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Cole v. Capital One, N.A.

United States District Court, D. Maryland, Southern Division

May 5, 2016




In this action, which was removed to this Court from the Circuit Court for Prince George's County. Maryland. Plaintiff Jennifer Cole alleges violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq. and the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1601 et seq, against twenty-one defendants. Presently pending before the Court is a Motion to Dismiss tiled by Defendant Data Mortgage. Inc. ECF No. 95. A hearing on the motion is not necessary. See Loc. R. 105.6 (D. Md.). For the reasons that follow. Data Mortgage's Motion to Dismiss is granted.


In the Complaint. Plaintiff alleges various FCRA and FDCPA violations against the twenty one Defendants named in this action.[1] Specifically, she first alleges that certain Defendants failed to perform a reasonable investigation after Plaintiff disputed the validity of certain charged-off accounts that were opened in her name.[2] ECF No. 2 at ¶¶ 11-19. Plaintiff alleges that she did not sign the applications to open those accounts, that they were fraudulently opened by another individual, and that a "reasonable investigation" of Plaintiff's dispute would have "involved the Defendants" verification of the Plaintiffs signature on the credit applications." Id., at ¶ 16.

Plaintiff next alleges that other Defendants are attempting to collect debts owed on the fraudulently opened accounts and that yet other Defendants are attempting to collect alleged medical bills owed by Plaintiff without proof that those Defendants have been authorized to collect such debts. Id. at ¶¶ 20-22. Plaintiff contends that she has disputed owing these debts but that they have been "verified as being accurately reported [to consumer reporting agencies] and continue to be reported on Plaintiffs credit reports." Id. at ¶ 22.

Finally, Plaintiff alleges that certain Defendants violated the FCRA by obtaining her credit report without a permissible purpose for doing so. Id. at ¶¶ 23-30. As is relevant to the present Motion. Plaintiff alleges that Data Mortgage obtained her credit report on June 5. 2014. and that "Plaintiff did not receive a firm offer of credit from [Data Mortgage] and therefore it did not access Plaintiffs credit report for a permissible purpose." Id. at ¶ 23. Plaintiff further alleges that Data Mortgage "knowingly and willfully used deception and false pretenses to obtain Plaintiffs consumer report, by falsely representing or certifying that the report was being obtained for a permissible purpose" and that doing so violated the FCRA.

Since this action was removed to this Court in April 2015. Plaintiff has voluntarily dismissed her claims against multiple Defendants. See ECF Nos. 59. 63. 69. 71. 101 & 102. Several other Defendants have answered the Complaint. See ECF Nos. 26. 43. 49. 58. 67. 68, 82 & 83. On June 29. 2015. Plaintiff tiled a Motion for Clerk's Entry of Default as to certain Defendants, and on November 6, 2015. she Filed a "Renewed" Motion for Clerk's Entry of Default. ECF Nos. 74 & 105. The Court denied both motions on January 15. 2016[3] ECF Nos. 107 & 108.

Meanwhile, on September 25. 2015, Data Mortgage filed the pending Motion to Dismiss, arguing Plaintiff has failed to state a claim upon which relief can be granted and that the Court lacks personal jurisdiction over it.[4] See ECF No. 95. Plaintiff has opposed the Motion. ECF No. 100, and the time for Data Mortgage to file a reply has expired.


A. Personal Jurisdiction

A motion to dismiss for lack of personal jurisdiction arises under Federal Rule of Civil Procedure 12(b)(2). "When a court's personal jurisdiction is properly challenged by a Rule 12(b)(2) motion, the jurisdictional question thus raised is one for the judge, with the burden on the plaintiff ultimately to prove the existence of a ground for jurisdiction by a preponderance of the evidence.'" Combs v. Bakker, 886 F.2d 673. 676 (4th Cir. 1989) (citation omitted). Discovery and an evidentiary hearing are not required to resolve a motion under Rule 12(b)(2), however. See generally 5B Wright & Miller, Federal Practice & Procedure § 1351. at 274-313 (3d ed. 2004, 2012 Supp.). Rather, the Court may. in its discretion, address personal jurisdiction as a preliminary matter, ruling solely on the motion papers, supporting legal memoranda, affidavits, and the allegations in the complaint. Consulting Engineers Corp. v. Geometric Ltd, 561 F.3d 273, 276 (4th Cir. 2009); see also In re Celotex Corp., 124 F.3d 619. 628 (4th Cir. 1997). In such a circumstance, the plaintiff need only make "a prima facie showing of a sufficient jurisdictional basis to survive the jurisdictional challenge." Consulting Engineers Corp., 561 F.3d at 276. "In deciding whether the plaintiff has made the requisite showing, the court must take all disputed facts and reasonable inferences in favor of the plaintiff." Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003) (citing Mylan labs. Inc. v. Akzo, N. V., 2 F.3d 56, 62 (4th Cir. 1993)).

