Elyazidi v. SunTrust Bank et al

Filing 31

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 2/28/14. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MOUNIA ELYAZIDI
:
v.

:

Civil Action No. DKC 13-2204

:
SUNTRUST BANK, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution are motions to
dismiss filed by Defendants SunTrust Bank (“SunTrust”) (ECF No.
17) and Mitchell Rubenstein & Associates, P.C. (“MRA”) (ECF No.
18), as well as a motion for sanctions filed by SunTrust (ECF
No. 24).

The relevant issues have been briefed and the court

now rules pursuant to Local Rule 105.6, no hearing being deemed
necessary.

For the reasons that follow, the motions to dismiss

will be granted and the motion for sanctions will be denied.
I.

Background
A.

Factual Background

On June 12, 2012, SunTrust, through MRA, its counsel, filed
a

collection

action

against

Plaintiff

Mounia

Elyazidi

(“Plaintiff” or “Ms. Elyazidi”) in the General District Court of
Fairfax County, Virginia, to recover “an overdraft that resulted
from cashing a check on . . . a consumer checking account[.]”
(ECF No. 16 ¶ 11).

The state court complaint, known as a

“warrant in debt,” recited that Ms. Elyazidi owed SunTrust “a
debt in the sum of $9490.82 net of any credits, with interest at
6.0000%

from

[the]

date

of

10/14/2010

until

paid,

$58.00

costs[,] and $2372.71 attorney’s fees with the basis of this
claim being . . . [c]ontract.”

(ECF No. 18-2, at 1).1

Attached

to the warrant in debt was an “Affidavit of Account,” in which a
SunTrust

representative

asserted

that

“[t]he

amount

of

[$9,490.82] plus reasonable attorney fees of 25% and the costs
of this proceeding is justly due and owing from debt to SunTrust
Bank pursuant to the attached copies of the debt[.]”
2).

(Id. at

Also included was SunTrust’s “Rules and Regulations for

Deposit Accounts,” which recited, in relevant part:

1

In considering a Rule 12(b)(1) motion, the court “may
consider evidence outside the pleadings” to help determine
whether it has jurisdiction over the case before it. Richmond,
Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d
Generally, the court’s review of a
765, 768 (4th Cir. 1991).
motion to dismiss under Rule 12(b)(6) is limited to the wellpleaded allegations of the complaint, but “when a defendant
attaches a document to its motion to dismiss, ‘a court may
consider it in determining whether to dismiss the complaint [if]
it was integral to and explicitly relied on in the complaint and
[if] the plaintiff[] do[es] not challenge its authenticity.’”
Am. Chiropractic Ass’n v. Trigon Healthcare Inc., 367 F.3d 212,
234 (4th Cir. 2004) (quoting Phillips v. LCI Int’l Inc., 190 F.3d
Here, the state court records
609, 618 (4th Cir. 1999)).
attached to MRA’s motion papers, are integral to, and explicitly
relied on in, Plaintiff’s amended complaint and the authenticity
of these documents is not challenged by Plaintiff. Furthermore,
“a federal court may consider matters of public record such as
documents from prior . . . court proceedings in conjunction with
a Rule 12(b)(6) motion.” Walker v. Kelly, 589 F.3d 127, 139 (4th
Cir. 2009).
2

[Ms. Elyazidi is] liable for all amounts
charged to [her] Account, whether by offset,
overdraft, lien or fee.
If [SunTrust]
take[s] court action or commence[s] an
arbitration proceeding against [her] to
collect such amounts, or if [she] elect[s]
arbitration of a collection action [SunTrust
has] brought against [her] in court, [she]
will also be liable for court or arbitration
costs, other charges or fees, and attorney’s
fees of up to 25 percent, or an amount as
permitted by law, of the amount owed to
[SunTrust].
(Id. at 27).

