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McCoy v. Pepcp Holdings, Inc.

United States District Court, D. Maryland, Southern Division

June 10, 2016

PEPCO HOLDINGS, INC., et al., Defendants.


          GEORGE J. HAZEL United States District Judge

         In this action, pro se Plaintiff William Thomas McCoy alleges various statutory and common law causes of action against Pepco Holdings. Inc. ("PHI"), Jack Strausman. Joseph M. Rigby. and Frederick Boyle (collectively, "Defendants"'). See ECF No. 1. Presently pending before the Court is Defendants" Motion to Dismiss Plaintiffs Amended Complaint.[1] ECF No. 12. No hearing is necessary to resolve the Motion. See Local Rule 105.6 (D. Md. 2014). For the reasons that follow. Defendants' Motion is granted.

         I. BACKGROUND

         Although the Amended Complaint is not a model of clarity, at its core, this action involves a billing dispute between Plaintiff and his purported electric company.[2] Plaintiff alleges that, on June 15. 2015. he sent an "Electronic Funds Transfer'" ("EFT") instrument via certified mail to PHI in the amount of $3, 066. which, according to Plaintiff, was to discharge a debt he owed for his electric services. See ECF No. 10 at ¶ 17. The EFT was a personal check that Plaintiff endorsed as "Not For Deposit. EFT Only, For Discharge Only.[3] ECF No. 6-1 at 2.[4] Shortly thereafter. Plaintiff received notice that the EFT instrument was not accepted because it was "not legal tender." ECF No. 10 at ¶ 18. Plaintiff alleges that PHI has threatened to disconnect his electric account if it does not receive legal tender. Id. at ¶ 28. The Amended Complaint is not clear as to whether the EFT document was returned to him. or if it was retained by PHI. Compare Id. at ¶ 21 (alleging that PHI "refused the payment and returned the same to Plaintiff"), with Id. at ¶ 27 (alleging that PHI "never return[ed] the FIT instrument").

         Plaintiff initiated this action on August 21. 2015. alleging violation of the Electronic Fund Transfers Act ("EFTA"). 15 U.S.C. § 1693 et seq., the Fair Debt Collection Practices Act CFDCPA"). 15 U.S.C. § 1692 et seq., and the Consumer Credit Protection Act ("CCPA"). 15 U.S.C. § 1601 et seq., as well as claims of fraud and conversion. See ECF No. 1. Rather than answering the Complaint. Defendants filed motions to dismiss the Complaint. See ECF Nos. 6 & 8. Plaintiff then filed an Amended Complaint that is substantively identical to the original Complaint.[5] See ECF No. 10. The same day that he filed his Amended Complaint, however. Plaintiff also filed a response in opposition to Defendants' Motion to Dismiss the original Complaint. ECF No. 11. Defendants now move to dismiss the Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.[6] See ECF No. 12.[7] Plaintiff has not filed a response in opposition to Defendant's latest Motion, [8] but. in light of his pro se status, the Court will consider the merits of the Motion.


         A. Failure to Exhaust Administrative Remedies

         Defendants first argue that dismissal is necessary because Plaintiff failed to exhaust administrative remedies. ECF No. 6 at 4-7. "Motions to dismiss for failure to exhaust administrative remedies are governed by [Federal Rule of Civil Procedure] 12(b)(1) for lack of subject matter jurisdiction." Clarke v. DynCorp Int'l LLC, 962 F.Supp.2d 781. 786 (D. Md. 2013) (alteration in original) (quoting Khoury v. Meserve, 268 F.Supp.2d 600. 606 (D. Md. 2003)). A motion pursuant to Rule 12(b)(1) should be granted "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Evans v. B.F. Perkins Co., 166 F.3d 642. 647 (4th Cir. 1999): see also United Slates ex rel. Vuyyuru v. Jadhav, 555 F.3d 337. 347-48 (4th Cir. 2009). The plaintiff bears the burden of proving that subject matter jurisdiction exists. Piney Run Preservation Ass 'n v. Cnty. Comm'rs of Carroll Cnty., Md, 523 F.3d 453. 459 (4th Cir. 2008). When considering a Rule 12(b)(1) motion, the court should "regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Evans, 166 F.3d at 647 (internal quotation marks and citation omitted).

