United States District Court, D. Maryland
KAREN C. McGAGH, Plaintiff
MR. COOPER, also known as Nation's Star, Defendant
Xinis, United States District Judge.
in this case is Nationstar Mortgage LLC, d/b/a Mr.
Cooper (“Nationstar” or
“Defendant”) motion to dismiss the Complaint. The
motion is ripe and ready for review and no hearing is
necessary. See Loc. R. 105.6. For the following
reasons, the motion is granted.
to the Complaint, in December 2015, Cooper purchased the
mortgage on McGagh's Baltimore home. Nationstar serviced
McGagh's mortgage from December 1, 2016 to August 31,
2017. ECF No. 7-1 at p. 1. McGagh subsequently was paid $17,
000 by check from an insurance company to repair a heater,
air conditioner and dehumidifier damaged by a storm. ECF No.
1 ¶¶ 7-8. The check required the signature of the
mortgage holder for deposit and that “she sent it as
requested.” Id. ¶9. Cooper, according to
McGagh, lost the check and her health suffered because mold
spread through her home, as did the health of her son,
although he is not a party to this action. Id.
¶¶ 12-13. According to McGagh, Cooper found the
insurance check, but by then her mortgage loan had been sold
to another company, SNSC in Eureka, California. Id.
Complaint alleges that Cooper and Nationstar violated the
Fair Debt Collection Practices Act, 15 U.S.C. § 1692g
(“FDCPA”), the Federal Trade Commission Act
(“FTCA”), 15 U.S.C. § 45. McGagh also brings
common law claims for professional negligence, intentional
infliction of harm, and unlawful harassment.
Standard of Review
ruling on a motion to dismiss, a plaintiff's well-pleaded
allegations are accepted as true and the complaint is viewed
in the light most favorable to the plaintiff. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“However, conclusory statements or a ‘formulaic
recitation of the elements of a cause of action will not
[suffice].'” EEOC v. Performance Food Grp.,
Inc., 16 F.Supp.3d 584, 588 (D. Md. 2014) (quoting
Twombly, 550 U.S. at 555). “Factual
allegations must be enough to raise a right to relief above a
speculative level.” Twombly, 550 U.S. at 555.
“‘[N]aked assertions of wrongdoing'
necessitate some ‘factual enhancement' within the
complaint to cross ‘the line between possibility and
plausibility of entitlement to relief.'”
Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.
2009) (quoting Twombly, 550 U.S. at 557).
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) (citation and internal quotation marks omitted). A
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). “Rule 8(a)(2) still requires a
‘showing,' rather than a blanket assertion, of
entitlement to relief.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 n.3 (2007). That showing must
consist of more than “a formulaic recitation of the
elements of a cause of action” or “naked
assertion[s] devoid of further factual enhancement.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
Ms. McGagh is proceeding pro se, the Court construes the
Complaint liberally to ensure that potentially meritorious
claims survive challenge. See Hughes v.
Rowe, 449 U.S. 5, 9 (1980). That said, a court cannot
ignore a pro se plaintiff's clear failure to allege facts
setting forth a cognizable claim. See Weller v.
Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir.
1990) (“The ‘special judicial solicitude'
with which a district court should view such pro se
complaints does not transform the court into an advocate.
Only those questions which are squarely presented to a court
may properly be addressed.” (quoting Beaudett v.
City of Hampton, 775 F.2d 1274, 1277 (4th Cir. 1985))).
When reviewing pro se complaints, a court must not abdicate
its “legitimate advisory role” to become an
“advocate seeking out the strongest arguments and most
successful strategies for a party.” Beaudett,
775 F.2d at 1278.
moves to dismiss all Ms. McGagh's claims. First,
Nationstar argues that it is entitled to dismissal of the
FTCA claim pursuant to 15 U.S.C. § 45, accurately noting
that that statute does not provide a private right of action
to an individual plaintiff. See e.g., Kantor v.
Pompeo, __ F.Supp.3d __, 2019 WL4039639, at *4 (E.D. Va.
Aug. 19, 2019) (citing A & E Supply Co. v. Nationwide
Mutual Fire Ins. Co., 798 F.2d 669, 675 (4th. Cir.
1986)). The FTCA claim is thus dismissed with prejudice.
next argues the Complaint fails to allege facts sufficient to
support a colorable claim under the FDCPA, because Nationstar
does not fit the definition of a debt collector under the
statue. McGagh argues that Defendant is a debt collector and
her mortgage is a home loan. ECF No. 9, ¶1. The FDCPA
requires, among other considerations, that a debt collector
provide notice of the debt. 1 5 U.S.C. §
1692g(a)(1)-(5). The Complaint avers no facts by which the
Court could infer plausibly that Nationstar issued notice of
debt, a written notice or communication about a debt owed or
paid by either party, or any other colorable claim brought
pursuant to the FDCPA.This claim, too, must be dismissed.
Further, because no set of facts consistent with those
already pleaded could afford McGagh a cause of action under
the FDCPA, this claim is also dismissed with prejudice.
the remaining state common law claims, the Court declines to
exercise pendant jurisdiction. 28 U.S.C. § 1367(a)
states, in part, that “in any civil action of which the
district courts have original jurisdiction, the district
courts shall have supplemental jurisdiction over all other
claims that are so related to claims in the action within
such original jurisdiction that they form part of the same
case or controversy under Article III of the United States
Constitution.” Pendant jurisdiction includes
“other claims” that relate to “claims in
the action” for which this Court maintains original
jurisdiction. “When, as here, the federal claim is
dismissed early in the case, the federal courts are inclined
to dismiss the state law claims without prejudice rather than
retain supplemental jurisdiction.” Carnegie Mellon
Univ. v. Cohill, 484 U.S. 343, 350 (1988). The Court
will do so here. McGagh is free to pursue her common law
claims in state court.