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Cope v. Hyundai Motor Finance

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

July 7, 2017

FRANCES D. COPE, Plaintiff,
v.
HYUNDAI MOTOR FINANCE, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          ABDUL K. KALLON UNITED STATES DISTRICT JUDGE

         Frances 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.

         I. COPE'S FILINGS

         As an 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.

         Second, 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.

         Third, 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.[1] 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.

         Finally, 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 record.

         Consequently, 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.

         II. MOTIONS TO DISMISS[2]

         In her 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. Id.

         Cope 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.

         Similarly, 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.

         III. STANDARD OF REVIEW

         Under 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 quotation marks ...


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