SunTrust additionally attached a “Personal Account

Signature Card,” in which Ms. Elyazidi agreed “to be bound by
the

terms

and

conditions

set

forth

in

the

Bank’s

Rules

and

Regulations for Deposit Accounts” (id. at 9); account statements
showing a negative balance in the amount SunTrust sought to
recover

(id.

at

10-11);

and

a

demand

for

repayment

of

the

overdraft amount (id. at 7).
In support of a claim for attorneys’ fees, an MRA attorney
executed an affidavit in which she averred, as relevant here,
that SunTrust was “entitled to indemnification for 25% to the
contract, note or other instrument of agreement executed between
the parties”; that she “ha[d] a billable rate of $250.00 per
hour and ha[d] expended approximately 1 hour in preparation of
the Warrant in Debt/Motion for Judgment filed herein”; that she
would “require an additional 3 hours for Court appearances and
travel”;

and

that

she

“anticipate[d]

at

least

20

additional

hours in order to satisfy [the expected] judgment by execution,
3

based upon similar cases and known asset information.”
3).

(Id. at

SunTrust’s counsel “request[ed] an award of 25%” of the

principal debt “as a just and reasonable fee, which [was] equal
to or less than the actual arrangement with [SunTrust] in this
case.”

(Id.).

The case proceeded to a bench trial on December 19, 2012.
At the outset of the trial, Ms. Elyazidi’s counsel, Ernest P.
Francis, orally moved for summary judgment on the grounds that
SunTrust failed to redact his client’s social security number
from account statements attached to a bill of particulars and
that the same bill of particulars was filed two days late.
No. 18-3, at 3-5).

(ECF

The court asked Mr. Francis to make a

showing of prejudice, which he failed to do, and suggested that
SunTrust redact the social security number from the exhibits.
(Id. at 5).

Counsel for SunTrust agreed to do so, and Mr.

Francis said nothing further.

(Id.).

opening

6),

statement

(id.

at

Thereafter, he waived an

declined

to

cross-examine

SunTrust’s only witness (id. at 69), and presented no evidence
(id.

at

69-70)

conclusion

of

or

the

closing
trial,

argument

judgment

(id.

was

at

73).

entered

in

At

the

favor

of

SunTrust for $9,490.82, the amount sought in the warrant in
debt.

(Id. at 78).
At a separate hearing on attorneys’ fees, held February 27,

2013, counsel for SunTrust submitted a supplemental affidavit,
4

asserting that she had “expended approximately 13.9 hours” on
the

case

broken

and

down

$4,025.00.
to

the

providing
by

a

task,

detailed

showing

a

(ECF No. 16-1, at 2).

warrant

supplemental

in

debt,

affidavit

description
total

billable

her

work,

amount

of

Like the affidavit attached

SunTrust’s

that

of

she

counsel

averred

“anticipate[d]

at

in

least

the
20

additional hours in order to satisfy [SunTrust’s] judgment by
execution, based upon similar cases and known asset information”
and

“request[ed]

an

reasonable fee[.]”
testified
length

in

award

“a

25%

(Id. at 3).

support

that

of

of

her

contractual

percent

as

a

just

and

After the attorney for SunTrust
request,
attorney’s

Mr.

Francis

fee

argued

provision

at

is

a

contract of indemnity” and that there had been “no showing that
[SunTrust] actually paid anything . . . [s]o there’s nothing to
be

indemnified

disagreed

and

for.”

(ECF

awarded

“fees

No.

18-4,

in

the

at

12).

amount

court

requested”

$2,372.71 – i.e., 25% of the $9,490.82 principal.
B.

The

of

(Id. at 20).

Procedural Background

Plaintiff, again represented by Mr. Francis, commenced the
instant action on June 12, 2013, by filing a complaint against
SunTrust and MRA in the Circuit Court for Montgomery County,
Maryland,

alleging

violations

of

the

Fair

Debt

Collection

Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and analogous
state

law

related

to

alleged
5

false

statements

and

other

misconduct by Defendants in the Virginia state court.
2).

(ECF No.

MRA was served on July 12, 2013, and, with the consent of

SunTrust, timely removed on the basis of federal question and
supplemental jurisdiction.

(ECF No. 1).

When both defendants

filed motions to dismiss (ECF Nos. 6, 11), Plaintiff responded
by filing an amended complaint, asserting additional claims.2
On August 23, SunTrust renewed its prior motion to dismiss
pursuant to Fed.R.Civ.P. 12(b)(6).

(ECF No. 17).

