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Ruth Gittens v. Thieblot Ryan

May 14, 2013

RUTH GITTENS,
PLAINTIFF,
v.
THIEBLOT RYAN, P.A., ET AL,
DEFENDANTS.



The opinion of the court was delivered by: Richard D. Bennett United States District Judge

MEMORANDUM OPINION

This action arises out of attempts by Defendants Thieblot Ryan, P.A. ("Thieblot Ryan"), a Baltimore law firm, and Anthony W. Ryan ("Anthony Ryan"), an attorney acting on behalf of Thieblot Ryan (collectively "Defendants"), to collect a debt allegedly owed by Ruth D. Reid Thompson by erroneously seeking to garnish the property and wages of Plaintiff Ruth D. Gittens ("Plaintiff" or "Gittens"). On June 5, 2012, Plaintiff, whose name and social security number are allegedly significantly different from the name and social security number of Ruth D. Reid Thompson, filed this action against Defendants alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq.*fn1 and of the Maryland Consumer Debt Collection Act ("MCDCA"), Maryland Code Annotated, Commercial Law Article § 14-202 as well as a claim for tortious debt collection under Maryland law. Defendants filed a Motion to Dismiss Plaintiff's Complaint (ECF No. 10) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure contending that Plaintiff failed to state a claim under the FDCPA. Plaintiff then amended her Complaint*fn2 on September 11, 2012. In addition to the FDCPA (Count I), MCDCA (Count II) and tortious debt collection (Count III) claims, the Amended Complaint alleges violations of the Maryland Consumer Protection Act ("MDCPA"), Maryland Code Annotated, Commercial Law Article §§ 13-101 et seq. (Count IV),*fn3 as well as the Maryland common law claims of negligence (Count V), conversion (Count VI) and malicious prosecution (Count VII).

Pending before this Court is Defendants' Motion for Judgment on the Pleadings (ECF No. 31), filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, with respect to Counts III, IV, V, VI and the punitive damage claim in Count VII. The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2011). For the reasons that follow, Defendants' Motion for Judgment on the Pleadings (ECF No. 31) is GRANTED. Specifically, Counts III, V and VI are DISMISSED WITH PREJUDICE. Count IV has been WITHDRAWN and Count VII is DISMISSED WITHOUT PREJUDICE. The only remaining claims against Defendants are Plaintiff's claims arising under the Fair Debt Collection Practices Act (Count I) and the Maryland Consumer Debt Collection Act (Count II).

BACKGROUND

For the purposes of the instant motion, this Court accepts as true the facts alleged in Plaintiff's Complaint. See Aziz v. Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). Plaintiff Ruth D. Gittens ("Plaintiff" or "Gittens") alleges that she is a consumer as defined by the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692a(3). Pl.'s Am. Compl. ¶ 3, ECF. No. 20. She further alleges that Defendant Thieblot Ryan, P.A. ("Thieblot Ryan"), a Baltimore law firm engaged in the business of debt collection, is a debt collector as defined by the FDCPA, 15 U.S.C. § 1692a(6) and by Section 14-201(b) of the Commercial Law Article of the Maryland Code Annotated. Id. ¶ 4. Additionally, she alleges that Defendant Anthony W. Ryan ("Anthony Ryan") is "an attorney at Thieblot Ryan P.A. who, upon information and belief, used the mails and instruments of interstate commerce in a business the principal purpose of which is debt collection." Id. ¶ 5.

According to Plaintiff's Complaint, in 1997, an individual by the name of Ruth D. Reid Thompson ("the Real Debtor") "allegedly defaulted on an account assigned to" Thieblot Ryan. Id. ¶ 6. A judgment was entered against the Real Debtor and Defendants have allegedly sought to recover the judgment amount from this individual since 1997. Id. ¶ 10. Although the Real Debtor is not Plaintiff and has a significantly different name and social security number,*fn4 Plaintiff received notice on June 9, 2011 that her bank accounts were garnished by the Defendants. Id. ¶¶ 7-9. Plaintiff alleges that despite knowing that Plaintiff's name, address and social security number differed from those of the Real Debtor, Defendants had previously sought and obtained an order by the Baltimore County District Court adding Plaintiff to the existing judgment pending against the Real Debtor. Id. ¶¶ 10-11. Upon receiving notice that her accounts had been garnished, Plaintiff immediately contacted Defendants. Id. ¶¶ 14-24. Plaintiff alleges that she was initially mistreated and accused of being a criminal by Thieblot Ryan's representative. Id. ¶ 17. However, upon comparing birthdates, Plaintiff was able to demonstrate that Defendants should not have attempted to garnish her account. Id. ¶¶ 19-23. Accordingly, Defendants "faxed over a release to Plaintiff's bank." Id. ¶ 24. Plaintiff alleges that her account was "effectively frozen" from June 9 to June 14, 2011*fn5 resulting in returned checks and associated fees as well as the canceling of services and debit cards associated with the account. Id. ¶¶ 25-27.

