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.

Under the FCRA, an entity that furnishes information to a consumer reporting agency has a duty to provide accurate information.  If a consumer disputes an item on his credit report, then the entity that furnished the disputed information has a duty to reasonably investigate the disputed items.  The FCRA provides consumers with a direct cause of action for failures to reasonably investigate disputed information.

In Fleming, the court noted that each party “offer[ed] differing descriptions of the disputed credit report in their memoranda,” but the credit report itself was not in the record.  Due to the absence of the credit report, the court stated that it was bound to “decide the issue based on the way [the p]laintiff described the credit report in her Complaint,” under the rule that, when evaluating a motion to dismiss, a court must view the well-pleaded facts in the light most favorable to the plaintiff.

The court noted that the plaintiff’s allegation sufficiently alleged “a plausible inference” that “would be inaccurate” if it was true that the plaintiff’s accounts were closed.  The plaintiff alleged that the defendants were “reporting a monthly payment of $25.00”.  In the absence of reviewing the actual credit report, those six words – “reporting a monthly payment of $25.00” – were a sufficient allegation.  Although the court concluded that the defendants “may ultimately have a strong argument at the summary-judgment stage,” it was reluctant to “pre-judge” the issue in a motion to dismiss.  Accordingly, the court denied the motion.

In the end, if the court were to review the credit report, it still could have denied the motion or even converted it into a motion for summary judgment.  Without the report, however, the court was forced to view the facts in the light most favorable to the plaintiff.  Fleming is a case to watch on summary judgment to see if the court’s predictions come true.