Six days

later, MRA filed a motion to dismiss pursuant to Rules 12(b)(1)
and 12(b)(6).

(ECF No. 18).

Plaintiff opposed both motions

(ECF Nos. 19, 27) and MRA filed a reply (ECF No. 28).
October 2, SunTrust filed a motion for sanctions.

On

(ECF No. 24).

Plaintiff was not directed to respond.
II.

Motions to Dismiss
A.

Standards of Review

The

arguments

raised

by

Defendants

in

their

dismiss implicate different standards of review.

motions

to

MRA’s motion

to dismiss for lack of subject matter jurisdiction is governed
by

Federal

“questions

Rule
of

of

subject

Civil

Procedure

matter

12(b)(1).

jurisdiction

must

Generally,
be

decided

‘first, because they concern the court’s very power to hear the

2

The filing of the amended complaint rendered moot the
initial motions to dismiss. Accordingly, those motions will be
denied.
6

case.’”
(4th

Owens–Illinois, Inc. v. Meade, 186 F.3d 435, 442 n. 4

Cir. 1999) (quoting 2 James Wm. Moore, et al.,

Federal

Practice

always

bears

§

the

12.30[1]
burden

(3d
of

ed.

1998)).

proving

The

that

Moore’s

Plaintiff

subject

jurisdiction properly exists in federal court.

matter

See Evans v.

B.F. Perkins Co., a Div. of Standex Int’l Corp., 166 F.3d 642,
647 (4th Cir. 1999).

The court should grant such a motion “only

if the material jurisdictional facts are not in dispute and the
moving

party

is

entitled

to

prevail

as

a

matter

of

law.”

Richmond, 945 F.2d at 768.
Both
12(b)(6).

defendants
The

have

purpose

moved
of

a

to

dismiss

motion

to

pursuant

dismiss

to

Rule

under

Rule

12(b)(6) is to test the sufficiency of the complaint.

Presley

v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).

A

plaintiff’s complaint need only satisfy the standard of Rule
8(a), which requires a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
8(a)(2).

Fed.R.Civ.P.

“Rule 8(a) (2) still requires a ‘showing,’ rather than

a blanket assertion, of entitlement to relief.”
v. Twombly, 550 U.S. 544, 555 n. 3 (2007).

Bell Atl. Corp.

That showing must

consist of more than “a formulaic recitation of the elements of
a cause of action” or “naked assertion[s] devoid of further
factual enhancement.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal citations omitted).
7

At this stage, all well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510 U.S. 266,
268 (1994), and all factual allegations must be construed in the
light

most

favorable

to

the

plaintiff,

see

Harrison

v.

Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).

In evaluating the complaint, unsupported legal

allegations

not

need

be

accepted.

Revene

v.

Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).

Charles

County

Legal conclusions

couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
reference to actual events, United Black Firefighters v. Hirst,
604 F.2d 844, 847 (4th Cir. 1979).
B.

Analysis

1.

Subject Matter Jurisdiction

Initially, MRA moves to dismiss the FDCPA claims alleged in
counts three, four, and five of Plaintiff’s amended complaint
for lack of subject matter jurisdiction based on the RookerFeldman doctrine.
196

(4th

Cir.

jurisdictional,
proceeding

See Friedman’s, Inc. v. Dunlap, 290 F.3d 191,

2002)

(“Because

[courts]

further

in

are
[the]

the

Rooker-Feldman

obliged

to

doctrine

address

analysis”).

In

is

it

before

count

three,

Plaintiff alleges that MRA’s statements in various state court
documents

that

Plaintiff

“owed
8

twenty[-five]

percent

of

the

overdraft as attorney’s fees,” that “SunTrust was entitled to
recover”

that

amount,

and

that

the

attorney

“anticipated

20

[additional billable] hours to satisfy [SunTrust’s] judgment by
execution”
misleading

constitute
means

or

the

use

of

“false,

representation[s]

in

deceptive,

connection

with

or
the

collection of a debt,” in violation of 15 U.S.C. § 1692e(2).
(Id.

¶¶

45-48).

