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Bolden v. McCabe, Weisberg & Conway, LLC

United States District Court, D. Maryland

March 13, 2014



DEBORAH K. CHASANOW, District Judge.

Presently pending and ready for resolution in this action are a motion for reconsideration and a motion for leave to submit an amended complaint filed by pro se Plaintiff Jermaine Bolden (ECF Nos. 26, 27, & 28). The relevant issues have been briefed, and the court now rules, no hearing being necessary. Local Rule 105.6. For the following reasons, both motions will be denied.

I. Background

Plaintiff commenced this action on April 29, 2013, against McCabe, Weisberg & Conway LLC ("Defendant"), claiming violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq., the Maryland Consumer Debt Collection Act ("MCDCA"), Md. Code Ann., Com. Law, § 14-201 et seq., and the Maryland Consumer Protection Act ("MCPA"), Md. Code Ann., Com. Law § 13-101 et seq. By memorandum opinion and order, the undersigned granted Defendant's motion to dismiss and dismissed Plaintiff's complaint on December 31, 2013, finding his complaint wholly devoid of factual allegations to support consumer law violations. (ECF Nos. 24 & 25). The record indicates that Plaintiff called the clerk's office on January 16, 2014 to inquire about the status of his case and stated that he did not receive the memorandum opinion and order. The clerk's office subsequently mailed the memorandum opinion and order to Plaintiff on January 16, 2014. On February 14, 2014, Plaintiff moved for reconsideration (ECF No. 26) and for leave for file an amended complaint (ECF No. 27). Plaintiff then filed an amended motion for reconsideration on February 21, 2014 (ECF No. 28), and Defendant opposed the motions (ECF No. 29).[1]

II. Analysis

Plaintiff has moved for reconsideration and for leave to amend his complaint. In Katyle v. Penn Nat. Gaming, Inc., 637 F.3d 462, 470 (4th Cir. 2011), the United States Court of Appeals for the Fourth Circuit explained that a district court may not grant a post-judgment motion to amend the complaint unless the court first vacates its judgment pursuant to Fed.R.Civ.P. 59(e) or 60(b). See also Calvary Christian Center v. City of Fredericksburg, Virginia, 710 F.3d 536, 539 (4th Cir. 2013). The Fourth Circuit further stated that "[t]o determine whether vacatur is warranted, [], the court need not concern itself with either of those rules' legal standards." Katyle, 637 F.3d at 471.[2] Katyle held that:

[t]he court need only ask whether the amendment should be granted, just as it would on a prejudgment motion to amend pursuant to Fed.R.Civ.P. 15(a). In other words, a court should evaluate a postjudgment motion to amend the complaint under the same legal standard as a similar
motion filed before judgment was entered - for prejudice, bad faith, or futility.' [ Laber v. Harvey, 438 F.3d 404, 427 (4th Cir. 2006)]; accord Matrix Capital Mgmt. Fund, LP v. Bearingpoint, Inc., 576 F.3d 172, 193 (4th Cir. 2009).

Katyle, 637 F.3d at 471; United States v. Shabazz, 509 F'Appx. 265, 266 (4th Cir. 2013) (same). Futility is apparent if the proposed amended complaint fails to state a claim under the applicable rules and accompanying standards: "[A] district court may deny leave if amending the complaint would be futile - that is, if the proposed amended complaint fails to satisfy the requirements of the federal rules." United States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008) (internal quotation marks omitted).

Amending the complaint would be futile because Plaintiff's proposed amended complaint fails to cure the defects in the original complaint. In the original complaint, Plaintiff alleged that Defendant initiated a hard pull of Plaintiff's credit report from Experian without a permissible purpose and that this reduced his credit score. Plaintiff also asserted that Defendant sent him letters threatening foreclosure action without providing proof that it had authority to enforce the mortgage or collect payments. Plaintiff propounds identical allegations in the proposed amended complaint. ( See ECF No. 27-1). Specifically, Plaintiff states that Defendant does not have standing to foreclose on his property, that it filed an "illegal foreclosure which has damaged the Plaintiff's credit report, " and initiated a hard pull of Plaintiff's credit report on February 9 and March 7, 2013. ( Id. at 1). The undersigned found these allegations woefully insufficient to plead violations of the FCRA, FDCPA, and MCDCA. The MCPA claim was dismissed pursuant to Section 13-104, which exempts professional services from the MCPA, including lawyers. (ECF No. 24, at 15-16). Much like the original complaint, Plaintiff's proposed amended complaint again recites elements of potential causes of action and does not show how Defendant's actions amount to violations of the respective statutes. See Qihui Huang v. Culbertson, Civil Action No. 10-cv-00944-AW, 2011 WL 10005533, at *1 (D.Md. Jan. 25, 2011) (denying motion to amend where the amended complaint mostly contained "repetition and repackaging of the perplexing and conclusory allegations contained in the original complaint").

Plaintiff also raises a new legal theory for recovery, premised on the same factual allegations. Specifically, he alleges violations of the Program Fraud Civil Remedies Act of 1986 ("PFCRA"), 31 U.S.C. § 3802 et seq. The PFCRA was enacted to allow federal agencies to recover penalties and assessments from individuals who have obtained benefits or payments from the government by making false or fraudulent claims. See 31 U.S.C. § 3802; Vermont Agency of Natural Res. V. United States ex rel. Stevens, 529 U.S. 765, 786 n.17 (2000) (the PFCRA is a "sister scheme" to the False Claims Act ("FCA") and is "designed to operate in tandem with the FCA."). The PFCRA claim in Plaintiff's proposed amended complaint is completely inapplicable to these facts. Plaintiff's proposed amended complaint suffers from the same infirmities as his original complaint, thus granting leave to amend would be futile.[3]

III. Conclusion

For the foregoing reasons, Plaintiff's motions to reconsider and for leave to file an amended complaint will be ...

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