RAO v. SLEEP NUMBER BED, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DR. GUTTI RAO,

Plaintiff, Civil Action No. 2:23-cv-2150

Vv. Hon. William S. Stickman IV

SLEEP NUMBER BED, INC. and

SYNCHRONY BANK,

Defendants.

MEMORANDUM OPINION

Defendants Sleep Number Bed, Inc. (“Sleep Number”) and Synchrony Bank

(“Synchrony”) (collectively “Defendants”) move to dismiss Plaintiff Dr. Gutti Rao’s (“Rao”)

amended complaint (“Amended Complaint”). (ECF Nos. 28 and 30). The Amended Complaint,

filed on March 26, 2024, followed Plaintiff's complaint against Defendants filed on December

21, 2023. Rao first asserted claims against Sleep Number and Synchrony in a complaint filed on

February 21, 2023, which was voluntarily dismissed. (2:23-cv-00263-NBF-LPL, ECF No. 23).

Defendants move to dismiss Rao’s six-count Amended Complaint in its entirety, or alternatively,

Defendants move for Rao to make a more definite statement. For the following reasons, the

Court will grant Defendants’ motions to dismiss.

I. FACTUAL BACKGROUND

This suit arises out of a transaction between Rao and Sleep Number for the purchase of a

bed. Rao contacted Sleep Number to purchase a bed on December 27, 2021. (ECF No. 19, □

15). During the transaction, Rao was advised that he could utilize the bed on a trial basis for 90

days. (Ud. at § 17). The bed was delivered seven weeks after its order date, and it had defective

locking and oscillation capabilities. (Ud. at §§ 19, 22). At Rao’s home, a service technician

attempted to remedy the defects, but was unable to do so. Cd. at ff] 21-22). The technician

reported back to Sleep Number that the bed was defective. (/d.). As a result, Rao took steps to

return the defective bed prior to the 90-day warranty expiration. (Ud. at { 23). Rao alleges that

Synchrony and Sleep Number, through a Synchrony Bank Credit Card Statement, issued

notifications for payment and charged late fees for the bed despite him never executing an

agreement nor authorizing an account or the opening of a credit card with Synchrony. (d. at □□

25, 28). Rao further alleges that Synchrony and Sleep Number continually harassed and

demanded payment for the defective bed, and that they falsely reported a default to credit

agencies along with unverified statements of record. (Ud. at § 29, 35).

In the Amended Complaint, Rao asserts six claims against Sleep Number and Synchrony.

Rao asserts one claim against Sleep Number individually: Count V, Violation of Pennsylvania

Unfair Trade Practices Act “UTPCPL”). (ECF No. 19, pp. 21-23). Rao asserts two claims

against Synchrony individually: Count I - Violations of the Fair Credit Reporting Act (FCRA”)

to Furnisher (/d. at 9-15); and Count II - Violation of Fair Debt Collection Practices Act

(“FDCPA”), Communicates False Credit Information to the Credit Bureaus. (/d. at 15-16). Rao

asserts three claims against Sleep Number and Synchrony collectively: Count III - Credit Slander

at 16-19); Count IV - Fraud (/d. at 19-21); and Count VI - Conspiracy. (dd. at 24-25).

Sleep Number moves to dismiss Rao’s Amended Complaint pursuant to Federal Rules of

Civil Procedure 12(b)(6) and 12(b)(1) (ECF No. 30), or in the alternative, for a more definite

statement pursuant to Fed. R. Civ. P. 12(e). (ECF No. 31). Synchrony also moved to dismiss

Rao’s Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) (ECF No. 28), and in the

alternative, moved for a more definite statement pursuant to Fed. R. Civ. P. 12(e). (ECF No. 27).

II. STANDARD OF REVIEW

A motion to dismiss filed under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) tests

the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). A

plaintiff must allege sufficient facts that, if accepted as true, state a claim for relief plausible on

its face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). A court must accept all well-pleaded factual allegations as true and

view them in the light most favorable to a plaintiff. See Doe v. Princeton Univ., 30 F.4th 335,

340 (3d Cir. 2022); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).

