Lewis v. Maryland

BEN LEWIS, et al., Plaintiffs, v. STATE OF MARYLAND, et al., Defendants.

Case No.: PWG-17-1636

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division

March 21, 2018

MEMORANDUM OPINION AND ORDER

Plaintiffs Ben and Damita Lewis, who are proceeding without counsel, filed an unsigned, thirteen-count Complaint in this Court against the State of Maryland, by and through its Attorney General Brian Frosh; HSBC Mortgage Services, Inc. ("HSBC"); U.S. Bank, N.A. ("U.S. Bank"); Rushmore Loan Management Services, LLC ("Rushmore"); Fisher Law Group ("Fisher"); Equifax, Experian, Trans Union, and Does 1-20 on June 15, 2017. ECF No. 1. The Complaint has 180 paragraphs, much of it devoted to legal argument and citation to numerous cases and statutes, as opposed to pleading plausible claims. Briefly stated, Plaintiffs allege that Defendants are co-conspirators that are interfering with Plaintiffs' rights with regard to their property at 14575 Woodville Road, Waldorf, Maryland 20601 (the "Property"), by relying on a fraudulent Note purportedly encumbering the Property to demand payments in excess of what Plaintiffs actually owe, to report inaccurate credit information, and to attempt to foreclose on the Property.¹ Id. They claim violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq.; Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq.; Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq.; and of their due process and equal protection rights under the Fifth and Fourteenth Amendments of the United States Constitution, along with state law claims, and they seek a declaratory judgment, injunctive relief to prevent future debt collection and foreclosure proceedings, and an accounting. Id.

Defendants Frosh, HSBC, U.S. Bank, Rushmore, Equifax and Trans Union have moved to dismiss the Complaint for failure to state a claim, and they have filed memoranda in support. ECF Nos. 24, 24-2, 27, 27-1, 28, 41, 41-1, 42 & 42-1.² Notably, U.S. Bank and Rushmore also raised Plaintiffs' failure to sign the Complaint as a basis for striking the Complaint if Plaintiffs did not remedy the deficiency, as Rule 11(a) requires. See Fed. R. Civ. P. 11(a). I held two pre-motion conferences in which Ben Lewis, but not Damita Lewis, participated, ECF Nos. 19 & 39, and I issued two letter orders setting deadlines for briefing the motions, ECF Nos. 21 & 40. Defendants mailed copies of their motions to Plaintiffs. See Certifs. of Serv. (Frosh Mot. 2; HSBC Mot. 2; Equifax Mot. 10; Trans Union Mot. 3; U.S. Bank & Rushmore Mot. 3). Additionally, the Court notified Plaintiffs of their right to respond to the motions and the deadlines for doing so, ECF Nos. 25, 26, 29, 30, 31, 32, 43, 44, 45 & 46. Despite this amplenotification, Plaintiffs have not opposed any of the motions or filed a signed version of the Complaint. Consequently, there is not a proper Complaint before the Court. Moreover, Plaintiffs fail to state a federal claim against any of the Defendants. Accordingly, I will dismiss those claims and decline to exercise supplemental jurisdiction over the state law claims.

Unsigned Complaint

Rule 11(a) provides:

Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name--or by a party personally if the party is unrepresented. The paper must state the signer's address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention.

Fed. R. Civ. P. 11(a) (emphasis added).

Plaintiffs failed to sign their Complaint. In U.S. Bank and Rushmore's memorandum, filed October 6, 2017, as well as the cover letter Defendants sent with their motion, Defendants called this deficiency to Plaintiff's attention. See U.S. Bank and Rushmore's Mem. 5 ("Federal Rule of Civil Procedure 11 requires that '[e]very pleading . . . must be signed by . . . a party personally if the party is unrepresented.' Rule 11 further provides that the Court 'must strike an unsigned paper unless the omission is promptly corrected after being called to the . . . party's attention.' The Complaint is not signed by either of the Plaintiffs (who proceed pro se). This filing, together with the cover letter addressing the service copy of this motion to the Plaintiffs,[] calls this omission to the Plaintiffs' attention."); Oct. 6, 2017 Ltr., ECF No. 42-2 ("Please take notice that the Complaint for Damages and Equitable Relief which you filed commencing this action is not signed, and was therefore filed in violation of Federal Rule of Civil Procedure 11. You are hereby notified that you must promptly cure the omitted signaturesby filing a fully signed copy of your pleading. My clients have requested that the Court strike your Complaint if you do not promptly comply.").