         Defendants contend that the Court lacks jurisdiction to resolve this dispute because Plaintiff has failed to exhaust the administrative remedies available under the Public Utilities Article of the Maryland Code. See ECF No. 6 at 4-7. Pursuant to that Article, the Maryland Public Service Commission (the "Commission") has jurisdiction to supervise and regulate public-service companies operating in Maryland, including electric utility companies. Md. Code Ann-Pub. Util. § 2-112. The Commission has the power to investigate consumer complaints related to utility services and enforce provisions of the Public Utilities Article. See Md. Code Ann., Pub. Util. §§2-115.3-102.

         In Bell Atlantic of Maryland. Inc. v. Intercom Systems Corp., 782 A.2d 791 (Md. 2001). the Court of Appeals of Maryland addressed the issue of exhaustion of administrative remedies available before the Commission. The Court of Appeals concluded that "[w]hile comprehensive in nature, the regulatory framework of the Public Utility Companies Article is not all-encompassing so as to preempt all fora where potential claims may arise against public service companies." Id. at 797. In other words, claims that fall within the Commission's jurisdiction do not preempt other statutory or common law causes of action. See Id. at 803-04 ("The design of the Public Utility Companies Article does not reflect an intent to abrogate common law causes of action brought by consumers of the services offered by public service companies."). Nevertheless, the Commission has "primary" jurisdiction over disputes with public utility companies, which means that "a claimant must invoke and exhaust the administrative remedy, and seek judicial review of an adverse administrative decision, before a court can properly adjudicate the merits of the alternative judicial remedy." Id. at 797; see also Id. at 805.

         In Belt Atlantic, the plaintiff raised claims that included a dispute over a telephone company's billing rates and alleged discriminatory pricing-issues which fall within the Commission's jurisdiction. See Id. at 806: Md. Code Ann.. Pub. Util. § 2-113. The plaintiff also asserted, among other things, a claim for compensatory and punitive damages for the telephone company's alleged tortious interference with the plaintiffs contractual relations, but the factual predicate of those claims involved the billing rate and discriminatory pricing issues. Bell Atlantic, 782 A.2d at 806. The Court of Appeals noted that, "[w]hile the [Commission] may be able to resolve portions of [the plaintiffs] dispute with [the telephone company], other cognizable claims sounding in tort for compensatory and punitive damages arising out of the service contracts with [the telephone company] cannot be resolved by the [Commission |." Id. Thus, the Court of Appeals concluded that, in such circumstances, "a consumer must file a complaint with the [Commission] and then may decide to file an independent judicial action. Thereafter, the trial court must stay the independent judicial action upon the request of either party until after final resolution of the administrative proceeding." Id. at 806-07. Such a procedure "allow[s] the agency to imprint the matter with its expertise in this area of law and public policy while also providing consumers with a forum for cognizable common law claims for which they could not otherwise obtain adequate relief" Id. at 807.

         Here, as in Bell Atlantic, Plaintiffs statutory and common law claims involve issues that fall within the Commission's jurisdiction, in particular, issues regarding billing disputes and termination of services. See Md. Code Regs. Md. Code Regs. et seq. Plaintiff was therefore required to initiate such a dispute with the Commission, before filing an independent judicial action in this Court.[9] There is no allegation in the Amended Complaint indicating that Plaintiff did so. and Plaintiff did not address this argument when he responded to Defendants' Motion to Dismiss the original Complaint. See ECF Nos. 10 & 11: see also, e.g., Kissi v. Panzer, 664 F.Supp.2d 120. 123 (D.D.C. 2009) ("Because the plaintiffs opposition fails to address the defendants" arguments, the Court may treat the defendants' motion as conceded.'"). Although entering a stay would be appropriate if Plaintiff did initiate an action before the Commission, because Plaintiff failed to so much as invoke the available administrative remedy, dismissal is wan-anted. See Bell Atlantic, 782 A.2d at 797 (emphasis added) ("[A] claimant must invoke and exhaust the administrative remedy . .. before a court can properly adjudicate the merits of the alternative judicial remedy."): cf. Grice v. Colvin, 97 F.Supp.3d 684, 699 (D. Md. 2015) (noting, in action under the Social Security Act. that the first element of exhaustion of administrative remedies-presentment of the claim to the agency-is nonwaivable. while the second element-exhaustion-may be waived).

         B. Failure to State a Claim

         Even if Plaintiff had presented his claim to the Commission before filing an independent judicial action raising these statutory and common law- claims, the Amended Complaint would still be subject to dismissal under Rule 12(b)(6) ...

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