United States District Court, D. Maryland, Southern Division
JOHN H. KITCHINGS, JR., Plaintiff,
WILLIAM JOSEPH SHELTON., et al., Defendants.
W. GRIMM UNITED STATES DISTRICT JUDGE.
John Kitchings, Jr. (who is proceeding without counsel, but
who, in the past has practiced law) brings claims against
Defendants for violations of the Federal Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692,
the Maryland Consumer Debt Collection Act
(“MCDCA”), Md. Code Ann. Com. Law §§
14-201-204, the First and Fourth Amendments of the U.S.
Constitution pursuant to 42 U.S.C. § 1983, and 22 other
state law claims. 2d Am. Compl., ECF No. 37. Defendants have
filed a consolidated motion to dismiss all of Plaintiff's
claims. ECF No. 38. Accordingly, I will grant the motion and
dismiss this action. Because Plaintiff does not state a FDCPA
or § 1983 claim-the sole basis for this Court to
exercise jurisdiction over the case-I will dismiss his FDCPA,
MCDCA, and § 1983 claims with prejudice. Plaintiff also
failed to respond in any substantive way to Defendants'
arguments with respect to Counts 4, 5, 7, 11, 12, and 14
through 18, thereby abandoning these claims. They, too, will
be dismissed with prejudice. But, pursuant to 28 U.S.C.
§ 1367(c)(3), I will decline to exercise supplemental
jurisdiction over his remaining state-law claims, which
Defendants argue that many are barred by res
judicata and collateral estoppel, and they will be
dismissed without prejudice.
and Ms. Kitchings filed for and finalized their divorce in
Anne Arundel County Circuit Court in Maryland. 2d Am. Compl.
¶ 34. During the proceedings, Plaintiff was represented
by Norman Sanders and Ms. Kitchings was represented by
William Shelton. State Court Docket
02-C-06-117714. Plaintiff alleges that during those
proceedings, Ms. Kitchings, through her counsel, created a
fraudulent request for Writ of Property Garnishment.
Id. ¶ 16. He further alleges that Mr. Shelton
“unilaterally added his name to the caption as a party
(plaintiff) and submitted a Writ of Garnishment, under the
Kitchings' former divorce case number.”
Id. ¶ 23. On May 31, 2013, during the divorce
proceedings, the court entered judgment against Plaintiff,
ordering him to pay Mr. Shelton $5, 100.00 in attorneys'
fees and to pay Ms. Kitchings $1, 600 for
costs. State Court Docket 02-C-06117714.
the divorce proceedings, Plaintiff sued Norman Sanders, Lisa
Sanders, and their law firm for malpractice. 2d Am. Compl.
¶ 40. Eccelston & Wolf, and more specifically Alvin
Frederick and Lauren Marini, represented the Sanders and
their firm in the malpractice action, while Plaintiff was
represented by Wes Henderson and Elizabeth Boone of Henderson
Law. Id. ¶ 78. The malpractice litigation was
settled between the parties, and a Term Sheet, ECF No. 38-6,
and Release Agreement, ECF No. 38-8, were signed.
Id. ¶¶ 46, 116-21. Plaintiff alleges that
during the negotiations, Ms. Kitchings's and Mr.
Shelton's Writ of Garnishment was improperly included and
the amount he owed was increased illegally from $6, 700.00 to
$7, 800.00. Id. ¶¶ 48-55. The agreements
entered into gave Henderson Law two options. Id.
¶ 84. The Release Agreement provided that
Mr. Kitchings, through his counsel, shall be responsible for
resolving the Judgment entered against Kitchings on May 30,
2013 in favor of Valerie E. Kitchings and William Shelton . .
. in the total amount of $6, 700.00 plus post-judgment
interest . . . The Judgment may be resolved with [Ms.
Kitchings and Mr. Shelton], by Henderson Law, LLC filing an
Interpleader action, or Henderson Law, LLC shall hold the sum
of $7, 800.00 on its attorney trust account until the matter
is ether resolved or a Court orders otherwise.
