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Raley v. Bank of America, N.A.

United States District Court, N.D. Alabama, Southern Division

November 25, 2014

FREDDIE S. RALEY, Plaintiff,


WILLIAM M. ACKER, Jr., District Judge.

Before the court are two motions filed by defendants Bank of America, N.A., and FIA Card Services, N.A. ("the Bank"), [1] seeking dismissal of the above-entitled action: (1) a motion for judgment on the pleadings filed on August 27, 2014; (Doc. 10); and (2) a motion to strike or in the alternative to dismiss filed on September 29, 2014 (Doc. 19). In Raley's latest response, he seeks leave to amend his complaint, and for a remand of the case to the state court. (Doc. 21). This court will construe both of Raley's such requests as motions. For the reasons articulated below, Raley's quasi-motion for leave to amend will be granted, the Bank's motion for judgment on the pleadings will be denied as moot, the Bank's motion to strike will be denied, the Bank's motion to dismiss will be granted in part and denied in part, and Raley's quasi-motion for remand will be granted.


Raley is an 83-year-old disabled military veteran, and a resident of Jefferson County, Alabama. (Doc. 12 at 1, ¶ 1). Beginning in 2010, the Bank began contacting Raley regarding two credit card accounts that he claims never to have opened. (Doc. 12 at 2, ¶¶ 5-6). Raley hired an attorney, who wrote to the Bank saying unequivocally that Raley never opened the subject accounts and demanding that all further communications regarding the accounts be directed to the attorney and not to Raley. (Doc. 12 at 2-3, ¶¶ 7-9). The Bank, however, continued to contact Raley directly, threatening referral of the matter to a collection agency and litigation if Raley did not pay. (Doc. 12 at 3, ¶¶ 12-13). Various threats and responses ensued through late 2013, directed either to Raley or his attorney. (Doc. 12 at 4-5, ¶¶ 14-23).

In January 2014, Raley received a Form 1099-C from the Bank, stating that it had reported to the IRS and to the Alabama Department of Revenue a forgiveness of the debt owed by Raley in the amount of $7, 454.07, potentially resulting in a significant increase in Raley's income tax liability. (Doc. 12 at 5, ¶ 24). Raley's attorney once again contacted the Bank, to which the Bank replied, "If you believe there was fraud associated with this account, please call our Fraud Department...." (Doc. 12 at 5-6, ¶¶ 25-26).

Raley commenced this action in the Circuit Court of Jefferson County, Alabama, on April 2, 2014. The original complaint presents four causes of action: (1) violation of the federal Fair Debt Collection Practices Act; (2) state-law negligence; (3) state-law private nuisance; and (4) state-law wantonness. The Bank removed the action to this court on May 7, 2014, invoking the court's federal question jurisdiction pursuant to 28 U.S.C. § 1331, as well as its supplemental jurisdiction under 28 U.S.C. § 1367. The Bank moved for judgment on the pleadings on August 27, 2014. In response, Raley filed an amendment to his complaint without seeking leave. Subject to his belated motion to remand, Raley now seeks to advance five causes of action: (1) violation of 26 U.S.C. § 7434; (2) state-law negligence; (3) state-law wantonness; (4) state-law defamation; and (5) state-law statutory negligence (based on various federal statutes).

The Bank moves to strike the amendment to complaint as improperly filed, or in the alternative, to dismiss the action. In Raley's response, he seeks leave to amend the complaint, as well as for an order remanding the action to the state court.


A. The Bank's Motion to Strike and Raley's Motion for Leave to Amend

In response to the Bank's motion for judgment on the pleadings, Raley filed an amendment to his complaint on September 9 (Doc. 12), although he did not request leave from the court to do so. With narrow exceptions not here present, all amendments, even if within the time period to amend pleadings set out in the scheduling order, may only occur with the opposing party's consent or with the court's leave. Fed.R.Civ.P. 15(a)(2); see also Hoover v. Blue Cross & Blue Shield of Ala., 855 F.2d 1538, 1544 (11th Cir. 1988) ("In general, if an amendment that cannot be made as of right is served without obtaining the court's leave or the opposing party's consent, it is without legal effect and any new matter it contains will not be considered unless the amendment is resubmitted for the court's approval.") (quoting 6 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1485 (1971)).

Without having sought and having obtained leave to amend, Raley's purported amended complaint should not be considered, and the Bank's motion to strike would be well taken. Raley, however, now seeks leave to amend in his response filed on October 9, which this court will construe as a motion for leave to amend his complaint. (Doc. 21). Fed.R.Civ.P. 15(a)(2) states that "[t]he court should freely give leave when justice so requires." The Bank argues that this court should not grant leave because it would be futile to do so. "Denial of leave to amend is justified by futility when the complaint as amended is still subject to dismissal.'" Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999) (quoting Halliburton & Assocs. v. Henderson, Few & Co., 774 F.2d 441, 444 (11th Cir. 1985)). "In other words, denial on grounds of futility is essentially a holding that the proposed amended complaint fails to state a claim upon which relief can be granted...." SFM Holdings, Ltd. v. Banc of America Securities LLC, 764 F.3d 1327, 1344 (11th Cir. 2014). Because the motion to strike essentially employs the same standard as the Bank's motion to dismiss, the court will deny the motion to strike and will grant Raley's motion for leave to amend.

B. The Bank's Motion for Judgment on the Pleadings

"As a general matter, [a]n amended pleading supersedes the former pleading; the original pleading is abandoned by the amendment, and is no longer a part of the pleader's averments against his adversary.'" Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1243 (11th Cir. 2007) (quoting Dresdner Bank AG v. M/V Olympia Voyager, 463 F.3d 1210, 1215 (11th Cir. 2006)). Because Raley's claims in his original complaint have now been abandoned or superseded, the Bank's motion for judgment on the pleadings is due to be denied as moot, because it relates only to Raley's original complaint. See Washington v. Potter, No. 1:09-CV-1774-JOF-RGV, 2010 WL 2635647, *1 n.1 (N.D.Ga. Apr. 16, 2010) ("Since ...

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