United States District Court, D. Maryland
DEBORAH K. CHASANOW, District Judge.
Presently pending and ready for review in this action alleging common law tort of defamation and violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq., Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681 et seq., and the Maryland Consumer Debt Collection Act ("MCDCA"), Md. Code Ann., Com. Law §§ 14-201, et seq., are several motions: (1) the motion of Defendant United Collections Bureau, Inc. ("Defendant" or "UCB") to dismiss, or in the alternative, for summary judgment (ECF No. 16); (2) Plaintiff Jonathan Alston's ("Plaintiff") motion to strike (ECF No. 20); and (3) Plaintiff's motion for leave to file a second amended complaint (ECF No. 23). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Defendant's motion to dismiss, or in the alternative, for summary judgment will be granted. Plaintiff's motions to strike and for leave to file a second amended complaint will be denied.
A. Factual Background
Plaintiff, proceeding pro se, has sued UCB for damages resulting from UCB allegedly reporting a collection item to three credit reporting agencies - Equifax, Experian, and TransUnion. According to the first amended complaint, the collection item arose from a debt Plaintiff owed to Prince George's Hospital for personal services. Plaintiff alleges that the debt was paid in full on June 18, 2007 after his case settled with an insurance company. (ECF No. 14 ¶ 8). Plaintiff contends that "UCB reported this account not only despite knowing the account was paid but also knowing the account was false in the sense that it was uncollectible and unenforceable for it was outside the statute of limitations." ( Id. ¶ 10). Plaintiff asserts that he disputed the debt "with the credit bureaus on numerous occasions within the past two years but UCB continued to maliciously instruct the credit bureaus to report this false account." ( Id. ¶ 11).
According to the first amended complaint, Plaintiff disputed the debt with Equifax in May 2012 and Equifax subsequently forwarded the dispute to UCB for investigation on May 24, 2012. Plaintiff received the investigation results from Equifax on May 24, 2012, which confirmed that the account was correct. ( Id. ¶ 12). Plaintiff also disputed the account with TransUnion in June 2012, TransUnion referred the dispute to UCB for investigation, and according to Plaintiff, on June 19, 2012, the investigation results stated that the UCB account was deleted. ( Id. ¶ 13). Finally, Plaintiff disputed the account with Experian in June 2012, Experian forwarded the dispute to UCB for investigation, and like the Equifax dispute, UCB confirmed the account. ( Id. ¶ 14). Plaintiff asserts that the disputes he filed with TransUnion, Equifax, and Experian all concerned the same debt to Prince George's Hospital, yet UCB's investigation yielded different results to TransUnion (resulting in his account being deleted) from Equifax and Experian.
On July 8, 2012, Plaintiff sent UCB a letter "explaining that he does not have an outstanding balance with Prince George's Hospital." ( Id. ¶ 15). Plaintiff asserts that he requested that UCB provide proof of the debt, and if UCB had done so, he would have paid the outstanding balance. ( Id. ). In response, Plaintiff received a letter from UCB dated July 17, 2012, in which UCB advised him that "the credit reporting initiated by United Collection Bureau, Inc., with regard to the above referenced account was requested to be removed from your credit file. Please accept our apology for any inconvenience this error may have caused." ( Id. ¶ 16; see also ECF No. 18-2). Plaintiff also asserts that:
[i]n correspondence dated December 21, 2012 UCB admitted that it did not perform a reasonable investigation after receiving Mr. Alston's May and June 2012 credit bureau disputes. UCB admitted that it only confirmed that the name, address and social security number matched its files. UCB further admitted it only conducted a reasonable response after receiving Mr. Alston's July 8, 2012 correspondence and found that the account should not have been reported to the credit reporting agencies.
(ECF No. 14 ¶ 17). Plaintiff believes that as a result of the reported debt to Prince George's Hospital, inaccurate credit reports were published to A&H Motors, AT&T Services, Capital One, Flagship Credit Acceptance, Regional Acceptance, Wells Fargo Capital One, and Verizon Communications. ( Id. ¶ 18).
