Opinion
C. A. 2:23-00031-BHH-MHC
09-19-2023
Milcah Kemmerlin, Plaintiffs, v. Craig Peters, Christy Tisdale, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge Charleston, South Carolina.
This is a civil action brought by Plaintiff Milcah Kemmerlin, a pro se litigant. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
By Order dated April 12, 2023, Plaintiff was given a specific time frame in which to bring this case into proper form by providing certain documents. In the Order, Plaintiff was also notified of material defects in her Complaint and given the opportunity to cure the defects by filing an amended complaint. ECF No. 8. Plaintiff has filed the necessary documents to bring this case into proper form. She filed an Amended Complaint on May 4, 2023. ECF No. 11. On July 28, 2023, Plaintiff filed additional documents. ECF No. 15.
I. BACKGROUND
In her Amended Complaint, Plaintiff brings claims against Defendant Craig Peters (Peters), CEO (it is unclear, but it appears that Peters was the CEO of CNAC) and Defendant Christy Tisdale (Tisdale), “CNAC Rep[.]” ECF No. 11 at 1-2. Plaintiff alleges that the basis for federal court jurisdiction is federal question. In response to a question asking Plaintiff to list the specific federal statutes, federal treaties, and/or provisions of the United States Constitution that are at issue in the case, she lists various sections (15 U.S.C. §§ 1692e(4), e(5), e(8), 1692f(6), and 1692g(b)) of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 15 U.S.C. §§ 16921692p. She also appears to be attempting to assert state law claims under S.C. Code Ann. §§ 372-302, 37-5-108(5)(d), and 37-5-111. Id. at 3, see also ECF No. 11-1 at 3. Plaintiff requests actual and punitive damages. See ECF No. 11-1 at 3.
In the initial Complaint, “Keturah Kemmerlin” was also named as a plaintiff, but this individual did not sign the Complaint. See ECF No. 1. In the Proper Form Order, Plaintiff was informed that she could not represent Keturah Kemmerlin pro se and that any claims asserted on behalf of Keturah Kemmerlin were subject to summary dismissal unless Katurah Kemmerlin obtained counsel or signed the Complaint (and any amended complaint) and provided the necessary documents to bring the case into proper form. ECF No. 8. The Amended Complaint did not include Keturah Kemmerlin as a plaintiff. See ECF No. 11. As the Amended Complaint does not name Keturah Kemmerlin as a plaintiff, it appears that there are no longer any claims alleged on Keturah Kemmerlin's behalf. However, to the extent any claims are alleged on behalf of Keturah Kemmerlin, they should be dismissed because Keturah Kemmerlin has not appeared by counsel and has not provided the necessary documents (including that she has not signed the Complaint and Amended Complaint) to proceed pro se. Additionally, any claims asserted on behalf of Keturah Kemmerlin are subject to summary dismissal for the reasons discussed (as to Plaintiff Milcah Kemmerlin's claims) below.
Plaintiff did not provide a “short and plain statement of the claim” on the Amended Complaint form (ECF No. 5), but directs the Court to look at her “Affidavit of Truth” (ECF No. 11-1 at 1-3). She provides little background and few facts in her Amended Complaint as to the alleged incidents, but it appears Plaintiff is complaining about the repossession of her car. With her original Complaint, Plaintiff submitted a “Retail Installment Contract and Security Agreement” (Contract and Agreement) between Seller JDB of Charleston d/b/a [doing business as] J. D. ByRider - Charleston and Buyer Milcah Kemmerlin for the purchase of a 2009 Ford Focus. The Contract and Agreement contains an “Assignment by Seller” section and specifically provides that the Contract and Security Agreement are assigned to “Excelsior of Charleston LLC d/b/a CNAC of Charleston. ECF No. 1-1 at 14. The Contract and Agreement contains “Truth in Lending Disclosures” and an “Itemization of Amount Financed.” ECF No. 1-1 at 1-2.
On September 7, 2022, Plaintiff allegedly sent Peters a letter via certified mail (return receipt requested) asking “this company to validate that I indeed owe the alleged debt by providing the original contract agreement as proof that they indeed hold my original contract and that I owe the debt to them[.]” ECF No. 11-1 at 2. Thereafter, Peters allegedly sent Plaintiff a “48-hour notice.” Plaintiff claims that Peters “failed to validate the debt per 15 [U.S.C. §] 1692g and allowed his employee (Christy Tisdale) to continue with these deceptive practices.” She also appears to allege that these actions violated South Carolina law. Id.