Although a court must accept the allegations in the complaint as true, it is “not compelled to

accept unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a

factual allegation.” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (citations omitted).

The “plausibility” standard required for a complaint to survive a motion to dismiss is not

akin to a “probability” requirement but asks for more than sheer “possibility.” Jgbal, 556 U.S. at

678 (citing Twombly, 550 U.S. at 556). In other words, the complaint’s factual allegations must

be enough to raise a right to relief above the speculative level, on the assumption that all the

allegations are true even if doubtful in fact. 7Twombly, 550 U.S. at 555. Facial plausibility is

present when a plaintiff pleads factual content that allows the court to draw the reasonable

inference that a defendant is liable for the misconduct alleged. Jgbal, 556 U.S. at 678. Even if

the complaint’s well-pleaded facts lead to a plausible inference, that inference alone will not

entitle a plaintiff to relief. Jd at 682. The complaint must support the inference with facts to

plausibly justify that inferential leap. Id.

TIE. ANALYSIS

A. Count V will be dismissed.

Count V of Rao’s Amended Complaint alleges that Sleep Number violated a number of

provisions of the UTPCPL, including 73 P.S. § 201-2(4)(i), (v), (vi), (vil), @x), (xi), and (xii).

(ECF No. 19, § 100). Section 201-2(4)(xx1), referred to as the “catch-all provision,” makes it

unlawful to engage in “any other fraudulent or deceptive conduct which creates a likelihood of

confusion or of misunderstanding.” 73 P.S. § 201-2(4)(xil). The UTPCPL requires a plaintiff to

show that the defendant’s misrepresentation caused him to suffer some loss of money or

property, an “ascertainable loss.” Grear v. U.S. Bank, No. 1:21-cv-237-SPB, 2022 WL

4450400, at *10 (Sept. 23, 2022). A plaintiff must also demonstrate that he justifiably relied on

the deceptive acts. Weinberg v. Sun Co., 777 A.2d 442, 446 (Pa. 2001); see also Sexton v. PNC

Bank, 792 A.2d 602, 607 (Pa. Super. 2002) (“the Court has interpreted this language to mean that

a plaintiff must establish his specific reliance on some conduct or representation by the defendant

that caused him to incur the loss in question.”). The United States Court of Appeals for the Third

Circuit has interpreted this justifiable reliance rule to apply to all UTPCPL subsections. Hunt v.

U.S. Tobacco, 538 F.3d 217, 224 3d. Cir. 2008).

Rao argues that Sleep Number’s unfair and deceptive practices included the following:

conspiring with Synchrony to fraudulently trick senior citizens and others into applying for a

credit card, never advising that a Synchrony Bank credit card with Sleep Number and

Synchrony’s names would be part of the process for purchasing a bed, refusing to assist Rao in

the return of the bed although they knew of its defective condition, making false statements

concerning the warranty period to obtain approval for the bed fraudulently, making patently false

statements concerning the quality of the bed and engaging in deceptive conduct concerning the

warranty period to cause confusion, and obtaining benefits from credit card applications without

advising Rao that such an application was part of the process. (ECF No. 19, € 98).

Additionally, Rao argues that the above conduct created a likelihood of confusion or

misunderstanding per Palek v. State Farm Fire & Casualty Co., 535 F. Supp. 3d 382, 391 (W.D.

Pa. 2021) because he believed the transaction he entered into was markedly different than that

which Sleep Number actually commenced. He contends that Sleep Number’s actions

demonstrate deceptive acts that were likely to deceive a consumer like him acting reasonably

under the circumstances per Cessna V. REA Energy Cooperative Inc. 258 F. Supp. 3d 566, 582

(W.D. Pa. 2017). As to justifiable reliance, per Yocca v. Pittsburgh Steelers Sports, Inc., 854

A.2d 425 (Pa. 2004), Rao alleges that he reasonably relied on Sleep Number’s representation of

the 90-day trial period when he purchased the bed, leading to Sleep Number unknowingly

signing him up for a credit card and subsequently charging him even after returning the defective

bed.

