When an Exhibit Can Make or Break a Motion to Dismiss a FCRA Claim

Under the Federal Rules of Civil Procedure, including exhibits to a motion to dismiss may convert the motion into a motion for summary judgment. Generally, there are exceptions to this rule, such as including as an exhibit a document that the plaintiff relied on in its complaint. The decision whether to include an exhibit in a motion to dismiss is a strategic choice that depends on individual circumstances. A recent decision, however, illustrates an opportunity when the decision whether to include an exhibit directly affected the court’s decision to deny a motion to dismiss. In this case, the court denied a motion to dismiss a Fair Access to Credit Act (“FCRA”) when, due to the absence of a credit report, it was forced to view the allegations in the complaint in the light most favorable to the plaintiff.

In Fleming v. Ginny’s, Inc., No. 3:20-cv-00284, 2020 U.S. Dist. LEXIS 217736 (S.D. Miss. Nov. 20, 2020), the plaintiff filed suit against Ginny’s and Midnight Velvet, two retailers specializing in household and fashionable wares, alleging that they failed to conduct a reasonable investigation into alleged discrepancies in her credit report. The disputed entries were a series of monthly payments of $25 to each defendant. The plaintiff disputed these charges and argued that each account was closed and neither had a balance. FULL ARTICLE