United States District Court, D. Maryland
MEMORANDUM TO COUNSEL
LIPTON HOLLANDER UNITED STATES DISTRICT JUDGE
know, this case was reassigned to me from Judge Motz on
December 7, 2017. Following the reassignment, I allowed the
Consumer Financial Protection Bureau (“CFPB”) to
amend its Complaint. ECF 42 (Memorandum); ECF 43 (Order);
see also ECF 44 (Amended Complaint).
Amended Complaint is lodged against several defendants. It
asserts violations of the Consumer Financial Protection Act
of 2010 (“CFPA”), 12 U.S.C. §§ 5531,
5536(a), based on allegations of deceptive practices in
regard to the purchase of structured settlements.
Id. Discovery is scheduled to continue until
September 26, 2018. See ECF 56 (Scheduling Order).
Charles Smith has moved to dismiss the Amended Complaint or,
in the alternative, for summary judgment, as to Counts I-IV.
ECF 46. The motion is supported by a memorandum of law (ECF
46-1) (collectively, “Smith Motion”), as well as
the Affidavit of Charles Smith. ECF 46-2. Defendant Michael
Borkowski has moved to dismiss the Amended Complaint, as to
Counts IV and V (ECF 48), supported by a memorandum of law
(ECF 48-1) (collectively, “Borkowski Motion”).
opposes both motions. ECF 47 (Opposition to Smith Motion);
ECF 50 (Opposition to Borkowski Motion). Only Smith replied
in support of his motion. ECF 49.
hearing is necessary to resolve the motions. See
Local Rule 105.6. For the reasons that follow, both motions
shall be denied.
Smith Motion is based entirely on Smith's contention that
¶¶ 39-40 of the Amended Complaint (ECF 44) are
false. Those paragraphs allege that “consumers
typically did not know that Smith was an attorney” and
“did not believe that Smith was acting as their
attorney.” See also ECF 46-1 at 8. But, for
purposes of a motion to dismiss, I must accept the
allegations of the Amended Complaint as true. E.I. du
Pont de Nemours & Co. v. Kolon Indus., Inc., 637
F.3d 435, 440 (4th Cir. 2011).
alternative, Smith moves for summary judgment, and has
submitted an affidavit stating that his “practice
during [the consultations in question] was to . . . indicate
that [he] was a licensed attorney in the State of
Maryland.” ECF 46-2, ¶ 5. However, CFPB has
submitted the Declaration of Christina Coll, Esq., counsel
for CFPB, pursuant to Fed.R.Civ.P. 56(d). She asserts that
summary judgment is premature because CFPB has not had the
opportunity to question Smith or the consumers with whom he
spoke. ECF 47-1.
summary judgment is inappropriate “where the parties
have not had an opportunity for reasonable discovery.”
E.I. du Pont De Nemours and Co. v. Kolon Industries,
Inc., 637 F.3d 435, 448-49 (4th Cir. 2012); see
Putney v. Likin, 656 Fed.Appx. 632, 638 (4th Cir. 2016);
McCray v. Maryland Dep't of Transportation, 741
F.3d 480, 483 (4th Cir. 2015). To raise adequately the issue
that discovery is needed, the non-movant typically must file
an affidavit or declaration pursuant to Rule 56(d) (formerly
Rule 56(f)), explaining why, “for specified reasons, it
cannot present facts essential to justify its opposition,
” without needed discovery.
justify a denial of summary judgment on the grounds that
additional discovery is necessary, the facts identified in a
Rule 56 affidavit must be ‘essential to [the]
opposition.' ” Scott v. Nuvell Fin. Servs.,
LLC, 789 F.Supp.2d 637, 641 (D. Md. 2011) (alteration in
original) (citation omitted). A non-moving party's Rule
56(d) request for additional discovery is properly denied
“where the additional evidence sought for discovery
would not have by itself created a genuine issue of material
fact sufficient to defeat summary judgment.” Strag
v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d
943, 954 (4th Cir. 1995); see Gordon v. CIGNA Corp.,
___F.3d___, 2018 WL 2209305, at *10 (4th Cir. May 15, 2018);
Amirmokri v. Abraham, 437 F.Supp.2d 414, 420 (D. Md.
2006), aff'd, 266 Fed.Appx. 274 (4th Cir. 2008),
cert. denied, 555 U.S. 885 (2008). In addition, a
Rule 56(d) motion may be denied if the opposing party had a
reasonable opportunity to conduct discovery. Hodgin v.
UTC Fire & Security Americas Corp., Inc., 885 F.3d
243, 250 (4th Cir. 2018).
741 F.3d 480, is instructive. There, the Fourth Circuit
considered whether the district court erred when it granted
summary judgment to the defense in a Title VII case, before
the plaintiff had an opportunity to conduct requested
discovery. Id. at 483. The Fourth Circuit reiterated
that discovery is appropriate when “the main
issue” is “one of motive” and when
“most of the key evidence lies in the control” of
the party moving for summary judgment. Id. at 484.
It determined that the plaintiff's Title VII claims
required the plaintiff to show “that she was fired
because of discriminatory reasons, ” and that such
evidence was within the control of the MTA. Id.
“Absent discovery, ” said the Court, the
plaintiff lacked “adequate access to this evidence, and
therefore no way to shield herself from a premature summary
judgment motion.” Id.
import here, the McCray Court reasoned, id.
at 483: “Summary judgment before discovery forces the
non-moving party into a fencing match without a sword or
mask.” The Fourth Circuit concluded that summary
judgment was premature under Rule 56(d). Id. at 481,
view, given the posture of the case, the filing of the Rule
56(d) Declaration, and the lack of opportunity by CFPB to