Ward v. Williams

          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 (4^th 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 (4^th 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 ...