Phillips v. PNC Bank, N.A.

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
PHILIPS E. MATTHEW, 	§
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Plaintiff,
v. 	Civil Action No. H-26-1769
PNC BANK, N.A.,
Defendant.
ORDER
Pending before the Court are Defendant's Motion to Strike Plaintiffs First
Amended Complaint, Document No. 7, and Motion for Judgment on the Pleadings
Pursuant to Rule 12(c) (Document No. 12); Plaintiffs Motion for Leave to File Third
Amended Complaint (Document No. 13); and Defendant PNC Bank N.A.'s Motion
to Strike and Response in Opposition to Plaintiffs Motion for Leave to File Third
Amended Complaint (Document No. 19).
I. BACKGROUND
This is a matter involving alleged violations of the Fair Credit Reporting Act
("FCRA"). Plaintiff Philips E. Matthew contends that he took out a mortgage with
non-party BBVA Bank. Plaintiff contends that his payments were deferred but that
BBVA Bank nonetheless reported the aforementioned months as delinquent. At
United States District Court
Southern District of Texas
ENTERED
July 31, 2026
Nathan Ochsner, Clerk
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some point after, Defendant PNC Bank N.A. (Defendant) acquired BBVA's assets
and liabilities.
Based on the foregoing, on January 27, 2026, Plaintiff filed suit in the 189th
District Court of Harris County, Texas, asserting claims against Defendant for: (1)
violation of the FCRA; (2) "negligent credit reporting"; (3) "defamation/injury to
credit reputation"; and (4) "breach of duty to correct known errors[.]" 1 On March 4,
2026, Defendant removed the case to this Court pursuant to both federal question
jurisdiction and diversity jurisdiction. 2 On March 9, 2026, Plaintiff amended his
complaint, removing all federal claims and bringing claims under Texas law for: (1)
"negligent credit reporting"; (2) "defamation/injury to credit reporting"; and (3)
"negligent failure to correct known errors[.]" 3 On April 2, 2026, Plaintiff filed,
without leave of Court, a second amended complaint. 4 On June 29, 2026, Defendant
moved to strike Plaintiffs second amended complaint and for judgment on the
pleadings. 5 On June 30, 2026, Plaintiff moved for leave to file a third amended
1 See Notice of Removal, Document No. 1, Exhibit A at 4-5 ("Plaintiff's Original
Complaint).
2 See Notice of Removal, Document No. 1 at 2-3.
3 Plaintiff's First Amended Complaint, Document No. 5 at 2.
4 See Plaintiff's First Amended Complaint, Document No. 7 at I.Despite Plaintiffs
titling of"First Amended Complaint" this is in fact Plaintiffs second amended complaint.
5 See Defendant's Motion to Strike Plaintiff's First Amended Complaint and Motion
for Judgment on the Pleadings Pursuant to Rule 12(c), Document No. 12 at 1.
2
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complaint. 6 On that same date, Plaintiff responded in opposition to Defendant's
aforementioned motion. 7 On July 21, 2026, Defendant moved to strike Plaintiffs
third amended complaint. 8 On July 27, 2026, Plaintiff responded in opposition.
II. STANDARD OF REVIEW
"The standard for dismissal under Rule 12(c) is the same as that for dismissal
for failure to state a claim under Rule 12(b)(6)." Johnson v. Johnson, 385 F.3d 503,
529 (5th Cir. 2004). Rule 12(b)(6) allows dismissal if a plaintiff fails "to state a claim
upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Under Rule 8(a)(2), a
pleading must contain "a short and plain statement of the claim showing that the
pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Although "the pleading standard
Rule 8 announces does not require 'detailed factual allegations,' ... it demands more
than ... 'labels and conclusions."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. 	Corp. v. 	Twombly, 550 U.S. 544, 555 (2007)). "[A] formulaic
recitation of the elements of a cause of action will not do." Id. ( quoting Twombly,
550 U.S. at 555). 	In deciding a Rule 12(b)(6) motion to dismiss for failure to state
6 See Plaintiff's Motion for Leave to File Third Amended Complaint, Document No.
13 at 1.
7 See Plaintiff's Response in Opposition to Defendant's Motion to Strike and Motion
for Judgment on the Pleadings, Document No. 14 at 1.
8 See Defendant PNC Bank NA. 's Motion to Strike and Response in Opposition to
Plaintiff's Motion for Leave to File Third Amended Complaint, Document No. 19 at 1.
3
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a claim, "[t]he 'court accepts all well-pleaded facts as true, viewing them in the light
most favorable to the plaintiff."' In re Katrina Canal Breaches Litig., 495 F.3d 191,
205 (5th Cir. 2007) (quoting Martin K Eby Constr. Co. v. Dall. Area Rapid Transit,
369 F.3d 464, 467 (5th Cir. 2004)). To survive the motion, a plaintiff must plead
"enough facts to state a claim to relief that is plausible on its face." Twombly, 550
U.S. at 570. "Conversely, 'when the allegations in a complaint, however true, could
not raise a claim of entitlement to relief, this basic deficiency should ... be exposed
at the point of minimum expenditure of time and money by the parties and the
court."' Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quoting Twombly,
550 U.S. at 558).
III. LAW & ANALYSIS
The Court will consider, in turn, which complaint is the operative complaint
in this matter and the merits of Defendant's motion for judgment on the pleadings.
The Court construes all prose filings liberally. See Erickson v. Pardus, 551 U.S. 89,
94 (2007).
