Alston v. United Collection Bureau, Inc.

Filing 31

MEMORANDUM AND ORDER DENYING 28 Motion for Reconsideration (c/m to Plaintiff 4/23/14 sat). Signed by Chief Judge Deborah K. Chasanow on 4/23/14. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JONATHAN ALSTON
:
v.

:

Civil Action No. DKC 13-0913

:
UNITED COLLECTIONS BUREAU, INC.
:
MEMORANDUM OPINION AND ORDER
Plaintiff

Jonathan

Alston,

proceeding

pro

se,

commenced

this action against United Collections Bureau, Inc. (“UCB”) on
March 27, 2013, resulting from UCB reporting a collection item
to

three

credit

TransUnion.

reporting

agencies

–

Equifax,

Experian,

and

Mr. Alston alleged that the collection item arose

from a debt he owed to Prince George’s Hospital for personal
services, which he contends was paid in full on June 18, 2007.
Plaintiff

asserts

that

UCB

continued

after the debt was settled.
Equifax,

Experian,

information
The

regarding

disputes

Experian

and

all

Plaintiff
concerned

report

this

account

Plaintiff disputed this debt to

TransUnion,

each

to

dispute

filed
the

with
same

which
to

forwarded

UCB

for

TransUnion,
debt

to

specific

investigation.
Equifax,

Prince

and

George’s

Hospital, yet UCB’s investigation yielded different results from
TransUnion (resulting in his account being deleted) than Equifax
and Experian (which continued to report this debt).

Plaintiff submitted an amended complaint on April 17, 2013,
alleging common law tort of defamation and violations of the
Fair Debt Collection Practices Act (“FDCPA”), 16 U.S.C. §§ 1692
et seq., Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681
et

seq.,

and

the

Maryland

Consumer

Debt

Collection

(“MCDCA”), Md. Code Ann., Com. Law §§ 14-201.

Act

UCB moved to

dismiss Plaintiff’s FDCPA, and MCDCA, and defamation claims, and
for summary judgment on the FCRA claim.

Plaintiff moved for

leave to file a second amended complaint seeking to add Prince
George’s Hospital as a second defendant, and to include two
additional counts for respondeat superior liability and alleged
violations of the Maryland Consumer Protection Act (“MCPA”), Md.
Code Ann., Com. Law §§ 13-101 et seq.

Plaintiff alleged that

Defendant violated the FDCPA by reporting false information to
TransUnion, Equifax, and Experian.
of

the

FCRA

premised

on

He also asserted violations

Defendant’s

investigate the disputed account.

alleged

failure

to

By memorandum opinion and

order issued on March 4, 2014, the undersigned dismissed all of
Plaintiff’s claims and denied Plaintiff’s motion for leave to
file a second amended complaint.
subsequently

filed

March 28, 2014.

the

instant

(ECF Nos. 26 & 27).
motion

for

Plaintiff

reconsideration

on

(ECF No. 28).

A motion for reconsideration filed within twenty-eight days
of

the

underlying

order

is

governed
2

by

Fed.R.Civ.P.

59(e).

Courts

have

recognized

three

motion

for

reconsideration

limited

pursuant

grounds
to

for

Rule

granting

59(e):

(1)

a
to

accommodate an intervening change in controlling law; (2) to
account

for

new

evidence

not

available

at

trial;

or

(3)

correct clear error of law or prevent manifest injustice.

to
See

United States ex rel. Becker v. Westinghouse Savannah River Co.,
305 F.3d 284, 290 (4th Cir. 2002) (citing Pac. Ins. Co. v. Am.
Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998)).

A Rule

59(e) motion “may not be used to relitigate old matters, or to
raise arguments or present evidence that could have been raised
prior to the entry or judgment.”
(quoting

11

Wright,

et

al.,

Pac. Ins. Co., 148 F.3d at 403

Federal

2810.1, at 127-28 (2d ed. 1995)).

Practice

&

Procedure

§

“In general, ‘reconsideration

of a judgment after its entry is an extraordinary remedy which
should be used sparingly.’”

Id. (quoting Wright, et al., supra,

§ 2810.1, at 124).
Plaintiff’s

motion

does

not

satisfy

any

grounds for reconsideration under Rule 59(e).
not

identified

any

intervening

change

in

of

the

three

Mr. Alston has
the

law,

newly

developed evidence, or clear error of law or manifest injustice
that would cause the undersigned to alter the prior opinion.
Plaintiff

makes

several

arguments

to

support

reconsideration, none of which are persuasive.

his

motion

for

First, Plaintiff

argues that the undersigned erred by denying him the opportunity
3

to conduct discovery before entering judgment in favor of UCB on
the FCRA claim.
to

discovery

Mr. Alston believes that “a party is entitled

prior

to

the

disposition

of

his

claims

if

the

nonmovant properly submits an opposition indicating the need for
discovery.”

(ECF N. 28, at 4).

misplaced.

