United States District Court, D. Maryland
REPORT AND RECOMMENDATIONS
STEPHANIE A. GALLAGHER UNITED STATES MAGISTRATE JUDGE.
Report and Recommendations addresses the Motion for Entry of
Default Judgment (ECF No. 9) filed by Plaintiff Larnette
Marshall against the Defendant, Classic Kia of Ellicott City
(“Defendant”). The Defendant has not filed an
opposition, and its deadline has now passed. On January 4,
2017, Judge Bennett referred this case to me to review Ms.
Marshall's motion and to make recommendations concerning
damages, pursuant to 28 U.S.C. § 301 and Local Rule
301.6. (ECF No. 10). No hearing is deemed necessary. Local
Rule 105.6 (D. Md. 2016). For the reasons discussed below, I
respectfully recommend that Ms. Marshall's motion (ECF
No. 9) be DENIED, and I further recommend that the case be
20, 2016, Ms. Marshall filed a Complaint in this Court
alleging that the Defendant had failed to display and include
proper information on a buyer's guide on the windows of
the vehicle offered to her for sale. [ECF No. 1]. According to
the Complaint, on August 22, 2014, Ms. Marshall purchased
what she believed to be a brand new car from Defendant that
turned out to be “a demonstrator/tester vehicle”
which has since experienced “many problems.”
Id. at 5-6. According to supplemental filings to the
Complaint, as of August 22, 2014, Ms. Marshall owed a balance
for the car in the amount of $23, 433.14. [ECF No. 5-1].
Through the instant motion, Plaintiff seeks relief from the
Court “to find [the] original contract presented to
Plaintiff Larnette Marshall by Defendant Classic Kia of
Ellicott City, that was paid by Plaintiff in cash from credit
union null and void and award Plaintiff the sum of $39, 000.
The breakdown of [the] amount [sought] includes the cost of
the car plus interest, fees incurred by Plaintiff in court
filing and travel, the time and effort of looking for another
vehicle[, and a] rental vehicle needed to get to work [once
the subject] Kia is returned to Defendant.” [ECF No.
was served with the summons and Complaint on June 21, 2016.
[ECF No. 4]. Defendant failed to file an answer or to
otherwise respond within the time frames allowed in the
Federal Rules of Civil Procedure. On November 29, 2016, the
Clerk entered an Order of Default against Defendant. [ECF No.
8]. On December 29, 2016, Ms. Marshall filed the instant
Motion for Default Judgment. [ECF No. 9].
STANDARD FOR DEFAULT JUDGMENT
reviewing a Motion for Default Judgment, the court accepts as
true the well-pleaded factual allegations in the complaint as
to liability. Ryan v. Homecomings Fin. Network, 253
F.3d 778, 780-81 (4th Cir. 2001). It, however, remains for
the court to determine whether these unchallenged factual
allegations constitute a legitimate cause of action.
Id.; see also 10A Wright, Miller &
Kane, Federal Practice and Procedure § 2688 (3d
ed. Supp. 2010) (“[L]iability is not deemed established
simply because of the default . . . and the court, in its
discretion, may require some proof of the facts that must be
established in order to determine liability.”).
court determines that liability is established, the court
must then determine the appropriate amount of damages.
Ryan, 253 F.3d at 780-81. The court does not accept
factual allegations regarding damages as true, but rather
must make an independent determination regarding such
allegations. See, e.g., Credit Lyonnais Secs. (USA), Inc.
v. Alcantara, 183 F.3d 151, 154 (2d Cir. 1999).
(1) the court must determine whether the unchallenged facts
in Ms. Marshall's Complaint constitute a legitimate cause
of action, and, if they do, (2) the court must make an
independent determination regarding the appropriate amount of
damages and the appropriate injunctive relief.
The Used Motor Vehicle Trade Regulations Rule
Used Motor Vehicle Trade Regulations Rule, 16 C.F.R. §
455.1 et seq. (“Rule”), was enacted
under the authority of the Federal Trade Commission Act, 15
U.S.C. 41 et seq. (“FTC Act”), and the
Magnusson Moss Warranty Act, 15 U.S.C. 2309
(“MMWA”). 49 FR 45692 (1984). “A violation
of the Rule constitutes an unfair or deceptive act or
practice under the FTC Act, and one who violates the Rule is
subject to civil penalties of up to $10, 000 per violation.
The… Rule is primarily intended to prevent and to
discourage oral misrepresentations and unfair omissions of
material facts by used car dealers concerning warranty
coverage.” 60 FR 62195. The Rule is designed to be
enforced by the Federal Trade Commission once it learns about
improper used vehicle sales. In order for Ms. Marshall's
case to proceed in this Court, the Rule must also afford a
private right of action to civil litigants. See, e.g.,
Williams v. Mead Westvaco Corp., 2007 WL 2327586, at *1
(W.D. Va. Aug. 10, 2007) (“The existence of a private
right of action is a ‘prerequisite for finding federal
question jurisdiction.'”) (citing Smith v.
Indus. Valley Title Ins. Co., 957 F.2d 90, 93
(3d Cir. 1992) (applying Merrell Dow Pharm., Inc. v.
Thompson, 478 U.S. 804 (1986)). The Rule, however,
provides no such right. See Holloway v. Bristol-Myers
Corp., 485 F.2d 986, 988-89 (D.C. Cir. 1973) (“The
[FTC] Act nowhere purports to confer upon private individuals
… a right of action to enjoin the practices prohibited
by the Act or to obtain damages following the commission of
such acts. …[W]e find strong indication that Congress
did not contemplate or intend such a private right of
action.”); Betskoff v. Enterprise Rent-A-Car Co. of
Baltimore, LLC, 2012 WL 32575 (D. Md. Jan. 4, 2012)
(finding that “enforcement of [the FTC Act] is
exclusive to the [Federal Trade Commission]”)
(citations omitted); Penn-Plax, Inc. v. L. Schultz,
Inc., 988 F.Supp. 906, 911 n.1 (D. Md. 1997)
(“Under the [FTC Act] no private party-consumer or
competitor-has standing to sue.”). See also 60
FR 62195 (“Even if a private right of action would be
useful, the Commission has no apparent authority to create
one. There is no private right of action for violation of
any FTC rule promulgated under the [MMWA]. In addition,
federal courts consistently have held that there is no
private remedy under the FTC Act.”) (emphasis
Ms. Marshall's allegation of a Rule violation fails to
state a claim upon which relief can be granted. Ms. Marshall
has not alleged any violations of federal law other than the
failure to provide a buyer's guide, and there is no
general federal consumer protection statute similar to that
existing in state law. Even when construed liberally in favor
of Ms. Marshall as a pro se litigant, see, e.g.,
Coulibaly v. J.P. Morgan Chase Bank, N.A., 2011 WL