A. 	The Operative Complaint
The Court has reviewed the record in this matter and notes that Plaintiff first
amended his complaint on March 9, 2026. 9 As such, the Court notes that Defendant's
9 See Plaintiff's First Amended Complaint, Document No. 5 at 1.
4
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pending motions to strike address Plaintiffs second and third amended complaints
filed on April 2, 2026, and July 1, 2026, respectively. "A party may amend its
pleading once as a matter of course no later than: (A) 21 days after serving it[.]" Fed.
R. Civ. P. 15. Considering that Plaintiff amended his complaint on March 9, 2026,
the Court finds that Plaintiffs second and third amended complaints, filed at
Document 7 and 17, respectively should be struck as they were filed without leave
of Court. 10 Accordingly, the Court finds that Defendant's pending motion at
Document No. 	12 should be granted in part with respect to striking Plaintiffs
amended complaint at Document No. 7 and that Defendant's pending motion at
Document No. 19 should be granted. 11 The Court will now consider the merits of
Defendant's motion for judgment on the pleadings as it relates to Plaintiffs First
Amended Complaint (Document No. 5).
10 To the extent Plaintiff requests leave of Court, the Court finds that such request
should be denied. As such, the Court finds that Plaintiff's Motion for Leave to File Third
Amended Complaint, Document No. 13, should be denied.
11 As such, the Court notes that the operative complaint in this matter is Plaintiff's
First Amended Complaint, Document No. 5.
5
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B. Defendant's Motion for Judgment on the Pleadings
Defendant contends that Plaintiffs claims "fall squarely within the subject
matter governed by§ 1681s-2 and are therefore expressly preempted." 12 In response,
Plaintiff contends that his claims are not preempted because preemption only applies •
to "subject matter regulated under section 1681s-2." 13 The FCRA states, in relevant
•part, that "[n]o requirement or prohibition may be imposed under the laws of any
State-(1) with respect to any subject matter regulated under ... section 1681s-2 of
the title, relating to the responsibilities of persons who furnish information to
consumer reporting agencies[.]" 	15 	U.S.C. 	§ 1681t(b)(l)(F). 	Section 	1681s-2
concerns the "[r]esponsibilities of furnishers of information to consumer reporting
agencies[.]" 15 U.S.C. § 1681s-2. Lastly, "no consumer may bring any action in the
nature of defamation, invasion of privacy, or negligence with respect to . . . any
person who furnished information ... except as to false information furnished with
malice or willful intent to injure such consumer." 15 U.S.C. § 1681h(e).
The Court has reviewed the operative complaint in this matter and notes that
Plaintiffs claims rest on the allegations that "PNC furnished inaccurate information
about Plaintiff to one or more consumer reporting agencies" and that "PNC failed to
12 Defendant's Motion to Strike Plaintiff's First Amended Complaint and Motion
for Judgment on the Pleadings Pursuant to Rule 12(c), Document No. 12 at 6.
13 Plaintiff's Response in Opposition to Defendant's Motion to Strike and Motion
for Judgment on the Pleadings, Document No. 14 at 1.
6
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conduct a reasonable investigation, failed to correct the inaccurate information, and
continued publishing false information." 14 Despite Plaintiffs contentions to the
contrary, this is precisely the conduct that§ 1681s-2 regulates. 15 Furthermore, even
if Plaintiffs claims were no preempted, Plaintiff does not allege, nor provide any
facts supporting that Defendant acted with malice or willful intent to injure Plaintiff.
Based on the foregoing, and the clear language of the FCRA, the Court finds that
Plaintiffs claims, all of which are Texas state law claims, are preempted, and thus,
should be dismissed. Accordingly, the Court finds that Defendant's motion for
judgment on the pleadings should be granted. 16
IV. CONCLUSION
Based on the foregoing, the Court hereby
ORDERS that Plaintiffs Motion for Leave to File Third Amended Complaint
(Document No. 13) is DENIED. The Court further
14 Plaintiff's First Amended Complaint, Document No. 5 at 2.
15 The Court notes Plaintiff's repeated references to the Fifth Circuit's holding but
further notes that Plaintiff fails to cite a single case in support of his argument outside of
the one case, 	Young v. 	Equifax, 294 F.3d 631 	(5th Cir 2002), that he contends is
inapplicable here.
16 Considering the Court's finding that Plaintiff's claims are preempted, the Court
declines to consider Defendant's remaining argument related to the merits of Plaintiff's
claims.
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ORDERS that Defendant PNC Bank N.A.'s Motion to Strike and Response
in Opposition to Plaintiffs Motion for Leave to File Third Amended Complaint
(Document No. 19) is GRANTED. The Court further
ORDERS that Plaintiffs Third Amended Complaint (Document No. 17) is
hereby STRUCK. The Court further
ORDERS 	that Defendant's Motion to 	Strike Plaintiffs First Amended
Complaint, Document No. 7, and Motion for Judgment on the Pleadings Pursuant to
Rule 12(c) (Document No. 12) is GRANTED. The Court further
ORDERS that Plaintiffs First, more accurately, Second Amended Complaint
(Document No. 7) is hereby STRUCK. The Court further
ORDER_S that Plaintiffs claims against Defendant PNC Bank, N.A. are
hereby DISMISSED.
SIGNED at Houston, Texas, on this 50 day of July, 2026.
8
DAVID HITTNER
United States District Judge
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