Roberson v. Equifax Information Services LLC et al

Filing 37

MEMORANDUM AND ORDER denying 35 Motion to Vacate Dismissal and for Leave to File Second Amended Class Action Complaint.(Signed by Judge Nancy F Atlas) Parties notified.(TDR, 4)

United States District Court
Southern District of Texas

ENTERED
April 04, 2017

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TRENT AVERY ROBERSON,
Plaintiff,
v.
EQUIFAX INFORMATION
SERVICES, LLC, et al.,
Defendants.

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David J. Bradley, Clerk

CIVIL ACTION NO. H-16-3319

MEMORANDUM AND ORDER
This case is before the Court on the Motion to Vacate Dismissal and for Leave
of Court to File Second Amended Class Action Complaint (“Motion”) [Doc. # 35]
filed by Plaintiff Trent Avery Roberson, to which Defendants Equifax Information
Services, LLC, Equifax Inc., Experian Information Solutions, Inc., Experian PLC, and
Trans Union LLC filed a Response [Doc. # 36]. Plaintiff neither filed a reply nor
requested additional time to file one. The Court has again reviewed the full record
and the applicable legal authorities. Based on that review, the Court denies Plaintiff’s
Motion.
I.

BACKGROUND
Plaintiff in his Amended Complaint alleged that Defendants sold consumer

reports “under Plaintiff’s name to third parties for profit.” See Amended Complaint
[Doc. # 17], ¶ 36. Plaintiff alleged that he did not consent to Defendants’ use of his
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name for commercial purposes. See id., ¶ 37. Plaintiff asserted that this conduct
violated his “right to publicity and misappropriation” under Texas law. See id., ¶ 44.
Defendants filed a Motion to Dismiss, which the Court granted by
Memorandum and Order [Doc. # 33] and Final Dismissal Order [Doc. # 34] entered
February 28, 2017. Plaintiff then filed his Motion, asking the Court to vacate the
dismissal order and permit him to file a Second Amended Complaint as a class action.
The Motion is now ripe for decision.
II.

STANDARD FOR RECONSIDERATION
Although Plaintiff filed his Motion within twenty-eight days after entry of the

Court’s Final Dismissal Order, he seeks relief only pursuant to Rule 60(b)(6) of the
Federal Rules of Civil Procedure. Rule 60(b)(6) provides that, “[o]n motion and just
terms, the court may relieve a party or its legal representative from a final judgment,
order, or proceeding for . . . any other reason that justifies relief.” FED. R. CIV.
P. 60(b)(6). Rule 60(b)(6) is a “residual or catch-all provision to cover unforeseen
contingencies.” Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 357 (5th Cir.
1993).

However, relief is appropriate “only if extraordinary circumstances are

present.” Hesling v. CSX Transp., Inc., 396 F.3d 632, 642 (5th Cir. 2005). “In
determining whether extraordinary circumstances are present, a court may consider
a wide range of factors. These may include, in an appropriate case, ‘the risk of
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injustice to the parties’ and ‘the risk of undermining the public’s confidence in the
judicial process.’” Buck v. Davis, __ U.S. __, 137 S. Ct. 759, 778 (Feb. 22, 2017)
(quoting Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 863-864
(1988)).
III.

ANALYSIS
In his two-page Motion, Plaintiff quotes Rule 60(b)(6), but fails to allege

extraordinary circumstances that would justify the requested relief from the Court’s
Final Dismissal Order. Indeed, Plaintiff failed to present any legal or factual basis for
Rule 60(b)(6) relief. Nonetheless, the Court has again reviewed its Memorandum and
Order and finds that it is correct and proper. The Motion to Vacate Dismissal is
denied.
Plaintiff also cites Rule 15(a)(2) regarding amendments to pleadings.
Rule 15(a)(2) provides that a party may amend his pleading with consent or leave of
Court. Plaintiff concedes that he has already filed an Amended Complaint, and that
Defendants have not given consent to the filing of a Second Amended Complaint.
Plaintiff fails to present any legal or factual basis for post-dismissal leave to file a
Second Amended Complaint as a class action. The proposed Second Amended
Complaint, like the first Amended Complaint, lacks factual allegations that suggest
Plaintiff’s name has value associated with it, an essential element of a privacy claim
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under Texas law. As a result, the Court denies Plaintiff’s request for post-judgment
leave to file the Second Amended Complaint.
IV.

CONCLUSION AND ORDER
Plaintiff has failed to present a legal or factual basis for relief pursuant to Rule

60(b)(6) or under Rule 15(a)(2). Accordingly, it is hereby
ORDERED that Plaintiff’s Motion to Vacate Dismissal and for Leave of Court
to File Second Amended Class Action Complaint [Doc. # 35] is DENIED.
SIGNED at Houston, Texas, this 4th day of April, 2017.

NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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