Awah v. Capital One Bank, NA

Filing 19

MEMORANDUM OPINION (c/m to Plaintiff 1/22/15 sat). Signed by Judge Deborah K. Chasanow on 1/22/2015. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
EDMUND AWAH
:
v.

:

Civil Action No. DKC 14-1288

:
CAPITAL ONE BANK, NA
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this consumer
case are the following motions: (1) motion to dismiss filed by
Defendant Capital One Bank, N.A. (“Defendant” or “Capital One”)
(ECF No. 10); (2) motion opposing case removal and to remand
filed by Plaintiff Edmund Awah (“Plaintiff” or “Mr. Awah”) (ECF
No. 12); (3) motion to defer ruling on the motion to dismiss,
filed by Plaintiff (ECF No. 15); (4) motion for leave to amend
the complaint filed by Plaintiff (ECF No. 16); and (5) motion
requesting ruling on pending motions filed by Plaintiff (ECF No.
18).

The issues have been briefed, and the court now rules, no

hearing being deemed necessary.

Local Rule 105.6.

For the

following reasons, Plaintiff’s motion opposing case removal and
requesting remand will be denied.

Plaintiff’s motion for leave

to amend the complaint will be granted in part, and he will have
fourteen (14) days to file a new amended complaint in accordance
with this memorandum opinion.

Defendant’s motion to dismiss

will be denied as moot.

Plaintiff’s motions to defer ruling on

the motion to dismiss and to adjudicate the pending motions will
be denied as moot.
I.

Background
The

litigation

between

the

parties

originates

from

a

previous complaint filed by pro se Plaintiff in this court on
March 7, 2013.

See Awah v. Capital One Bank NA, Case No. 13-CV-

00706 (D.Md. 2013).

Plaintiff’s complaint in that case stated

that he had a line of credit with Capital One Bank and that the
balance on the line of credit was $570.39 as of October 2011.
Case No. 13-CV-00706, at ECF No. 1.

Plaintiff stated that he

made several check deposits to Defendant and instructed the bank
to

use

the

deposits

to

offset

the

balance.

According

to

Plaintiff, Defendant did not credit his account with the check
deposits, and instead filed a “derogatory report on Plaintiff’s
credit file.”

(Id.).

Plaintiff alleged violations of the Fair

Debt Collection Practices Act (“FDCPA”).
order

requiring

Plaintiff

to

The court issued an

supplement

the

complaint.

Plaintiff consequently filed a one-page supplement in which he
asserted that the report filed in late 2012 “was derogatory
because it was false and consequently impacted [] Plaintiff’s
credit file in a negative way.”
further

asserted

that

(Id. at ECF No. 5).

Defendant

2

“harassed

Plaintiff

Plaintiff

with

incessant

daily

telephone

calls”

and

that

the

report

was

unlawful because it violated Section 1692.
Defendant then moved to dismiss the complaint for failure
to state a claim, arguing that based on the face of Plaintiff’s
complaint, Capital One Bank is a “creditor” and not a “debt
collector” and therefore outside the FDCPA’s liability coverage.
(Id. at ECF No. 8-1).

Plaintiff then moved to dismiss the case,

writing that “[t]his matter will now be filed in state court as
the federal court is not the appropriate forum.”
No. 13).

(Id. at ECF

The court issued a memorandum opinion and order on

September 19, 2013 granting Plaintiff’s motion and dismissing
the case without prejudice.
On

April

16,

2014,

(ECF Nos. 14, 15, 16).1

Capital

One

Bank

filed

a

notice

of

removal in this case, citing federal question jurisdiction as
the jurisdictional basis.

(ECF No. 1).

Defendant attached a

copy of the complaint Mr. Awah filed in the District Court of
Maryland for Prince George’s County.

(ECF Nos. 1 & 2).

The

only allegation in the complaint is that “Defendant filed a
derogatory report on Plaintiff’s credit file.

The report was

false, malicious and violated sections of U.S. Code 15 Section
1962.”

(ECF No. 1-1, at 3).

Defendant subsequently moved to

dismiss for failure to state a claim, again arguing that Capital

1

The court issued an
Defendant’s motion to dismiss.

amended
3

order

denying

as

moot

One is not a debt collector under the FDCPA.
Plaintiff was provided with a

Roseboro

(ECF No. 10).

notice (ECF No. 11),

which advised him of the pendency of the motion to dismiss and
his entitlement to respond within seventeen (17) days from the
Roseboro v. Garrison, 528 F.2d 309, 310 (4th

date of the letter.

