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Mohler v. Synchrony Bank

United States District Court, M.D. Pennsylvania

April 29, 2019

BOB E. MOHLER, Plaintiff,
v.
SYNCHRONY BANK, et al., Defendants.

          Mariani, Judge.

          REPORT AND RECOMMENDATION

          Susan E. Schwab, Chief United States Magistrate Judge.

         I. Introduction.

         The plaintiff Bob Mohler claims violations under the Fair Credit Reporting Act (“FCRA”). Defendant Synchrony Bank (“Synchrony”) filed a motion to dismiss Mohler's second amended complaint. Despite being ordered to do so, Mohler has not responded to this motion. In fact it appears that Mohler has abandoned this action. Accordingly, after analyzing the applicable Poulis factors, we conclude that the Court should dismiss this case based on Mohler's failure to prosecute this action. In the alternative, we recommend that the Court grant Synchrony's motion to dismiss.

         II. Background and Procedural History.

         On December 11, 2017, Mohler, proceeding pro se, began this action by filing a complaint naming Synchrony as the defendant. See Doc. 1 at 1. He also filed an application for leave to proceed in forma pauperis, which we granted. Doc. 3. Following dismissal of the original complaint and an amended complaint, Mohler filed his second amended complaint on September 6, 2018. Doc. 26.

         In the second amended complaint, Mohler brings three counts under the FCRA against Synchrony. Doc. 26. In the caption of the complaint, Mohler also lists as defendants “Does 1 thru 5.” Id. at 1. But he makes no allegations in the body of the second amended complaint regarding any Doe defendants, nor does he direct any cause of action against them. In Count One, citing 15 U.S.C. § 1681s-2(a), Mohler alleges that Synchrony violated the FCRA by failing to conduct a proper investigation of his dispute and that it failed to direct the consumer reporting agencies to delete inaccurate information. Id. at 2-4. He seeks “$630, 000.00 for these violations. Id. at 4.[1] In Count Two, Mohler again cites provisions of 15 U.S.C. § 1681s-2(a) as well as 15 U.S.C. § 1681n, which provides for civil liability for willful noncompliance with the FCRA. He again seeks the same specific sum of unliquidated damages as he did in count one. Id. at 5.[2] In Count Three, Mohler cites to 15 U.S.C. § 1681o, which provides generally for civil liability for negligent noncompliance with the FCRA. He seeks “$50, 000 in punitive/liability damages.” Id. at 6.[3] Mohler alleges that although he has never been late on a payment, Synchrony reported negative information to credit reporting agencies. Id. In a section titled “Summary, ” Mohler alleges that he contacted Synchrony twice to resolve his issue prior to filing suit and that Synchrony failed to comply with the FCRA. Id. He seeks removal of all derogatory information from his credit reports, and “[a] written statement indicating that this will never be reported now or in the future in [his] credit report.” Id.

         Synchrony filed a motion to dismiss the second amended complaint and a brief in support of that motion on September 20, 2018. Docs. 28, 29. In Synchrony's brief in support of its motion to dismiss the second amended complaint, it contends that Mohler fails to state a claim, and the brief includes two dispute letters that Mohler sent to Synchrony. Doc. 29. In each letter, Mohler states he found a “line of credit reporting derogatory information” and that he “[does] not recall ever having this account and I wish to dispute this.” Doc.29-1 at 3, 5. Synchrony responded with letters indicating that it reviewed Mohler's record and verified that it had reported the record correctly. Id. at 8, 11. Synchrony asserts that these letters indicate Mohler's allegations are without merit. Doc. 29 at 5. It also claims that Mohler fails to allege facts that show Synchrony acted “willfully” in violation of the FRCA. Id. Additionally, Synchrony asks the court to strike those portions of Mohler's second amended complaint that request attorney's fees and specific amounts for unliquidated damages. Id.

         We ordered Mohler to file a brief in opposition to the motion to dismiss on or before October 9, 2018. Doc. 30. Mohler failed to file a brief in opposition.

         Generally, a dispositive motion may not be granted merely because it is unopposed. But when a plaintiff fails to prosecute an action or fails to comply with a court order, the Court may dismiss the action under Fed.R.Civ.P. 41(b). Here, because Mohler failed to file a brief in opposition to Synchrony's motion to dismiss, we thought that Mohler may have abandoned this lawsuit. And so, by an Order dated January 28, 2019, we ordered Mohler to show cause why this action should not be dismissed under Fed.R.Civ.P. 41(b) because he has failed to prosecute this action. Doc. 31.

         Mohler has failed to respond to the order to show cause. His last contact with the court in this case was the filing of his second amended complaint in September 2018.

         III. Discussion.

         A. Under the rules of this Court, Mohler should be deemed not to oppose the motion to dismiss.

         At the outset, under the Local Rules of this court, Mohler should be deemed not to oppose the motion to dismiss since he has failed to timely oppose the motion. Local Rule 7.6 imposes an affirmative duty on a litigant to respond to motions and provides that “[a]ny party who fails to comply with this rule shall be deemed not to oppose such motion.” At the time that he filed his complaint, Mohler received a copy of ...


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