United States District Court, M.D. Pennsylvania
BOB E. MOHLER, Plaintiff,
SYNCHRONY BANK, et al., Defendants.
REPORT AND RECOMMENDATION
E. Schwab, Chief United States Magistrate Judge.
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.
Background and Procedural History.
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.
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. 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. 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. 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.
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.
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.
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.
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.
Under the rules of this Court, Mohler should be deemed not to
oppose the motion to dismiss.
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 ...