United States District Court, W.D. North Carolina, Statesville Division
ORDER OF TRANSFER
COGBURN, JR. UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on defendant Reunion
Student Loan Finance Corporation's
(“SLFC's”) Motion to Dismiss or to Transfer
Venue and Plaintiff's Motion for Leave to File Surreply.
While the Court will deny leave to file the Surreply, the
Court has considered the substantive arguments in the
plaintiff's supporting Brief (#26-1) herein as such Brief
sets forth the substance of plaintiff's rebuttal to the
Reply. Having considered the parties' motions and
reviewed the accompanying pleadings, the Court enters the
action, plaintiff alleges violations of the Fair Credit
Reporting Act (“FCRA”) arising out of three
student loans that plaintiff received in 2004. Plaintiff
applied for three “Goal II” loans with U.S. Bank
through its education loan servicer, SLFC, to assist in
payment of tuition, fees, and expenses to the McNally
Smith College of Music in St. Paul, Minnesota.
denies receiving money through loans from SFLC and contends
that such defendant has harmed her credit score. She has also
sued the three major credit reporting firms. In doing so,
plaintiff claims SLFC, and in turn the credit reporting
agencies, have cost her housing and employment opportunities,
as well as created significant economic and personal stress
in her life. In response, SLFC denies wrongdoing and argues
that plaintiff did receive money through the aforementioned
loans, the proceeds of which went directly to her music
instant motion, SLFC asserts that the loan applications and
promissory notes contained a forum selection clause
identifying the State of South Dakota as the venue for any
action arising from the promissory notes. Defendants also
argue that any claims against them are barred by an
applicable statute of limitations. Defendants have proffered
evidence of the loans through exhibits containing loan
documentation for every transaction, including records of
Electronic Funds Transfers being made to the school by the
Plaintiff's Objection to SLFC's Exhibits
the Court can address SLFC's substantive motions, it must
first discuss plaintiff's contention that SLFC's
exhibits should not be considered as they are inadmissible as
hearsay as they have not been accompanied by affidavits
proving their authenticity as business records.
consideration of documents extraneous to the Complaint is
well within the discretion of the Court when considering a
Motion to Transfer Venue. Jacobs Vehicle Sys., Inc. v.
Zhou Yang, 1:12cv181 at *6 (M.D. N.C. Sept. 10, 2013).
The Court agrees with plaintiff, however, that SLFC failed to
accompany Exhibit A to its Supporting Brief (the loan
applications and promissory notes) with an affidavit from the
records keeper, see (#17-2), or accompany Exhibits A
& B to its Reply (TIL disclosures and EFT records) with
affidavits from the records keeper. See (#25-1 and
#25-2). Further, this Court is cognizant of the fact that in
the context of motions for summary judgment, unsworn,
unauthenticated documents cannot be considered, Orsi v.
Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993), inasmuch as
at the summary judgment stage, “documents must be
authenticated by and attached to an affidavit that meets the
requirements of Rule 56(e).” 10A Charles A. Wright et
al., Federal Practice and Procedure § 2722, at 58-60
(1983 & 1993 Supp.).
there is a pending Motion to Dismiss, SLFC's exhibits are
being considered only on the Motion to Transfer Venue, which
is a non-dispositive motion that does not go to the merits of
the claims. Because such exhibits are only being considered
in determining venue, they are only offered to prove whether
a valid and enforceable agreement exists between these
parties as to venue, an agreement which immaterial to the
substantive allegations of the Complaint which concern fair
credit reporting. Because these exhibits are not offered to
prove the truth of the matters asserted in them, they are not
inadmissible hearsay under Federal Rule of Evidence 801(c);
rather, they are clearly relevant to the Motion to Transfer
Venue. Venable v. Rug Renovating Co., Inc., CIV. A.
90-1378, 1990 WL 124294, at *3 (E.D. La. Aug. 9, 1990). In
addition, there is no plausible contention that these
documents are inauthentic.
be discussed below, the EFTs have only been considered on the
issue of where the last act occurred, a determination
necessary in considering whether North Carolina's public
policy against forum selection clauses applies. The loan
applications and promissory notes have been considered only
to the extent they evince the forum selection clause at issue
and to determine whether requiring litigation in South Dakota
creates a grave hardship for plaintiff. The Court will
consider these exhibits only for those reasons and has not
considered those materials in connection with SLFC's
Motion to Dismiss. Plaintiff's objection is, therefore,
overruled. Whether a transferee court will consider those
exhibits in conjunction with a Motion to Dismiss is not
reached by this Court.
Standard of Review
reviewing a motion to dismiss for failure to state a claim
pursuant to Rule 12(b)(6), the Fourth Circuit has directed
that courts “take facts in the light most favorable to
the Plaintiff, ” but has cautioned that courts
“need not accept the legal conclusions drawn from the
facts” or “unwarranted inferences, unreasonable
conclusions, or arguments.” Giarratano v.
Johnson, 521 F.3d 298, 302 (4th Cir. 2008).
In order to survive a motion to dismiss, a complaint
“must contain sufficient factual ...