Agr. ¶ 6. Plaintiff alleges that Ms. Kitchings and Mr.
Shelton should not have been included in the Term Sheet or
Release Agreement. 2d Am. Compl. ¶ 88. Plaintiff further
alleges that “Defendants illegally added post interest
judgment [sic] to the alleged $6700.00 initial debt”
and that “[t]he $7800.00 extracted from the
Sanders' settlement, with no explanation by any of the
Defendants, amounted to both a breach of contract and legal
malpractice by Henderson Law and Boone.” Id.
¶¶ 119-20. Henderson Law then filed an interpleader
action regarding the $7, 800.00. Id. ¶ 138. The
Prince George's County Circuit Court presiding over the
interpleader action ordered Henderson Law to deposit the $7,
800.00 with the court and then on April 1, 2016, ordered that
the Clerk release the funds to Mr. Shelton. State Court
brings this litigation alleging that Defendants are debt
collectors that were unlawfully collecting a debt against him
in violation of the FDCPA and MCDCA. Id.
¶¶ 4, 6, 23, 32, 99, 176. Specifically, Plaintiff
alleges that Defendants violated the FDCPA in twelve distinct
ways including falsely implying communications emanating from
an attorney, threating illegal action, false representation,
and “falsely advancing an unlawful lien.”
Id. ¶ 189. Plaintiff also alleges that Ms.
Kitchings “was acting under color of state law as an
Assistant Attorney General of Child Support Enforcement,
Supervisory Attorney, Texas, when she testified under oath in
Anne Arundel County Circuit Court to create the alleged
‘consumer debt, '” and when she
“authorized Shelton to violate federal law by the
introduction of the Writ.” Id. ¶ 207-08.
Plaintiff alleges that Ms. Kitchings's actions deprived
him of his “rights, privileges or immunities secured by
the First and Fourteen Amendments” in violation of 42
U.S.C. § 1983. Id. ¶ 229. Plaintiff also
alleges 22 other claims, which arise under state law (e.g.
abuse of process, breach of contract, intentional infliction
of emotional distress, fraud, and conversion). Id.
¶¶ 235-437. Defendants argue that they are not debt
collectors, and that Ms. Kitchings is not a state actor.
Def.'s Mem. 10-16. Defendants offer a litany of reasons
for dismissing the 22 state law claims, including, that
Plaintiff's claims are barred by the doctrines of res
judicata and collateral and that he failed to state a
claim. Id. at 10-37. Plaintiff responds to some of
Defendant's arguments but fails to address many others.
is proceeding pro se, and requests that his Second
Amended Complaint be construed liberally. See Haines v.
Kerner, 404 U.S. 519, 520 (1972). This is disingenuous
and Plaintiff is not entitled to the deference afforded to
pro se litigants lacking legal training, and accordingly,
deserving of a more lenient interpretation of their filings.
Plaintiff was admitted to the Bar of the District of
Columbia, but has been suspended. Bar Member Status, ECF No.
38-2. For that reason, his pleadings should be subject to the
same analytical scrutiny as those filed by practicing
attorneys, but even if I were to construe his Second Amended
Complaint liberally, despite his prior membership to the D.C.
Bar, it does not absolve him from pleading plausible claims.
See Holsey v. Collins, 90 F.R.D. 122, 128 (D. Md.
1981) (citing Inmates v. Owens, 561 F.2d 560, 562-63
(4th Cir. 1977)).
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.
reviewing a motion to dismiss, “[t]he court may
consider documents attached to the complaint, as well as
documents attached to the motion to dismiss, if they are
integral to the complaint and their authenticity is not
disputed.” Sposato v. First Mariner Bank, No.
CCB-12-1569, 2013 WL 1308582, at *2 (D. Md. Mar. 28, 2013);
see CACI Int'l v. St. Paul Fire & Marine Ins.