With respect to Defendants' filings with the Baltimore County District Court, Plaintiff alleges that in support of their motion to add her name to the existing judgment, Defendants failed to redact her personal identifiers. Id. ¶ 30. Moreover, Plaintiff alleges that she never received notice of these filings and of the judgment entered against her. Id. ¶¶ 10, 32. Plaintiff then claims that her Motion to Strike "Ruth D. Gittens" from the judgment case was granted by the Baltimore County District Court on October 19, 2011. Id. ¶ 34. As a result of Defendants actions, Plaintiff brought this suit alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. (Count I), the Maryland Consumer Debt Collection Act, Maryland Code Annotated, Commercial Law Article § 14-202 (Count II), the Maryland Consumer Protection Act, Maryland Code Annotated, Commercial Law Article §§ 13-101 et seq. (Count IV) *fn6 as well as Maryland common law claims for tortious debt collection (Count III), negligence (Count V), conversion (Count VI) and malicious prosecution (Count VII). Id.

STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 12(c), a party may move for judgment on the pleadings any time after the pleadings are closed, as long as it is early enough not to delay trial.*fn7 See FED. R. CIV. P. 12(c).

The legal standard governing such a Motion is the same as a Motion to Dismiss under Rule 12(b)(6). See, e.g., Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999); Booker v. Peterson Cos., 412 F. App'x 615, 616 (4th Cir. Feb. 25, 2011); Economides v. Gay, 155 F. Supp. 2d 485, 488 (D. Md. 2001). In determining whether dismissal is appropriate, this Court assumes as true all well-pleaded facts in the plaintiff's complaint, but does not accept the plaintiff's legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662 (2009); Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009). A complaint must be dismissed if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Simmons v. United Mort. & Loan Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011); Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009).

ANALYSIS

Defendants Thieblot Ryan P.A. ("Thieblot Ryan") and Anthony W. Ryan ("Anthony Ryan") (collectively "Defendants") have filed a Motion for Judgment on the Pleadings with respect to Plaintiff's Maryland Consumer Protection Act claim in Count IV, which Plaintiff later withdrew, as well as Plaintiff's common law claims in Counts III, V, VI and the punitive damages claim in Count VII. Specifically, Defendants contend that a cause of action for tortious debt collection (Count III) is not cognizable under Maryland law and that Plaintiff has failed to state plausible claims of negligence (Count V), conversion (Count VI) and punitive damages for malicious prosecution (Count VII).

Case 1:12-cv-01652-RDB Document 46 Filed 05/14/13 Page 6 of 10 Preliminarily, this Court notes that Defendants do not seek judgment with respect to Plaintiff's claims under the Fair Debt Collection Practices Act (Count I) and the Maryland Consumer Debt Collection Act (Count II). Defendants also do not take issue with Plaintiff's malicious prosecution claim (Count VII) but solely oppose Plaintiff's request for punitive damages associated with this claim.

In Count III, Plaintiff seeks to state a claim for common law tortious debt collection. As this cause of action does not exist under Maryland law, Plaintiff requests that this Court recognize tortious debt collection as a new tort under Maryland law. The United States Court of Appeals for the Fourth Circuit has held that a "federal court sitting in diversity simply cannot compel a state to provide a cause of action in tort." Guy v. Travenol Labs., Inc., 812 F.2d 911, 915 (4th Cir. 1987); see also Rice v. Paladin Enters., Inc., 940 F. Supp. 836, 842 (D. Md. 1996) rev'd on other grounds, 128 F.3d 233 (4th Cir. 1997). Torts regarding improper debt collection conduct are addressed by the Maryland Consumer Debt Collection Act ("MCDCA"). As the Maryland Court of Appeals as previously noted, "where a ...


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