Opinion
C. A. 6:21-cv-01813-TMC-JDA
06-24-2021
Darion E. Parker, Plaintiff, v. First Premier Bank, Defendant.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge
Darion E. Parker (“Plaintiff”), proceeding pro se and in forma pauperis, brings this civil action against First Premier Bank (“Defendant”), purportedly based on federal question jurisdiction. This matter is before the Court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), D.S.C. Having reviewed the pleadings filed in this matter in accordance with applicable law, the Court finds that this action is subject to summary dismissal for the reasons identified below.
BACKGROUND
Plaintiff commenced this action on June 16, 2021, by filing a Complaint, in which he makes the following allegations. [Doc. 1.] According to Plaintiff, on February 12, 2021, an individual employed by Defendant called him while he was sleeping, claiming that he owed a debt. [Id. at 6.] Defendant did not validate the purported debt. [Id.] On March 5, 2021, Plaintiff wrote a cease and desist letter and filed a complaint with the Consumer Financial Protection Bureau (“CFPB”). [Id.] Defendant responded to Plaintiff's CFPB complaint stating that it would cease and desist, but still claimed Plaintiff owed a debt without any validation. [Id.] Plaintiff then attempted to settle the matter with Defendant by submitting an affidavit, an invoice, and exhibits. [Id.] Plaintiff has attached those documents to his Complaint. [Doc. 1-1.]
The undersigned notes that Plaintiff has also filed at least four other cases in this Court making nearly identical allegations against various defendants. See Parker v. Bridgecrest Credit Co., LLC, No. 6:21-cv-1628; Parker v. Reg'l Acceptance Corp., No. 6:21-cv-1724; Parker v. Webbank, No. 6:21-cv-1814; and Parker v. Cont'l Fin. Co., No. 6:21-cv-1886. The Court takes judicial notice of Plaintiff's other cases filed in this Court. See Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining courts “may properly take judicial notice of matters of public record”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”).
For his relief, Plaintiff seeks money damages in the amount of $21,000, and he asks that his credit line be extended for his credit account. [Doc. 1 at 7.] Plaintiff contends he is entitled to $1,000 “per occurrence” under 15 U.S.C. § 1692k, and he groups the purported violations into five claims. [Id.] First, Plaintiff claims he is entitled to $5,000 because Defendant's employee called him while he was sleeping and tried to collect a debt without validation in violation of 15 U.S.C. §§ 1692c, d, e, f, and g. [Id.] Second, Plaintiff claims that he is entitled to $2,000 because Defendant continues to attempt to collect a debt without validation in violation of 15 U.S.C. §§ 1692f and g. [Id.] Third, Plaintiff claims that he is entitled to $5,000 because Defendant continues to claim that he owes a debt without validation in violation of 15 U.S.C. §§ 1692d, e, f, g, and j. [Id.] Fourth, Plaintiff claims he is entitled to $2,000 because Defendant failed to settle his claims or provide validation in violation of 15 U.S.C. §§ 1692f and g. [Id.] Fifth, Plaintiff claims he is entitled to $6,000 because Defendant stated that he owed a debt without validation; failed to rebut the evidence he provided in his affidavit; and used profane language, employed unfair practices, made false and misleading representations, and furnished a deceptive form, all in violation of 15 U.S.C. §§ 1692d, e, f, g, and j. [Id.]
Although Plaintiff contends he is owed $21,000 in damages, his itemized list adds up to only $20,000.
STANDARD OF REVIEW
Plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted, ” is “frivolous or malicious, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Further, this Court would possess the inherent authority to review a pro se complaint to ensure that subject matter jurisdiction exists and that a case is not frivolous, even if the complaint were not subject to the prescreening provisions of 28 U.S.C. § 1915. See Mallard v. U.S. Dist. Court, 490 U.S. 296, 307S08 (1989) (“Section 1915(d) . . . authorizes courts to dismiss a ‘frivolous or malicious' action, but there is little doubt they would have power to do so even in the absence of this statutory provision.”); Ross v. Baron, 493 Fed.Appx. 405, 406 (4th Cir. 2012) (unpublished) (“[F]rivolous complaints are subject to dismissal pursuant to the inherent authority of the court, even when the filing fee has been paid . . . [and] because a court lacks subject matter jurisdiction over an obviously frivolous complaint, dismissal prior to service of process is permitted.”) (citations omitted); see also Fitzgerald v. First E. Seventh Street Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) (“[D]istrict courts may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee[.]”); Ricketts v. Midwest Nat'l Bank, 874 F.2d 1177, 1181 (7th Cir. 1989) (“[A] district court's obligation to review its own jurisdiction is a matter that must be raised sua sponte, and it exists independent of the ‘defenses' a party might either make or waive under the Federal Rules.”); Franklin v. State of Or., State Welfare Div., 662 F.2d 1337, 1342 (9th Cir. 1981) (providing a judge may dismiss an action sua sponte for lack of subject matter jurisdiction).
