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Kitchings v. Shelton

United States District Court, D. Maryland, Southern Division

January 12, 2018

JOHN H. KITCHINGS, JR., Plaintiff,
WILLIAM JOSEPH SHELTON., et al., Defendants.



         Plaintiff 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.[1] 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.[2] 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.


         Plaintiff 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.[4] 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.[5] State Court Docket 02-C-06117714.

         Following 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.

         Release 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 Docket CAL14-37205.

         Plaintiff 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.

         Standard of Review

         Plaintiff 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)).

         Federal 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.

         When 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).

         Count 1: Fair Debt Collection Practices Act and Maryland Consumer Debt Collection Act

         Fair Debt Collection Practices Act

         “‘The 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.[6] Id. at ¶¶ 40, 46. Defendants dispute that they are debt collectors and that they attempted to collect a debt subject to the FDCPA.[7] Defs.' Mot. 16-19.

         “A 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 ...

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