United States District Court, W.D. Virginia, Lynchburg Division
Travis T. Tolley, Plaintiff,
Wells Fargo Bank, N.A., Defendant.
(Tolley I), 6:19-cv-00063 (Tolley II), 6:19-cv-00064 (Tolley
K. MOON, JUDGE
matter is before the Court on Defendant Wells Fargo's
motion to dismiss for failure to state a claim in the
following cases: Travis T. Tolley v. Wells Fargo Bank,
N.A., No. 6:19-cv-00062 (Tolley I), Travis
T. Tolley v. Wells Fargo Bank, N.A., No. 6:19-cv-00063
(Tolley II), Travis T. Tolley v. Wells Fargo
Bank, N.A., No. 6:19-cv-00064 (Tolley III). For
the reasons stated herein, the Plaintiff's
“CounterClaim” filings will be recognized as an
amended complaint in each of these cases, and the
Defendant's motions to dismiss Plaintiff's original
pleadings in each of these cases will be dismissed as moot.
Such dismissal is without prejudice to Wells Fargo's
ability to file in due course another Rule 12 motion or other
response to Plaintiff's amended complaint.
August 12, 2019, Plaintiff Travis Tolley filed three actions
pro se against Wells Fargo in the General District Court of
Bedford, Virginia, in actions styled Travis T. Tolley v.
Wells Fargo Bank, N.A., No. GV19001943, Travis T.
Tolley v. Wells Fargo Bank, N.A., No. GV19001944,
Travis T. Tolley v. Wells Fargo Bank, N.A. No.
GV19001948. Wells Fargo removed each of these actions to this
Court on September 12, 2019, and each has since been
respectively styled as Travis T. Tolley v. Wells Fargo
Bank, N.A., No. 6:19-cv-62, Travis T. Tolley v.
Wells Fargo Bank, N.A., No. 6:19-cv-63, Travis T.
Tolley v. Wells Fargo Bank, N.A., No. 6:19-cv-64.
case, Plaintiff commenced these actions against Wells Fargo
by filing a “Warrant in Debt” in state court,
demanding “removal of derogatory debt from all three
credit bureaus; TransUnion, Experian, and Equifax”
without further explanation. Tolley I, Dkt. 1-1;
Tolley II, Dkt. 1-1; Tolley III, Dkt. 1-1.
The only difference between each of these Warrants in Debt is
the amount Plaintiff alleges is owed to him.
September 19, 2019, Wells Fargo filed a motion to dismiss in
each of the three cases, pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. Tolley I, Dkt. 5;
Tolley II, Dkt. 5; Tolley III, Dkt. 5. On
October 4, Plaintiff filed in each case a document entitled
“CounterClaim, ” which the Clerk of the Court has
docketed as a “Response in Opposition” to Wells
Fargo's motion to dismiss. Tolley I, Dkt. 9;
Tolley II, Dkt. 8; Tolley III, Dkt. 9.
Wells Fargo responded to Plaintiff's filings in these
cases with a reply in support of its motion to dismiss,
treating Plaintiff's “CounterClaim” filing as
an opposition brief to its motion to dismiss. Tolley
I, Dkt. 10; Tolley II, Dkt. 9; Tolley
III, Dkt. 10, Discussion
Plaintiff in this case is proceeding pro se, and pro se
pleadings are held to a less stringent standard than those
drafted by attorneys. Gordon v. Leeke, 574 F.2d
1147, 1151 (4th Cir. 1978). Because pro se complaints
“represent the work of an untutored hand requiring
special judicial solicitude, ” courts must
“construe pro se complaints liberally.”
Baudette v. City of Hampton, 775 F.2d 1274, 1277-78
(4th Cir. 1985). “[T]hose litigants with meritorious
claims should not be tripped up in court on technical
niceties.” Id. at 1277-78 (citation omitted).
Courts need not, of course, “conjure up questions never
squarely presented to them . . . . Even in the case of pro se
litigants, they cannot be expected to construct full blown
claims from sentence fragments.” Id. at 1278.
