United States District Court, D. Maryland
KUKIA R. FARRISH
NAVY FEDERAL CREDIT UNION
DEBORAH K. CHASANOW, United States District Judge
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.
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).
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.
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).
Standard of Review
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.
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)).
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.
Telephone Consumer Protection Act
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)).
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, ...