Personal jurisdiction over a nonresident defendant is proper when "(1) an applicable state long-arm statute confers jurisdiction and (2) the assertion of that jurisdiction is consistent with constitutional due process." Nichols v. G.D. Searle & Co.. 991 F.2d 1195. 1199 (4th Cir. 1993); see also Fed. R. Civ. P. 4(k)(1)(A). "In applying Maryland's long-arm statute, federal courts often state that " [the] statutory inquiry merges with [the] constitutional inquiry."" Dring v. Sullivan, 423 F.Supp.2d 540. 544 (D.Md.2006) (citing Carefirst of Md, 334 F.3d at 396-97; Stover v. O'Cornell Assocs.. Inc., 84 F.3d 132. 135 (4th Cir.1996) (additional citations omitted)). A court's exercise of personal jurisdiction over a defendant is consistent with due process so long as the defendant has established "minimum contacts" with the forum slate such that maintenance of the suit does not offend "traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310. 316. 66 S.Ct. 154 (1945) (citation omitted). Put differently, the court must consider whether a defendant's contacts with the forum state are substantial enough that it "should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp, v. Woodson, 444 U.S. 286. 297. 100 S.Ct. 559 (1980). The United States Court of Appeals for the Fourth Circuit has distilled these somewhat abstract concepts into three basic prongs: "(4) the extent to which the defendant "purposefully avail[ed]' itself of the privilege of conducting activities in the State; (2) whether the plaintiffs" claims arise out of those activities directed at the State; and (3) whether the exercise of personal jurisdiction would be constitutionally 'reasonable."" ALS Scan, Inc. v. Digital Serv. Consultants. Inc., 293 F.3d 707. 712 (4th Cir. 2002).

Plaintiffs Complaint alleges no jurisdictional facts with respect to Data Mortgage. The only facts alleged in the Complaint regarding Data Mortgage is that it is "in the business of brokering or procuring mortgage loans, " and that it "obtained Plaintiffs credit report on June 5. 2015, " without having a permissible purpose for doing so. ECF No. 2 at ¶¶ 7, 23. In its Motion to Dismiss. Data Mortgage indicates that it is a California entity whose business operations are solely within the state of California. ECF No. 95-1 at 1.[5] Data Mortgage argues that Plaintiff has failed to satisfy her burden to allege that this Court can exercise personal jurisdiction over it. Plaintiff argues, however, that because she is a Maryland resident, see ECF No. 2 at 2 2. when Data Mortgage obtained her credit report, it "transacted] . . . business" in the state of Maryland and caused her tortious injury in Maryland. See ECF No. 100 at 4: Md. Code Ann.. Cts. & Jud. Proc. § 6-103{b) (providing that "'[a] court may exercise personal jurisdiction over a person, who directly or by an agent.. . [transacts any business or performs any character of work or service in [Maryland]" or "[clauses tortious injury in the state by an act or omission in [Maryland]").

In Zellerino v. Roosen, 118 F.Supp. 3d 946 (E.D. Mich. 2015). the court rejected the same argument that Plaintiff raises here. Zellerino involved an FCRA action in which the plaintiff, a Michigan resident, alleged that the defendants impermissibly obtained her consumer report, which she alleged was an invasion of her privacy, The defendants, who conducted business in California, moved to dismiss the complaint for lack of personal jurisdiction. The plaintiff argued that the United States District Court for the Eastern District of Michigan could exercise personal jurisdiction over the defendants "because the defendants committed an intentional tort that caused consequences to occur in the State of Michigan." hi. at 950. In dismissing this argument, the Zellerino court relied on Walden v.Fiore, 134 S.Ct. 1115 (2014). in which the United States Supreme Court emphasized two important points with respect to personal jurisdiction: first, that the relationship between the defendant and the forum "must arise out of contacts that the 'defendant himself creates with the forum State." id. at 1122 (emphasis in original) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462. 475. 105 S.Ct. ...

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