Alston v. Cavalry Portfolio Services, LLC
MEMORANDUM OPINION. Signed by Judge Alexander Williams, Jr on 08/21/2013. (bas, Deputy Clerk)(c/m) on 8/21/2013 bca)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil Action No. 8:12-cv-03589-AW
CAVALRY PORTFOLIO SERVICES, LLC
Pending before the Court is Defendant Capital Management Services, LP’s Motion to
Dismiss. The Court has reviewed the record and deems a hearing unnecessary. For the following
reasons, the Court GRANTS Defendant’s Motion to Dismiss.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Thomas Alston resides in Maryland. Defendant Capital Management Services
(“Defendant”) is a debt collector that does business in Maryland. Plaintiff alleges that, on July
15, 2011, former Defendant Cavalry Portfolio Services, LLC (Cavalry) sent him correspondence
falsely asserting that Plaintiff had a delinquent credit card account. In this communication,
Cavalry represented that Plaintiff owed it $449.63. Plaintiff allegedly disputed the debt with
Cavalry. According to Plaintiff, Cavalry ultimately deleted the account when Plaintiff filed a
At an unspecified time after October 19, 2011, Defendant sent Plaintiff correspondence
asserting that Plaintiff had a delinquent debt of $457.84 with Cavalry. In this correspondence,
Defendant allegedly represented that it was authorized to settle the debt on Cavalry’s behalf for
$283.86. To supplement its Motion to Dismiss, Defendant has included a letter whose content
equals Plaintiff’s allegations concerning said correspondence. The letter is dated November 6,
2011. See Doc. No. 36. The Court treats this letter as a part of Plaintiff’s Second Amended
Complaint because it is referred to therein and integral thereto. See, e.g., Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (citation omitted).
In response, Plaintiff allegedly sent Defendant a letter explaining that the debt was
invalid. Plaintiff further alleges that he requested verification of the debt. Additionally, Plaintiff
alleges that Defendant responded to his letter, stating that it had requested the debt verification
information from Cavalry and would give it to him once Defendant received it. Plaintiff adds that
Defendant never provided him with such information.
Based on these allegations, Plaintiff has filed a Second Amended Complaint asserting
claims for violations of the FDCPA, the Maryland Consumer Debt Collection Act (MCDCA),
and the Maryland Consumer Protection Act (MCPA). Doc. No. 28. Defendant has filed a Motion
to Dismiss. Doc. No. 31. This Motion is ripe.1
STANDARD OF REVIEW
The purpose of a 12(b)(6) motion to dismiss is to test the sufficiency of the plaintiff’s
complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). In two recent
cases, the U.S. Supreme Court has clarified the standard applicable to Rule 12(b)(6) motions.
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
These cases make clear that Rule 8 “requires a ‘showing,’ rather than a blanket assertion, of
entitlement to relief.” Twombly, 550 U.S. at 556 n.3 (quoting Fed. R. Civ. P. 8(a)(2)). This
Plaintiff initially filed suit against Cavalry. Plaintiff subsequently added former Defendant Accounts
Receivable Management, Inc. to the suit. Plaintiff has voluntarily dismissed his claims against these
showing must consist of at least “enough facts to state a claim to relief that is plausible on its
face.” Id. at 570.
In deciding a motion to dismiss, the court should first review the complaint to determine
which pleadings are entitled to the assumption of truth. See Iqbal, 129 S. Ct. at 1949–50. “When
there are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Id. at 1950. In so doing,
the court must construe all factual allegations in the light most favorable to the plaintiff. See
Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999). The Court
need not, however, accept unsupported legal allegations, Revene v. Charles County
Commissioners, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual
allegations, Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusory factual allegations
devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847
(4th Cir. 1979).
The FDCPA follows a one-year statute of limitations. 15 U.S.C. § 1692k(d). The
limitations period under § 1692k(d) generally starts to run on the date of the first violation. See
Fontell v. Hassett, 870 F. Supp. 2d 395 (D. Md. 2012) (citation omitted).
In this case, the documentation that Plaintiff’s Second Amended Complaint incorporates
shows that Defendant sent the allegedly offending communication on or around November 6,
2011. Yet Plaintiff failed to file suit until May 6, 2013. Plaintiff’s FDCPA claim is time-barred
as he waited 18 months to bring his FDCPA claim. Plaintiff maintains that it is improper for the
Court to consider said communication as it is outside of the Second Amended Complaint. This
assertion is incorrect in light of the fact that the Second Amended Complaint references this
document and it is integral to Plaintiff’s FDCPA claim. Nonetheless, Plaintiff’s claim would be
time-barred even if the Court did not consider said communication. Plaintiff’s allegations lead
ineluctably to the inference that Defendant sent said communication between October 2011 and
January 2012. See Doc. No. 28 ¶¶ 17–21. As May 2103 falls well over a year after January 2012,
Plaintiff’s FDCPA claim is time-barred.
Pertinently, the MCDCA provides that, in collecting or attempting to collect an alleged
debt, a collector may not “[c]laim, attempt, or threaten to enforce a right with knowledge that the
right does not exist.” Md. Code Ann., Com. Law § 14-202(8). Here, Plaintiff’s allegations fail to
sustain a plausible inference that Defendant had knowledge that the debt in question did not
exist. Plaintiff does not expressly plead knowledge on Defendant’s part, and the scant and vague
allegation that Defendant stated that it had requested the debt verification information from
Cavalry and would give it to Plaintiff once Defendant received it, if anything, supports the
inference that Defendant lacked such knowledge. Furthermore, Plaintiff’s allegations fail even to
create a plausible inference that Plaintiff did not owe the debt in question. Although the Court
might have suggested otherwise in its prior Memorandum Opinion, the Court has carefully
reviewed Plaintiff’s Second Amended Complaint and is convinced that it is equivocal. Plaintiff
never clearly alleges that he never incurred the debt in question, and the allegation that Cavalry
deleted the account after Plaintiff filed suit is amenable to any number of innocuous inferences.
Accordingly, Plaintiff has failed to state a facially plausible MCDCA claim.
Plaintiff asserts a derivative MCPA claim pursuant to section 13-301 of the Commercial
Law Article of the Maryland Code. See Md. Code Ann., Com. Law § 13-301(14). This claim
fails as a matter of law for the reasons stated in Part III.B. To the extent Plaintiff’s MCPA claim
were a standalone claim, it would fail because Plaintiff’s sparse allegations fail to create a
plausible inference that Defendant has made a material misrepresentation or omission or violated
the MCPA in any other conceivable way. See generally Currie v. Wells Fargo Bank, N.A., --- F.
Supp. 2d ----, 2013 WL 2295695, at *5 (D. Md. May 23, 2013) (discussing the requirements for
stating a claim under the MCPA).
Plaintiff has requested the Court to allow him to amend his Second Amended Complaint
based on his facially equivocal assertion that Defendant “may have had no authority from
[Cavalry] to collect on the debt.” Doc. No. 34 at 4. The Court denies this request. Outside of the
fact that Plaintiff’s request is equivocal, Plaintiff has already filed three complaints and has not
satisfied the standard for either amending a complaint or for modifying the scheduling order. See
generally Hawkins v. Leggett, --- F. Supp. 2d ----, 2013 WL 3218964, at *18 (D. Md. June 24,
2013) (stating the standard for amending a complaint and modifying a scheduling order). Also,
Defendant appears to make a conclusory, one-sentence request for sanctions in its reply brief.
See Doc. No. 37-1 at 4. Defendant has not adequately presented this question for the Court to
August 21, 2013
Alexander Williams, Jr.
United States District Judge
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