“prosecution
attorney’s

of

fees

In
a

count

legal

for

four,

action

services

she

against

not

alleges

that

Plaintiff

performed

to

MRA’s
recover

represent[s]

the

collection of an amount that was neither expressly authorized by
the

agreement

creating

the

debt

nor

permitted

by

applicable

law,” in violation of § 1692f(1), because “neither the agreement
nor applicable law permit[s] recovery of attorney’s fees for
services
Plaintiff

not

performed.”

asserts

that

(Id.
MRA’s

at
use

¶
of

50).

In

count

“perjured”

five,

affidavits

“represents an unfair and unconscionable means to collect or
attempt to collect a debt,” in violation of § 1692f(1).

(Id. at

¶ 52).
Observing

that

“the

General

District

Court

judgment

included the 25% attorneys’ fees requested by SunTrust in the
Warrant in Debt,” MRA argues that Plaintiff’s success on the
merits of these claims “would necessitate a finding that the
state court wrongly decided the issues before it.”

(ECF No. 18-

1, at 12 (internal marks and citation omitted)).

It contends

9

that the court is prohibited from doing so under the RookerFeldman doctrine.
The Rooker-Feldman doctrine bars lower federal courts from
considering “cases brought by state-court losers complaining of
injuries

caused

by

state-court

judgments

rendered

before

the

district court proceedings commenced and inviting district court
review and rejection of those judgments.”
Saudi

Basic

Indus.

Corp.,

544

U.S.

Exxon Mobil Corp. v.

280,

284

(2005).

The

doctrine serves to bar “not only issues raised and decided in
the

state

courts,

but

also

issues

that

are

‘inextricably

intertwined’ with the issues that were before the state court.”
Washington v. Wilmore, 407 F.3d 274, 279 (4th Cir. 2005) (quoting
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462,
486 (1983)).

“[I]f the state-court loser seeks redress in the

federal district court for the injury caused by the state-court
decision,

his

intertwined’
outside

of

federal
with

the

the

claim

is,

by

state-court

jurisdiction

of

definition,

decision,

the

‘inextricably

and

federal

is

therefore

district

court.”

Davani v. Dep’t of Transp., 434 F.3d 712, 719 (4th Cir. 2006).
While these counts are beset with other problems, subject
matter jurisdiction is not lacking to consider them.

MRA’s

argument to the contrary essentially relies on the expansive
view

of

Circuit

the
in

Rooker-Feldman

cases

pre-dating

doctrine
the
10

applied

Supreme

by

Court’s

the

Fourth

decision

in

Exxon.

In Barefoot v. City of Wilmington, 306 F.3d 113, 120 (4th

Cir. 2002), for example, the court held, in relevant part, that
“[a] federal claim is ‘inextricably intertwined’ with a state
court decision if success on the federal claim depends upon a
determination that the state court wrongly decided the issues
before it.”
precisely

(Internal marks and citation omitted).

what

MRA

argues

here

–

namely,

that

This is

Plaintiff’s

success on three FDCPA claims necessitates a finding that false
representations

were

made

and,

consequently,

that

the

state

court wrongly credited those representations.
In Davani, however, the court recognized that Barefoot was
among the cases employing an overly “broad interpretation” of
the doctrine prior to Exxon:
The plaintiffs in Rooker and Feldman sought
redress for an injury allegedly caused by
the state-court decision itself — in Rooker,
the plaintiff sought to overturn a statecourt judgment in federal district court,
and in Feldman, the plaintiffs sought to
overturn a judgment rendered by the District
of Columbia court in federal district court.
In Barefoot, by contrast, we extended the
Rooker–Feldman
doctrine
to
apply
in
situations where the plaintiff, after losing
in state court, seeks redress for an injury
allegedly caused by the defendant’s actions.
What is more, this expansive view of the
Rooker–Feldman
doctrine carried with it
implications
for
Feldman’s
“inextricably
intertwined” language. To wit, by shifting
the focus from an examination of whether the
plaintiff
challenges
the
state-court
decision itself to whether the plaintiff
challenges the defendant’s actions, our
11

interpretation
of
the
Rooker–Feldman
doctrine
became,
in
essence,
a
jurisdictional doctrine of res judicata:
state-court losers became precluded from
raising claims in federal district court
that they had either already raised before
the
state
court
or
that
were
so
“inextricably intertwined” with the claims
they presented to the state court that the
federal claims could have been raised in the
state proceedings.
Davani,
Exxon,”

434

F.3d

the

at

717-18

court

(emphasis

explained,

in

original).

