United States District Court, D. Maryland
K. Bredar United States District Judge.
Overall filed a Petition for Declaratory and Injunctive
Relief against Baltimore Gas and Electric
(“BGE”). (Compl., ECF No. 1.) He alleges BGE,
based on earlier utility account delinquencies at the same
address, refuses to open utility service accounts for houses
that he leases from someone else and then sublets portions of
such houses to tenants. (Id. ¶¶ 4, 6.) He
asserts three federal claims and one Maryland state law
claim. He alleges BGE has violated the Fair Debt Collection
Practices Act (“FDCPA”), his right to substantive
due process, his right to procedural due process, and
Maryland state law regarding denial of utility services. BGE
has moved to dismiss the complaint for failure to state a
claim for relief as to the federal claims and for lack of
jurisdiction as to the state claim. (ECF No. 8.) The Court
has considered it and Overall's response (ECF No. 10).
The motion will be granted.
Standard of Dismissal for Failure to State a
complaint must contain “sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Facial plausibility exists “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. An inference
of a mere possibility of misconduct is not sufficient to
support a plausible claim. Id. at 679. As the
Twombly opinion stated, “Factual allegations
must be enough to raise a right to relief above the
speculative level.” 550 U.S. at 555. “A pleading
that offers 'labels and conclusions' or 'a
formulaic recitation of the elements of a cause of action
will not do.' . . . Nor does a complaint suffice if it
tenders 'naked assertion[s]' devoid of 'further
factual enhancement.'” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 555, 557).
Although when considering a motion to dismiss a court must
accept as true all factual allegations in the complaint, this
principle does not apply to legal conclusions couched as
factual allegations. Twombly, 550 U.S. at 555.
complaint fails to state a federal claim for relief. As to
the FDCPA, Overall alleges BGE uses the termination or denial
of utility services as a means to collect debt. But any debt
that BGE is trying to collect on defaulted utility accounts
is debt that BGE owns. When so acting, BGE does not meet the
definition of debt collector under the FDCPA and, hence,
Overall has no viable claim for relief under that statute.
See 15 U.S.C. § 1692a(6) (2017) (“debt
collector defined as one who “regularly collects or
attempts to collect . . . debts owed or due . . .
another”), construed in Henson v. Santander
Consumer USA Inc., 137 S.Ct. 1718 (2017).
claims as to denial of substantive due process and procedural
due process depend upon BGE's being a state actor under
42 U.S.C. § 1983. That statute allows suits against
individuals or entities acting under color of state law to
deprive a person of rights, privileges, or immunities
conferred by federal law. As BGE points out in its motion
(Mot. Dismiss 5-6), the United States Court of Appeals for
the Fourth Circuit has recognized four circumstances under
which a private party may be deemed a state actor:
(1) when the state has coerced the private actor to commit an
act that would be unconstitutional if done by the state; (2)
when the state has sought to evade a clear constitutional
duty through delegation to a private actor; (3) when the
state has delegated a traditionally and exclusively public
function to a private actor; or (4) when the state has
committed an unconstitutional act in the course of enforcing
a right of a private citizen. If the conduct does not fall
into one of these four categories, then the private conduct
is not an action of the state.
Andrews v. Fed. Home Loan Bank of Atlanta, 998 F.2d
214, 217 (4th Cir. 1993). None of these circumstances applies
to BGE. Further, the fact that BGE may be a monopoly provider
of utility services in Maryland does not render it a state
actor. See Jackson v. Metropolitan Edison Co., 419
U.S. 345, 350-51 (1974) (“the inquiry must be whether
there is a sufficiently close nexus between the State and the
challenged action of the regulated entity so that the action
of the latter may be fairly treated as that of the State
itself”; monopoly status insufficient per se
to confer “state actor” status on public
utility). Overall's complaint fails plausibly to allege
any state action by BGE. Therefore, his due process claims
complaint in this case fails to state a claim for relief as
to any federal question, and diversity jurisdiction does not
exist. Consequently, BGE's motion will be granted.
Overall's federal claims will be dismissed, and the Court