United States District Court, W.D. North Carolina, Charlotte Division
LASHUNDA R. KORNEGAY, individually and on behalf of all others similarly situated, Plaintiff,
H & R ACCOUNTS, INC., Defendant.
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE
MATTER is before the Court upon Defendant H & R Accounts,
Inc.'s (“H & R”) Motion to Dismiss
Plaintiff's Complaint (Doc. No. 8). Plaintiff amended her
complaint (Doc. No. 10), and H & R has filed a separate
Motion to Dismiss Plaintiff's Amended Complaint (Doc. No.
13). The motions to dismiss are ripe for review.
a general rule, ‘an amended pleading ordinarily
supersedes the original and renders it of no legal
effect.'” Young v. City of Mount Ranier,
238 F.3d 567, 572 (4th Cir. 2001) (quotation omitted);
see also Brown v. Phillips, 2018 WL 576307, at *2
(W.D. N.C. Jan. 26, 2018). Because H & R filed its
original Motion to Dismiss (Doc. No. 8) prior to the filing
of the amended complaint, it must be DENIED AS MOOT.
remaining motion, H & R moves that the Court dismiss
Plaintiff's Amended Complaint under Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure. The Court
has reviewed the pleadings and arguments in the briefs. In
light of precedent from the Fourth Circuit in Ben-Davies
v. Blibaum & Associates, P.A., 695 Fed.Appx. 674
(4th Cir. 2017), and Moore v. Blibaum & Associates,
P.A., 693 Fed.Appx. 205 (4th Cir. 2017), the Court finds
Plaintiff has standing to prosecute this case.
Ben-Davies, 695 Fed.Appx. at 676-77 (“This was
not a case where the plaintiff simply alleged ‘a bare
procedural violation [of the FDCPA], divorced from any
concrete harm.' Spokeo, Inc. [v.
Robbins, U.S., 136 S.Ct. 1540, 1549 (2016)]. . . . [A]s
a ‘direct consequence' of [Defendant's] alleged
violations of the FDCPA's proscribed practices, she
‘suffered and continues to suffer' actually
existing intangible harms that affect her personally:
‘emotional distress, anger, and
frustration.'”) (alteration in original in part and
added in part); see also Moore, 693 Fed.Appx. at 206
(holding allegations of emotional distress, anger and
frustration are sufficient injury to bring a claim based on
alleged violations of the FDCPA). Here, Plaintiff has
likewise alleged “emotional distress, anger and
frustration.” (Doc. No. 10, ¶¶ 49, 66, 79,
103, 160, 210). Thus, to the extent Defendant's motion to
dismiss is based on lack of Article III standing, the motion
is DENIED WITH PREJUDICE.
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the
legal “sufficiency of a complaint” but
“does not resolve contests surrounding the facts, the
merits of a claim, or the applicability of defenses.”
Republican Party of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992); E. Shore Mkts, Inc. v. J.D. Assocs.
Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). A
complaint attacked by a Rule 12(b)(6) motion to dismiss will
survive if it contains “enough facts to state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 697 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007));
see also Robinson v. American Honda Motor Co., Inc.,
551 F.3d 218, 222 (4th Cir. 2009). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. “Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.
The Supreme Court has also opined that
Federal Rule of Civil Procedure 8(a)(2) requires only
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Specific facts are
not necessary; the statement need only “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” In addition, when ruling
on a defendant's motion to dismiss, a judge must accept
as true all of the factual allegations contained in the
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)
(alteration in original) (internal citations omitted)(quoting
Twombly, 550 U.S. at 555-56). With these standards
in mind, the Court finds that Plaintiff has alleged
sufficient factual content to allow an inference that the
Defendant is liable for Plaintiffs injury. Thus,
Defendant's Motion as it pertains to Rule 12(b)(6) is
DENIED without prejudice. Defendant is free to raise the
issues set forth in the Motion again at summary judgment.
THEREFORE ORDERED that Defendant's original Motion to
Dismiss (Doc. No. 8) is DENIED AS MOOT and Motion to Dismiss
Plaintiffs Amended Complaint (Doc. No. 13) is DENIED ...