“Feldman’s

“Under

‘inextricably

intertwined’ language does not create an additional legal test
for determining when claims challenging a state-court decision
are barred, but merely states a conclusion: if the state-court
loser seeks redress in the federal district court for the injury
caused by the state-court decision, his federal claim is, by
definition,

‘inextricably

decision[.]”

intertwined’

with

the

state-court

Id. at 719.

As the Seventh Circuit explained in Nesses v. Shepard, 68
F.3d 1003, 1005 (7th Cir. 1995):
Were [the plaintiff] merely claiming that
the
decision
of
the
state
court
was
incorrect, even that it denied him some
constitutional right, the doctrine would
indeed bar his claim. But if he claims, as
he does, that people involved in the
decision violated some independent right of
his . . . then he can, without being blocked
by the Rooker-Feldman doctrine, sue to
vindicate that right and show as part of his
claim for damages that the violation caused
the decision to be adverse to him and thus
did him harm.
12

Here, the thrust of the challenged claims is that MRA violated
the FDCPA by asserting that it was entitled to attorneys’ fees
that had not yet been earned.

This is not a challenge to the

propriety of the court’s order granting a fee award, but to the
defendant’s conduct in the state court litigation.

Accordingly,

the Rooker-Feldman doctrine does not present a jurisdictional
bar.
2.
MRS
state

Failure to State a Claim
alternatively

a

claim

for

contends

relief

that

under

Plaintiff

the

FDCPA,

has

failed

which

to

protects

consumers from “abusive and deceptive debt collection practices
by debt collectors.”

Akalwadi v. Risk Mgmt. Alts., Inc., 336

F.Supp.2d 492, 500 (D.Md. 2004).
“forbids

the

use

of

any

More specifically, the FDCPA

false,

deceptive,

or

misleading

representation or means in debt collection and provides a nonexhaustive list of prohibited conduct.”

United States v. Nat’l

Fin. Servs., Inc., 98 F.3d 131, 135 (4th Cir. 1996).

To state a

sufficient claim for relief under the FDCPA, a plaintiff must
assert facts that, if proven, would show (1) that she has been
the object of collection activity arising from consumer debt,
(2) that the defendant is a debt collector, as defined under the
FDCPA, and (3) that the defendant has engaged in a prohibited
act or omission.

See Dikun v. Streich, 369 F.Supp.2d 781, 784

13

(E.D.Va.

2005)

(citing

Fuller

v.

Becker

&

Poliakoff,

192

F.Supp.2d 1361, 1366 (M.D.Fla. 2002)).
There

appears

to

be

no

dispute

that

Plaintiff

was

the

subject of a collection activity arising from a consumer debt
and that MRA qualifies as a “debt collector,” as that term is
defined under the FDCPA.

See Sayyed v. Wolpoff & Abramson, 485

F.3d 226, 229 (4th Cir. 2007) (“The Act applies to law firms that
constitute

debt

collectors,

even

where

their

debt-collecting

activity is litigation.”); see also Heintz v. Jenkins, 514 U.S.
291, 294 (1995) (“In ordinary English, a lawyer who regularly
tries

to

obtain

payment

of

consumer

debts

through

legal

proceedings is a lawyer who regularly ‘attempts’ to ‘collect’
those consumer debts,” as defined under 15 U.S.C. § 1692a(6)).
The critical inquiry, therefore, is whether MRA engaged in a
prohibited act or omission.
The alleged prohibited acts or omissions at issue in counts
three, four, and five are set forth at 15 U.S.C. §§ 1692e(2) and
1692f(1).

