United States District Court, D. Maryland, Southern Division
W. Grimm United States District Judge.
five-year period, Plaintiff Thomas Howes worked as an
insurance agent for Defendant New York Life Insurance Company
(“NY Life”) selling the company's insurance
products to a robust client base that he established during
his 24-year career as an insurance agent and financial
planner. In March 2016, NY Life terminated its relationship
with Howes because he allegedly failed to disclose and
concealed a tax lien against him. Subsequently, NY Life sent
notices to Howes's customers who owned NY Life products,
notifying them that Howes had been terminated as a NY Life
agent. Howes alleges that these notifications defamed him and
interfered with his business relationship with his clients
and seeks declaratory and injunctive relief to force NY Life
to cease its actions. Pending before the Court are
Howes's Motion for Injunctive and Declaratory Relief, ECF
No. 19, and NY Life's Motion to Dismiss, ECF No. 14. The
Motions are fully briefed, Def.'s Mem., ECF No. 14-1;
Pl.'s Opp'n, ECF No. 18; Pl.'s Mem., ECF No.
19-1; Def.'s Reply & Opp'n, ECF No. 20; Pl.'s
Reply, ECF No. 21, and no hearing is necessary, Loc. R. 105.6
(D. Md.). Because Howes fails to plead the necessary elements
of any claim, I will grant NY Life's Motion to Dismiss,
which renders moot Howes's Motion for Injunctive and
his 24-year career as an insurance agent and financial
planner, Howes established a large client base whose business
he values at $70 million. Compl. ¶¶ 13-14, ECF No.
2. In 2011, Howes signed a Contract with NY Life to receive
commissions for selling the insurance company's products
to his customers. Id. ¶ 22; Agent's
Contract ¶¶ 6, 9, J.A. Ex. C. The Contract
characterized Howes as an independent contractor and
authorized either party to terminate the relationship with or
without cause. Agent's Contract ¶¶ 7, 19-20. In
March 2016, NY Life terminated its relationship with Howes.
Compl. ¶ 32. In a public disclosure required by the
Financial Industry Regulatory Authority
(“FINRA”), NY Life stated that it terminated its
relationship with Howes because he “failed to timely
disclose a 2012 federal tax lien.” Thomas W
Howes, FINRA BrokerCheck,
(last visited Mar. 29, 2017); see also FINRA By-Laws
art. V, § 3, FINRA Rules 4530(a)(2), 8312(b)(2)(A);
FINRA Regulatory Notice 10-39.
the termination of the Contract, NY Life mailed letters to
Howes's customers to whom he had sold NY Life products.
See, e.g., Letter from Scott W. Weinstein, Vice
President, N.Y. Life Ins. Co., to Kimberly Ann Scott (July
11, 2016), J.A. Ex. A. These letters informed the customers
that Howes, “who served as your agent, is no longer
associated with New York Life” and sought confirmation
that the company had a complete list NY Life policies and
accounts owned by the customers. Id. The letters
also directed customers to FINRA's BrokerCheck webpage
for “additional information about registered
representatives, including this agent [Howes].”
Id. By searching Howes's name on the webpage, it
is possible for any member of the public to find NY
Life's publicly-disclosed reason for terminating its
relationship with Howes. Thomas W Howes, FINRA
BrokerCheck, supra. In addition, sometime after NY
Life terminated Howes's Contract, one of Howes's
customers spoke to a NY Life employee at a tennis court who
told the customer that Howes had been “fired” and
speculated that “whatever [he] did must have been
egregious to be terminated so quickly.” Text Message,
J.A. Ex. B.
2016, Howes initiated FINRA arbitration against the company
and ten other individuals, leveling many of the same
allegations against NY Life that he does in the Complaint
filed in this Court. FINRA Arbitration Submission Agreement,
J.A. Ex. D. Two months later, he filed the instant Complaint
in the Circuit Court for Montgomery County and sought a
Temporary Restraining Order prohibiting NY Life from
contacting his clients. Compl. NY Life then removed the case to
this Court, Notice of Removal, ECF No. 1, where the Parties
filed the pending motions.
Rule of Civil Procedure 12(b)(6) provides for “the
dismissal of a complaint if it fails to state a claim upon
which relief can be granted.” Velencia v.
Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md.
Dec. 13, 2012). This rule's purpose “is to test the
sufficiency of a complaint and not to resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses.” Id. (quoting
Presley v. City of Charlottesville, 464 F.3d 480,
483 (4th Cir. 2006)). To that end, the Court bears in mind
the requirements of Fed.R.Civ.P. 8, Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009), when considering a motion to
dismiss pursuant to Rule 12(b)(6). Specifically, a complaint
must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief, ”
Fed.R.Civ.P. 8(a)(2), and must state “a plausible claim
for relief, ” as “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice, ” Iqbal, 556 U.S.
at 678-79. See Velencia, 2012 WL 6562764, at *4
(discussing standard from Iqbal and
Twombly). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556
U.S. at 678.
argues that the Complaint should be dismissed because Howes
“has not alleged the prima facie elements of
any legal claim.” Def.'s Mem. 8. The Complaint best
can best be described as an unguided missile, with components
evocative of consumer-fraud, defamation,
misappropriation-of-trade- secrets, and wrongful-termination
claims, but devoid of any allegations establishing the
elements of any of those claims.
Consumer Protection Act
concretely, Howes alleges (in conclusory terms)-but does not
explain how-NY Life's “conduct . . . constitutes
unfair and deceptive trade practices in violation of”
the Maryland Consumer Protection Act (“MCPA”),
Md. Code Ann., Com. Law §§ 13-101 to -501. Compl.
¶ 3. That statute provides a cause of action for victims
of unfair and deceptive trade practices, as defined by the
law, to seek money damages, Md. Code Ann., Com. Law, §
13-408, a form of relief that Howes does not and cannot seek
outside of arbitration, Agent's Contract ¶ 24.a
(“[A]ny dispute, claim or controversy arising between
the Parties . . . shall be resolved by an arbitration
proceeding administered by FINRA . . . .”); Compl.
¶ 1 (“This is an action for a declaratory judgment
and Injunctive Relief . . . . No money damages are
sought.”). “[D]eclaratory and injunctive relief
is not available under the . . . MCPA.” Horowitz v.
Cont'l Cas. Ins. No. DKC 14-3698, 2015 WL 9460111,
at *6 (D. Md. Dec. 28, 2015) (quoting Bradshaw v. Hilco
Receivables, LLC, 765 F.Supp.2d 719, 733 (D. Md. 2011)).
as the statute's title suggests, the MCPA provides a
remedy to injured consumers, not vendors. This is further
illustrated by the elements of an MCPA claim, which Howes
neither enumerates nor alleges facts to support. To establish
a MCPA claim, a plaintiff must allege “(1) an unfair or
deceptive practice or misrepresentation that (2) is
relied upon, and (3) causes them actual injury.”
Stewart v. Bierman, 859 F.Supp. 2d. 754, 768 (D. Md.
2012) (emphasis added) (citing Lloyd v. Gen. Motors
Corp., 916 A.2d 257 (Md. 2007)). Even if NY Life's
public disclosure of its reason for terminating its Contract
with Howes constituted an unfair or deceptive practice, Howes
could not have relied upon the representations made by the
company. He knew the ...