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Johnson v. Trans Union LLC

United States District Court, Third Circuit

May 21, 2013

MARK JOHNSON, Plaintiff,
v.
TRANS UNION LLC, Defendant.

MEMORANDUM

ROBERT F. KELLY SENIOR JUDGE

Presently before the Court is the Defendant, Trans Union LLC’s, Motion to Dismiss Plaintiff’s Second Amended Complaint and Request for Sanctions. For the reasons set forth below, we strike Plaintiff’s Second Amended Complaint and, alternatively, grant Defendant’s Motion to Dismiss. We deny Defendant’s Request for Sanctions.

I.PROCEDURAL BACKGROUND

On March 22, 2013, the Court dismissed Plaintiff’s pro se Amended Complaint (“First Amended Complaint”) for failure to comply with the requirements of Federal Rule of Civil Procedure 8 because it did not show that Plaintiff is entitled to relief.[1] See Johnson v. Trans Union, No. 12-5272, 2013 WL 1187063, at *2 (E.D. Pa. Mar. 22, 2013). The dismissal was without leave to amend “since amendment would be futile because Plaintiff’s Amended Complaint is completely lacking in arguable legal merit.”[2] Id. Although the Court dismissed the Amended Complaint without leave to amend, Plaintiff filed a pro se second Amended Complaint (“Second Amended Complaint”) on April 8, 2013. (Doc. No. 17.)

The Second Amended Complaint is difficult to decipher and appears to be more of a response to a nonexistent motion to dismiss than a complaint. (Id.) Similar to the First Amended Complaint, Plaintiff’s Second Amended Complaint consists of generalized accusations of racial socialism and intentional discrimination by Defendant, as well as a recitation of statutes and case law regarding Plaintiff’s four counts. (Id.) Notably, Plaintiff’s “Statement of Facts” section does not include a factual account of what occurred between himself and Defendant that forms the basis of his claims. (Id. at 3.) For instance, it states: “Violations creating personal injry [sic] are dure [sic] to improper reporting of plaintiff’s credit score to the public and private sector causing him suppression thru [sic] fraud and fiar [sic] credit equality denying him credi [sic] upon his business and personal lifet [sic].” (Id.)

In his Second Amended Complaint, Plaintiff states that “[n]o referral[s] are to be made of any previous original complaint.” (Second Am. Compl. at 3.) However, the Second Amended Complaint improperly relies upon prior complaints filed by Plaintiff. See Snyder v. Pascack Valley Hosp., 303 F.3d 271, 276 (3d Cir. 2002) (“An amended complaint supercedes the original version in providing the blueprint for the future course of the lawsuit.”); 6 Charles Alan Wright et al., Federal Practice and Procedure § 1476 (2d ed. 1990) (“Once an amended pleading is interposed, the original pleading no longer performs any function in the case.”). Since the Second Amended Complaint would supercede the First Amended Complaint, the Court examined the Second Amended Complaint on its own without reference to any other complaints. See id.

Plaintiff’s Second Amended Complaint alleges the following causes of action: Count I -the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq.; Count II - the Federal Trade Commission Act (“FTC”), 15 U.S.C. § 45; Count III - the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 Pa. Stat. § 201-1, et seq.; and federal criminal law, 18 U.S.C. § 1343 (Wire Fraud).

On April 25, 2013, Defendant filed a Motion to Dismiss Plaintiff’s Second Amended Complaint and Request for Sanctions. As of today’s date, Plaintiff has not filed a response. For the reasons below, we strike Plaintiff’s Second Amended Complaint and, alternatively, grant Defendant’s Motion to Dismiss. We deny Defendant’s Request for Sanctions.

II.DISCUSSION

A. Second Amended Complaint is Stricken

For the following reasons, Plaintiff’s Second Amended Complaint is stricken. Pursuant to Federal Rule of Civil Procedure 15 Rule 15(a), “[a] party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 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.” Fed.R.Civ.P. 15(a)(1). “In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). Since Plaintiff already filed an Amended Complaint, any subsequent amendment required leave of court or the written consent of Defendant. See Id. Plaintiff has neither received leave of court nor Defendant’s written consent to file the Second Amended Complaint. Thus, Plaintiff’s Second Amended Complaint is stricken since he has not complied with Rule 15. See Bifulco v. Smithkline Beecham, No. 06–3567, 2007 WL 2726146, at *2–3 (E.D. Pa. Sept. 18, 2007) (striking pro se Plaintiff’s Second and Third Amended complaints for failure to comply with Federal Rule of Civil Procedure 15).

B. Dismissal of Second Amended Complaint

1. Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.

Even if Plaintiff’s Second Amended Complaint was not stricken, it would be subject to dismissal. Count I alleges that Defendant violated the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. Although Plaintiff’s Second Amended Complaint does not set forth cohesive factual allegations regarding the parties’ actions pursuant to the FCRA, it appears that he is alleging that Defendant willfully violated the FCRA. For example, he alleges that Defendant “purposefully with malice intent violat[ed] ...


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