Archie v. Elnora et al
Filing
58
MEMORANDUM OPINION (c/m to Plaintiff and Defendant 5/27/16 sat). Signed by Judge Deborah K. Chasanow on 5/27/2016. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
NITA B. ARCHIE
:
v.
:
Civil Action No. DKC 14-0330
:
LAWONNE ELENORA AGER BOOKER
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this fraud
action is a motion to dismiss filed by Defendant LaWonne Elenora
Ager Booker (“Defendant”).
(ECF No. 49).
no hearing being deemed necessary.
following
reasons,
Defendant’s
The court now rules,
Local Rule 105.6.
motion
to
For the
dismiss
will
be
granted.
I.
Background
A.
Factual Background1
Plaintiff Nita B. Archie (“Plaintiff”) alleges that she was
defrauded
and
her
mortgage scheme.
identity
was
stolen
in
connection
with
a
According to Plaintiff, Defendant and others
operated To God Be The Glory Financial Services, Inc. (“TGBTG”),
a
company
located
in
Prince
George’s
County,
Maryland,
specializing in tax preparation, financial literacy, certified
1
When considering a motion to dismiss for failure to state
a claim, the well-pleaded allegations in the complaint are
accepted as true. See Brockington v. Boykins, 637 F.3d 503, 505
(4th Cir. 2011).
housing
counseling,
and
(ECF No. 5, at 2-3).
debt
consolidation
and
elimination.
According to Plaintiff:
[Defendant] acted as agent, leader, and
chief
promoter
to
unsuspecting
persons
seeking tax preparation.
Upon $500 payment
to [Defendant], [Defendant] obtained [W-2
forms] and other tax preparation documents.
[Defendant] inquired about homeownership and
financial goals of Plaintiff.
[Defendant]
introduced other financial services provided
by [TGBTG] focused on HUD approved, HUD
certified
financial
literacy
service
endorsed by Oprah Winfrey by [and] through
[TGBTG].
Following
[Defendant’s]
financial
transactions [Defendant] vanished without
any forwarding information now resurfacing.
(Id.
at
promoted,
203K
3-4).
Plaintiff
promised
financial
and
continues,
delivered
product
which
“[Defendant
following
in
tax
actuality
was
and
others]
preparation
a
‘NO
a
DOC’
financial product as a ways and means of [Defendant] credit
repair,
financial
literacy
financial stability.”
Plaintiff
brings
method
of
[TGBTG],
guarantee
of
(Id. at 6).
this
action
“for
fraudulent,
false
statements [initiated] by [Defendant and others] unbeknownst to
Plaintiff” and “[i]dentity theft [initiated] by [Defendant and
others] falsifying Plaintiff’s primary, true . . . residence.”
(Id.
at
7).
Plaintiff
seeks
compensatory,
cumulative,
and
punitive damages in the amount of three million dollars and
injunctive relief.
(Id. at 10).
2
B.
Procedural Background
Plaintiff, proceeding pro se, sued Defendant and others on
February 4, 2014.
(ECF No. 1).
The court granted Plaintiff’s
motion to proceed in forma pauperis (ECF No. 3) and Plaintiff
filed an amended complaint on March 21 (ECF No. 4).
The court
consolidated two cases brought by Plaintiff against Defendant
and others, determined that Plaintiff’s amended complaint failed
to comply with federal pleading standards, and granted Plaintiff
the opportunity to file a second amended complaint comporting
with Fed.R.Civ.P. 8(a).
(ECF No. 7).
Plaintiff filed a second amended complaint on April 18,
adding another defendant.
(ECF No. 5).
On July 17, the court
dismissed Plaintiff’s second amended complaint as to all named
defendants
except
Defendant
LaWonne
Booker.
(ECF
No.
21).
Subsequently, Plaintiff filed five additional motions: a motion
of intimidation (ECF No. 25); a motion (ECF No. 26); a motion
for
default
judgment
(ECF
No.
27);
a
motion
regarding
intentional infliction of emotional distress (ECF No. 28); and a
motion regarding abuse of power (ECF No. 29).
The court denied
Plaintiff’s motions for failure to conform to the standards set
by Fed.R.Civ.P. 7(b)(1)(B) and (C).