Cir. 1975) (holding pro se plaintiffs should be advised of their
right

to

file

responsive

material

to

a

motion

for

summary

judgment).
In

response

to

Defendant’s

motion

to

dismiss,

Plaintiff

submitted a motion in which he argues that Defendant improperly
removed the action and that this matter belongs in state court.
(ECF

No.

12).

Plaintiff

“requests

that

the

Court

deny

Defendant’s removal and remand the case to the state court.”
(Id. at 2).

Plaintiff then filed a supplement to his motion.

(ECF No. 13).

Defendant opposed Plaintiff’s request to remand.

(ECF No. 14).

Plaintiff then submitted another motion in which

he requests “that the Court defer ruling on Defendant’s [m]otion
to

[d]ismiss

until

the

Court

Defendant’s [r]emoval [p]etition.”

decides

on

the

outcome

of

(ECF No. 15).

On June 4, 2014, Plaintiff moved for leave to amend his
complaint,

attaching

(ECF No. 16).

a

proposed

one-page

Defendant opposed the motion.

2

amended

complaint.

(ECF No. 17).2

On December 11, 2014, Plaintiff filed a motion requesting
a ruling on pending motions.
(ECF No. 18).
In light of the
4

II.

Analysis
A.

Plaintiff’s Motion to Remand

Plaintiff

asserts

from state court.

that

this

case

was

improperly

(See ECF Nos. 12 & 13).

removed

Plaintiff believes

that his original dismissal of Civil Case Number 13-706 and
initiation

of

a

violations

of

the

new

proceeding

FDCPA

cured

in

the

state

court

deficiency

asserting

identified

in

Defendant’s initial motion to dismiss – namely, that Capital One
is not a debt collector within the meaning of the FDCPA (and
that

Plaintiff

Plaintiff

is

failed

to

mistaken.

allege
Capital

as
One

much

in

argued

his
in

complaint).
the

original

action – and argues again in the instant motion to dismiss –
that it cannot be held liable for any violations of the FDCPA,
regardless of whether the action is brought in federal or state
court.

Thus,

the

fact

that

Plaintiff

brought

a

virtually

identical action in state court asserting the same cause of
action under the FDCPA fails to cure the deficiencies Defendant
identified in its original motion to dismiss in Case Number 13706.
Plaintiff also argues that “[s]tate courts exercise broad
jurisdiction,

hearing

cases

arising

from

federal

as

well

as

state laws.

The filing of this matter in the state court is

issuance of this memorandum opinion, the motion will be denied
as moot.
5

therefore proper.”

(ECF No. 13 ¶ 12).

Under 28 U.S.C. §

1441(a), a defendant may remove a case filed in state court if
the federal courts would have original jurisdiction over the
case, however.
state

of

the

“The removability of a case depends upon the
pleadings

and

application for removal.”3

the

record

and

the

time

of

the

Francis v. Allstate Ins. Co., 709

F.3d 362, 367 (4th Cir. 2013) (quotations and citations omitted).
As Defendant points out, at the time of removal, Plaintiff’s
complaint expressly indicated that his action was premised on
alleged violations of the FDCPA – a federal statute.4

Thus, the

action was properly removed.

3

Plaintiff also suggests that the court lacks subject
matter jurisdiction because “Defendant failed to establish
sufficient evidence of the jurisdictional threshold of $75,000
pursuant to Section 1332.”
(ECF No. 13 ¶ 20).
The
jurisdictional basis for removal is federal question, however,
not diversity.
Plaintiff further argues that removal is improper because
Defendant failed to serve on Plaintiff “a copy of all process
pleadings, and orders” served in the state court action.
(ECF
No. 12 ¶ 8). The Notice of Removal filed by Defendant contains
a certificate of service indicating that on April 16, 2014,
Defendant served on Plaintiff via first-class mail copies of the
Notice of Removal.
(See ECF No. 1, at 4).
In any event, 28
U.S.C. § 1446(a) does not contain any special service
requirements.
It requires the removing party to file a notice
of removal containing a “short and plain statement of the
grounds for removal, together with a copy of all process,
pleadings, and orders served upon [the removing party].”
4

Plaintiff indicates that he has already filed a motion
with the state court to “change the violations of federal law to
the violations of state law in the pleadings.”
(ECF No. 13 ¶
13). Plaintiff’s attempt to amend the complaint in state court
6

Following

proper

removal,

Plaintiff

moved

for

leave

to

amend the complaint in this court, indicating that he no longer
asserts claims under the FDCPA, instead opting to proceed under
the “Maryland Fair Debt Collection Practices Act.”
16).