Pursuant to § 1692e(2):
A debt collector may not use any false,
deceptive, or misleading representation or
means in connection with the collection of
any debt.
Without limiting the general
application of the foregoing, the following
conduct is a violation of this section: . .
. The false representation of -(A) the character,
status of any debt; or

14

amount,

or

legal

(B) any
services
rendered
or
compensation which may be lawfully received
by any debt collector for the collection of
a debt.
Section 1692f(1), in turn, prohibits a “debt collector” from
collection of “any amount (including any interest, fee, charge,
or expense incidental to the principal obligation) unless such
amount is expressly authorized by the agreement creating the
debt or permitted by law.”
There can be little doubt that the assertions in documents
attached

to

the

warrant

in

debt

as

to

the

amount

owed

as

attorneys’ fees were merely estimates of what would be due at
the conclusion of the case.

Indeed, the warrant in debt itself

is a form complaint published by the Virginia judiciary that
requires the aggrieved party to give notice of the total amount
sought, including attorneys’ fees, at the time of filing.
http://www.courts.state.va.us/forms/district/dc412.pdf
accessed

Feb.

28,

2014).

Insofar

as

the

total

See
(last

fee

amount

necessarily has not accrued at the time the warrant is filed,
the

form

complains,

appears
in

to

effect,

call

for

that

an

MRA

estimate.
complied

Thus,

with

Plaintiff

the

procedure

established by the Virginia court system.
There is no dispute that the underlying service agreement
provided

that

a

fee

of

up

to

twenty-five

percent

of

the

principal debt could be recovered as attorneys’ fees; that the

15

total

lodestar

amount

at

the

conclusion

of

the

case

was

in

excess of the percentage that was awarded; and Plaintiff does
not argue that the MRA attorney misrepresented the hours she
actually

worked

affidavits.

in

either

the

original

or

supplemental

To the extent that the representations in the state

court filings were attributable to MRA – rather than SunTrust –
and that they were directed to Plaintiff – rather than the court
– they were not false or misleading in any material way.

See

Lembach v. Bierman, 528 Fed.Appx. 297, 302 (4th Cir. 2013) (“a
statement must be materially false or misleading to violate the
FDCPA”); Sayyed v. Wolpoff & Abramson, LLP, 733 F.Supp.2d 635,
648 (D.Md. 2010) (finding that a state court fee petition was “a
request directed to the court, not a communication directed to
the debtor, and certainly not a misrepresentation”); Hart v.
Pacific Rehab of Maryland, P.A., Civ. No. ELH-12-2608, 2013 WL
5212309, at *23 (D.Md. Sept. 13, 2013) (“like the request for
attorney’s

fees

directed

to

the

court

in

Sayyed,

the

State

plaintiff, through counsel, made a request to the court [for
pre-judgment interest that] . . . was not actionable to the
debtor under the FDCPA.”).
In
failure

counts
to

six

redact

and
her

seven,
social

Plaintiff
security

contends

number

from

that

MRA’s

documents

attached to a bill of particulars and the late filing of the
bill of particulars constitute “unfair and unconscionable” debt
16

collection

practices

in

violation

of

15

U.S.C.

§

1692f.

According to Plaintiff, “[t]he disclosure of a debtor’s social
security number by a debt collector . . . is a means to extort
payment of a debt by a consumer [because] . . . the consumer
will simply pay the debt rather than risk identity theft through
the public disclosure of his or her social security number.”
(ECF No. 16 ¶ 58).

The transcript of the state court trial,

however, reflects that the disclosure was likely an oversight
that

was

cured

by

redaction

Plaintiff’s

allegation

See

Black

United

to

of

the

the

relevant

contrary

Firefighters,

604

is

F.2d

documents,

wholly

at

847

and

conclusory.
(“conclusory

allegations . . . not supported by any reference to particular
acts, practices, or policies” are insufficient “to state a claim
under

Rule

8(a)(2)”);

see

also

Pittenger

v.

John

Soliday

Financial Group, LLC, No. 1:09-CV-00563, 2010 WL 1856224, at *4
(N.D.Ohio

May

10,

2010)

(“The

defendants’

disclosure

of

Pittenger’s social security number . . . in an exhibit that was
relevant to a legitimate lawsuit is not the type of unfair,
deceptive,
[Ohio

or

state

Hasenmiller,

unconscionable
consumer

Leibsker

act

protection
&

Moore,

or

practice

law]”);

LLC,

No.

contemplated

Feltman
06

C

v.