Plaintiff claims that:
Even with having the said security interest Christy Tisdale still failed to give notice about the actions she was going to take. Christy Tisdale ordered a tow company to come and steal my property in the middle of the night from me within 24 hours of me receiving the 48-hour notice. I called Christy Tisdale to communicate my concerns and her words exactly was “stay off Tik-Tok, you are not getting a free car.” Christy Tisdale then proceeded to tell me I either pay the amount to bring my balance up or her company would just sell the car. Not once did I receive the proper paperwork that I asked for from Criag Peters or Christy Tisdale instead Christy Tisdale threatened to sell my property after her company stole it in the middle of the night.ECF No. 11-1 at 2 (errors in original). She contends she suffered damages, including allegedly having to turn down job opportunities and allegedly having to move to a new home, because of the alleged “negligent, unfair and deceptive debt collection practices[.]” Id.
II. STANDARD OF REVIEW
This case is before the Court for pre-service review. See 28 U.S.C. § 1915(e)(2)(B); In re Prison Litigation Reform Act, 105 F.3d 1131, 1134 (6th Cir. 1997) (pleadings by non-prisoners should also be screened). Under established local procedure in this judicial district, a careful review has been made of the pro se Amended Complaint herein pursuant to the procedural provisions of § 1915, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319 (1989); Haines v. Kerner, 404 U.S. 519 (1972); and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
Section 1915 permits an indigent litigant to commence an action in federal court without paying the administrative costs of proceeding with the lawsuit. However, to protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action “is frivolous or malicious,” “fails to state a claim on which relief may be granted,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). A finding of frivolousness can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton v. Hernandez, 504 U.S. at 31. Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. at 327.
This Court is required to liberally construe pro se complaints, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, 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 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).
III. DISCUSSION
A. Failure to State a Federal Claim
In her Amended Complaint, Plaintiff's claims under the FDCPA are the only federal claims alleged. The FDCPA was passed by Congress “to eliminate abusive debt collection practices by debt collectors, [and] to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged,” Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 602 (2010) (quoting 15 U.S.C. § 1692(e)). To state a claim for a FDCPA violation, a plaintiff must allege that: (1) the plaintiff has been the object of collection activity arising from consumer debt; (2) the defendant is a debt collector as defined by the FDCPA; and (3) the defendant has engaged in an act or omission prohibited by the FDCPA. See Dikun v. Streich, 369 F.Supp.2d 781, 784-85 (E.D. Va. 2005).
Plaintiff fails to state a claim under the FDCPA because she has not provided any facts to plausibly allege that Defendants are “debt collectors.” The FDCPA “defines a debt collector as (1) a person whose principal purpose is to collect debts; (2) a person who regularly collects debts owed to another; or (3) a person who collects its own debts, using a name other than its own as if it were a debt collector.” Henson v. Santander Consumer USA, Inc., 817 F.3d 131, 140 (4th Cir. 2016), aff'd, 582 U.S. 79 (2017) (explaining 15 U.S.C. § 1692a(6)) (emphasis in original).
Here, Defendants appear to be employees of CNAC and to have been attempting to collect a debt owed to their employer. The term “debt collector” does not include “any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor.” 15 U.S.C. § 1592a(6)(A).
Even if Plaintiff were to amend to name CNAC as a defendant, she cannot state a claim because FDCPA only applies to “debt collectors,” 15 U.S.C. § 1692a(6), and Plaintiff fails to allege any facts to plausibly establish that CNAC and/or the named Defendants, who were attempting to collect this creditor's debt, are debt collectors. See, e.g., Dempsey v. Greenville Heritage Fed. Credit Union, No. CIV.A. 6:15-664-TMC, 2015 WL 1564780, at *3 (D.S.C. 2015); Eley v. Evans, 476 F.Supp.2d 531, 534 (E.D. Va. 2007) (plaintiff failed to state a claim for violation of the FDCPA because the car dealership was a creditor, and the car dealership and its president by hiring a towing company to repossess the automobile were attempting to collect on a debt that was owed to them); Craig v. Park Fin. of Broward Cnty., Inc., 390 F.Supp.2d 1150, 1154 (M.D. Fla. 2005) (plaintiff failed to state a violation of the FDCPA against a lender that financed a car loan because the lender was a creditor, not a debt collector).
The FDCPA “distinguishes a ‘debt collector,' which collects the debts due to another, from a ‘creditor,' which seeks to collect on its own debts.” Bruce v. Pentagon Fed. Credit Union, No. 2:17-CV-2170-BHH-MGB, 2018 WL 4957387, at *3 (D.S.C. July 24, 2018), report and recommendation adopted, 2018 WL 4476129 (D.S.C. Sept. 19, 2018), aff'd, 765 Fed.Appx. 30 (4th Cir. 2019). The FDCPA defines a creditor as “any person who offers or extends credit creating a debt or to whom a debt is owed...” 15 U.S.C. § 1692a. Here, Plaintiff states that the term creditor means CNAC. ECF No. 11-1 at 1. In her additional materials, she also states that she entered into a contract with “J.D. Byrider DBA CNAC[.]” ECF No. 15-1 at 13.
Although Plaintiff claims that “debt collector” and “creditor” should be used “interchangeably” (ECF No. 11-1 at 1), she provides no authority to support this assertion.