Once

the

claim

over

which

this

court

(ECF No.

has

original

jurisdiction has been eliminated, the court has discretion to
remand

the

remaining

claims,

over

jurisdiction, to the state court.

which

it

has

supplemental

See 28 U.S.C. § 1367(c)(3);

Hinson v. Norwest Fin. S.C., Inc., 239 F.3d 611, 617 (4th Cir.
2001).
wide

Indeed, district courts in the Fourth Circuit “enjoy
latitude

in

determining

whether

or

not

to

retain

jurisdiction over state claims when all federal claims have been
Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir.

extinguished.”
1995).

Factors to be considered include the “convenience and

fairness to the parties, the existence of any underlying issues
of

federal

economy.”
be

policy,
Id.

permitted

complaint

comity,

and

considerations

of

judicial

For the reasons explained below, Plaintiff will
to

does

file
not

a

new

state

amended
a

complaint.

federal

cause

of

If

the

new

action

and

Plaintiff’s only viable claims pertain to Defendant’s methods of

following removal to this court renders the filing in state
court a nullity, however.
7

collection under the MCDCA, then the court may exercise its
discretion and remand the case to state court.5
B.

Plaintiff’s Motion for Leave to Amend the Complaint

As indicated above, Plaintiff moved for leave to amend the
complaint in this court.

(ECF No. 16).

Rule 15(a)(1) permits a

party to amend its pleading once as a matter of course within 21
days after serving it; or 21 days after service of a responsive
pleading or 21 days after service of a motion under Rule 12(b),
(e), or (f), whichever is earlier.

“In all other cases, a party

may amend its pleading only with the opposing party’s written
consent or the court’s leave.

The court should freely give

leave when justice so requires.”

Fed.R.Civ.P. 15(a)(2).

The

court should deny leave to amend only when “the amendment would
be prejudicial to the opposing party, there has been bad faith
on the part of the moving party, or the amendment would be
futile.”
Cir.

Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th

1999)

(citation

and

internal

quotation

marks

omitted);

Keller v. Prince George’s Cnty., 923 F.2d 30, 33 (4th Cir. 1991)
(upholding district court order denying plaintiff leave to amend
his

complaint

to

include

claims

5

that

were

barred

by

the

Plaintiff also filed a motion in which he requests that
the court defer ruling on Defendant’s motion to dismiss until
“the Court decides the outcome of Defendant’s [r]emoval
[p]etition.”
(ECF No. 15).
Plaintiff’s motion to defer will
now be denied as moot.
8

applicable statute of limitations because such amendment would
be futile).

“An amendment is futile when the proposed amendment

is clearly insufficient or frivolous on its face, or if the
amended claim would still fail to survive a motion to dismiss
pursuant to Fed.R.Civ.P. 12(b)(6).”

El-Amin v. Blom, No. CCB-

11-3424, 2012 WL 2604213, at *11 (D.Md. July 5, 2012) (internal
citations and quotation marks omitted).
Plaintiff’s proposed one-page amended complaint states that
Defendant filed a derogatory report on Plaintiff’s credit file
in violation of “the Maryland Fair Debt Collection Practices Act
(FDCPA)

with

respect

to

the

following:

(i)

the

debt

amount

indicated on the report was incorrect; (ii) failure to cease
communication

upon

validation.”

(ECF No. 16-1).

attempts

to

assert

request;

(iii)

violations

communication

after

debt

It appears that Plaintiff now
of

the

Maryland

Consumer

Debt

Collection Act (“MCDCA”), Md. Code Ann., Com. Law, § 14-201 et
seq.
Defendant argues that “the amended complaint contains no
cognizable facts upon which Plaintiff can base a claim.

The

sole new addition in the proposed [a]mended [c]omplaint is a
non-existent

statute,

the

‘Maryland

Fair

Debt

Collection

Practices Act,’ and the [a]mended [c]omplaint does not contain
any statutory references from which Capital One may determine
the precise cause of action that Plaintiff apparently seeks to
9

assert.”

(ECF No. 17, at 4).

Defendant believes that Plaintiff

again fails to specify “what sort of report was filed, when it
was

filed,

or

who

authored

the

report.”

(Id.).