Co., 566 F.3d 150, 154 (4th Cir. 2009); see
also Fed. R. Civ. P. 10(c) (“A copy of a written
instrument that is an exhibit to a pleading is a part of the
pleading for all purposes.”). Moreover, where the
allegations in the complaint conflict with an attached
written instrument, “the exhibit prevails.”
Fayetteville Inv'rs v. Commercial Builders,
Inc., 936 F.2d 1462, 1465 (4th Cir. 1991); see
Azimirad v. HSBC Mortg. Corp., No. DKC-10-2853, 2011 WL
1375970, at *2-3 (D. Md. Apr. 12, 2011). Additionally,
Fed.R.Evid. 201(b)(2) permits the Court to take judicial
notice of “fact[s] that [are] not subject to reasonable
dispute because [they] can be accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned, ” such as matters of public record.
Fed.R.Evid. 201(b)(2); see Alston v. Wells Fargo Home
Mortg., No. TDC-13-3147, 2016 WL 816733, at *1 n.1 (D.
Md. Feb. 26, 2016).
1: Fair Debt Collection Practices Act and Maryland Consumer
Debt Collection Act
Debt Collection Practices Act
FDCPA protects consumers from abusive and deceptive practices
by debt collectors, and protects non-abusive debt collectors
from competitive disadvantage.'” Stewart v.
Bierman, 859 F.Supp.2d 754, 759 (D. Md. 2012) (quoting
United States v. Nat'l Fin. Servs., Inc., 98
F.3d 131, 135 (4th Cir. 1996) (quotation omitted)). To state
a claim for relief under the FDCPA, Plaintiff must allege
that “(1) [he] has been the object of collection
activity arising from consumer debt, (2) the defendant is a
debt  collector as defined by the FDCPA, and (3) the
defendant has engaged in an act or omission prohibited by the
FDCPA.” Stewart, 859 F.Supp.2d at 759-60
(citation omitted); see Ademiluyi v. Penny Mac Mortg.
Inv. Trust Holdings I, LLC, 929 F.Supp.2d 502, 524 (D.
Md. 2013) (citing 15 U .S.C. § 1692). In Count One,
Plaintiff alleges that Defendants violated the FDCPA when Ms.
Kitchings through her counsel, Mr. Shelton, “create[d]
his fraudulent ‘Request for Writ of Property
Garnishment' . . . on July 24, 2014.” 2d Am. Compl.
¶ 16. Plaintiff further alleges that Frederick of
Eccelston & Wolf advised Norman and Lisa Sanders
“to collect a debt in the names of Ms. Kitchings and
Shelton when the alleged debt or lien actually belonged to
Frederick and [Eccelston & Wolf].” Id.
¶ 30. Plaintiff also states that “this [alleged]
fraudulent Writ was allegedly from ‘Ms. Kitchings'
and ‘Shelton' both named as co-Plaintiffs in the
caption under the Kitchings' former divorce case,
Kitchings v. Kitchings, Anne Arundel County Circuit
Court No. 02-C-06-117714.” Id. ¶ 34.
Plaintiff argues that the $7, 800 debt that is the subject of
this litigation stems from the Term Sheet and Release
Agreement in his malpractice suit against Norman and Lisa
Sanders, who were represented by Eccelston &
Wolf. Id. at ¶¶ 40, 46.
Defendants dispute that they are debt collectors and that
they attempted to collect a debt subject to the
FDCPA. Defs.' Mot. 16-19.
threshold requirement for application of the FDCPA is that
the prohibited practices are used in an attempt to collect a
‘debt.'” Mabe v. G.C. Servs. Ltd.
P'ship, 32 F.3d 86, 88 (4th Cir. 1994). The statute
defines a debt as “any obligation or alleged obligation
of a consumer to pay money arising out of a transaction in
which the money, property, insurance, or services which are
the subject of the transaction are primarily for personal,
family, or household purposes.” 15 U.S.C. §
1692a(5). As the word “transaction” is not