B. Procedural Background
On February 5, 2013, Plaintiff commenced this action in the Circuit Court for Prince George's County in Maryland. (ECF No. 1-1). In the complaint, Plaintiff alleged that Defendant violated the FDCPA by reporting false information to TransUnion, Equifax, and Experian. Plaintiff further asserted violations of the FCRA premised on Defendant's alleged failure to investigate the disputed account. Finally, Plaintiff asserted the common law tort of defamation on the basis of UCB's allegedly intentional and malicious instruction to credit bureaus to report a collection item for a debt that Plaintiff maintains had been satisfied. ( Id. at 4-6).
Defendant removed the action to this court on March 27, 2013, citing federal question jurisdiction as the jurisdictional basis. (ECF No. 1). Defendant subsequently moved to dismiss on April 1, 2013 (ECF No. 10). Before he opposed the motion, Plaintiff filed a first amended complaint on April 17, 2013, adding a fourth claim for violations of the MCDCA. (ECF No. 14-2). On May 1, 2013, Defendant filed a motion to dismiss Plaintiff's first amended complaint, or in the alternative, for summary judgment. (ECF No. 16). Plaintiff opposed the motion on May 16, 2013 (ECF No. 18), and Defendant replied on June 3, 2013 (ECF No. 19). On June 18, 2013, Plaintiff moved to strike a supplemental affidavit that Defendant submitted with the reply brief and a portion of Defendant's reply brief. (ECF No. 20). Defendant opposed this motion on July 5, 2013 (ECF No. 21), and Plaintiff replied on July 17, 2013 (ECF No. 22). Plaintiff subsequently moved for leave to file a second amended complaint on August 21, 2013, after Defendant refused to consent to the amendment. (ECF No. 23). In the second amended complaint, Plaintiff seeks to add Prince George's Hospital as a second defendant, and to include two additional counts for respondeat superior liability and alleged violations of the Maryland Consumer Protection Act ("MCPA"), Md. Code Ann., Com. Law §§ 13-101 et seq.  Defendant opposed this motion on September 4, 2013 (ECF No. 24) and Plaintiff replied on September 23, 2013 (ECF No. 25).
II. Standards of Review
A. Motion to Dismiss for Failure to State a Claim
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). A plaintiff's complaint need only satisfy the standard of Rule 8(a), which requires a "short and plain statement of the claim showing that pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "Rule 8(a)(2) still requires a showing, ' rather than a blanket assertion, of entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 n.3 (2007). That showing must consist of more than "a formulaic recitation of the elements of a cause of action" or "naked assertion[s] devoid of further factual enhancement." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted).
At this stage, all well-pleaded allegations in a complaint must be considered as true, Albright v. Oliver, 510 U.S. 266, 268 (1994), and all factual allegations must be construed in the light most favorable to the plaintiff, see Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999) ( citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). In evaluating the complaint, unsupported legal allegations need not be accepted. Revene v. Charles Cnty. Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989). Legal conclusions couched as factual allegations are insufficient, Iqbal, 556 U.S. at 678, as are conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged, but it has not show[n]... that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679 ( quoting Fed.R.Civ.P. 8(a)(2)). Thus, "[d]etermining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.
B. Summary Judgment Standard
Summary judgment may be entered only if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). Summary judgment is inappropriate if any material factual issue "may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
"A party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of [his] pleadings, ' but rather must set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) ( quoting former Fed.R.Civ.P. 56(e)). "A mere scintilla of proof... will not suffice to prevent summary judgment." Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). At the same time, the facts that are presented must be construed in the light most favorable to the party opposing the motion. Scott v. Harris, 550 U.S. 372, 378 (2007); Emmett, 532 F.3d at 297.
A. Defendant's Motion to Dismiss or for Summary Judgment
1. FDCPA Claim (Count I)
Plaintiff alleges that UCB violated various provisions of the FDCPA, which protects consumers from "abusive and deceptive debt collection practices by debt collectors." Akalwadi v. Risk Mgmt. Alts., Inc., 336 F.Supp.2d 492, 500 (D.Md. 2004). UCB moves to dismiss this claim.
The FDCPA "forbids the use of any false, deceptive, or misleading representation or means in debt collection and provides a non-exhaustive list of prohibited conduct." United States v. Nat'l Fin. Servs., Inc., 98 F.3d 131, 135 (4th Cir. 1996). It is well established that the "threshold requirement for application of the FDCPA is that the prohibited practices are used in an attempt to collect a debt." Mabe v. G.C. Servs. Ltd. P'ship, 32 F.3d 86, 88 (4th Cir. 1994). The FDCPA is a strict liability statute and a ...