Pointedly, Rao did not allege that he made any effort to discern the scope of the trial

period for the bed, including whether a deposit or applying for financing was a prerequisite for

taking advantage of the trial period. He failed to cite to any written representations of Sleep

Number that he was personally deceived and influenced by, which a UTPCPL cause of action

must properly include. Cessna, 258 F. Supp. 3d at 582. Further, Rao did not cite or attempt to

rely on the numerous representations that would have been made in discussions had or

documentation received during the process for purchasing/trying out the bed. Yocca, 854 A.2d at

439, Rao has not sufficiently pled justifiable reliance because he neither alleges he only bought

a bed due to the representation of the 90-day trial period nor that he would not have purchased

the bed but-for this alleged misrepresentation of the trial period.

As to the element of ascertainable loss, which the UTPCPL requires, the plaintiffs

damages “must be identifiable and cannot be speculative.” Grear v. U.S. Bank, No. 1:21-cv-237-

SPB, 2022 WL 4450400, at *10 (Sept. 23, 2022) (quoting Opris v. Sincera Reprod. Med., No.

CV 21-3072, 2022 WL 1639417, at *13 (E.D. Pa. May 24, 2022)). Rao argued, per Boehm vy.

Riversource Life Ins. Co., 117 A.3d 308, 329 (Pa. Super. 2015), that “the UTPCPL does not

provide a formula for calculation of ‘actual damages,’” and that, as a result, the damages he

claims are sufficient to meet the ascertainable loss threshold. The damages requested in Count V

of the Amended Complaint are as follows: exemplary, compensatory, actual and punitive

damages. (ECF No. 19, p. 23). In Rao’s response to Sleep Number’s motion, he further alleges

as damages denial of credit following the fraudulent transaction and damage to personal property

because the bed he received was defective and he was forced to replace it. (ECF No. 36, pp. 6-

7). However, Sleep Number highlights that a fellow district judge in this district determined that

the plaintiffs did not plead ascertainable loss within the UTPCPL because they made no attempt

to quantify their loss. Grear v. U.S. Bank, No. 1:21-cv-237-SPB, 2022 WL 4450400, at *10

(Sept. 23, 2022).

The Court will dismiss Count V of Rao’s Amended Complaint with prejudice because he

has not sufficiently pled that specific misrepresentations on Sleep Number’s part induced him to

purchase the bed. Rao only alleged following the transaction that he relied upon the assertion of

the 90-day warranty period in which he could return the bed if he was dissatisfied with the

product. He did not allege any details concerning this warranty period. He did not allege that he

made an effort to ascertain the scope of any details, which would have been required for him to

successfully plead justifiable reliance. Further, all damages Rao alleged in the Amended

' Because the Court will dismiss Count V of the Amended Complaint, Sleep Number’s Rule

12(b)(1) motion will be denied as moot.

Complaint were unquantifiable. Even if the Court were to consider the “damage to personal

property” in Rao’s response, it is still an unquantifiable amount, and Rao is unable to amend the

damages alleged in his Amended Complaint through a reply brief. Commonwealth of Pa. ex rel.

Zimmerman vy. PepsiCo, Inc., 836 F.2d 173, 181 Gd Cir. 1988); see also Hughes v. United

Parcel Serv., Inc., 639 F.App’x 99, 104 (d Cir. 2016) (stating “it is one thing to set forth

theories in a brief; it is quite another to make proper allegations in a complaint.”’).