15(a)(1)(B) of the Federal Rules of Civil Procedure permits
Plaintiff to amend his complaint as a matter of course-and
thus without leave from the Court-within twenty-one days
after a responsive pleading or a motion under Rule 12(b) has
been served. In each of these cases, it is undisputed that
Plaintiff filed what he has entitled a
“CounterClaim” within twenty-one days of each of
Wells Fargo's motions to dismiss. Tolley I, Dkt.
9; Tolley II, Dkt. 8; Tolley III, Dkt. 9.
original complaint as filed in state court was a
“Warrant in Debt” form, promulgated by the state
judiciary, that provided only two short lines for Plaintiff
to detail his claim. Plaintiff's so-called
“CounterClaim” filings in each of the cases
provide three pages of argument and factual allegations,
along with exhibits constituting Plaintiff's original
Warrant in Debt (as filed in each respective state court
action) and at least twelve pages of letters sent to
Defendant and credit reporting bureaus.
himself seems to suggest that the context in which he filed
his original complaint in state court did not allow for the
detail required by Fed.R.Civ.P. 8. Tolley I, Dkt. 9
at 2 (“There is simply not enough space to include all
information defendant requests to see on these lines of the
Warrant In Debt.”); Tolley II, Dkt. 8 at 2
(same); Tolley III, Dkt. 9 at 2 (same). Further,
Plaintiff's “CounterClaim” filing is
evidently responsive to the arguments that Wells Fargo raised
in its motion to dismiss, and it further explains the causes
of action under which he is seeking relief. Tolley
I, Dkt. 9 at 1-2. (stating that “[t]he
attachments, state claims against the defendant for
violations of the FDCPA, and due to failure to comply
[sic] domestic terrorism” and “[n]o
claims made for FCRA violations, although applicable, as the
defendant states”); Tolley II, Dkt. 8 at 1-2
(same); Tolley III, Dkt. 9 at 1-2 (same).
this Court's obligation to construe Plaintiff's
filings liberally and that Plaintiff filed his response
within Rule 15(a)(1)(B)'s twenty-one day period to amend
as a matter of course, the Court finds that justice requires
recognizing Plaintiff's “CounterClaim” filing
as an amended complaint. See McRae v. Harrison, No.
5:17-cv-23, 2018 WL 4345278, at *4 (E.D. N.C. Aug. 16, 2018),
report and recommendation adopted, No. 5:17-cv-23,
2018 WL 4339362 (E.D. N.C. Sept. 11, 2018); Ford v.
Master Sec. Co., LLC, No. PWG-15-2220, 2016 WL 1752897,
at *5 (D. Md. May 3, 2016); Hildebrand v. PBM Graphics,
Inc., No. 5:13-cv-15, 2013 WL 3357741, at *1 (E.D. N.C.
July 2, 2013). As Defendant's motions to dismiss in these
cases are directed at Plaintiff's original complaint, the
Court will dismiss them as moot. See McRae, 2018 WL
4345278, at *4 (dismissing motion to dismiss as moot after
construing pro se plaintiff's response in opposition as
an amended complaint); Henderson v. White's Truck
Stop, Inc., No. 6:08-cv-00042, 2011 WL 1627120, at *1
(W.D. Va. April 29, 2011) (Moon, J.) (noting that original
motion to dismiss was denied as moot after plaintiff filed an
amended complaint). Defendant will be permitted in
each of the above-captioned cases to file motions to dismiss
or otherwise respond to Plaintiff's amended complaints no
later than twenty-one days after the date of the Order
accompanying this Memorandum Opinion.
foregoing reasons, the Plaintiffs “CounterClaim,
” Tolley I, Dkt. 9; Tolley II, Dkt.
8; Tolley III, Dkt. 9, filed in each of these cases
will be recognized as an amended complaint, and the
Defendant's motions to dismiss Plaintiffs original
pleadings, Tolley ...