Defendant

contends that insofar as Plaintiff attempts to assert a claim
under the MCDCA, such claim is preempted by Section 1681t(b) of
the Fair Credit Reporting Act (“FCRA”).
argues

that

the

crux

of

the

proposed

(Id. at 5).
amended

Defendant

complaint

is

improper credit reporting by Capital One; Defendant avers that
Sections 1681t(b)(1)(F) and 1681s-2(a)(1)(A) of the FCRA preempt
any state law claims under the MCDCA related to the provision of
credit information to consumer reporting agencies.6
Section 1681t(b)(1)(F) states, in relevant part:
No requirement or prohibition may be imposed
under the laws of any State
(1) With respect
regulated under –-

to

any

subject

matter

(F) section 1681s-2 of this title, relating
to the responsibilities of persons who
furnish information to consumer reporting
agencies.[7]
6

Section 1681h(e) was intended to govern preemption of
common-law claims while Section 1681t(b) was intended to govern
preemption of state statutory claims.
See Beuster v. Equifax
Information Servs., 435 F.Supp.2d 471, 474-79 (D.Md. 2006).
Section 1681h(e) specifically references actions “in the nature
of defamation, invasion of privacy, or negligence with respect
to the reporting of information.”
It does not appear that
Plaintiff asserts any common law claims.
7

There are two exceptions to the preemption provision of
Section 1681t(b)(1)(F): “this paragraph shall not apply: (i)
with
respect
to
section
54A(a)
of
chapter
93
of
the
10

Under Section 1681s-2(a)(1)(A), a furnisher of information is
prohibited

from

providing

to

a

consumer

information he knows is not accurate.

reporting

agency

Similarly, Section 14-

202(3) of the MCDCA states, in relevant part:
In collecting or attempting to collect an
alleged debt a collector[8] may not
(3)
Disclose
or
threaten
to
disclose
information
which
affects
the
debtor’s
reputation
for
credit
worthiness
with
knowledge that the information is false.
Insofar as Plaintiff alleges a violation of the MCDCA because
Defendant
“[b]oth

reported
§

false

1681s-2(a)(1)(A)

information
and

§

on

his

14-202(3)

credit

report,

contemplate

the

prevention of knowing disclosures of false credit information to
[consumer reporting agencies] because of the potential harm to
an

individual’s

creditworthiness.”

Alston

v.

Equifax

Information Services, LLC, et al., Civ. Action No. GLR-13-934,

Massachusetts Annotated laws (as in effect on September 30,
1996); or (ii) with respect to section 1785.25(a) of the
California Civil Code (as in effect on September 30, 1996).” 15
U.S.C. § 1681t(b)(1)(F).
8

The MCDCA defines a “collector” as a “a person collecting
or attempting to collect an alleged debt arising out of a
consumer transaction.”
Md. Code Ann., Com. Law, § 14-201(b).
The statute’s definition of a person includes corporations. Id.
§ 14-201(d). Although Defendant argues in its motion to dismiss
that Plaintiff fails to allege facts that Capital One is a “debt
collector” within the meaning of the FDCPA, Defendant does not
make this argument with the respect to the MCDCA claim.
The
MCDCA contains a broader definition of “collector” than the
definition of “debt collector” under the FDCPA. See 15 U.S.C. §
1692a(6) (defining “debt collector” under the FDCPA).
11

2014 WL 580148, at *5 (D.Md. Feb. 11, 2014).

“Congress’s intent

in § 1681t(b) is clear that § 1681s-2(a)(1)(A) preempts any
state law claims related to such knowing disclosures.”
Accordingly,

Plaintiff

cannot

state

a

claim

under

the

Id.
MCDCA

insofar as it is premised on Defendant’s false reporting to a
consumer reporting agency pursuant to Section 14-202(3) because
his claim falls squarely within Section 1681t(b)(1)(F) and is
preempted by the FCRA.
Moreover, Plaintiff has maintained throughout his filings
that he is not asserting a federal cause of action, nor could he
under the facts alleged.
duties

on

agencies.
negligent

“furnishers

of

As relevant here, the FCRA imposes
information”

15 U.S.C. § 1681s-2.
in

failing

to

to

credit

reporting

Any claim that Defendant was

report

accurate

information

to

a

consumer reporting agency could only arise under Section 1681s2(a), and is, therefore, unenforceable through a private suit.
See,

e.g.,

Beattie

v.

Nations

Credit

Fin.

Servs.

Corp.,

69

F.App’x 585, 589 (4th Cir. 2003) (“[T]he FCRA does not provide
the Beatties with a private cause of action [for a violation of
Section 1681s-2(a)(1)(A).]

More specifically, this particular

statutory language may be enforced only by federal and state
agencies and officials.”); Robinson v. Greystone Alliance, LLC,
No. BPG-10-3658, 2011 WL 2601583, at *3 (D.Md. June 29, 2011)
(“[T]he FCRA expressly reserves the enforcement of § 1681s-2(a)
12

to federal and state officers.”).

The FCRA “explicitly bars

suits for violations of § 1681-2(a), but consumers can still
bring private suits for violations of § 1681s-2(b).”

Saunders

v. Branch Banking & Trust Co. of Va., 526 F.3d 142, 149 (4th Cir.
2008) (citing § 1681s-2(c)).