B. Counts I and II will be dismissed.

a. Count]

Count I of Rao’s Amended Complaint alleges that Synchrony violated the FCRA, 15

U.S.C. § 1681. (ECF No. 19, pp. 9-15). In short, Rao alleges that Synchrony failed to provide

accurate information as a “furnisher” pursuant to the FCRA, failed to conduct and complete an

investigation within thirty days of the dispute, failed to review all information relative to the

consumer reporting agency involved, and continued to report Rao’s account as delinquent on his

credit report. (Ud. at 9§ 44, 45, 51, 55).

To state a plausible claim under the FCRA against a furnisher of credit information, as

opposed to the credit reporting agency itself, a plaintiff must allege that he filed a notice of

dispute with a consumer reporting agency, the consumer reporting agency notified the furnisher

of information of the dispute, and the furnisher of information failed to investigate and modify

the inaccurate information. Harris v. Pa. Higher Educ. Assistance Agency/Am. Educ. Servs.,

Civ. A. No. 16-693, 2016 WL 3473347, at *6 (E.D. Pa. June 24, 2016); see also Whaley v. Wells

Fargo, No. 22-CV-4324, 2023 WL 137454, at *4-5 (E.D. Pa. Jan. 9, 2023). The Third Circuit

has held that a defendant’s duty to investigate is not triggered until a furnisher of information

receives notice from the credit reporting agency of the consumer’s dispute. Wyche v. Synchrony

Bank, No. 2:21-cv-11589, 2022 WL 17340725, at *2 (D.N.J Nov. 30, 2022).

The Court finds that Rao failed to allege that a consumer reporting agency ever notified

Synchrony, the alleged furnisher of information, of the dispute via any pleading or attached

exhibit. Rao claims that he properly alleged that Synchrony received notice of the dispute from a

consumer reporting agency. (ECF No. 19, § 47, 51). Rao alleged in his Amended Complaint

that Synchrony received notice of the dispute “from a consumer reporting agency.” (Jd. at { 51).

However, Rao did not plead or attach an exhibit showing if/when they were actually notified that

Rao filed the disputes with Equifax and Experian. Rao’s Exhibit E instead offers proof that

Synchrony furnished information to a credit reporting agency: “if you choose to dispute this debt

or information we (Synchrony) have furnished to a credit-reporting agency, we request that you

send your dispute, in writing, to the address provided at the top of this letter.” (ECF No. 19-5).

Rao’s Exhibit B clearly identifies Synchrony as the “data furnisher.” The Court holds that

Synchrony’s duty to investigate was never triggered. Rao provided no specific factual

allegations or proof to support the allegation that Synchrony received notice of the dispute.

Rao is unable to satisfy the second and third elements required for a plausible claim

within the FCRA. The Court will dismiss Count I with prejudice.

b. Count II

Count II of Rao’s Amended Complaint alleged that Synchrony violated the FDCPA, 15

U.S.C. § 1692e(8), and is entitled to damages pursuant to § 1692k. (ECF No. 19, pp. 15-16).

Rao alleged that Synchrony’s violations included communicating credit information which is

known or should be known to be false, including the failure to communicate that a disputed debt

is disputed, as well as publishing false information about Rao which resulted in denial of credit.

(Ud. at 70).

To prevail on an FDCPA claim, a plaintiff must prove that: 1) he is a consumer, 2) the

defendant is a debt collector, 3) the defendant’s challenged practice involves an attempt to

collect a ‘debt’ as the Act defines it, and 4) the defendant has violated a provision of the FDCPA

in attempting to collect the debt. Berry v. ARS National Services, Inc. No. CV 15-1529, 2015

WL 9315993 (E.D. Pa. Dec. 23, 2015) (citing Douglass v. Convergent Outsourcing, 765 F.3d

299, 303 (3d Cir. 2014)). Synchrony argues that applicable FDCPA sections only apply to “debt

collectors,” and that they are the debt originator, not the “debt collector.”

