Fillmore v. Equifax Information Services, LLC et al
ORDER DENYING 17 Motion for Leave to File, DENYING 18 Motion to Strike, GRANTING 19 Motion for Extension of Time to File Response/Reply; Plaintiff's response is due on or before July 31, 2017. Signed by Judge Robert Pitman. (jf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
MACEL CAROLYN FILLMORE,
EQUIFAX INFORMATION SERVICES,
LLC and ELAN FINANCIAL SERVICES,
Before the Court in the above-entitled matter are Plaintiff Macel Carolyn Fillmore’s
(“Plaintiff”) Motion for Leave to File an Amended Complaint, (Dkt. 17); Motion to Strike, (Dkt.
18), and Motion for Extension of Time, (Dkt. 19). Having reviewed the filings and responses
thereto, relevant law, and the case file, the Court hereby issues the following Order.
The above-entitled action, which alleges negligent or willful violations of the Fair Credit
Reporting Act (“FCRA”), was filed in this Court on September 6, 2016. (Dkt. 1). Defendant Equifax
Information Services, LLC (“Equifax”) filed its Answer on December 8, 2016, (Dkt. 8), and a
Motion for Judgment on the Pleadings on January 26, 2017, (Dkt. 12). Defendant Elan Financial
Services (“Elan”) filed a Motion to Dismiss on January 20, 2017. (Dkt. 11). Instead of responding to
the motions filed by Equifax and Elan, Plaintiff filed a Motion for Leave to File an Amended
Complaint, (Dkt. 17); a Motion to Strike, (Dkt. 18); and a Motion for Extension of Time, (Dkt. 19).
Defendants object, contending that the proposed amendment is futile. (Elan Resp., Dkt. 28, at 2;
Equifax Resp., Dkt. 24, at 7).
II. LEGAL STANDARD
Federal Rule of Civil Procedure 15(a)(2) permits leave to amend “when justice so requires.”
The Rule “evinces a bias in favor of granting leave to amend.” Dussouy v. Gulf Coast Inv. Corp., 660
F.2d 594, 597 (5th Cir. 1981); Herrmann Holdings Ltd. v. Lucent Techs. Inc., 302 F.3d 552, 566 (5th Cir.
2002). However, leave to amend “is by no means automatic.” Davis v. United States, 961 F.2d 53, 57
(5th Cir. 1991). A district court may deny leave to amend if it has a “substantial reason” to do so.
Lyn-Lea Travel Corp. v. Am. Airlines, Inc., 283 F.3d 282, 286 (5th Cir. 2002). Futility of amendment is a
substantial reason, and a proposed amendment is futile if it fails to state a claim upon which relief
could be granted such that it would be subject to dismissal. Stripling v. Jordan Prod. Co., LLC, 234 F.3d
863, 872–73 (5th Cir. 2000). That standard provides that a complaint “must provide the [plaintiffs’]
grounds for entitlement to relief—including factual allegations that when assumed to be true ‘raise a
right to relief above the speculative level.’” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). That is, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
Plaintiff’s proposed Amended Complaint seeks relief under the Fair Credit Reporting Act
(“FCRA”). (Prop. Am. Compl., Dkt. 17-1, at 1 (citing 15 U.S.C. § 1681)). Specifically, she alleges that
Equifax and Elan (collectively, “Defendants”) “are reporting an account that contains negative and
derogatory information on Plaintiff’s credit report, even though she is not obligated or financially
responsible for paying the account,” (id. ¶ 7); that Equifax “did not follow reasonable procedures to
assure maximum possible accuracy and has been reporting false and inaccurate information even
after it has known or should have known the information was correct,” (id. ¶ 26); that Elan “did not
provide a good faith investigation into the disputed authorized user account, (id. ¶ 27); and that
Defendants’ alleged violations of the FCRA were both willful and negligent, (id. ¶ 39).
Plaintiff’s proposed Amended Complaint alleges minimal new facts. It instead incorporates
new legal arguments, many of which appear to be responses to arguments made by Defendants in
their Motion for Judgment on the Pleadings and Motion to Dismiss. (See, e.g., Prop. Am. Compl.,
Dkt. 17-1, ¶¶ 60–64 (a section titled “Statute of Limitations” that raises many of the legal issues
discussed below). Having reviewed those legal arguments, the Court concludes that Plaintiff’s
request for leave to file her Amended Complaint should be denied as futile.