(ECF No. 33, at 2).
On March 4, 2015, Plaintiff filed two additional motions: a
motion regarding perjury (ECF No. 39); and a motion regarding
obstruction of justice (ECF No. 40).
3
Subsequently, Defendant,
also proceeding pro se, filed a motion to dismiss for improper
service
and
individual
because
rather
Plaintiff
than
a
brought
her
corporation.
case
(ECF
against
No.
an
41).
On
December 21, Plaintiff’s two motions and Defendant’s motion to
dismiss were denied, and Defendant was given 21 days within
which to file a response or answer to Plaintiff’s second amended
complaint.
(ECF
No.
45).
On
February
2,
2016,
the
court
directed Plaintiff to file a motion for entry of default, which
Plaintiff subsequently filed.
(ECF Nos. 46; 47).
On February 29, 2016, Defendant filed the pending motion to
dismiss, a motion to vacate any default, and an answer to the
amended
provided
complaint.
with
a
(ECF
Roseboro
Nos.
49;
notice,
50;
which
51).
Plaintiff
advised
her
of
was
the
pendency of the motion to dismiss and her entitlement to respond
within 17 days.
(ECF No. 52); see Roseboro v. Garrison, 528
F.2d 309, 310 (4th Cir. 1975) (holding that pro se plaintiffs
should be advised of their right to file responsive material to
a motion for summary judgment).
Plaintiff’s
motion
Defendant.
(ECF
for
No.
clerk’s
53).
On March 2, the court denied
entry
Plaintiff
of
filed
default
a
against
response
in
opposition to Defendant’s motion to dismiss (ECF No. 54) and a
4
motion
regarding
“Equity
Stripping
and
Abscond
by
Defendant”
(ECF No. 55).2
II.
Standard of Review
The purpose of a motion to dismiss 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 complaint
need only satisfy the standard of Rule 8(a)(2), which requires a
“short and plain statement of the claim showing that the pleader
is
entitled
to
relief.”
“Rule
8(a)(2)
still
requires
a
‘showing,’ rather than a blanket assertion, of entitlement to
relief.”
(2007).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3
recitation
That showing must consist of more than “a formulaic
of
the
elements
of
a
cause
of
action”
or
assertion[s] devoid of further factual enhancement.”
v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
2
“naked
Ashcroft
At this
Plaintiff’s pending motion styled as a motion concerning
“Equity Stripping and Abscond by Defendant” (ECF No. 55) does
not conform to the standards established by Rule 7(b)(1). Rule
7 describes the requirements for a proper motion, which are that
the motion “state with particularity the grounds for seeking the
order” and “state the relief sought.”
Fed.R.Civ.P. 7(b)(1)(B)
and (C). The court previously denied motions filed by Plaintiff
on these grounds. (See ECF No. 33, at 2; ECF No. 45, at 4). In
her pending motion, Plaintiff repeats allegations and requests
for relief found in the second amended complaint.
She also
raises some allegations that were not included in the second
amended complaint, such as those concerning equity stripping.
The court will not consider such allegations, however, because
Plaintiff cannot amend her complaint without “the opposing
party’s written consent or the court’s leave.”
Fed.R.Civ.P.
15(a)(2). Accordingly, Plaintiff’s motion will be denied.
5
stage,
all
considered
well-pleaded
as
true,
allegations
Albright
v.
in
a
complaint
Oliver,
510
U.S.
must
266,
be
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
Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
v.
Charles
Cnty.
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.
604
F.2d
844,
847
(4th
United Black Firefighters v. Hirst,
Cir.
1979);
see
also
Francis
v.
Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009).
Allegations of fraud, which Plaintiff asserts throughout
the second amended complaint and form the basis of her action
against
Defendant,
are
subject
standard of Fed.R.Civ.P. 9(b).
to
the
heightened
pleading
Harrison, 176 F.3d at 783.
