United States District Court, D. Maryland, Northern Division
WILLIAM D. QUARLES, Jr., District Judge.
Mary Scanlan sued Robert N. Kilberg for violating the Fair Debt Collection Practices Act ("FDCPA") and the Maryland Consumer Debt Collection Act ("MCDCA") in the Circuit Court for Baltimore City. ECF No. 2. Kilberg removed the suit to this Court. ECF No. 1. Pending are Kilberg's motions to dismiss and to strike Scanlan's surreply, or alternatively, for leave to respond to Scanlan's surreply. ECF Nos. 8, 15. No hearing is necessary. Local Rule 105.6 (D. Md. 2014). For the following reasons, Kilberg's motion to dismiss will be granted in part, the Court will remand the MCDCA claim to the Circuit Court, and Kilberg's motion to strike will be denied as moot.
On August 4, 2006, Scanlan hired the law firm Mister, Winter, Bartlett, LLC ("Mister") to represent her in a family law matter. ECF No. 2 ¶ 7. Scanlan signed a retainer agreement governing the fee arrangement, scope of representation, and amount of interest on late payments. Id. Although the retainer did not state that Scanlan would pay for costs of collection or attorneys' fees for collection work, id., it did state that Scanlan must pay "all legal fees, costs and expenses incurred by you with this office." ECF No. 2-1 at 2 (retainer agreement attached to the complaint).
Mister's representation ended in September 2007 with an unfavorable outcome "resulting in a significant reduction to [Scanlan's] child support award." ECF No. 2 ¶ 8. Scanlan had incurred "a large debt" from the representation and was delinquent on her payments to Mister. Id. ¶¶ 6, 9.
On November 8, 2013, Mister, through its attorney, Kilberg, sued Scanlan in the Maryland District Court for Baltimore County for $16, 646 in unpaid legal fees, $469.92 in interest, and $2, 497 (15 percent of the principle) in attorneys' fees. Id. ¶ 9; see also ECF No. 2-2 at 2 (contract action filed in District Court). Kilberg did not attach a schedule of fees to the complaint showing that he was entitled to the amount claimed. ECF No. 2 ¶ 11.
On February 7, 2014, before trial began that day, Scanlan's efforts to settle suit were unsuccessful, in part, because Kilberg and Mister "continued to claim they were legally entitled to attorneys' fees." Id. ¶ 13. When Mister failed to provide a "legal or factual justification for the [attorneys'] fees" under cross-examination, Kilberg waived his claim for attorneys' fees. Id. ¶ 14.
On July 24, 2014, Scanlan filed suit in the Circuit Court for Baltimore City alleging violations of the MCDCA (count one) and the FDCPA (count two). ECF No. 1 ¶ 1. On September 12, 2014, Kilberg removed the suit to this Court. Id.  On September 17, 2014, Kilberg moved to dismiss the complaint for failure to state a claim. ECF No. 8. On October 6, 2014, Scanlan opposed the motion. ECF No. 10. On October 22, 2014, Kilberg replied. ECF No. 13.
On November 4, 2014, Scanlan filed a "notice of supplemental authority" directing the Court to a recent decision by the Maryland Court of Special Appeals, Allstate Lien & Recovery Corp. v. Stansbury, 2014 WL 4997405 (Md. Ct. spec. App. Oct. 7, 2014). ECF No. 14. On November 11, 2014, Kilberg moved to strike the notice as an impermissible surreply, or alternatively, for leave to respond to the surreply. ECF No. 15.
A. Legal Standard for Motion to Dismiss
Under Federal Rule of Civil Procedure 12(b)(6), an action may be dismissed for failure to state a claim upon which relief can be granted. Rule 12(b)(6) tests the legal sufficiency of a complaint, but does not "resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).
The Court bears in mind that Rule 8(a) (2) requires only a "short and plain statement of the claim showing that the pleader is entitled to relief." Migdal v. Rowe Price-Fleming Int'l, Inc., 248 F.3d 321, 325-26 (4th Cir. 2001). Although Rule 8's notice-pleading requirements are "not onerous, " the plaintiff must allege facts that support each element of the claim advanced. Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 764-65 (4th Cir. 2003). These facts must be sufficient to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
This requires that the plaintiff do more than "plead facts that are merely consistent with a defendant's liability;'" the facts pled must "allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ( quoting Twombly, 550 U.S. at 557). The complaint must not only allege but also "show" that the plaintiff is entitled to relief. Id. at 679 (internal quotation marks omitted). "Whe[n] the well-pleaded facts do not permit the court to infer more than the mere possibility of ...