FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

REBECCA RUTHERFORD, Magistrate Judge.

Before the Court are two motions filed by Defendant Wells Fargo Bank, N.A.: (1) a Motion to Dismiss [ECF No. 14]; and (2) a Motion to Vacate Default Judgment [ECF No. 19]. For the reasons stated, the Court should GRANT both of Defendant's Motions. The Court should dismiss Plaintiff's federal claim with prejudice for failure to state a claim and decline to exercise supplemental jurisdiction over Plaintiff's state law claims.

Background

On August 8, 2016, Plaintiff Steven Black, proceeding pro se, filed a civil action against Wells Fargo Home Mortgage, Inc. in the Justice Court, Precinct 3, Place 1, in Dallas County, Texas. See Pet. [ECF No. 1-5]. Plaintiff used a "Small Claims Petition" form provided by the state court to allege "Defendant(s) are justly indebted to Plaintiff(s) in the sum of $5,000.00 for the following reason(s): 1) defamation; 2) negligent enablement of identity fraud; and 3) violation of the Fair Credit Reporting Act." See Pet. 3 [ECF No. 1-5].

At Plaintiff's request, the state court issued a citation for Wells Fargo Home Mortgage, Inc. to be served on the Iowa Secretary of State at 321 E. 12th, Des Moines, Iowa 50319. See Pet. 1 [ECF No. 1-5]; Ex. G [ECF No. 1-7]. One month later, on September 8, 2016, Plaintiff filed a Return of Service indicating that he served Cindy Halverson, the Registered Agent for Corporate Services Company, located at 505 5th Ave., Suite 729, Des Moines, Iowa 50309. See Ex. I [ECF No. 1-9]. The next week, on September 14, 2016, the state court entered a default judgment against Wells Fargo Home Mortgage, Inc. See Ex. J [ECF No. 1-10].

On September 23, 2016, Defendant filed a Motion for New Trial and to Set Aside Default Judgment in the state court. See Ex. L [ECF No. 1-12]. That same day, Defendant removed the case to federal court based on federal question jurisdiction, because Plaintiff's Petition alleges a claim under the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. See Notice of Removal 4 [ECF No. 1]. Defendant filed a Supplement to its Motion for New Trial on October 6, 2016 [ECF No. 5], and later, on September 1, 2017, in compliance with the Court's Scheduling Order, a Motion to Dismiss [ECF No. 14]. After this case was transferred to the docket of a new magistrate judge, Defendant filed a Motion to Vacate Default Judgment [ECF No. 19].

By the Motion for New Trial, filed in state court prior to removal, and the post-removal Motion to Vacate Default Judgment, Defendant argues that Plaintiff obtained a no-answer default judgment against Wells Fargo Home Mortgage, Inc., an entity that ceased to exist over twelve years prior to the entry of the default judgment. See Mot. 1 [ECF No. 19]. Defendant points out that Wells Fargo Home Mortgage, Inc.'s registered agent, as shown on the Texas Secretary of State website, is Corporation Service Company, located at 701 Brazos St., Suite 1050, Austin, Texas 78701. See Mot. 3; Ex. L [ECF No. 1-12 at 10]. Therefore, Defendant argues that the default judgment Plaintiff obtained in state court is void and should be vacated pursuant to Fed. R. Civ. P. 60(b)(4). See Mot. 1.

By its Motion to Dismiss, Defendant argues that Plaintiff's Small Claims Petition fails to provide any details regarding the facts surrounding his causes of action, as required by Fed. R. Civ. 8(a)(2). See Mot. 1 [ECF No. 14]. As such, Plaintiff has failed to state a claim upon which relief can be granted, and this case must be dismissed pursuant to Fed. R. Civ. P. 12(b)(6).

Plaintiff failed to file a response to either motion. Therefore, the Court considers Defendant's motions without the benefit of a response.

Legal Standards and Analysis

Motions to Set Aside or Vacate Default Judgment

Defendant seeks to vacate the default judgment entered by the state court on the ground that the judgment is void because Defendant was not properly served with process. Fed. R. Civ. P. 60(b)(4) authorizes a district court to order relief from a final judgment if "the judgment is void." Fed. R. Civ. P. 60(b)(4). The Fifth Circuit has held that "[w]hen service of process is improper, the default judgment is void, and the district court must grant a Rule 60(b)(4) motion for relief from it." Jackson v. FIE Corp., 302 F.3d 515, 528 (5th Cir. 2002) (emphasis added).

Here, Defendant contends that the default judgment is void because Plaintiff failed to serve Defendant's registered agent in accordance with the applicable Texas procedural rules. See Mot. 4-5; Tex. R. Civ. P. 124 ("In no case shall judgment be rendered against any defendant unless upon service, or acceptance or waiver of process, or upon an appearance by the defendant, as prescribed in these rules, except where otherwise expressly provided by law or these rules."). Under Tex. Civ. Prac. & Rem. Code § 17.028(b), "citation may be served on a financial institution by: (1) serving the registered agent of the financial institution; or (2) if the financial institution does not have a registered agent, serving the president or a branch manager at any office located in this state."

Defendant provides the following information and documents, of which the Court takes judicial notice:1

The record establishes that Plaintiff filed his underlying state court action against Wells Fargo Home Mortgage, Inc., on August 8, 2016. See Pet. [ECF No. 1-5]. But, Wells Fargo Home Mortgage, Inc. merged into Wells Fargo Bank, N.A. on May 5, 2004, and did not exist as a separate legal entity at the time Plaintiff filed his lawsuit. Furthermore, Plaintiff served an agent in Des Moines, Iowa, rather than the agent for Wells Fargo Home Mortgage, Inc., who was located in Austin, Texas, as listed on the Texas Secretary of State's website. Under these facts, it is clear that Plaintiff failed to properly serve Defendant.