Rule
9(b) states that, “in alleging a fraud or mistake, a party must
state
with
fraud
or
particularity
mistake.
the
circumstances
Malice,
intent,
constituting
knowledge,
and
conditions of a person’s mind may be alleged generally.”
the
other
Such
circumstances typically “include the ‘time, place, and contents
of the false representation, as well as the identity of the
6
person
making
thereby.’”
the
misrepresentation
and
what
[was]
obtained
Id. at 784 (quoting 5 Charles Alan Wright & Arthur
R. Miller, Fed. Prac. & Proc. § 1297 (2d ed. 1990)).
Rule 9(b)
provides the defendant with sufficient notice of the basis for
the plaintiff’s claim, protects the defendant against frivolous
suits,
learned
eliminates
only
reputation.
fraud
after
actions
discovery,
where
and
all
of
safeguards
Id. at 784 (citation omitted).
the
the
facts
are
defendant’s
Fraud allegations
that fail to comply with Rule 9(b) warrant dismissal under Rule
12(b)(6) review.
See id. at 783 n.5.
Pro se pleadings are liberally construed and held to a less
stringent standard than pleadings drafted by lawyers.
Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble,
429 U.S. 97, 106 (1976)); Haines v. Kerner, 404 U.S. 519, 520
(1972).
pleadings
Liberal construction means that the court will read the
to
state
a
valid
claim
to
the
extent
that
it
is
possible to do so from the facts available; it does not mean
that the court should rewrite the complaint to include claims
never presented.
Cir. 1999).
Barnett v. Hargett, 174 F.3d 1128, 1132 (10th
Even when pro se litigants are involved, however,
the court cannot ignore a clear failure to allege facts that
support a viable claim.
Weller v. Dep’t of Soc. Servs., 901
F.2d 387, 391 (4th Cir. 1990).
7
III. Analysis
In her motion to dismiss, Defendant argues that Plaintiff’s
action cannot be brought against the employee of a corporation.
(ECF No. 49).3
Defendant’s argument is unavailing, however, as a
plaintiff can sue an employee of a company if allegations of
fraud are properly pleaded against the individual.
See, e.g.,
Sterling v. Ourisman Chevrolet of Bowie Inc., 943 F.Supp.2d 577
(D.Md.
2013)
(noting
that
the
plaintiff,
a
prospective
car
buyer, asserted fraud claims against a car dealership and its
employees).
Defendant has not offered any case law in support
of her contention.
Furthermore, Defendant appears to invoke Rule 12(b)(6) by
arguing that “there have been no valid claims . . . against
[her]”
in
the
second
amended
complaint.
(ECF
No.
49).4
Plaintiff challenges Defendant’s motion to dismiss on several
grounds:
there was no proper certificate of service; there was
3
This is not the first time that Defendant has advanced
such an argument.
(See ECF No. 41).
The court determined
previously that “Plaintiff’s second amended complaint includes
allegations of fraud against Defendant, an individual.”
(ECF
No. 45, at 4 (citing ECF No. 5, at 3-4, 6-7)).
4
Defendant also argues that Plaintiff has not “proven
claims of validity against [Defendant].” (ECF No. 49). As the
court has explained previously, “Plaintiff is not required to
supply the court with factual evidence supporting her claims” at
the motion to dismiss stage. (ECF No. 45, at 5); see E. Shore
Mkts., Inc. v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th
Cir. 2000) (“[O]nly the legal sufficiency of the complaint, and
not the facts in support of it, are tested under a Rule 12(b)(6)
motion.”).
8
no name under Defendant’s signature on the motion; and default
judgment should have been entered because Defendant did not file
a response or answer within 21 days.
(ECF No. 54, at 2-3).
Each of Plaintiff’s arguments lacks merit.
The court instructed
the clerk to mail a copy of Defendant’s motion to dismiss to
Plaintiff and denied Plaintiff’s motion for clerk’s entry of
default against Defendant.
(ECF No. 53).
Accordingly, the
court will consider Defendant’s motion to dismiss under Rule
12(b)(6) for failure to state a claim.
Even if Defendant’s
motion to dismiss were insufficient to warrant Rule 12(b)(6)
review, however, Plaintiff proceeds in forma pauperis, and the
court has discretion to dismiss the pleading
sua sponte
for
failure to state a claim on which relief can be granted.
28
U.S.C. § 1915(e)(2)(B)(ii).
