Opinion
CIVIL ACTION NO. 3:03-CV-0912-G
September 25, 2003
MEMORANDUM ORDER
On August 12, 2003, defendant MBNA America Bank, N.A. ("MBNA") filed a motion for judgment on the pleadings, pursuant to FED. R. CIV. P. 12(c), on the claims brought against it by the plaintiff Stella H. Boley ("Boley"), executrix of the estate of Robert L. Boley. Although this motion is currently under advisement, the court cannot fully address it without considering the new allegations contained in Boley's opposition and brief opposing defendant's motion for judgment on the pleadings ("opposition brief"). For the reasons stated below, the court grants Boley leave to file an amended complaint within twenty (20) days of this order, during which time MBNA's motion for judgment on the pleadings will be held in abeyance.
In her opposition brief, Boley alleges for the first time that because MBNA failed to correct the false information furnished to the credit reporting agencies ("CRAs"), those agencies continued to send false, derogatory information to potential creditors. These new, conclusory allegations require the court to assume that later ( i.e., post-May 1999) republications took place within (or otherwise comply with) the two-year statute of limitations provided in the Fair Credit Reporting Act, 15 U.S.C. § 1681p (2003). However, because these new allegations are found in a document outside of the pleadings, they cannot be entertained when considering a Rule 12(c) dismissal. See St. Paul Ins. Co. v. AFIA Worldwide Ins. Co., 937 F.2d 274, 279 (5th Cir. 1991).
In her complaint, ¶ 10, Boley alleges that MBNA "willfully, and without any justification, refused to correct [her] credit reports." Later, in her opposition brief, at 2, Boley alleges that, "as a consequence" of MBNA's refusal to correct the alleged the credit reports, "false, derogatory information concerning Boley's credit continued to be sent by the CRA's to potential creditors."
The republication of false credit information is an important factor in the disposition of this case. Interpreting the FCRA in Young v. Equifax Credit Information Services, Inc., the Fifth Circuit determined that "the republication of [false] credit information resulting in a new denial of credit constitutes a distinct harm and thus gives rise to a cause of action that is separate from that arising from the original publication." 294 F.3d 631, 636 (5th Cir. 2002) (emphasis added). See also Hyde v. Hibernia Nat. Bank, 861 F.2d 446, 449-50 (5th Cir. 1988) (describing each issuance of a false credit report as a "discrete event" and a "distinct and separate injury"), cert. denied, 491 U.S. 910 (1989). Accordingly, the court must treat each publication of the false credit information furnished by MBNA as a distinct and separate injury, and Boley must establish each injury through sufficient factual allegations. For example, Boley must allege that, (1) within the FRCA limitations period, (2) a CRA republished the false credit information furnished by MBNA, and (3) that the republication resulted in a new denial of credit.
In the interests of justice, the court will construe the new allegations set forth in Boley's opposition brief as a motion to amend her pleadings out of time. See Sherman v. Hallbauer, 455 F.2d 1236, 1242 (5th Cir. 1972) (holding that, where the plaintiffs — in their memorandum in opposition to summary judgment — switched the legal theory on which they based their case, the district court should have construed the memorandum as a motion to amend the pleadings). Accordingly, prior to reaching MBNA's motion for judgment on the pleadings, the court GRANTS Boley leave to file an amended complaint, within twenty (20) days of this order, alleging with greater particularity the factual basis of these new allegations. See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971) ("It is settled that the grant of leave to amend the pleadings pursuant to Rule 15(a) is within the discretion of the trial court."); FED. R. ClV. P. 15(a) (providing that leave to amend pleadings "shall be freely given when justice so requires"). At the expiration of twenty (20) days, the court will consider MBNA's motion for judgment on the pleadings.
SO ORDERED.