United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
(Doc. # 11)
Victoria A. Roberts United States District Judge
PREMIER Bank (”First PREMIER”) filed a Motion to
Dismiss (Doc. # 11) (“Motion”) Tania
Alexander's (“Alexander”) complaint for
failure to state a claim upon which relief can be granted.
Alexander says she discovered that someone fraudulently made
unauthorized charges to her First PREMIER account. She
alleges that she contacted First PREMIER to dispute the
transaction. After almost a year there was no resolution.
sued First PREMIER for: 1) fraud; 2) violation of the Credit
Services Protection Act (“CSPA”), M.C.L. §
445.1821; and 3) violation of the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. § 1681.
Court issued an order on December 18, 2017, ordering
Alexander to either file an amended complaint or a response
to First PREMIER's motion by January 8, 2018. (Doc. #
14). Alexander did not exercise either option.
PREMIER's Motion is GRANTED.
Motion to Dismiss
motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the legal
sufficiency of the complaint. RMI Titanium Co. v.
Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir.
1996). A court must “construe the complaint in the
light most favorable to the plaintiff, accept its allegations
as true, and draw all reasonable inferences in favor of the
plaintiff.” Directv, Inc. v. Treesh, 487 F.3d
471, 476 (6th Cir. 2007). A complaint must contain sufficient
factual matter to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
claim is plausible on its face “when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556).
complaint “must contain something more ... than ... a
statement of facts that merely creates a suspicion [of] a
legally cognizable right of action.” Twombly,
550 U.S. at 555 (citations omitted). Indeed, “a
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Id.; see also Iqbal, 556 U.S. at 678
(“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.”). Moreover, the Court is “not bound to
accept as true a legal conclusion couched as a factual
allegation.” Iqbal, 556 U.S. at 678 (citation
Failure to Respond
Eastern District of Michigan's local court rules required
Alexander to file a response if she opposed First
PREMIER's Motion. See E.D. Mich. LR 7.1(c)(1)
(“[a] respondent opposing a motion must file a
response, including a brief and supporting documents then
available”); E.D. Mich. LR 7.1(e)(1)(B) (“[a]
response to a dispositive motion must be filed within 21 days
after service of the motion”).
a plaintiff fails to respond or to otherwise oppose a
defendant's motion, then the district court may deem the
plaintiff to have waived opposition to the motion.”
Humphrey v. United States AG Office, 279 Fed.Appx.
328, 331 (6th Cir. 2008) (internal citations and quotations
omitted). Although a court is within its discretion to
consider a defendant's motion unopposed due to a
plaintiff's lack of timely response, a court could
consider the motion's merits. See Zayed v. United
States, 221 F.Supp.2d 813, 815 n.5 (N.D. Ohio 2002)
(where the court “in the interest of justice”
considered an unopposed motion to dismiss on its merits,
rather than dismissing it on procedural grounds).
Court considers the merits of First PREMIER's Motion.