2379,

by

Blatt,
2008

WL

5211024, at *5 (N.D.Ill. Dec. 11, 2008) (filing of exhibits in
state court “is simply not the type of behavior contemplated by
[FDCPA] § 1692d”).

Under Plaintiff’s theory, moreover, it is
17

the threat of disclosure that essentially extorts payment from
the

consumer.

That

sinister

motive

would

appear

not

to

be

present where, as here, the disclosure was made without any
prior

threat

being

communicated.

With

respect

to

the

late

filing of the bill of particulars, Plaintiff’s assertion that
this amounts to an unfair debt collection practice is simply a
conclusory

allegation

untethered

to

any

factual

predicate.

Accordingly, Plaintiff’s FDCPA claims against MRA are subject to
dismissal.3
3.

Supplemental Claims

Because subject matter jurisdiction is based on the FDCPA
claims,

which

will

be

dismissed,

and

the

requirements

for

diversity jurisdiction are not satisfied, questions arise as to
(1)

whether

the

court

may

exercise

supplemental

jurisdiction

over the remaining state law claims, and (2) if so, whether it
should.

Pursuant to 28 U.S.C. § 1367(a), the court may exercise

supplemental jurisdiction over “all [nonfederal] claims that are
so related to [federal] claims in the action . . . that they
form

part

of

the

same

case

or

controversy[.]”

Here,

the

remaining state law claims allege violations of state consumer
protection

laws

and

are

sufficiently

3

related

to

the

federal

Because the amended complaint fails to state a claim upon
which relief may be granted, the court does not reach MRA’s
argument that certain claims are barred under the doctrine of
res judicata.
18

claims

such

that

the

jurisdiction over them.

court

may

exercise

supplemental

See White v. County of Newberry, S.C.,

985 F.2d 168, 172 (4th Cir. 1993) (supplemental claims “need only
revolve around a central fact pattern” shared with the federal
claim).

Still, the court “may decline to exercise supplemental

jurisdiction . . . [if it] has dismissed all claims over which
it has original jurisdiction.”

28 U.S.C. § 1367(c)(3).

In

deciding whether to exercise discretion to consider supplemental
claims,

courts

generally

look

to

factors

such

as

the

“convenience and fairness to the parties, the existence of any
underlying issues of federal policy, comity, and considerations
of judicial economy.”

Shanaghan v. Cahill, 58 F.3d 106, 110 (4th

Cir. 1995) (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S.
343, 350 n. 7 (1988)).

Ultimately, supplemental jurisdiction

“is a doctrine of flexibility, designed to allow courts to deal
with cases involving pendent claims in the manner that most
sensibly accommodates a range of concerns and values.”

Id.

(quoting

the

interest

Carnegie-Mellon
of

judicial

Univ.,
economy,

484

U.S.

the

at

350).

court

will

In

exercise

supplemental jurisdiction over the remaining state law claims.
In count one of the amended complaint, Plaintiff alleges,
as to both defendants, violation of the Maryland Consumer Debt
Collection Act (“MCDCA”), Md. Code Ann., Com. Law § 14-202(8),
related alleged misrepresentations contained in the state court
19

documents.

In count two, Plaintiff asserts a claim against

SunTrust for violation of the Maryland Consumer Protection Act
(“MCPA”), Md. Code Ann., Com. Law § 13-408, based on the same
essential conduct.
Defendants
because

contend

“Maryland

collection

law

action.”

that
is

(ECF

these
not

No.

claims

are

applicable
11-1,

at

3).

