Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Boston v. Capital One Auto Finance, Inc.

United States District Court, W.D. North Carolina, Charlotte Division

July 26, 2018

REGINA BOSTON, Plaintiff,
v.
CAPITAL ONE AUTO FINANCE, INC., Defendant.

          ORDER

          DAVID C. KEESLER UNITED STATES MAGISTRATE JUDGE

         THIS MATTER IS BEFORE THE COURT regarding “Defendant's Motion For Partial Dismissal Of Complaint” (Document No. 9); pro se Plaintiff's “…Motion For Leave To File Amended Complaint” (Document No. 12); and “Defendant's Motion To Strike Or Disregard Plaintiff's Surreply To Defendant's Motion For Partial Dismissal Of Plaintiff's Amended Complaint” (Document No. 18). These motions have been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b), and immediate review is appropriate. Having carefully considered the motions, the record, and applicable authority, the undersigned will direct that the pending motions be granted in part and denied in part.

         BACKGROUND

         Pro se Plaintiff Regina Boston (“Plaintiff” or “Boston”) initiated this action with the filing of her “Complaint” (Document No. 1) against Defendant Capital One Auto Finance, Inc. (“Defendant” or “COAF”) on March 28, 2018. The original Complaint asserts claims for violations of: (1) the Telephone Consumer Protection Act - 47 U.S.C. § 227(b)(1)(A)(iii); and (2) the North Carolina Debt Collection Act - N.C. Gen.Stat. §58-70, et seq. (Document No. 1, pp. 4-6).

         “Defendant's Motion For Partial Dismissal Of Complaint” (Document No. 4) was filed on April 30, 2018, seeking dismissal of Plaintiff's Count II claim for violations of the North Carolina Debt Collection Act. (Document Nos. 4 and 4-1). Plaintiff then timely filed a “Verified Amended Complaint” (Document No. 7) (“Amended Complaint”) on May 17, 2018, and the Court, therefore, ordered that “Defendant's Motion For Partial Dismissal Of Complaint” (Document No. 4) be denied as moot. See (Document No. 8).

         Plaintiff's Amended Complaint asserts claims for violations of: (1) the Telephone Consumer Protection Act, 47 U.S.C. § 227(b)(3) and 28 U.S.C. § 1331 (“TCPA”); (2) the North Carolina Debt Collection Act, § 75-1.1, et seq. (“NCDCA”); and (3) the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”). (Document No. 7, pp. 1, 5- 9).[1]

         On May 31, 2018, Defendant's second “…Motion For Partial Dismissal Of Complaint” (Document No. 9) was filed, seeking dismissal of both claims labeled as “Count II.” (Document Nos. 9 and 9-1). On June 18, 2018, “Plaintiff's Memorandum In Opposition To Defendant's Partial Motion To Dismiss” (Document No. 11) and “Plaintiff's Motion For Leave To File Amended Complaint” (Document No. 12) were filed with the Court. “Defendant's Reply Brief…” (Document No. 13) was filed on June 25, 2018; and then, without leave of the Court, Plaintiff filed a surreply - “Plaintiff's Reply To Defendant's Motion For Partial Dismissal Of Plaintiff's Amended Complaint” (Document No. 15) -on July 9, 2018.[2]

         “Defendant's Response To Plaintiff's Motion For Leave To File Amended Complaint” (Document No. 14) was filed on June 29, 2018, opposing the proposed amendment as futile. Defendant then filed its “…Motion To Strike Or Disregard Plaintiff's Surreply To Defendant's Motion For Partial Dismissal Of Plaintiff's Amended Complaint” (Document No. 18) on June 17, 2017.

         Most recently, pro se Plaintiff filed a “Notice Of Voluntary Dismissal Of Counts II and II Of Plaintiff's Amended Complaint and Motion For Leave To File” (Document No. 20). The Court construes this latest filing as Plaintiff's voluntary dismissal of the second and third claims in the Amended Complaint alleging violations of the North Carolina Debt Collection Act, § 75-1.1, et seq. and the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”); as well as a withdrawal of “Plaintiff's Motion For Leave To File Amended Complaint” (Document No. 12). See (Document No. 20 and Document No. 7, pp. 1, 5- 9).

         Based on the foregoing, there appears to be a consensus between the parties that the only remaining claim is Plaintiff's claim for violation of the Telephone Consumer Protection Act. See (Document No. 9; Document No. 20; and Document No. 7, pp. 1, 5- 9).

         STANDARD OF REVIEW

         Federal Rule of Civil Procedure 15 applies to the amendment of pleadings and allows a party to amend once as a matter of course within 21 days after serving, or “if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed.R.Civ.P. 15(a)(1). Rule 15 further provides:

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.