United States District Court, D. Maryland
MEMORANDUM OPINION
DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE
Plaintiff
David Ward (“Plaintiff”), proceeding pro
se, filed a Request for Clerk's Entry of Default in
this racial discrimination action on November 29, 2018. (ECF
No. 5). Defendants Roger Paul Williams, Jr. and Steelehouse,
LLC filed a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(5) and 12(b)(6) on December 17, 2018. (ECF No. 8). The
court now rules, no hearing being deemed necessary. Local
Rule 105.6. For the following reasons, the motion for
clerk's entry of default will be denied, and the motion
to dismiss will be denied, although service will be quashed.
I.
Background[1]
Plaintiff
alleges that he entered into a contract with Defendants to
purchase a property being developed at 3723 Fords Lane,
Baltimore, Md. 21215 on May 1, 2018. (ECF No. 1, at 1-2). In
the signed agreement, the parties decided that the property
settlement would take place on June 22, 2018. (Id.,
at 2). The parties agreed to postpone the settlement date
three times: (1) to July 18, 2018; (2) to August 1, 2018; and
(3) to August 24, 2018. (Id.). The settlement did
not occur on August 24, 2018, and the parties' final
contract extension expired. (Id., at 4). Plaintiff
alleges that he submitted a statement indicating his
withdrawal from the sale contract and, after his withdrawal,
Defendant Jesse Hoffman, a listing agent for Steelehouse,
informed Plaintiff that he “had signed the new
amendment/addendum for said property.” (Id.).
Plaintiff
filed a complaint against Defendants Steelehouse, Williams,
Hoffman and ExecuHome Realty, LLC on August 31, 2018. (ECF
No. 1). The complaint alleges that, because they “did
not sign an addendum before the lapse of a seventy-hour grace
period, ” Defendants denied him the right to finalize
the purchase of the property based on his African American
race. (Id., at 3-5). Plaintiff does not provide the
legal basis for his cause of action; instead, Plaintiff
merely asserts he was discriminated against because of his
race. (See id., at 4). The complaint states that
Plaintiff mailed a copy of the complaint to each of the
Defendants. (Id., at 7-8). On September 18, 2018,
the court issued an order informing Plaintiff of his
responsibility for effecting service of the summons and
complaint on Defendants. The order directed the clerk to
issue signed and sealed summonses to Plaintiff, as directed
by Fed.R.Civ.P. 4, and reminded Plaintiff to notify the court
when service was effected. (ECF No. 2). Defendant Hoffman
wrote a letter to the court on November 28, 2018, denying the
allegations against him and maintaining that he was not
served. (ECF No. 4). Defendants Steelehouse and Williams
opposed Plaintiff's request for entry of default on
December 17, 2018. (ECF No. 7). Plaintiff filed an opposition
to Defendants Steelehouse and Williams' motion to dismiss
on January 3, 2019. (ECF No. 12). Defendants Steelehouse and
Williams replied to Plaintiff's opposition to the motion
to dismiss on January 22, 2019. (ECF No. 14).
II.
Motion for Clerk's Entry of Default
A.
Standard of Review
Under
Federal Rule of Civil Procedure 55(a), “[w]hen a party
against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend, and that failure is
shown by affidavit or otherwise, the clerk must enter the
party's default.”[2]“It is axiomatic that
service of process must be effective under the [Fed.R.Civ.P.]
before a default . . . may be entered against a
defendant.” Md. State Firemen's Ass'n v.
Chaves, 166 F.R.D. 353, 354 (D.Md. 1996). Plaintiff
bears the burden of establishing that service of process was
effective. Ayres v. Ocwen Loan Servicing, LLC, 129
F.Supp.3d 249, 261 (D.Md. 2015).
B.
Analysis
Plaintiff
requests clerk's entry of default against “R[oger]
P[aul] W[illiams], J[r]., et al., for failure to plead or
otherwise defend.” (ECF No. 5, at 1). In support,
Plaintiff states that “[t]he summons and complaint were
served on [September 25, 2018] at 1603 Rolling Rd, Bel[]Air,
M[D] 21014” and “[t]he two other [D]efendants
named in the complaint refused service[.]”
(Id.).
It is
unclear whether Plaintiff requests a clerk's entry of
default as to just Defendant Williams, Defendants Williams
and Steelehouse, or all Defendants. Regardless, Defendants
Steelehouse, Williams, and Hoffman have now “plead or
otherwise defend[ed].” (ECF Nos. 4 & 7). Thus,
Defendant ExecuHome is the only Defendant that could
potentially be subject to a clerk's entry of default.
Plaintiff attempted to serve Defendant ExecuHome via
certified mail. (ECF No. 5, at 2). The certified mail
envelope is marked unclaimed and Plaintiff provides no proof
that Defendant ExecuHome received it. There is no evidence
that Defendant ExecuHome is even aware of this lawsuit. Thus,
the request for clerk's entry of default will be denied.
III.
Motion to Dismiss
A.
Standards of Review
The
purpose of a motion to dismiss under Rule 12(b)(6) is to test
the sufficiency of the complaint. Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir.
2006). A plaintiff's complaint need only satisfy the
standard of Rule 8(a), which requires a “short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). “To
survive a 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) (quotation omitted).
A court must consider all well-pleaded allegations in a
complaint as true, see Albright v. Oliver, 510 U.S.
266, 268 (1994), and must construe factual allegations in the
light most favorable to the plaintiff, see Lambeth v. Bd.
of Comm'rs of Davidson Cnty., 407 F.3d 266, 268
(4th Cir. 2005). Nevertheless, a court is not
required to accept as true “a legal conclusion couched
as a factual allegation.” Papasan v. Allain,
478 U.S. 265, 286 (1986). Finally, while courts generally
should hold pro se pleadings “to less
stringent standards than formal pleadings drafted by ...