United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE
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
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).
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).
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.
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.
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).
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,
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,
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) ...