United States District Court, E.D. Pennsylvania
ESTATE OF JAMES C. RENNICK SR.,
UNIVERSAL CREDIT SERVICES, LLC
MEMORANDUM RE: MOTION TO STRIKE
action arises out of a credit report issued by Defendant
Universal Credit Services, LLC, which allegedly included
false reports from two major credit reporting agencies
stating that James C. Rennick, Sr. was deceased when he was
still alive. Plaintiff, the Estate of Mr. Rennick, alleges
that because of the erroneous credit report, Mr. Rennick was
denied a home equity line of credit.
filed a First Amended Complaint (ECF 15, “FAC”)
more than 21 days after Defendant filed a Motion to Dismiss
the original Complaint without seeking agreement from
opposing counsel or leave of this Court. Presently before
this Court is Defendant's Motion to Strike the FAC under
Federal Rule of Civil Procedure 15(a). For the reasons
discussed below, the Motion is GRANTED.
Factual Background and Procedural History
Court provided a detailed summary of the factual allegations
in its prior Opinion granting in part and denying in part
Defendant's Motion to Dismiss the original complaint.
(ECF 8 at 2-3.) As the FAC does not add factual
allegations, the Court does not repeat the factual background
filed the original Complaint in this case on September 10,
2018 (ECF 1). The original Complaint advanced eight Counts:
violations of the Fair Credit Reporting Act
(“FCRA”), 16 U.S.C. § 1681, et seq.
(Count I); intentional infliction of emotional distress
(“IIED”) (Count II); intrusion upon seclusion
(Count III); negligence (Count IV); negligent infliction of
emotional distress (“NIED”) (Count V); defamation
(Count VI); gross negligence (Count VII); and slander of
credit (Count VIII).
October 30, 2018, Defendant moved to dismiss Counts II, III,
V, and VI of the Complaint for failure to state a claim under
Rule 12(b)(6) (ECF 2), to which Plaintiff filed a Response on
November 27, 2018 (ECF 6). The Court granted the Motion, with
prejudice, as to Counts II, III, and V: the IIED, intrusion
upon seclusion, and NIED claims (ECF 8, 9). The Court denied
the Motion with respect to Plaintiff's defamation claim
(Count VI). (Id.) As a result, only Counts I, IV,
VI, VII, and VIII remained: the FCRA, negligence, defamation,
gross negligence, and slander of credit claims.
the Court ruled on the Motion to Dismiss, Defendant filed an
Answer to the Complaint on February 4, 2019 (ECF 12).
Following a pretrial conference on the same date, the Court
issued a Scheduling Order stating that “[a]ny Motion to
Amend the Complaint shall be filed as soon as
possible.” (ECF 14.)
February 22, 2019, Plaintiff filed the FAC (ECF 15). The FAC
eliminated Counts II and III of the original Complaint: the
IIED and intrusion upon seclusion claims. The FAC retains all
other claims, including NIED, which the Court previously
dismissed with prejudice. The FAC does not include new
factual allegations but advances additional legal allegations
in five of the six remaining Counts: the FCRA, NIED,
negligence, gross negligence, and slander of credit claims.
There are no additional allegations in support of the
16, 2019, Defendant filed the instant Motion to Strike the
FAC, arguing that Plaintiff was not permitted to file an
amended Complaint as a matter of course because more than 21
days had passed since Defendant filed the Motion to Dismiss
(ECF 20, “Mot.”). Defendant contends that the FAC
is a “rogue document” that must be stricken from
the docket because Plaintiff did not file a motion for leave
to amend or seek written agreement from Defendant, as
required by Rule 15(a)(2). (Id. at
filed a Response in Opposition on July 30, 2019 (ECF 25,
“Resp.”). Plaintiff contends that the FAC should
not be stricken under Rule 15(a)(1) because it was filed on
February 22, 2019, fewer than 21 days after Defendant filed
an Answer to the original Complaint on February 4, 2019.
(Id. at 1, 5.) Alternatively, Plaintiff requests
that this Court permit Plaintiff leave to file the FAC under
Rule 15(a)(2) because Defendant failed to demonstrate
prejudice from the amendment. (Id. at 1-5.)
also filed a Motion to Compel discovery responses on July 25,
2019 (ECF 21), which Plaintiff withdrew (ECF 26). On the same
date, the parties participated in a settlement conference
before Magistrate Judge Strawbridge (ECF 23).
subsequently filed a Motion to Quash Subpoena on August 13,
2019 (ECF 29). Plaintiff has also filed an unopposed Motion
for a Continuance of current pretrial and trial dates (ECF
31). Following an unrecorded telephone conference on August
22, 2019 to ...