United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge
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. 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.
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. 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. ECF No. 6-1 at 2. 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
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. 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. See ECF No. 12. Plaintiff has not
filed a response in opposition to Defendant's latest
Motion,  but. in light of his pro se status, the
Court will consider the merits of the Motion.
Failure to Exhaust Administrative Remedies
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
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.
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
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
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. 20.26.02.05: Md. Code Regs.
20.31.01.01 et seq. Plaintiff was therefore required
to initiate such a dispute with the Commission, before filing
an independent judicial action in this Court. 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).
Failure to State a Claim
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) ...