Accordingly, the District Court should GRANT Defendant's Motion to Vacate Default Judgment [ECF No. 19] and vacate the state court default judgment for lack of proper service of process. Jackson, 302 F.3d at 528; see also Recreational Properties, Inc. v. Sw. Mortg. Serv. Corp., 804 F.2d 311, 314 (5th Cir. 1986) ("If a court lacks jurisdiction over the parties because of insufficient service of process, the judgment is void and the district court must set it aside.").

Motion to Dismiss

Assuming the default judgment is vacated, Defendant seeks to dismiss all of Plaintiff's claims and causes of action under Fed. R. Civ. P. 12(b)(6). To state a claim upon which relief may be granted, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and must plead those facts with enough specificity "to raise a right to relief above the speculative level," Id. at 555. "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "A claim for relief is implausible on its face when `the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct.'" Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 796 (5th Cir. 2011) (quoting Iqbal, 556 U.S. at 679).

Under Fed. R. Civ. P. 8(a)(2), a complaint need not contain detailed factual allegations, but the plaintiff must allege more than labels and conclusions, and, while a court must accept all of the plaintiffs' allegations as true, it is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). A threadbare or formulaic recitation of the elements of a cause of action, supported by mere conclusory statements, will not suffice to state a claim for relief. See id.

In this case, Plaintiff's Small Claims Petition alleges, in its entirety:

See Pet. 3 [ECF No. 1-5]. Plaintiff's allegations are merely labels, wholly lacking in any factual support, and thus fail to state a claim upon which relief can be granted.

Plaintiff invokes the Fair Credit Reporting Act. To the extent Plaintiff seeks to bring a claim under 15 U.S.C. § 1681s-2(a), his claim fails as a matter of law. Section 1681s-2(a)(3) provides: "If the completeness or accuracy of any information furnished by any person to any consumer reporting agency is disputed to such person by a consumer, the person may not furnish the information to any consumer reporting agency without notice that such information is disputed by the consumer." 15 U.S.C. § 1681s-2(a)(3). While this statute creates a duty not to report disputed credit information to a consumer reporting agency, it does not create a private right of action. Rather, enforcement is left to public officials. See 15 U.S.C. § 1681s-2(d); see also Young v. Equifax Credit Info. Servs., Inc., 294 F.3d 631, 639 (5th Cir. 2002). Plaintiff's FCRA claim under Section 1681s-2(a) must be dismissed with prejudice.

To the extent Plaintiff attempts to assert a claim under Section 1681s-2(b)—the FCRA provision which does supply a private right of action—his claim still cannot survive dismissal. Section 1681s-2(b) imposes a duty on a furnisher of credit information to conduct an investigation with respect to a borrower's dispute and to report the results of that investigation to the consumer reporting agency. 15 U.S.C. § 1681s-2(b). To state a cause of action under Section 1681s-2(b), a plaintiff must allege that a consumer reporting agency, like Equifax, notified the furnisher, here the Defendant, of the dispute. Young, 294 F.3d at 639. In this case, Plaintiff does not allege that a credit reporting agency provided Defendant with notice of any dispute sufficient to trigger Defendant's duty under the statute. Therefore, Plaintiff's FCRA claim under Section 1681s-2(b) also should be dismissed.

Ordinarily, the Court would recommend that Plaintiff be given leave to amend his pleadings in an attempt to cure the defects identified by Defendant. See Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002) (stating court should allow plaintiff at least one opportunity to cure pleading deficiencies before dismissing a case, "unless it is clear that the defects are incurable or the plaintiffs advise the court that they are unwilling or unable to amend in a manner that will avoid dismissal"). In this case, however, Plaintiff's conduct since removal establishes that he is unwilling to amend his pleading in a manner that will avoid dismissal. Plaintiff did not respond to Defendant's Motion to Dismiss; nor did Plaintiff ever respond to any of Defendant's motions. In fact, Plaintiff has not filed any document or participated in this case in any way since it was removed to federal court. Plaintiff also has failed to comply with prior Orders. On September 30, 2016, the Court ordered Plaintiff and counsel for Defendant to confer for the purpose of submitting a joint proposal for the contents of a scheduling order. See Order [ECF No. 4]. Defendant reported that Plaintiff did not confer with defense counsel and did not participate in preparing the scheduling proposal. See Report 1 n.1 [ECF No. 8]. Plaintiff has demonstrated an inability or unwillingness to prosecute his claims in federal court. Therefore, he should not be given an opportunity to replead.

Because the Court should dismiss Plaintiff's federal claim with prejudice, it should decline to exercise supplemental jurisdiction over the state law claims for defamation and negligent enablement of identity fraud. See Parker & Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580, 585 (5th Cir. 1992) ("Our general rule is to dismiss state claims when the federal claims to which they are pendent are dismissed.").

RECOMMENDATION

For the foregoing reasons, the District Court should GRANT Defendant's Motion to Vacate Default Judgment [ECF No. 19], and Defendant's Motion to Dismiss [ECF No. 14]. The Court should dismiss Plaintiff's federal claim with prejudice for failure to state a claim and decline to exercise jurisdiction over Plaintiff's state law claims.

SO RECOMMENDED.