Because Plaintiff is a pro se litigant, his pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, even under this less stringent standard, Plaintiff's Complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which Plaintiff could prevail, it should do so, but a district court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
The Court must accept all well-pled allegations and review a complaint in a light most favorable to Plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). Although the Court must liberally construe the pro se Complaint and Plaintiff is not required to plead facts sufficient to prove her case as an evidentiary matter in her pleadings, the 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (explaining that a plaintiff may proceed into the litigation process only when his complaint is justified by both law and fact). “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.'” Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014).
DISCUSSION
This action is subject to dismissal because Plaintiff has failed to state a claim for relief. Although it is unclear to the Court what specific causes of action Plaintiff intends to assert in his Complaint, he appears to bring claims under the Fair Debt Collections Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. As noted, Plaintiff alleges that Defendant called his phone, alleged he owed a debt, and failed to validate that debt. [Doc. 1 at 6.] Additionally, Plaintiff cites to numerous subsections of the FDCPA. [Id. at 7.] Accordingly, Plaintiff appears to assert that Defendant violated his rights pursuant to the FDCPA when it attempted to collect a debt from him.
The FDCPA was enacted to protect consumers from unfair and abusive debt collection practices. See 15 U.S.C. § 1692(e); Glover v. Univ. Motor Co., No. 3:08-cv-2254-JFA-JRM, 2010 WL 234903, at *3 (D.S.C. Jan. 15, 2010). An individual can sue a debt collector for violations of the FDCPA to recover actual damages, “such additional damages as the court may allow, but not exceeding $1,000, ” costs, and reasonable attorney's fees. 15 U.S.C. § 1692k(a). To state a claim under the FDCPA, a plaintiff must allege that (1) he was the object of collection activity arising from consumer debt as defined in the FDCPA; (2) the defendants are debt collectors as defined in the FDCPA; and (3) the defendants engaged in an act or omission prohibited by the FDCPA. Boosahda v. Providence Dane LLC, 462 Fed.Appx. 331, 333 n.3 (4th Cir. 2012).
Here, Plaintiff's claim fails because Defendant is not considered a “debt collector” under the FDCPA. “The FDCPA applies only to ‘debt collectors' as that term is defined in the statute.” Glover, 2010 WL 234903, at *3. The statute defines a “debt collector” as:
[A]ny person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.15 U.S.C. § 1692a(6). However, “[c]rediting institutions, suc[h] as banks, are not debt collectors under [the FDCPA] because they collect their own debts and are in the business of lending money to consumers.” Davis v. Dillard Nat'l Bank, No. 1:02-cv-00546, 2003 WL 21297331, at *4 (M.D. N.C. June 4, 2003); see also Barber v. Rushmore Loan Mgmt. Servs., LLC, No. 3:17-cv-00982-TLW-SVH, 2018 WL 4957409, at *4 (D.S.C. Feb. 21, 2018) (noting that “creditors collecting their own debts are not ‘debt collectors' for purposes of the FDCPA and are exempt from the FDCPA's provisions” (internal quotation marks omitted)), Report and Recommendation adopted by 2018 WL 4489290 (D.S.C. Sept. 19, 2018), aff'd 769 Fed.Appx. 106 (4th Cir. 2019). Here, First Premier Bank is a creditor collecting its own debts and is, therefore, not a debt collector.See Akpan v. First Premier Bank, No. DKC 09-cv-1120, 2010 WL 917886, at *4 (D. Md. Mar. 8, 2010) (finding First Premier Bank is a creditor and not a debt collector under the FDCPA); see also Bradford v. HSBC Mortg. Corp., 829 F.Supp.2d 340, 348 (E.D. Va. 2011). Accordingly, Plaintiff's Complaint is subject to dismissal for failure to state a claim under the FDCPA as a matter of law.
Plaintiff has attached a No. of documents to his Complaint. Critically, Plaintiff has attached a credit account statement and letters issued by Defendant that demonstrate it issued a credit account to him and, therefore, constitutes a creditor rather than a debt collector. [Doc. 1-1 at 5, 11, 19, 21-24.]
CONCLUSION
Consequently, for the reasons stated above, this action should be dismissed without issuance and service of process for failure to state a claim.
The undersigned concludes that Plaintiff cannot cure the defects identified above by amending his Complaint. See Bing v. Brivo Sys., LLC, 959 F.3d 605, 615 (4th Cir. 2020); In re GNC Corp., 789 F.3d 505 (4th Cir. 2015); Chao v. Rivendell Woods, Inc., 415 F.3d 342 (4th Cir. 2005); Domino Sugar Corp. v. Sugar Workers Local Union 392 of United Food and Commercial Workers Int'l Union, 10 F.3d 1064 (4th Cir. 1993)). Thus, the undersigned recommends that the Court decline to automatically give Plaintiff leave to amend his Complaint.
IT IS SO RECOMMENDED.
Plaintiff's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street, Room 239
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).