United States District Court, N.D. Alabama, Northeastern Division
FRANCES D. COPE, Plaintiff,
HYUNDAI MOTOR FINANCE, et al., Defendants.
MEMORANDUM OPINION AND ORDER
K. KALLON UNITED STATES DISTRICT JUDGE
Cope brings claims against Hyundai Motors Finance, Equifax
Information Services LLC, Trans Union, LLC, and Experian
Information Solutions, Inc., alleging violations under the
Fair Credit Reporting Act, 15 U.S.C. § 1681, et
seq. (“FCRA”). See generally docs.
1; 21; 50. The court has for consideration motions to dismiss
from Experian, doc. 8, Hyundai, doc. 28, and Trans Union,
doc. 45, which are fully briefed, docs. 27; 39; 52; 53; 54;
56, and ripe for review, and multiple filings by Cope. For
the reasons stated more fully below, the motions to dismiss
are due to be granted.
initial matter, Cope has filed two motions to strike
dismissal, docs. 49; 51, five amendments to her complaint,
docs. 21; 25; 50; 59; 61, and two identical surreplies to
Trans Union's motion to dismiss, docs. 58 and 60. First,
as to the motions to strike dismissal, doc. 49; 51, the court
construes the first, doc. 49, to be Cope's contention
that she believes she has valid claims against Trans Union.
Similarly, the second motion to strike, doc. 51, is
Cope's contention that she believes she has valid claims
against all Defendants. As the court informed Cope
previously, such a contention is not a proper matter for a
motion. See doc. 48 (“Plaintiff's motions
not to dismiss Experian Information Services, doc. 38, and
Hyundai Motor Finance, doc. 39, are basically Cope's
contention that she believes she has valid claims against
these two defendants, and are not proper matters for a
motion.”). Therefore, these motions are DENIED. The
court will treat these filings as Cope's response to the
motions to dismiss.
Cope's amendments to her complaint submitted in docs. 21
and 50, where, inter alia, Cope corrects the names
of Defendants Experian and Trans Union, are GRANTED.
as to Cope's amendments submitted in docs. 25; 59; and
61, the court reminds Cope of Fed.R.Civ.P. 15(a), which
restricts Cope to amend her pleading “once as a matter
of course” within “21 days after serving
it” or “21 days after service of a responsive
pleading or 21 days after service of a motion under Rule
12(b), (e), or (f), whichever is earlier.” Thereafter,
Cope may only amend “with the opposing party's
written consent or the court's leave.” Fed.R.Civ.P.
15(a)(2). As a result, after her first amendment to her
complaint, doc. 21, which she properly filed within 21 days
of the first responsive pleading entered in this case, to
file any subsequent amended complaints, docs. 25; 59; 61,
Cope needed to obtain written consent from Defendants or seek
the court's leave. In light of Cope's failure to do
so, the subsequent amended complaints, docs. 25; 59; 61, are
STRICKEN from the record. Accordingly, Trans Union's motion
to dismiss or, in the alternative, strike, doc. 63,
Hyundai's motion to strike or, alternatively, dismiss,
doc. 68, and Cope's motion to dismiss amendments, doc.
71, are GRANTED.
as to Cope's identical surreplies, docs. 58 and 60, Cope
previously filed multiple responses to Trans Union's
motion to dismiss, see docs. 49; 53; 54, and now,
without seeking leave of court to file additional briefings,
Cope filed the surreplies at issue after the briefing
schedule deadlines had passed, see doc. 47. Cope has
presented no valid reason as to why she could not have
included the information presented in her surreplies in her
previous responses. See generally docs. 58 and 60.
“Surreplies typically will be permitted only in unusual
circumstances, such as where a movant raises new arguments or
facts in a reply brief, or where a party wishes to inform the
Court of a new decision or rule implicating the motion under
review.” Coker v. Enhanced Senior Living,
Inc., 897 F.Supp.2d 1366, 1373 (N.D.Ga. 2012). After
all, “[t]o allow such surreplies as a regular practice
would put the court in the position of refereeing an endless
volley of briefs.” Garrison v. Ne. Georgia Med.
Ctr., Inc., 66 F.Supp.2d 1336, 1340 (N.D.Ga. 1999),
aff'd sub nom. Garrison v. Ne. Georgia Med.
Ctr., 211 F.3d 130 (11th Cir. 2000). Accordingly, Trans
Union's motion to strike, doc. 64, is GRANTED, and
Cope's surreplies, docs. 58 and 60, are STRICKEN from the
Cope's original complaint, doc. 1, with the accompanying
amendments submitted through docs. 21 and 50, constitute the
complaint against which the court will assess Defendants'
motions to dismiss.
MOTIONS TO DISMISS
Complaint, Cope pleads that she had an automobile installment
account with Hyundai Motors. Doc. 1 at 22. After three years
without any issues, although Cope paid all of her payments
timely, Hyundai started charging Cope late fees. See
generally doc. 1. Following a complaint Cope filed with
the Consumer Financial Protection Bureau (CFPB), Hyundai
removed the late fees. Id. at 22. However, Hyundai
has continued to charge Cope unwarranted late fees, see
Id. (“I have to constantly go back and obtain my
bank records and fax to them to straighten out.”).
Moreover, Hyundai has reported incorrectly to Equifax that
Cope's payments are late, id. at 6, 22, and
despite Cope's request to Equifax, Equifax has failed to
disallow Hyundai from reporting the false late payments.
pleads also that Equifax is “constantly reporting
inaccurate information.” Id. at 6. Despite
sending Equifax a letter stating that her Hyundai account was
“paid in full from the dealership, ” Equifax
“totally removed” the account instead of
correcting the alleged inaccurate information and showing the
account as “paid in full” as Cope had requested.
Id. at 6-7. These actions negatively affected
Cope's credit score. Id. at 7.
Cope pleads that Experian and Trans Union have also reported
information inaccurately “and did not remove within the
last year, ” despite Cope disputing her Credit file.
See id.; see also doc. 21.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a)(2), a pleading must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations, ' but it
demands more than an unadorned, the-defendant-unlawfully-
harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Mere “labels
and conclusions” or “a formulaic recitation of
the elements of a cause of action” are insufficient.
Iqbal, 556 U.S. at 678 (citations and internal
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