United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE.
putative class action, Plaintiffs Suzette Archie and Om
Sharma have sued Defendant Nagle & Zaller, P.C.
(“N&Z”) for alleged violations of state and
federal law. ECF No. 22. On behalf of two classes of
plaintiffs, Archie and Sharma allege that N&Z is liable
for filing Writs of Garnishment that impermissibly sought
post-judgment enforcement costs (the “Garnishment
Class”), and for filing Statements of Lien that
included language improperly stating that the liens could
increase or decrease in value (the “Lien Class”).
Now pending before the Court is N&Z's Motion to
Dismiss, or, in the Alternative, Motion for Summary Judgment
and Request for Hearing, ECF No. 25, and Plaintiffs'
Motion for Class Certification, ECF No. 28. The Motions have
been fully briefed, and the Court heard arguments from the
parties regarding the Motion to Dismiss at a June 21, 2018
Motion Hearing. ECF No. 44. For the reasons that follow,
Defendant's Motion to Dismiss is granted and the
Plaintiffs' motions are denied.
29, 2007, Plaintiff Om Sharma acquired his home located
within Gabriel's Run, a neighborhood in Glenn Dale,
Maryland. ECF No. 22 ¶¶ 47-48. On March 7, 2017,
the Gabriel's Run Homeowners Association, represented by
N&Z, sued Sharma in the District Court of Maryland for
Prince George's County, for a sum of money related to
Sharma's property. Id. ¶ 50. On June 23,
2017, the lawsuit was dismissed and the parties stipulated
that Sharma owed Gabriel's Run $3, 965.00 as of December
31, 2016. Id. ¶ 53. On July 11, 2017, N&Z
filed a Statement of Lien against Sharma. Id. ¶
54. This lien claimed the right to collect $3, 099.30 from
Dr. Sharma, including “$379 for costs of collection and
$900 for attorney fees.” Id. ¶ 57. The
lien also claimed the right to obtain “additional
fines, late fees, interest, costs of collection and
attorney's fees actually incurred, if any, as permitted
by the Association's governing documents, that may come
due after the date this lien was drafted. Said amount may
increase or decrease . . . .” Id. ¶ 58.
on May 22, 2012, the Holly Hill Homeowners Association
obtained a consent judgment against Plaintiff Suzette Archie,
was awarded $83 in costs. Id. ¶ 69. Neither
Holly Hill nor N&Z requested the right to petition the
state court for future collection costs. Id. ¶
70. On September 2, 2016, N&Z submitted a request for a
Writ of Garnishment of Wages, and sought $118 in costs ($35
more than it was initially awarded). Id. ¶ 71.
On June 13, 2016, N&Z filed two Statements of Lien
against Archie's property. Id. ¶ 78. These
liens contained the same language as was included in
Sharma's liens regarding “additional” costs
that may “increase or decrease.” Id.
14, 2017, Plaintiff Archie filed a Class Action Complaint
& Demand For Jury Trial in the Circuit Court for
Montgomery County, ECF No. 2, which she subsequently amended,
ECF No. 9. On August 31, 2017, the case was removed to this
Court. ECF No. 10. Following the filing of a Motion to
Dismiss by N&Z, ECF No. 17, Archie amended her Complaint
again on October 5, 2017, ECF No. 22. In this Second Amended
Class Action Complaint, Archie added Sharma as an additional
named Plaintiff. Plaintiffs seek to establish two classes:
the “Garnishment Class, ” which would include
Maryland residents against whom N&Z has filed a Writ of
Garnishment in the last three years to seek costs greater
than the costs actually assessed by a judgment; and the
“Lien Class, ” which would include Maryland
residents against whom N&Z has filed a lien in the last
three years and asserted a right for “unknown, future
sums, other than interest . . . .” Id.
¶¶ 103, 105. The putative classes assert four
Counts for: Declaratory Judgment and Injunctive Relief (Count
I); Violation of the FDCPA (Count II); Violation of the
Maryland Consumer Debt Collection Act (Count III); and
Injurious Falsehood - Disparagement of Title (Count IV).
