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Farrish v. Navy Federal Credit Union

United States District Court, D. Maryland

October 5, 2017

KUKIA R. FARRISH
v.
NAVY FEDERAL CREDIT UNION

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW, United States District Judge

         Presently pending and ready for resolution in this debt collection case is the motion to dismiss filed by Defendant Navy Federal Credit Union (“Defendant”). (ECF No. 21). The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion to dismiss will be granted.

         I. Background[1]

         Plaintiff filed the first complaint in the District Court of Maryland for Prince George's County on April 8, 2016. (ECF No. 1). Defendant removed the case to federal court on May 12. (Id.). Defendant filed a motion to dismiss on May 19, and Plaintiff responded. (ECF Nos. 13; 15). The court dismissed that complaint on March 2, 2017 for failure to state a claim but allowed Plaintiff leave to file an amended complaint. (ECF No.18). Plaintiff filed an amended complaint on March 10, 2017, alleging a variety of wrongful acts and violations of five statutes. (ECF No. 20).

         Plaintiff alleges that Defendant called her cell phone, home, and the account joint-owner's cell phone “with a[n] automatic voice [message] stating that I owe a balance with them” and that Defendant called her over “ten times with a human collection department[.]” (ECF No. 20, ¶ 1). Plaintiff further alleges that Defendant “restrict[ed] all six of [her] accounts” and called the “credit bureau reporting errors on [Defendant's] part, but never updated the account.” (Id. ¶ 2). Plaintiff also alleges that Defendant did not give her any credit card statements for over a year and took money from her account to satisfy a debt that she lacked information about. (Id. ¶ 3). Plaintiff alleges that Defendant took money from her accounts and then charged her to run an audit which “should've been free.” (Id. ¶ 4). Plaintiff alleges that Defendant set-up “post[-]dated payment arrangement[s] without [her] knowledge for excessive amounts[.]” (Id. ¶ 5).

         Defendant moved to dismiss Plaintiff's claims on March 24, 2017. (ECF No. 21). Plaintiff has not responded, despite receiving notice of the opportunity and necessity to respond. See Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) (ECF No. 22).

         II. Standard of Review

         The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). A complaint need only satisfy the standard of Rule 8(a)(2), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” “Rule 8(a)(2) still requires a ‘showing, ' rather than a blanket assertion, of entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007). That showing must consist of more than “a formulaic recitation of the elements of a cause of action” or “naked assertion[s] devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). At this stage, all well-pleaded allegations in a complaint must be considered as true, Albright v. Oliver, 510 U.S. 266, 268 (1994), and all factual allegations must be construed in the light most favorable to the plaintiff. See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). In evaluating the complaint, unsupported legal allegations need not be accepted. Revene v. Charles Cty. Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989). Legal conclusions couched as factual allegations are insufficient, Iqbal, 556 U.S. at 678, as are conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see also Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009).

         Pro se pleadings are liberally construed and held to a less stringent standard than pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); Haines v. Kerner, 404 U.S. 519, 520 (1972). Liberal construction means that the court will read the pleadings to state a valid claim to the extent that it is possible to do so from the facts available; it does not mean that the court should rewrite the complaint to include claims never presented. Barnett v. Hargett, 174 F.3d 1128, 1132 (10thCir. 1999). That is, even when pro se litigants are involved, the court cannot ignore a clear failure to allege facts that support a viable claim. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990); Forquer v. Schlee, No. RDB-12-969, 2012 WL 6087491, at *3 (D.Md. Dec. 4, 2012) (“[E]ven a pro se complaint must be dismissed if it does not allege a plausible claim for relief.” (citation and internal quotation marks omitted)).

         “The determination whether to dismiss with or without prejudice under Rule 12(b)(6) is within the discretion of the district court.” Weigel v. Maryland, 950 F.Supp.2d 811, 825 (D.Md. 2013) (internal quotation marks omitted). “Where no opportunity is given to amend the complaint, the dismissal should generally be without prejudice.” Adams v. Sw. Va. Reg'l Jail Authority, 524 F.App'x 899, 900 (4th Cir. 2013). Nevertheless, “dismissal with prejudice is proper if there is no set of facts the plaintiff could present to support his claim.” Weigel, 950 F.Supp.2d at 826; see McLean v. United States, 566 F.3d 391, 400-01 (4th Cir. 2009) (“While a potentially meritorious claim, particularly by a pro se litigant, should not be unqualifiedly dismissed for failure to state a claim unless its deficiencies are truly incurable, such an unqualified dismissal is entirely proper when the court has reviewed the claim and found it to be substantively meritless.”) (internal citation omitted). Plaintiff was given an opportunity to amend her original complaint and she did so. She has not, however, responded to Defendant's motion to dismiss the amended complaint.

         III. Analysis

         A. Telephone Consumer Protection Act

         Plaintiff claims a violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq. Plaintiff alleges that Defendant persisted in calling her about a debt despite “three cease and desist letters.” (ECF No. 20, ¶ 1). Defendant argues that the TCPA does not apply to “calls made by a party attempting to collect a debt owed to it[.]” (ECF No. 21-1, at 3) (quoting Gray v. Wittstadt Title & Escrow Co., LLC, No. 4:11CV11, 2011 WL 6139521, *4 (E.D.Va. Nov. 28, 2011), aff'd, 475 F.App'x 461 (4th Cir. 2012)).

         The TCPA prohibits certain problematic telephone solicitation practices. 47 U.S.C. § 227(b). In enacting the TCPA, Congress allowed the Federal Communications Commission (“FCC”) to exempt certain phone calls from the TCPA's protections. 47 U.S.C. § 227(b)(1)(B). Under this authority, the FCC has exempted calls “made for a commercial purpose but do[] not include or introduce an advertisement or constitute telemarketing.” 47 C.F.R. § 64.1200(a)(3)(iii). This exemption includes “a debt collection call on behalf of the company holding the debt[.]” In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 7 FCC Rcd. 8752, 8773, ¶ 39 (July 26, 1995); Rantz-Kennedy v. Discover Fin. Servs., No. CCB-12-2853, 2013 WL 3167912, *3 (D.Md. 2013) (“Courts interpreting this regulation routinely hold that debt collection calls to residences, even those made to non-debtors, fit within this exemption.”); Worsham v. Acct. Receivables Mgmt., Inc., No. JKB-10-3051, 2011 WL 5873107, *5 (D.Md. Nov. 22, ...


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