Defendants argue that Plaintiff’s claims are barred by the limitations provision of the FCRA,
which provides that any action brought under the Act must be brought either within two years after
the date of the plaintiff’s discovery of the violation or within five years after the date on which the
violation occurred, whichever arises first. 15 U.S.C. § 1681p(1); (Elan Resp., Dkt. 28, at 3–4; Equifax
Resp., Dkt. 24, at 3–4). Because Plaintiff’s proposed Amended Complaint “does not plead new facts
to cure the limitations bar” but instead “makes legal arguments based on opinions issued prior to the
2003 amendments to the FCRA statute of limitations that [applies] to this case,” Defendants assert,
Plaintiff’s motion should be deemed futile and denied. (Elan Resp., Dkt. 28, at 6; Equifax Resp.,
Dkt. 24, at 6).
Plaintiff’s Complaint alleges that she complained of inaccurate information on her credit
report via a letter dated August 11, 2014 (“the Letter”). (Compl., Dkt. 1, ¶¶ 32–42). The Letter
states, in relevant part, that
Ms. Fillmore was NOT a signer, obligor or accommodation party to . . . the
accounts. Ms. Fillmore was merely an Authorized User of these accounts. Ms.
Fillmore has made an attempt with your company to have the Authorized User
accounts removed from her personal credit history. Both accounts remain on her
personal credit file.
(Letter, Dkt. 11, at 9). Based on that text, Defendants argue that Plaintiff had “discover[ed] the facts
that give rise to [her] claim” by, at the latest, August 2014. See Mack v. Equable Ascent Fin., LLC, 748
F.3d 663, 665 (5th Cir. 2014) (applying the “general approach under the discovery rule that a
limitations period begins to run when a claimant discovers the facts that give rise to a claim”). As
Plaintiff’s original Complaint was not filed until September 6, 2016, (Dkt. 1), Defendants assert, her
claims are therefore barred by the two-year applicable statute of limitations. In her proposed
Amended Complaint, Plaintiff argues that the FCRA provides a private right of action for
consumers only once a data furnisher fails to provide a good faith and reasonable investigation into
a consumer’s dispute of reported information. (Prop. Am. Compl., Dkt. 17-1, at 27). The relevant
date, according to Plaintiff, is therefore the date she received the results of the investigation
undertaken by Defendants: September 16, 2014.
But for the text of the Letter, the Court would agree with Plaintiff. However, the Letter
indicates that Plaintiff had previously “made an attempt with [Defendants] to have the Authorized
User accounts removed from her personal credit history.” (Letter, Dkt. 11, at 9). While the Letter
does not specify whether Plaintiff received a response from Defendants following her earlier dispute
notice, it represents—at a minimum—a second notice of Plaintiff’s dispute. Because “additional
report[s] cannot restart the limitations clock,” the date of Defendants’ response to the Letter is
immaterial. See Bittick v. Experian Info. Sols., Inc., 419 F. Supp. 2d. 917, 919 (N.D. Tex. 2006)
(explaining that holding otherwise “would allow plaintiffs to indefinitely extend the limitations
period by simply sending another complaint letter to the credit reporting agency”). 1
In her Amended Complaint, Plaintiff also argues that “the transmission of the same credit report is a separate and
distinct tort to which a separate statute of limitations applies.” (Prop. Am. Compl., Dkt. 17-1, at 29 (citing Hyde v.
Hibernia Nat’l Bank in Jefferson Par., 861 F.2d 446, 449–50 (5th Cir. 1988)). As Defendants note, however, the Fifth Circuit
case law cited by Plaintiff predates the 2003 version of the FCRA. Subsequent opinions by that Court suggest that a
second dispute notice does not restart the limitations period. See Mack, 748 F.3d at 665; Bittick, 419 F. Supp. 2d. at 919.
Plaintiff’s proposed Amended Complaint fails to state a claim upon which relief could be
granted and is therefore futile. Her Motion for Leave to File an Amended Complaint, (Dkt. 17),
should be and is hereby DENIED. Her Motion to Strike, (Dkt. 18), which was predicated on the
Court’s acceptance of her Amended Complaint, is also DENIED.
While much of the legal analysis contained in the instant Order applies equally to Plaintiff’s
original Complaint (and, therefore, Defendants’ Motion for Judgment on the Pleadings and Motion
to Dismiss), the Court will permit Plaintiff to respond to those dispositive motions based on the
facts alleged in her original Complaint. Plaintiff’s Motion to Extend Time, (Dkt. 19), is therefore
GRANTED. Plaintiff’s response is due on or before July 31, 2017.
SIGNED on July 17, 2017.
UNITED STATES DISTRICT JUDGE
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