Based upon the statutory definition within § 1692a(6), the Court finds that Synchrony is

not a debt collector. Rao specifically stated in the Amended Complaint that Synchrony is a

creditor “issuing credit” on Rao’s behalf without authorization. (ECF No. 19, § 32). Creditors

who collect in their own name and whose principal business is not debt collection are not subject

to the FDCPA. Aubert v. American General Finance, Inc., 137 F.3d 976, 978 (7" Cir 1998).

This is consistent with the Act’s stated purpose of “eliminating abusive debt collection practices

by debt collectors.” Jd. (citing § 1692e). Synchrony further points out that they are not in the

business of collecting debts on behalf of Sleep Number or any other entity, and that Rao did not

allege that Synchrony was collecting debts on Sleep Number’s behalf in Count II of the

Amended Complaint.

The Court will dismiss Count II with prejudice.

C. The common law claims (Counts IT, [V, and VI) will be dismissed.

For the following reasons, the Court holds that Rao’s common law claims for credit

slander, fraud, and conspiracy fail to state a cognizable claim. These claims will be dismissed

with prejudice.

The Court would preliminarily note that Rao’s common law causes of action are

seemingly preempted by the FCRA. Section 1681t(b)(1)(F) of the FCRA states that “[no]

requirement or prohibition may be imposed under the laws of any State...with respect to any

subject matter regulated under...Section 1681s-2 of this title, relating to the responsibilities of

persons who furnish information to consumer reporting agencies.” 15 U.S.C. § 1681t(b)(1)(F).

Although not yet addressed by the Third Circuit, several other circuit courts have held that §

1681t(b)(1)(F) preempts all state and common law claims against furnishers of information with

respect to all subject matter regulated under § 1681s-2. Havassy v. Mercedes-Benz Financial

Services USA, LLC, 432 F. Supp. 3d 543, 547 (E.D. Pa. 2020) (citing Purcell v. Bank of Am., 659

F.3d 622, 625-26 (7" Cir. 2011) (finding the defamation claim preempted by § 1681t(b)(1)(F)));

Macpherson vy. JPMorgan Chase Bank, N.A., 665 F.3d 45, 47-48 (Qd Cir. 2011) (same);

Marshall v. Swift River Academy, LLC, 327 F. App’x 13, 15 (9 Cir. 2009) (same); Pinson v.

Equifax Credit Info. Servs., Inc., 316 F. App’x 744, 751 (10 Cir. 2009) (finding state libel and

false light invasion of privacy claims to be preempted by § 1681t(b)(1)(F)). “Multiple district

courts within the Third Circuit have likewise adopted this conclusion and found that Section

1681t(b)(1)(F) preempts both state statutory and common law claims against furnishers of

information acting under § 1681s-2.” Havassy, 432 F. Supp. 3d at 546 (citing Lalonde v. Bank of

Am., N.A., No. 16-1586, 2016 WL 7734690, at *2 (W.D. Pa. Dec. 15, 2016), report and

recommendation adopted by 2017 WL 104965 (W.D. Pa. Jan. 11, 2017); Story v. Citizens Bank,

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No. CV 17-29, 2017 WL 3173034 (W.D. Pa. June 28, 2017), report and recommendation

adopted by 2017 WL 3158029 (W.D. Pa. July 25, 2017); Becker v. Verizon Pennsylvania, Inc.,

No. 3:16-CV-170, 2017 WL 2418312 (W.D. Pa. June 2, 2017); Prukala v. TD Bank USA, No.

16-0894, 2016 WL 6191912, at *3 (M.D. Pa. Oct. 24, 2016); Cicala v. Trans Union, LLC, Nos.

15-6790, 15-6801, 2016 WL 2622377, at *4 (E.D. Pa. May 9, 2016); Vullings v. Trans Union,

LLC, 115 F. Supp. 3d 538, 543 (E.D. Pa. 2015). The Court concurs with these courts.

Importantly, the FCRA provides the relief that Rao seeks for his common law claims.