“Crediting 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, 2018 WL 4489290 (D.S.C. Sept. 19, 2018), aff'd 769 Fed.Appx. 106 (4th Cir. 2019). Here, Defendants are employees of a creditor collecting its own debts and are, therefore, not debt collectors. 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).
As noted above, Plaintiff submitted additional information on July 28, 2023. ECF No. 15. She reiterates that she brings claims under the statutes discussed above. She also appears to be attempting to assert claims against J. D. Byrider DBA CNAC and to bring claims under 15 U.S.C. § 1611 for an alleged violation of 15 U.S.C. § 1605(a). See ECF No. 15-1 at 13-14. However, Plaintiff has not filed a motion to amend and has not obtained leave to file a second amended complaint. See Fed.R.Civ.P. 15(a)(2). To the extent Plaintiff is requesting to amend her complaint, she has not submitted a complete proposed second amended complaint. As Plaintiff has previously been informed (see ECF No. 8), “[a] plaintiff may not amend a complaint in piecemeal fashion by merely submitting additional factual allegations.” McClary v. Searles, No. 3:15-cv-77-FDW, 2015 WL 2259312, at *1 n. 1 (W.D. N.C. May 13, 2015). An amended complaint replaces the original complaint and should be complete in itself. See Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001) (“As a general rule, an amended pleading ordinarily supersedes the original and renders it of no legal effect.”) (citation and internal quotation marks omitted).
Plaintiff asserts she is submitting “an addition to case 2:23-cv-00031-BH[H]-MHC” and that “[t]his is not to replace anything already submitted but to add on to it.” ECF No. 15-1 at 13.
To the extent Plaintiff may attempting to allege claims (see ECF No. 15-1 at 13) against J.D. Byrider DBA CNAC, this entity has not been named as a defendant in this action and Plaintiff has not provided service documents (a summons form and a Form USM-285) for any proposed new defendant. Additionally, any attempt to add a claim for damages under § 1611 (for an alleged violation of § 1605) under the Truth in Lending Act (TILA) is frivolous. Section 1611 provides criminal liability for knowing and willful violations of TILA. However, it is a criminal statute for which Plaintiff does not have a private cause of action. See, e.g., Rivera v. Gatestone & Co., No. 3:23-CV-00035-MPS, 2023 WL 5530685, at *5 (D. Conn. Aug. 28, 2023) (noting that the plaintiff, a private party, could not enforce a criminal statute and thus could not bring a claim under § 1611); Richardson v. PECO Energy, No. CV 22-3485, 2022 WL 13918346, n. 25 (E.D. Pa. Oct. 21, 2022) (noting that the plaintiff could not bring a private claim under § 1611).
Plaintiff has not alleged any facts to establish that this statute creates a private cause of action, and “[t]he Supreme Court historically has been loath to infer a private right of action from “a bare criminal statute,” because criminal statutes are usually couched in terms that afford protection to the general public instead of a discrete, well-defined group.” Doe v. Broderick, 225 F.3d 440, 44748 (4th Cir. 2000) (citing Cort v. Ash, 422 U.S. 66, 80 (1975)).
B. State Law Claims
As noted above, Plaintiff also appears to be attempting to allege claims under several South Carolina statutes. See ECF No. 11 at 3. However, as Plaintiff fails to state any federal claim, only the state law claims would remain, and federal courts are allowed to hear and decide state-law claims only in conjunction with federal-law claims, through the exercise of “supplemental jurisdiction.” See 28 U.S.C. §1367; Wisconsin Dep't of Corrs. v. Schacht, 524 U.S. 381, 387 (1998). Of course, a district court may have jurisdiction of a civil action based on diversity jurisdiction pursuant to 28 U.S.C. § 1332. However, Plaintiff has not alleged diversity jurisdiction and Plaintiff and Defendant Tisdale are South Carolina citizens. Thus, complete diversity is lacking and Plaintiff may not bring claims pursuant to § 1332. Plaintiff's state law claims should be summarily dismissed because this Court should not exercise supplemental jurisdiction over any state law claims where Plaintiff has asserted no valid federal claim and there is no diversity jurisdiction. See 28 U.S.C. § 1367; see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); Tigrett v. Rector and Visitors of the Univ. of Va., 290 F.3d 620, 626 (4th Cir. 2002) (affirming district court's dismissal of state law claims when no federal claims remained in the case); Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999) (“[T]he Constitution does not contemplate the federal judiciary deciding issues of state law among non-diverse litigants”).
IV. RECOMMENDATION
Based on the foregoing, it is recommended that the Court dismiss this action without prejudice, without further leave to amend, and without issuance and service of process.
See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022) (noting that “when a district court dismisses a complaint or all claims without providing leave to amend ... the order dismissing the complaint is final and appealable”).
Plaintiff's attention is directed to the important notice on the following 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
Post Office Box 835
Charleston, South Carolina 29402
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. __ (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).