As for Section 1692s-2(b), Judge

Messite explained in Ausar-El v. Barclay Bank Delaware, Civ. No.
PJM 12-0082, 2012 WL 3137151, at *3 & n. 2 (D.Md. July 31,
2012):
to bring a claim under § 1681s-2(b), a
plaintiff must establish three elements: (1)
that he or she notified the consumer
reporting
agency
of
the
disputed
information, (2) that the consumer reporting
agency notified the defendant furnisher of
the dispute, and (3) that the furnisher then
failed
to
investigate
and
modify
the
accurate information. . . .
It would not
suffice for [plaintiff] to have notified
[defendant] himself; the notice must instead
have
come
from
the
consumer
reporting
agency.
(emphasis added).
Plaintiff has not alleged in any of his complaints that he
notified a consumer reporting agency of a dispute regarding the
accuracy of information reported to it, nor does he assert that
Defendant was notified by the consumer reporting agency of a
dispute such that it could have violated its duties pursuant to
15

U.S.C.

§

No. 1:08cv316,

1681s-2(b)(1).
2008

WL

See

4181195,

*7

Rossman

(E.D.Va.

v.

Sept.

Lazarus,
3,

2008)

(“Because Plaintiff’s Amended Complaint itself fails to allege
13

that

[a

creditor]

reporting

agency

received

any

indicating

notification
that

from

Plaintiff

a

consumer

disputed

the

completeness or accuracy of information provided to that agency,
Plaintiff has failed to state a claim for relief under FCRA”);
Akpan v. First Premier Bank, Civ. Action No. DKC 09-1120, 2010
WL 917886, at *3 (D.Md. Mar. 8, 2010) (dismissing complaint
alleging violations of the FCRA where plaintiff did not include
allegations sufficient to state a claim under 15 U.S.C. § 1681s2(b)).

As the proposed amended complaint stands, Plaintiff has

not alleged facts sufficient to show that he is entitled to
proceed under Section 1681s-2(b) of the FCRA.
Plaintiff does indicate in his amended complaint, however,
that he objects to Defendant’s failure to cease communication
upon request and “communication after debt validation,” although
he does not include any other supporting factual allegations or
point to any applicable provisions in the MCDCA.
1).

The

MCDCA

“prohibits

debt

collectors

(ECF No. 16-

from

utilizing

threatening or underhanded methods in collecting or attempting
to collect a delinquent debt.”

Bradshaw v. Hilco Receivables,

LLC, 765 F.Supp.2d 719, 731-32 (D.Md. 2011).

More specifically,

Section 14-202(6) of the MCDCA states that in collecting or
attempting

to

collect

an

alleged

debt,

a

collector

may

not

“[c]ommunicate with the debtor or a person related to him with
the frequency, at the unusual hours, or in any other manner as
14

reasonably can be expected to abuse or harass the debtor.”
does

not

appear

that

the

FCRA

preempts

this

section

of

It
the

MCDCA.
As explained above, granting Plaintiff leave to amend the
complaint to assert a claim under Section 14-202(3) of the MCDCA
premised on Defendant’s filing of a false consumer report would
be

futile

because

such

claim

is

preempted

by

the

FCRA.

Plaintiff will be granted leave to file a new amended complaint
within fourteen (14) days, however, considering that he also
appears to be raising claims regarding Defendant’s methods of
collection under the MCDCA.

If the only claims raised in this

new amended complaint pertain to Defendant’s collection methods
under

the

MCDCA

–

and

Plaintiff

does

not

raise

any

viable

federal claims – then the court can exercise its discretion and
remand to state court.

See United Mine Workers of America v.

Gibbs, 383 U.S. 715, 729 (1966) (“Needless decisions of state
law [by federal courts] should be avoided both as a matter of
comity and to promote justice between the parties, by procuring
for them a surer-footed reading and applicable law.”).9

9

Because Plaintiff no longer asserts an FDCPA claim and has
been granted leave to amend the complaint on limited grounds
identified above, Defendant’s motion to dismiss the initial
complaint will be denied as moot.
15

III. Conclusion
For the foregoing reasons, Plaintiff’s motion opposing case
removal

and

requesting

remand

will

be

denied.

Plaintiff’s

motion for leave to amend will be granted in part.

Plaintiff

will have fourteen (14) days to file an amended complaint in
accordance with the memorandum opinion.
defer

ruling

on

the

motion

to

Plaintiff’s motions to

dismiss

(ECF

No.

15)

and

requesting adjudication of pending motions (ECF No. 18) will be
denied as moot.
denied as moot.

Defendant’s motion to dismiss also will be
A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

16