It is not clear that Plaintiffs' failure to cure after this notice, without any notice from the Court or showing of severe prejudice, is sufficient to warrant striking the Complaint under Rule 11(a). See Bey v. Genano, No. PWG-16-2800, 2017 WL 1315530, at *1 (D. Md. Apr. 10, 2017) ("Defendants note that Bey omitted the final page of his Complaint when he filed it and failed to sign the filing. Defs.' Mem. 5. They urge me to dismiss the Complaint pursuant to Fed. R. Civ. P. 11(a). Id. If I dismissed the Complaint for Bey's failure to comply with Rule 11(a), I would need to give him an opportunity to submit an amended complaint. It is doubtful that this is the relief that the Defendants seek. Because of the substantive deficiencies in Bey's filings, I need not reach the failure-to-sign issue."); Steamship Trade Ass'n of Baltimore, Inc. v. Peters, No. WDQ-09-109, 2009 WL 2924810, at *2 (D. Md. Sept. 9, 2009) (report and recommendation noting that "[t]he Defendant received notice of the deficiency in his [unsigned motion] through the Plaintiff's Second Motion in Opposition," but not recommending striking the filing because the plaintiff had "not shown that it ha[d] been 'severely prejudiced' by the Defendant's failure to sign"; citing Kovilic Constr. Co. v. Missbrenner, 106 F.3d 768, 772 (7th Cir. 1997) ("[D]ocuments should be struck [under Rule 11(a)] where the failure to sign severely prejudiced the opposing party.")). Here, I note that the Complaint cannot proceed without signature but, as in Bey, I will dismiss on the merits rather than striking Plaintiffs' Complaint. See Bey, 2017 WL 1315530, at *1; Fed. R. Civ. P. 11(a).

Failure to State a Claim

Standard of Review

Defendants move to dismiss pursuant to Rule 12(b)(6), pursuant to which a complaint is subject to dismissal if it "fail[s] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). 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, 678-79 (2009). "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. Rule 12(b)(6)'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." Velencia v. Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012) (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)).

Ultimately, a complaint must "'permit[ ] the court to infer more than the mere possibility of misconduct' based upon 'its judicial experience and common sense.' " Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (quoting Iqbal, 556 U.S. at 679). To this end, "while a plaintiff [in an employment discrimination case] is not required to plead facts that constitute a prima facie case in order to survive a motion to dismiss, [f]actual allegations must be enough to raise a right to relief above the speculative level." Id. (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-15 (2002); [Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)]); see also McCleary-Evans v. Md. Dept. of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015).

Nam v. 2012 Inc., No. DKC-15-1931, 2016 WL 107198, at *3 (D. Md. Jan. 11, 2016) (alterations in Nam).

Rule 9(b) states that "in alleging a fraud or mistake, a party must state with particularity the circumstances constituting the fraud or mistake." Fed. R. Civ. P. 9(b). Such allegations [offraud] typically "include the 'time, place and contents of the false representation, as well as the identity of the person making the misrepresentation and what [was] obtained thereby.'" Piotrowski v. Wells Fargo Bank, N.A., No. DKC-11-3758, 2013 WL 247549, at *5 (D. Md. Jan. 22, 2013) (quoting Superior Bank, F.S.B. v. Tandem Nat'l Mortg., Inc., 197 F. Supp. 2d 298, 313-14 (D. Md. 2000)). With the exception of Plaintiffs' FCRA claims, all of Plaintiffs' claims are rooted in fraud allegations, so heightened pleading standards apply. See Healy v. BWW Law Grp., LLC, No. PWG-15-3688, 2017 WL 281997, at *1-2 (D. Md. Jan. 23, 2017) (applying heightened fraud standard to claims under RICO, Maryland Consumer Protection Act ("MCPA"), Md. Code Ann., Com. Law §§ 13-101 to -501, and Maryland Consumer Debt Collection Act ("MCDCA"), Com. Law §§ 14-201 - 14-204); Haley v. Corcoran, 659 F. Supp. 2d 714, 724 & n.10 (D. Md. 2009) (applying Fed. R. Civ. P. 9(b) to MCPA claim); Murray v. Bierman, Geesing, Ward & Wood, LLC, No. RWT-11-1623, 2012 WL 4480679, at *4 (D. Md. Sept. 27, 2012) (noting applicability of Fed. R. Civ. P. 9(b) to MCDCA claim); Kimberlin v. Hunton & Williams LLP, No. GJH-15-723, 2016...