See Reilly v. Vivint Solar, 2021 WL 261084, at *9 (D.N.J. 2021) (citing 15 U.S.C. § 1681o(a); 15

U.S.C. § 1681n(a)) (other citations omitted) (explaining that a plaintiff may recover actual

damages for negligent violations of the FCRA, including emotional distress, and she may

recover actual, punitive, or statutory damages for willful violations of the FCRA); see also

Cortez v. Trans Union, LLC, 617 F.3d 688, 719-20 (3d Cir. 2010) (explaining that the fact that a

plaintiff's injuries relate to the stress and anxiety caused by a defendant’s conduct “is precisely

the kind of injury that Congress must have known would result from violations of the FCRA”).

Consequently, the Court holds that Counts III, IV, and VI are preempted by the FCRA.

a. Count III (Credit Slander)

Assuming arguendo that Count III was not preempted, it is barred by the statute of

limitations. The statute of limitations for defamation claims begins to run from the date of

publication. Greiser v. Drinkard, 516 F. Supp. 3d 430, 439 (E.D. Pa. 2021). The Third Circuit

applies the “single publication rule,” which Pennsylvania has adopted. Under this rule, the

original printing/publication of the defamatory material results in the cause of action. Jn re

Phila. Newspapers, LLC, 690 F.3d 161, 174 (3d Cir. 2012). The statute of limitations for credit

slander, like any libel action, is one year under Pennsylvania law. 42 Pa. C.S. § 5523(1).

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Rao filed a similar complaint to that herein on February 21, 2023 at 2:23-cv-00263-NBF-

LPL, and then he voluntarily dismissed it on August 4, 2023. Given that more than one year has

passed between the initial publication of the alleged defamatory statements (March 24, 2022) and

Rao’s filing of the complaint in this action (December 21, 2023), combined with settled law that

voluntary dismissal of a complaint does not toll a statute of limitations, Count III fails. Notably,

Rao agrees with Defendants and does not object to dismissal of Count IN. (ECF No. 35, p. 10).

Thus, Count II will be dismissed with prejudice.

b. Count IV (Fraud)

Assuming arguendo that preemption does not apply to Count IV, the Court holds that

Rao has not pled a claim for fraud. Under Pennsylvania law, a plaintiff must plead the following

elements to establish a cause of action for common law fraud: 1) a misrepresentation, 2) a

fraudulent utterance thereof, 3) an intention by the maker that the recipient will thereby be

induced to act, 4) justifiable reliance by the recipient upon the misrepresentation, and 5) damages

to the recipient as a proximate result. Scaife Co. v. Rockwell-Standard Corp., 285 A.2d 451, 454

(Pa. 1971). Averments of fraud must be made with particularity under both Pennsylvania and

Federal Rules. Pa. R. Civ. P. 1019(b); Fed. R. Civ. P. 9(b). A cause of action for fraud must

include more than legal conclusions.

Rao alleges that it was misrepresented to him that there would be a 90-day trial period of

the bed prior to finalization of the purchase, and that Sleep Number and Synchrony signed him

up for a credit card without his consent and charged him for the bed. (ECF No. 19, 9] 17, 25, 26,

28). He further alleges that both Sleep Number and Synchrony had a plan to defraud consumers

by not disclosing that credit was being applied for during the purchase of a bed, and that he was

defrauded into believing that he would enter into a transaction not requiring any credit card

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agreement. Jd. at § 90. However, Rao’s averments are nothing more than general, legal

conclusions, and he did not clearly inform both Sleep Number and Synchrony of its alleged

participation in the fraud. (ECF No. 32, p. 15). Rao provided no detail concerning how

Synchrony nor Sleep Number “tricked” him, the “fraudulent utterance” they allegedly made, or

the distinct roles of Synchrony and Sleep Number in the alleged scheme. (ECF No. 29, p. 15).

He only described what he believed - that he would purchase the bed absent a credit card

agreement - without any detail concerning how Synchrony or Sleep Number allegedly caused

this belief. (ECF No. 19, § 90(c)).

