Nix El v. Brand Group Holdings, Inc et al

Filing 11

MEMORANDUM OPINION (c/m to Plaintiff 3/8/17 sat). Signed by Judge Deborah K. Chasanow on 3/8/2017. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JEFFREY NIX EL
:
v.

:

Civil Action No. DKC 16-0696

:
BRAND GROUP HOLDINGS, INC.,
et al.

:

MEMORANDUM OPINION
Presently pending and ready for resolution are a motion to
dismiss filed by Defendants Brand Group Holdings, Inc. and Brand
Mortgage

Group

(“Defendants”)

(ECF

No.

4),

and

a

motion

to

strike filed by Plaintiff Jeffrey Nix El (“Plaintiff”) (ECF No.
8).

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

hearing being deemed necessary.

Local Rule 105.6.

For the

following reasons, the motion to dismiss will be granted and the
motion to strike will be denied as moot.
I.

Background1
On

April

Defendants.

4,

2014,

Plaintiff

(ECF No. 1 ¶¶ 5-6).

agreed

to

a

loan

with

Plaintiff later discovered

that the loan documents contained notary signatures that did not
match the signature of that notary on file with the Maryland
Secretary of State.

1

(Id. ¶ 6).

In September 2015, Plaintiff

Unless otherwise noted, the facts outlined here are set
forth in the complaint and construed in the light most favorable
to Plaintiff.

began corresponding with Defendants over the validity of his
loan.

(Id.

¶¶

correspondence
December

2015

7-9).

Finding

inadequate,
indicating

Defendants’

Plaintiff

that

he

sent

would

contract and was seeking rescission.

no

responses

his

notices

two

to

in

honor

the

longer

(Id. ¶¶ 10-11).

Plaintiff filed his complaint in this court on March 9,
2016, alleging violations of his constitutional rights (Count
I); violations of 15 U.S.C. § 1 and the Truth in Lending Act, 15
U.S.C.

§

1635

(Count

II);

and

breach

of

fiduciary

duty

in

violation of 15 U.S.C. § 80a-35 and 29 U.S.C. § 1109(a) (Count
III).
1.

Defendants filed the instant motion to dismiss on April

(ECF No. 4).

Plaintiff responded (ECF No. 7), and moved to

strike an affidavit attached to Defendants’ motion (ECF No. 8).
Defendants replied to the motion to dismiss (ECF No. 10), and
responded to the motion to strike (ECF No. 9).
II.

Jurisdiction
Defendants contend that Plaintiff’s claims are barred under

the Rooker-Feldman doctrine.
Rooker-Feldman
jurisdiction

doctrine,
to

sit

(ECF No. 4, at 5).

federal
in

courts

appellate

determinations made in state courts.

lack
review

Under the

subject
of

matter

judicial

See D.C. Court of Appeals

v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co.,
263 U.S. 413 (1923).

In their reply, Defendants also belatedly

argue that the court should refrain from jurisdiction under the
2

Younger abstention doctrine (ECF No. 10, at 1), which “requires
a

federal

court

proceedings,”

to

if

abstain

there

is:

from

“(1)

interfering

an

ongoing

in

state

state

judicial

proceeding, instituted prior to any substantial progress in the
federal proceeding; that (2) implicates important, substantial,
or

vital

state

opportunity

interests;

for

the

and

(3)

plaintiff

provides

an

adequate

raise

the

federal

to

constitutional claim advanced in the federal lawsuit.”

Laurel

Sand & Gravel, Inc. v. Wilson, 519 F. 3d 156, 165 (4th Cir.
2008).2
doctrines

Defendants argue that the
should

apply

here

because

Rooker-Feldman
Plaintiff’s

related to a state foreclosure proceeding.
Although

Defendants

have

attached

a

court

or

Younger

injuries

are

(ECF No. 4, at 5).
docket

showing

an

active foreclosure proceeding against Plaintiff in the Circuit
Court for Prince George’s County, Maryland (ECF No. 4-1, at 12), the complaint makes no mention of foreclosure or any state
court proceeding.

As pleaded, it is not clear that the harms

alleged in the complaint are related to the foreclosure, and

2

“Younger is not merely a principle of abstention; rather,
the case sets forth a mandatory rule of equitable restraint,
requiring the dismissal of a federal action.”
Nivens v.
th
Gilchrist, 444 F.3d 237, 247 (4
Cir. 2006).
If the Younger
elements are met, restraint is demanded “so long as there is no
showing of bad faith, harassment, or some extraordinary
circumstance
that
would
make
abstention
inappropriate.”
Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S.
423, 435 (1982).
3

therefore these two doctrines do not preclude jurisdiction at
this time.
III. Motion to Dismiss
A.