to

not

cognizable

the
As

Virginia

the

Fourth

Circuit observed in Carolina Trucks & Equipment, Inc. v. Volvo
Trucks of North America, Inc., 492 F.3d 484, 489-90 (4th Cir.
2007):
The principle that state laws may not
generally operate extraterritorially is one
of constitutional magnitude. One state may
not “project its legislation” into another,
Baldwin v. G.A.F. Seelig, Inc., 294 U.S.
511, 521, 55 S.Ct. 497, 79 L.Ed. 1032
(1935), as the Commerce Clause “precludes
the application of a state statute to
commerce that takes place wholly outside of
the State’s borders, whether or not the
commerce has effects within the State,”
Healy, 491 U.S. at 335, 109 S.Ct. 2491
(quoting Edgar v. MITE Corp., 457 U.S. 624,
642–43, 102 S.Ct. 2629, 73 L.Ed.2d 269
(1982)
(plurality
opinion));
see
also
Bigelow v. Virginia, 421 U.S. 809, 822–23,
95 S.Ct. 2222, 44 L.Ed.2d 600 (1975) (“The
Virginia
Legislature
could
not
have
regulated the advertiser’s activity in New
York,
and
obviously
could
not
have
proscribed the activity in that State.”).
Maryland courts have similarly recognized that, “as a general
rule, one State cannot regulate activity occurring in another
State,

and

that,

in

deference
20

to

that

principle,

regulatory

statutes are generally construed as not having extra-territorial
effect

unless

stated.”

a

contrary

legislative

intent

is

expressly

Consumer Protection Div. v. Outdoor World Corp., 91

Md.App. 275, 287 (1992); see also Chairman of Bd. of Trustees v.
Waldron, 285 Md. 175, 183-84 (1979) (“unless an intent to the
contrary is expressly stated, acts of the legislature will be
presumed not to have any extraterritorial effect”).

Although

one

activity

state

may,

“through

the

proper

regulation

of

occurring within its borders, also affect[] conduct occurring
elsewhere[,] . . . [t]he issue of extra-territorial reach arises
[] when the offensive nature of the communication, or the harm
arising from it, depends upon or derives from conduct occurring
outside the State.”

Outdoor World, 91 Md.App. at 287-88.

Here, the conduct about which Plaintiff complains occurred
entirely in the Commonwealth of Virginia and Plaintiff points to
no provision of the MCDCA or the MCPA indicating that the reach
of

those

Maryland.

provisions

extends

to

conduct

occurring

outside

of

Because the statutes have no extraterritorial effect,

Plaintiff’s state law claims cannot be maintained.
III. Motion for Sanctions
SunTrust has filed a Rule 11 motion for sanctions against
Plaintiff, arguing that the amended complaint is frivolous and
seeking an award of attorneys’ fees.
central

purpose

of

Rule

11

is
21

to

(ECF No. 24).

deter

baseless

“[T]he

filings

in

District Court and thus . . . streamline the administration and
procedure of the federal courts.”
Corp., 496 U.S. 384, 393 (1990).
pleading

or

unrepresented
person’s
inquiry

written
party

“is

knowledge,
reasonable

motion

Under Rule 11, by presenting a

to

the

certifying

information,
under

Cooter & Gell v. Hartmarx

the

court,

that

and

to

belief,

circumstances,”

an
the

attorney
best

formed
the

or

of

the

after

an

pleading

or

motion is, among other things, “warranted by existing law or by
a

nonfrivolous

argument

for

the

extension,

modification,

or

reversal of existing law or the establishment of new law” and
that

its

“allegations

evidentiary support.”

and

other

factual

contentions

have

Fed.R.Civ.P. 11(b).

While it is clear that Plaintiff’s counsel, Mr. Francis,
has unsuccessfully presented similar claims in the past, see
Sayyed, 733 F.Supp.2d 635, there is no indication that he did
not believe in the merit of Plaintiff’s case after reasonable
investigation or that he acted with a dishonest purpose or with
ill

will.

Indeed,

the

Fourth

Circuit

reversed

a

motion

to

dismiss in Sayyed, 485 F.3d 226, finding that FDCPA violations
could occur based on a law firms representations in state court
litigation.

Thus, there was a basis for the attorney to believe

in the merits of Plaintiff’s claims.

Although the instant facts

do not support Plaintiff’s claims, there is a difference between
a losing case and a frivolous one.
22

Given the high standard

required for the imposition of sanctions, and the fact that all
of Plaintiff’s claims will be dismissed, the court will decline
to award sanctions.
IV.

Conclusion
For the foregoing reasons, the motions to dismiss will be

granted and the motion for sanctions will be denied.

A separate

order will follow.

________/s/_________________
DEBORAH K. CHASANOW
United States District Judge

23