As an initial matter, Rule 8(a)(2) requires that a pleading
contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.”
Pursuant to Rule 8(d)(1),
each allegation in a complaint “must be simple, concise, and
direct.”
Plaintiff must also state her claims “in numbered
paragraphs, each limited as far as practicable to a single set
of circumstances.”
does
not
set
forth
Fed.R.Civ.P. 10(b).
allegations
required by Rule 10(b).
in
Here, the complaint
numbered
paragraphs
as
Nor does Plaintiff include her claims
in specific, distinct counts.
9
Moreover, Plaintiff has failed to plead facts sufficient to
state a claim for fraud, certainly falling short of Rule 9(b)’s
heightened pleading standard.
The second amended complaint is
devoid of details establishing the “time, place, and contents of
the false representation, as well as the identity of the person
making the misrepresentation and what [was] obtained thereby.”
Harrison, 176 F.3d at 784 (citation omitted).
In a separate
case
forth
that
she
filed
in
2014,
Plaintiff
allegations of fraudulent conduct.
14-0509,
ECF
Plaintiff’s
heightened
No.
amended
pleading
4.
Judge
standard
similar
See Archie v. Tomlin, TDC-
Chuang
complaint
set
did
held
not
because
it
in
meet
Tomlin
Rule
failed
to
that
9(b)’s
provide
specific dates and details regarding the alleged fraud and her
communications with the defendants.
No. 25, at 2-3.
Tomlin, TDC-14-0509, ECF
Here, the second amended complaint suffers from
the same fatal defects.
Plaintiff has not included specific
dates or any particularized context for her allegations sounding
in fraud.
The second amended complaint largely consists of
conclusory statements without further factual enhancement.
(See
ECF No. 5, at 3 (alleging a “perpetration of a fraud against the
illiterate
literacy”)).
populations
lacking,
yet
seeking
financial
Even when Plaintiff attempts to provide greater
context, she fails both to include necessary timeframes and to
10
identify
whether
committed fraud.
This
Defendant
or
another
individual
purportedly
(See id. at 6).
court
has
1915(e)(2)(B)(ii)
dismissed
for
failure
actions
to
meet
pleading standard in fraud actions.
sua
Rule
sponte
9(b)’s
under
§
heightened
See Sweeting El v. Cornejo,
No. DKC-12-3653, 2013 WL 1390035, at *2 (D.Md. Apr. 3, 2013)
(“Plaintiff’s
detail,
as
fraud.”).
complaint
it
merely
is
plainly
contains
lacking
in
conclusory
the
requisite
allegations
Such a determination is appropriate here.
of
Plaintiff
also alleges violations of various criminal statutes regarding
fraud.
(See ECF No. 5, at 2, 9).
As noted in a prior opinion,
it is beyond the court’s purview in this civil matter to provide
relief
under
criminal
statutes.
See
United
States
v.
Batchelder, 442 U.S. 114, 124 (1979) (“Whether to prosecute and
what charge to file or bring before a grand jury are decisions
that
generally
rest
in
the
prosecutor’s
discretion.”).
“If
[P]laintiff seeks to pursue criminal charges, she must bring her
allegations to the attention of law enforcement authorities.”
Randolph
v.
Holder,
No.
ELH-15-982,
2015
WL
1656733,
at
*2
(D.Md. Apr. 9, 2015), appeal dismissed (June 22, 2015).
Plaintiff has been given three bites at the apple “and
there is no reason to think that a [fourth] bite would bear
fruit.”
Tasciyan v. Med. Numerics, No. 11-1467-AW, 2011 WL
6097977, at *5 (D.Md. Dec. 6, 2011).
11
As in Tomlin, Plaintiff’s
conclusory
pleading
falls
short
of
Rule
9(b)’s
heightened
pleading standard and fails to state a claim for fraud.
Under
Rule 12(b)(6) and pursuant to § 1915(e)(2)(B)(ii), the second
amended complaint will be dismissed.
IV.
Conclusion
For the foregoing reasons, Defendant’s motion to dismiss
will
be
granted,
and
Plaintiff’s
motion
will
be
denied.
separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
12
A
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