The Court will dismiss Count IV.

c. Count VI (Conspiracy)

Assuming arguendo that preemption does not apply to Count VI, Rao does not

sufficiently plead a claim for conspiracy. Civil conspiracy requires a plaintiff to allege: 1) a

combination of two or more persons acting with a common purpose to do an illegal act or to do a

lawful act by unlawful means or for an unlawful purpose, 2) an overt act done in pursuance of

the common purpose, and 3) actual legal damage. Estate of Werner ex rel. Werner v. Werner,

781 A.2d 188, 191 (Pa. Super. 2001) (citing McKeeman v. Corestates Bank, N.A., 751 A.2d 655,

660 (Pa. Super. 2000)). Additionally, a plaintiff must make “specific factual allegations of

combination, agreement, or understanding among all or between any of the defendants to plot,

plan, or conspire to carry out the alleged chain of events.” Panayotides v. Rabenold, 35 F. Supp.

2d 411, 419 (E.D. Pa. 1999) (citing Hammond v Creative Financial Planning, 800 F. Supp.

1244, 1248 (E.D. Pa. 1992)).

Rao alleged that Synchrony and Sleep Number engaged in a common purpose to defraud

him by opening an unauthorized credit account, and that Synchrony and Sleep Number’s

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“fraudulent misrepresentations” were overt acts done in pursuance of that common purpose.

(ECF No. 19, ff] 104-106). As to damages, Rao stated that he “has suffered damages by reason

of the above-referenced conspiracy.” (Ud. at § 107). Falling short of the elements outlined

above, Rao offers no facts showing that Synchrony and Sleep Number entered into any

agreement or common purpose, or the specific roles of either in the alleged conspiracy. (ECF

No. 29, p. 17). Another required element is that the conspirators agree to engage in an illegal act

or engage in legal activity by unlawful means, and Rao pled no facts demonstrating that any

agreement between Synchrony and Sleep Number to register customers for credit cards qualified

as illegal or unlawful activity. Such facts simply do not exist in the Amended Complaint.

The Court will dismiss Count VI. Rao’s allegations constitute vague legal conclusions

and do not satisfy the requisite elements for civil conspiracy.

D. Leave to amend is denied.

The Amended Complaint is Rao’s third attempt to plead his claims. Courts generally

agree that if a plaintiff cannot correct the pleading deficiencies in his complaint after multiple

attempts, then further amendment is futile. See Coniker v. Monforton, No. CV 22-1184, 2023

WL 2187732 (W.D. Pa. Feb. 23, 2023); Fetterman v. Westmoreland Cnty. Children’s Bureau,

No. 2:15-CV-773, 2016 WL 69663, at *7 (W.D. Pa. Jan. 6, 2016) (holding that a plaintiffs

“third bite at the apple” would be futile and inequitable and that further amendment was

impermissible.). “An amendment is futile if it merely restates the same facts as the original

complaint in different terms, reasserts a claim on which the court previously ruled, fails to state a

legal theory, or could not withstand a motion to dismiss.” 3 James Wm. Moore et al., Moore’s

Federal Practice € 15.15 (3d ed. 2021). Further amendment would constitute Rao’s fourth

attempt to plead his claims, and the Court holds that it would be futile. See In re Burlington

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Coat Factory Sec. Litig., 114 F.3d 1410, 1434 Gd Cir. 1997) holding that a court may deny

leave to amend for reasons such as undue delay, bad faith, dilatory motive, prejudice, and

futility).

IV. CONCLUSION

For the foregoing reasons, the Court will grant Defendants’ motions to dismiss. Counts I

through VI will be dismissed with prejudice. Orders of Court will follow.

BY THE CQURT:

“sf cS Cre

| LA. ON SSL fi &

WILLIAM S. STICKMAN IV

/ UNITED STATES DISTRICT JUDGE

vif t¥izy

Date

Because the Court is denying leave to amend, Defendants’ Rule 12(c) motions will be denied as

moot.

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