UCB

moved

for

Mr. Alston’s arguments are

summary

judgment

only

as

to

Plaintiff’s FCRA claim challenging the reasonableness of UCB’s
investigation.

Plaintiff submitted a Rule 56(d) affidavit.

As

Defendant argues, in denying Plaintiff’s discovery request, the
undersigned recognized that there has been no discovery in this
case, but concluded that the information Plaintiff sought in the
Rule

56(d)

whether

affidavit

UCB’s

reasonable.1

would

investigation

not

affect

under

the

Section

determination

of

1681s-b(2)

was

See, e.g., Nautilus Ins. Co. v. REMAC America,

Inc., 956 F.Supp.2d 674, 683-84 (D.Md. 2013) (denying discovery

1

Plaintiff requested discovery to determine why UCB was
still reporting the account five years after the debt was paid.
Plaintiff stated that his “discovery requests pertaining to
United Collection Bureau, Inc.’s reporting of the account will
determine whether it performed a reasonable investigation of the
disputed account after receiving [his] disputes from the credit
reporting agencies.”
(ECF No. 18-1, at 2).
Although UCB
submitted
several
affidavits
from
its
General
Counsel
identifying the exact information that was forwarded to UCB for
investigation, Plaintiff insisted that he needs “an opportunity
to subpoena documents from Equifax, Experian and Transunion to
determine what information was forwarded to United Collection
Bureau, Inc.”
(Id.).
Plaintiff’s subjective determinations
regarding whether UCB conducted a reasonable investigation under
the FCRA cannot serve to create a genuine dispute of material
fact.
4

request where no discovery took place before plaintiff moved for
summary judgment because discovery would not create a genuine
issue

of

material

fact).

Plaintiff

erroneously

states

that

“[t]here is no precedence for denying an opposition supported by
a

Rule

56(d)

discovery.”

affidavit
(Id.

at

prior

4-5)

to

any

(emphasis

opportunity
in

to

original).

conduct
Indeed,

courts interpreting Rule 56(d) have consistently held that a
nonmovant must provide “a reasonable basis to suggest that [the
requested] discovery would reveal triable issues of fact” in
order for such a request to be granted.

McWay v. LaHood, 269

F.R.D. 35, 38 (D.D.C. 2010); Ingle ex rel. Estate of Ingle v.
Yelton, 439 F.3d 191, 195 (4th Cir. 2006); McKinnon v. Blank,
Civil Action No. 12-1265, 2013 WL 781617, at *11 (D.Md. Feb. 28,
2013)

(denying

summary
precedent

discovery

judgment
defeats

before

request
any

Plaintiff’s

where

discovery).

defendant
Clearly

misconception

that

moved

for

established
“a

party

is

entitled to discovery on issues that may be helpful,” (ECF No.
28, at 5-6), or that “a party is entitled to discovery to prove
his claim” (ECF No. 30, at 1).

Indeed, fishing expeditions for

“helpful” information do not provide sound bases for granting
Rule 56(d) requests.
Second, Plaintiff asserts that the undersigned “erroneously
analyzed

UCB’s

credit

reporting

under

[Section]

1692e(8)

but

should have also analyzed UCB’s credit reporting under [Section]
5

1692e(10).”
that

UCB

(Id. at 7).

made

false

Plaintiff insists that his “allegation

representations

to

the

credit

agencies constitute violations of the FDCPA.

reporting

Had this Court

analyzed UCB’s credit reporting under [Section] 1692e(10), then
the Court would have found the allegation was sufficient to
state a claim.”

(Id.).

Plaintiff’s argument is premised on a

misunderstanding of the memorandum opinion.

Plaintiff’s FDCPA

claims were analyzed both under Section 1692(e)(8) and (e)(10),
but neither claim could be sustained.
14).

(See ECF No. 26, at 9-

A Rule 59(e) motion may not be used to relitigate old

matters, which is precisely what Plaintiff endeavors to do here.
In

dismissing

Plaintiff’s

FDCPA

claims,

the

undersigned

explained that Mr. Alston’s allegations fail to demonstrate that
at the time UCB reported the account to Equifax, Experian, and
TransUnion, it knew or should have known that the information
about his debt was false.

(ECF No. 26, at 10).

Indeed, after

Plaintiff submitted the dispute directly to UCB – and not to the
credit

reporting

satisfied,
cancelled.

UCB
Mr.

bureaus
responded
Alston

-

explaining

that

the

debt

was

to

Plaintiff

that

the

debt

was

did

not

argue

that

UCB

continued

to

report the debt after it received the dispute directly from him.
As explained in the March 4, 2014 memorandum opinion, Plaintiff
failed to plead a violation of Section 1692e(10) because he did
not identify how UCB used false representations or deceptive
6

means in an attempt to collect a debt.

The undersigned found

insufficient Plaintiff’s naked assertion that UCB knew that the
debt

was

false

all

along.

