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