United States District Court, D. Maryland, Southern Division
W. GRIMM UNITED STATES DISTRICT JUDGE
Dax Johnson has brought this suit against Capital One Bank
(USA), N.A. ("Capital One"), accusing the company
of furnishing false information about him to a credit
reporting agency. After Capital One previewed its arguments
for a dismissal, I authorized Mr. Johnson to amend his
Complaint to address the alleged deficiencies, cautioning
that his failure to remedy those deficiencies may result in a
dismissal with prejudice. Mr. Johnson took the opportunity to
amend his Complaint but has nevertheless failed to state any
claims upon which relief may be granted. I am therefore
granting Capital One's motion to dismiss this case and am
dismissing all counts with prejudice.
Johnson filed this case in the District Court of Maryland for
Baltimore City on May 25, 2018. See State
Court Compl. 4, ECF NO.1-1. His original, one-sentence
Complaint accused Capital One of "failure to validate
debt and illegal reporting" under the Fair Debt
Collection Practices Act ("FDCPA".. Id.
Capital One removed the case to this Court on July 10, 2018,
invoking the Court's federal-question jurisdiction under
28 U.S.C. 9 1331. See Notice of Removal ~ 7, ECF
NO.1. It soon afterward notified the Court
of its intent to move for a dismissal under Rule I2(b)(6) of
the Federal Rules of Civil Procedure. See July 2018
Notification Letter, ECF No. 7. The company's letter said
the proposed motion would argue, among other things, that
Capital One cannot be liable under the FDCPA because it is
not a debt collector within the meaning of that statute.
See Id. Also, it said, even if Mr. Johnson had meant
to bring a claim under the Fair Credit Reporting Act
("FCRA",, his barebones Complaint would still fail
to pass muster under Rule 12(b)(6). See id.
August 1, 2018 letter order, I authorized Mr. Johnson to
amend his complaint in light of the alleged defects detailed
in Capital One's letter. See. August 2018 Letter
Order, ECF NO.1O. I also authorized Capital One to file its
proposed motion to dismiss the case. See Id. The
letter order cautioned that, should the case be dismissed on
any of the grounds identified in Capital One's July 2018
notification letter, the dismissal "likely will be with
prejudice," given that I had afforded Mr. Johnson an
opportunity to amend the Complaint. Id. I explained,
though, that a dismissal based on any previously undiscussed
grounds Capital One might choose to assert in its motion
would not be with prejudice "unless further amendment
would be futile." Id.
Johnson chose to amend his Complaint. His new pleading,
spanning less than two full pages, was only slightly more
detailed than the first, but it was accompanied by a series
of exhibits. See Am. Compl., ECF No. 11. It asserted
two claims: one for fraud, and one alleging Capital One had
violated the FCRA. See id.
brief, the Amended Complaint alleges that Mr. Johnson mailed
several documents to Capital One on January 15, 2018. The
first of these was a "validation letter," which
purported to dispute an unspecified "alleged debt"
and demanded that Capital One provide him with proof of the
debt. Validation Letter 1, ECF No. 11-1. The letter included
several other demands and asserted that failure to comply
with these would amount to an admission that the company was
not a "party of interest," could not enforce its
claims under the Uniform Commercial Code, and was
"engaged in domestic terrorism." Id. at 2.
A separate document, entitled "Notice of Contract
Change," purported to terminate Mr. Johnson's
contract with Capital One. See ECF No. 11-2. A third
demanded the company pay him $2, 253 for the harm it had
caused him. See ECF No. 11-3.
Amended Complaint alleges Capital One "never
verified" the debt and continued to report it to the
credit reporting agency Equifax. See Am. Compl. It
states that Mr. Johnson at some point filed an "identity
theft report" with Equifax and with the federal
government.. See Id. It appears that Mr. Johnson
intended to enclose this report along with the Amended
Complain,, but he did not do so. See id.
One, as promised, has moved to dismiss the Amended Complaint
under Rule 12(b)(6). Mr. Johnson did not respond to the
motion. Having reviewed all of the materials
before me, I find a hearing is unnecessary. See Loc.
12(b)(6) of the Federal Rules of Civil Procedure authorizes
parties in a civil action to seek the dismissal of a claim or
complaint on the grounds that it fails to state a claim upon
which relief can be granted. See Fed. R. Civ. P.
12(b)(6); Tucker v. Specialized Loan Servicing, LLC,
83 F.Supp.3d 635, 647-48, 2015 WL 452285, at *8 (D. Md.
Feb. 3, 2015). 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." Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). To
survive a motion to dismiss, 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,"
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
"Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice." Iqbal, 556 U.S. at 678. "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
when a defendant moves to dismiss a complaint under Rule
12(b)(6), courts are limited to considering the sufficiency
of allegations set forth in the complaint and the
'documents attached or incorporated into the
complaint.'" Zak v. Chelsea Therapeutics
Int'l, Ltd., 780 F.3d 597, 606 (4th Cir. 2015)
(quoting E.I. du Pont de Nemours & Co. v. Kalan
Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011)). Where,
as here, a plaintiff has attached exhibits to the complain,,
these exhibits are considered part of the pleading. See
Fayetteville Inv'rs v. Commercial Builders, Inc.,
936 F.2d 1462, 1465 (4th Cir. 1991); Bryant .. Wash. Mut.
Bank, 524 F.Supp.2d 753, 757 n.4 (W.D. Va.
2007), aff'd, 282 Fed.Appx. 260 (4th Cir. 2008).
One's motion seeks to dismiss each of the two counts ...