Cathy Brooks-McCollum v. Aspen Property Management Co

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion(s) disposition in opinion--denying all Motions; denying Motion(s) to strike as moot. Originating case number: 1:13-cv-00324-JFM. Copies to all parties and the district court/agency. [999273196]. Mailed to: Brooks-McCollum. [13-1968]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1968

CATHY D. BROOKS-MCCOLLUM; SAMUEL J. MCCOLLUM,
Plaintiffs - Appellants,
and
THE RESERVE @ ELK RIVER, (With Permission Of the Court upon
Indemnification Ruling and within Corporate Document),
Plaintiff,
v.
ASPEN PROPERTY MANAGEMENT COMPANY;
BRADFORD L. CARILLO, JR.;
ALLISON FENWICK;
MICHAEL NEALL & ASSOCIATES;
ADELAIDE ARKU;
DAVID O’CONNOR;
EUNITA BOOKER;
MRA PROPERTY MANAGEMENT
COMPANY; MCMULLEN & DRURY PA; RICHARD W. DRURY; PAUL TRAPANI;
NORMAN ANDERSON; MICHAEL S. NEALL; SCOTT J. SILVERMAN; NAGLE
& ZALLER, P.C.,
Defendants - Appellees.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:13-cv-00324-JFM)

Submitted:

November 14, 2013

Decided:

Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

January 8, 2014

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Cathy D. Brooks-McCollum; Samuel J. McCollum, Appellants Pro Se.
Eric H. Haversack, HYATT & WEBER, PA, Annapolis, Maryland; Scott
Jon Silverman, Erin Kathleen Voss, NAGLE & ZALLER PC, Columbia,
Maryland; Michael Stuart Neall, MICHAEL NEALL & ASSOCIATES,
Annapolis, Maryland; Richard Warren Drury, MCMULLEN, DRURY &
PINDER, PA, Towson, Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Cathy

D.

Brooks-McCollum

and

Samuel

J.

McCollum,

Plaintiffs, appeal the district court’s order dismissing their
complaint,

as

amended,

against

the

Defendants.

Plaintiffs

alleged numerous claims under Maryland state law and violations
of

the

Fair

Credit

Reporting

Act

(“FCRA”)

and

Fair

Debt

Collection Practices Act (“FDCPA”). The district court dismissed
Plaintiffs’
jurisdiction.
plausibly

amended
On

asserted

complaint

appeal,

for

Plaintiffs

violations

of

the

lack

of

subject

assert
FCRA

that

and

the

matter

they
FDCPA.

had
We

affirm.
“We review de novo a district court’s dismissal for lack of
subject matter jurisdiction under [Fed. R. Civ. P.] 12(b)(1).”
Taylor v. Kellogg Brown & Root Servs., Inc., 658 F.3d 402, 408
(4th Cir. 2011). Plaintiffs have the burden of proving subject
matter jurisdiction. Piney Run Pres. Ass’n v. County Comm’rs of
Caroll Cnty., Md., 523 F.3d 453, 459 (4th Cir. 2008). We also
review de novo a district court’s dismissal under Fed. R. Civ.
P. 12(b)(6), accepting factual allegations in the complaint as
true

and

drawing

all

reasonable

inferences

in

favor

of

the

nonmoving party. Kensington Volunteer Fire Dep’t v. Montgomery
Cnty., 684 F.3d 462, 467 (4th Cir. 2012). To survive a Rule
12(b)(6) motion to dismiss, a complaint must contain sufficient

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“facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
The only plausible basis for jurisdiction over Plaintiffs’
action is federal question jurisdiction, with the FCRA and the
FDCPA providing the hooks for supplemental jurisdiction over the
alleged

state

claims. *

See

28

U.S.C.

§§ 1331,

1367

(2006).

Although Plaintiffs have alleged violations of federal statutes,
a federal court may dismiss claims invoking federal question
jurisdiction
claims

are

for
not

want

of

subject

“colorable,”

such

matter
as

jurisdiction

claims

that

are

if

the

“wholly

insubstantial and frivolous.” Arbaugh v. Y & H Corp., 546 U.S.
500, 513 n.10 (2006) (internal quotation marks omitted); Dixon
v. Coburg Dairy, Inc., 369 F.3d 811, 818-19 (4th Cir. 2004) (en
banc). Our review leads us to conclude that Plaintiffs’ claims
are not “wholly insubstantial or frivolous,” Arbaugh, 546 U.S.
at 513 n.10, in light of Plaintiffs’ allegations that Defendants

*

Although the district court did not identify the documents
upon which it relied in granting Defendants’ motion to dismiss
for lack of jurisdiction, we have considered the allegations in
Plaintiffs’ complaint and the relevant documents attached to the
motion to dismiss. See CACI Int’l, Inc. v. St. Paul Fire &
Marine Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009) (“[C]ourts
may consider the complaint itself and any documents that are
attached to it.”); Am. Chiropractic Ass’n v. Trigon Healthcare,
Inc., 367 F.3d 212, 234 (4th Cir. 2004) (providing that courts
may consider a document attached to motion to dismiss if the
document “was integral to and explicitly relied on in the
complaint
and
if
the
plaintiffs
do
not
challenge
its
authenticity”) (internal quotation marks and brackets omitted)).
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attempted to collect their past-due homeowner’s association fees
and assessments through unlawful means.
Nonetheless, we conclude that Plaintiffs failed to state a
claim under the FCRA because they did not allege at any point
that any Defendant was a credit reporting agency for purposes of
the

FCRA

or

that

any

Defendant

requested

or

used

a

credit

report. See 15 U.S.C. §§ 1681b(f), 1681n(a) (2012); Ausherman v.
Bank of Am. Corp., 352 F.3d 896, 900 (4th Cir. 2003).
We also conclude that Plaintiffs have failed to state a
claim

under

association

the
are

FDCPA.

not

The

debt

officers

collectors

of

under

the

the

homeowner’s

FDCPA,

see

15

U.S.C. § 1692a(4), (6)(A) (2012), nor is MRA Property Management
Company, see 15 U.S.C. § 1692a(6)(F)(iii) (2012). To the extent
the remaining Defendants may be considered debt collectors under
the

FDCPA,

violations

Plaintiffs’
of

Plaintiffs’

the

filing

1692k(d)

(2012)

starting

from

Finally,

in

court

did

FDCPA
of

the

the

date

of

absence

of

err

by

complaint

that

(providing

the
not

amended

occurred

instant
a

a

declining

to

allege

any

one

See

statute

violation

federal

not

within

action.

one-year
the

did

year

15

U.S.C.

of

of

question,
exercise

of
§

limitations

the
the

statute).
district

supplemental

jurisdiction over Plaintiffs’ state law claims. See 28 U.S.C.
§ 1367(c)(3) (2006).

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Accordingly, we affirm the district court’s dismissal of
the action, deny all of Plaintiffs’ motions filed on appeal, and
deny as moot Defendants’ motions to strike. We dispense with
oral

argument

adequately

because

presented

in

the
the

facts

and

materials

legal
before

contentions
this

court

are
and

argument would not aid the decisional process.
AFFIRMED

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