, with respect to Plaintiff’s
claims against Defendant Fridge & Resendez, LLC (“F & R”) for violations of Section 1692g of
the Fair Debt Collection Practices Act (“FDCPA”), Plaintiff failed to set forth sufficient
allegations—even after an opportunity to amend based on his responses to the court’s
questionnaire 2—to demonstrate that F & R is a “debt collector” as defined under the FDCPA.
Thus, Magistrate Judge Horan determined that the absence of such allegations is fatal to Plaintiff’s
FDCPA claim, and, accordingly, he recommends that the court dismiss this claim with prejudice,
as further leave to amend would be futile.

1

Magistrate Judge Horan granted Plaintiff leave to proceed in forma pauperis on June 6, 2018. Doc. 5.

2

Plaintiff responded to the court’s questionnaire requesting additional information on July 9, 2018. See doc. 7.

Order – Page 1

Case 3:18-cv-01446-L-BN Document 9 Filed 12/28/20

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With respect to Plaintiff’s claims against Frost Bank for violations of Sections 1681s-2 and
1681o of the Fair Credit Reporting Act (“FCRA”), Magistrate Judge Horan determined that
Plaintiff failed to set forth any allegation, even after responding to the court’s questionnaire, that
Frost Bank, as a furnisher of information to consumer reporting agencies, failed to comply with
Section 1681s-2(b) of the FCRA after receiving notice from a credit reporting agency, as required
to receive relief under the Act. Report 9, 11-12. Thus, Magistrate Judge Horan determined that
Plaintiff’s claims against Frost Bank should also be dismissed with prejudice, as a further leave to
amend would be futile. No objections to the Report were filed, and the time to do so has passed.
Having reviewed the pleadings, file, record in this case, and Report, the court determines
that the findings and conclusions of the Magistrate Judge are correct and accepts them as those of
the court. The court also agrees that allowing Plaintiff another opportunity to amend would be
futile and would unnecessarily delay the resolution of this action. Foman v. Davis, 371 U.S. 178,
182 (1962); Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 566 (5th Cir. 2003) (citation
omitted). Accordingly, the court dismisses with prejudice this action pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted.
The court prospectively certifies that any appeal of this action would not be taken in good
faith. See 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). In support of this certification, the
court accepts and incorporates by reference the Report. See Baugh v. Taylor, 117 F.3d 197, 202
and n.21 (5th Cir. 1997). Based on the Report, the court finds that any appeal of this action would
present no legal point of arguable merit and would, therefore, be frivolous. Howard v. King, 707
F.2d 215, 220 (5th Cir. 1983). In the event of an appeal, Plaintiff may challenge this certification
by filing a separate motion to proceed in forma pauperis on appeal with the clerk of the United
States Court of Appeals for the Fifth Circuit. See Baugh, 117 F.3d at 202; Fed. R. App. P. 24(a)(5).

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Case 3:18-cv-01446-L-BN Document 9 Filed 12/28/20

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It is so ordered this 28th day of December, 2020.
_________________________________
Sam A. Lindsay
United States District Judge

Order – Page 3