October 19, 2017, Defendant filed a Motion to Dismiss, or, in
the Alternative, Motion for Summary Judgment and Request for
Hearing. ECF No. 25. Plaintiffs subsequently filed
a Motion for Class Certification on November 12, 2017. ECF
No. 28. The next day, November 13, 2017, Plaintiffs submitted
a filing which included a Cross Motion For Partial Summary
Judgment, an Opposition to Defendant's Motion to Dismiss,
and a Motion to Strike/Disregard Defendant's Memorandum
of Law in Violation of Local Rule 105(3). ECF No. 29. These
Motions have been fully briefed, and the Court heard
arguments from the parties at a June 21, 2018 Motion Hearing.
See ECF Nos. 34, 35, 39, 40, 44.
STANDARD OF REVIEW
survive a Rule 12(b)(6) motion to dismiss, “a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “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. “Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.
(citing Twombly, 550 U.S. at 555 (“a
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of a cause
of action's elements will not do.”)).
purpose of Rule 12(b)(6) “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.” Presley v. City of Charlottesville,
464 F.3d 480, 483 (4th Cir. 2006) (citation and internal
quotation marks omitted). When deciding a motion to dismiss
under Rule 12(b)(6), a court “must accept as true all
of the factual allegations contained in the complaint,
” and must “draw all reasonable inferences [from
those facts] in favor of the plaintiff.” E.I. du
Pont de Nemours & Co. v. Kolon Indus., Inc., 637
F.3d 435, 440 (4th Cir. 2011) (citations and internal
quotation marks omitted). The Court need not, however, accept
unsupported legal allegations, see Revene v. Charles
County Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989),
legal conclusions couched as factual allegations, Papasan
v. Allain, 478 U.S. 265, 286 (1986), or conclusory
factual allegations devoid of any reference to actual events.
United Black Firefighters of Norfolk v. Hirst, 604
F.2d 844, 847 (4th Cir. 1979).
Motion is styled as a Motion to Dismiss or, Alternatively,
for Summary Judgment. If the Court considers materials
outside the pleadings, as the Court does here, the Court must
treat a motion to dismiss as one for summary judgment.
Fed.R.Civ.P. 12(d). When the Court treats a motion to dismiss
as a motion for summary judgment, “[a]ll parties must
be given a reasonable opportunity to present all the material
that is pertinent to the motion.” Id. When the
moving party styles its motion as a “Motion to Dismiss,
or in the Alternative, for Summary Judgment, ” as is
the case here, and attaches additional materials to its
motion, the nonmoving party is, of course, aware that
materials outside the pleadings are before the Court, and the
Court can treat the motion as one for summary judgment.
See Laughlin v. Metropolitan Wash. Airports Auth.,
149 F.3d 253, 260-61 (4th Cir. 1998). Further, the Court is
not prohibited from granting a motion for summary judgment
before the commencement of discovery. See Fed. R.
Civ. P. 56(a) (stating that the court “shall grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact” without distinguishing
judgment is appropriate if “materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .,
admissions, interrogatory answers, or other materials,
” Fed.R.Civ.P. 56(c), show that there is “no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). The party moving for summary
judgment bears the burden of demonstrating that no genuine
dispute exists as to material facts. Pulliam Inv. Co. v.
Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). If
the moving party demonstrates that there is no evidence to
support the nonmoving party's case, the burden shifts to
the nonmoving party to identify specific facts showing that
there is a genuine issue for trial. See Celotex, 477
U.S. at 322-23. A material fact is one that “might
affect the outcome of the suit under the governing
law.” Spriggs v. Diamond Auto Glass, 242 F.3d
179, 183 (4th Cir. 2001) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute of
material fact is only “genuine” if sufficient
evidence favoring the nonmoving party exists for the trier of
fact to return a verdict for that party. Anderson,
477 U.S. at 248. However, the nonmoving party “cannot
create a genuine issue of material fact through mere
speculation or the building of one inference upon
another.” Beale v. Hardy, 769 F.2d 213, 214
(4th Cir. 1986). When ruling on a motion for summary
judgment, “[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in
his favor.” Anderson, 477 U.S. at 255.
there is little dispute over the relevant facts of this case.
See ECF No. 29 at 6.Thus, the Court examines whether
either party is entitled to judgment as a matter of law on
the basis of the facts presented by the parties.