Accordingly,

Plaintiff

has

not

demonstrated that the dismissal of the FDCPA claims constituted
clear error of law.
Third, Plaintiff asserts that “[t]he Court clearly erred by
finding the FCRA preempts Plaintiff’s defamation claim when the
Court found Prince George’s Hospital does not fall under the
purview of the FCRA.”

(ECF No. 28, at 8).

Mr. Alston concludes

that “[o]bviously Prince George’s Hospital can be exempt from
both the FCRA and state law claims.”

(Id.).

challenges the dismissal of the MCDCA claim.
misunderstands

the

memorandum

opinion.

Plaintiff also
Plaintiff again

Plaintiff

moved

for

leave to file a second amended complaint seeking, inter alia, to
add Prince George’s Hospital as a second defendant, which the
undersigned denied as being futile.
amended

complaint

(including

Prince

asserted
George’s

Plaintiff’s proposed second

claims

Hospital)

violations of the FCRA and the MCDCA.
7).

against
for

all

Defendants

defamation

and

(See ECF No. 23-3, at 5-

In denying Plaintiff’s request to submit a second amended

complaint,
Hospital

the
likely

undersigned
would

not

explained
qualify

that
as

Prince
a

George’s

‘furnisher

of

information’ under the FCRA to trigger liability and, in any
event, Plaintiff’s complaint was devoid of any allegations that
7

Plaintiff

disputed

Plaintiff’s
reason:

the

defamation

namely,

debt
claim

because

with
was

it

Prince

George’s

dismissed

is

for

preempted

Hospital.

a

by

different
the

FCRA.

Plaintiff’s conclusory allegations that UCB reported the debt to
slander and defame Mr. Alston were self-serving and conclusory.
Plaintiff

cannot

demonstrate

that

any

of

these

conclusions

constituted clear error of law.
Fourth,

Plaintiff

essentially

asserts

that

it

was

clear

error to rely on the affidavit from Kristen Arsenault, UCB’s
General

Counsel,

which

explained

UCB’s

procedures

for

investigating disputed accounts but did not attach the documents
to which the affidavit referred.2

Plaintiff is mistaken.

The

2010 amendments to Rule 56 changed the procedure for submitting
materials on summary judgment.

Rule 56(c)(4) requires that:

[a]n
affidavit
or
declaration
used
to
support or oppose a motion [] be made on
personal knowledge, set out facts that would
be admissible in evidence, and show that the
affiant or declarant is competent to testify
on the matters stated.
Here, UCB submitted several sworn affidavits from its General
Counsel.

Plaintiff cites no authority for the proposition that

it was clear error to rely on these sworn affidavits without
seeing the actual documents referred therein.
2

Accordingly, this

Specifically, Plaintiff challenges UCB’s failure to
include as an exhibit a copy of the Automated Credit Dispute
Verification (“ACDV”), which is an electronic message received
by UCB containing a disputed code.
8

argument also does not warrant reconsideration of the dismissal
of Plaintiff’s claims.
Finally, Plaintiff objects to the denial of his request to
file

a

surreply.

Plaintiff

asserts

that

“[t]his

Court

erroneously characterized the supplemental affidavit [from Ms.
Arsenault]

as

submitted

a

new

simple

evidence

counterpoint,”

[]

opportunity to address.”

which

when

Plaintiff

in

did

fact

not

(ECF No. 28, at 10-11).

“UCB

have

an

Mr. Alston

asserts that if he had the opportunity to address the “new”
evidence, he would have requested to depose Arsenault on her
claim that she personally handled his dispute.
to

object

to

an

averment

in

Ms.

Plaintiff seems

Arsenault’s

supplemental

affidavit submitted with UCB’s reply brief, stating that UCB
verified

with

the

original

furnished was accurate.
March

4,

2014

creditor

that

the

information

But as the undersigned explained in the

memorandum

opinion,

even

if

this

was

“new”

evidence, whether UCB verified the accuracy of the information
furnished

with

determinative
investigation.

the

on

the

original
issue

of

creditor
the

(ECF No. 26, at 36).

is

not

reasonableness

outcome
of

UCB’s

Moreover, to the extent

Plaintiff wanted to file a surreply to challenge Ms. Arsenault’s
personal

handling

of

his

dispute,

as

the

undersigned

also

explained in the memorandum opinion, even the failure of Ms.
Arsenault

personally

to

handle
9

Plaintiff’s

dispute

would

not

undermine her ability to testify because as assistant general
counsel to UCB, she is familiar with its business practices.
Thus, this ground for reconsideration is also meritless.
Based on the foregoing, it is this 23rd day of April, 2014,
by

the

United

States

District

Court

for

the

District

of

Maryland, ORDERED that:
1.
Jonathan

The

motion

Alston

(ECF

for

reconsideration

No.

28),

BE,

and

filed
the

by

same

Plaintiff
HEREBY

IS,

DENIED; and
2.

The

clerk

will

transmit

copies

of

the

Memorandum

Opinion and this Order to pro se Plaintiff Jonathan Alston and
counsel for Defendant.

/s/
DEBORAH K. CHASANOW
United States District Judge

10