Standard of Review

Defendants also challenge the complaint under Fed.R.Civ.P.
12(b)(6).

The

purpose

of

a

motion

to

dismiss

under

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

Rule

Presley

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

A

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.”

Fed.R.Civ.P.

8(a)(2).

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

of

550

entitlement
U.S.

544,

to

555

relief.”
n.3

(2007).

Bell

Atl.

That

Corp.

showing

v.

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) (citations omitted).
At

this

stage,

all

well-pleaded

allegations

in

the

complaint must be considered as true, Albright v. Oliver, 510
U.S.

266,

268

(1994),

and

all

factual

allegations

must

construed in the light most favorable to the plaintiff.

be
See

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

(4th

the

complaint,

unsupported legal allegations need not be accepted.

Revene v.

1130,

1134

Cir.

1993)).

In

evaluating

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

couched

as

factual

allegations

are

Legal

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); see
also Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009).
“[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has
alleged, but it has not ‘show[n] that the pleader is entitled to
relief.’”
8(a)(2)).

Iqbal,

556

U.S.

at

679

(quoting

Fed.R.Civ.P.

Thus, “[d]etermining whether a complaint states a

plausible claim for relief will . . . be a context-specific task
that

requires

the

reviewing

experience and common sense.”
Generally,

pro

se

court

to

draw

on

its

judicial

Id.

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).

Liberal construction means that the

court will read the pleadings 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
5

include claims never presented.
1128, 1132 (10th Cir. 1999).

Barnett v. Hargett, 174 F.3d

That is, even when pro se litigants

are involved, 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); Forquer v. Schlee, No.
RDB–12–969,

2012

WL

6087491,

at

*3

(D.Md.

Dec.

4,

2012)

(citation and internal quotation marks omitted) (“[E]ven a pro
se complaint must be dismissed if it does not allege a plausible
claim for relief.”).
B.

Analysis

The complaint is simply insufficient and fails to comply
with federal pleading requirements.

Plaintiff simply alleges

that Defendants (1) “deprived [him of] due process of law by
seizing the title to the property without proving that they are
the holder in due course;” (2) “violated Plaintiff’s right to
receive full disclosure of the contract prior to destruction of
documents;”

(3)

violated

its

fiduciary

duties

by

“using

suspicious and unlawful practices;” and (4) “misle[d] Plaintiff
during execution of the contract.”

(ECF No. 1 ¶¶ 18-19, 25).

These unsupported legal conclusions are insufficient to state a
claim.3

3

Responding to Defendant’s motions to dismiss, Plaintiff
has provided somewhat more information. (ECF No. 7, at 6-8).
However, “it is axiomatic that the complaint may not be amended
by the briefs in opposition to a motion to dismiss.”
Mylan
6

Plaintiff has presented facts in the complaint indicating
that he sent letters attempting to rescind the loan contract.
Construing

the

complaint

liberally,

Plaintiff

appears

to

be

arguing that he has a right to rescind based on violations of
the Truth in Lending Act and 12 C.F.R. § 226.39, both of which
require

certain

documentation.

disclosures

by

lenders

(ECF No. 1 ¶ 2).

as

part

of

loan

Plaintiff has not alleged,

however, what disclosures Defendants failed to make that were
required.
Plaintiff

appears

to

misunderstand

requirements under current law.

the

federal

pleading

(See ECF No. 7-1, at 3).

As

noted, Rule 8(a) requires the “allegations must be enough to
raise a right to relief above the speculative level.”

Twombly,

550 U.S. at 555; see also Giacomelli, 588 F.3d at 193.

Even

after affording the complaint a generous construction, the court
cannot

ignore

supporting
dismiss

Plaintiff’s

his

will

be

claims.
granted.

clear

failure

Accordingly,
Should

to

allege

Defendants’

Plaintiff

file

facts

motion
an

to

amended

complaint, he must identify each of the laws on which this civil
action is predicated and what specific acts or omissions by
Labs., Inc. v. Akzo, N.V., 770 F.Supp. 1053, 1068 (D.Md. 1991)
(quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101 (7th
Cir. 1984)); see Zachair Ltd. v. Driggs, 965 F.Supp. 741, 748
n.4 (D.Md. 1997) (stating that the plaintiff “is bound by the
allegations contained in its complaint and cannot, through the
use of motion briefs, amend the complaint”), aff’d, 141 F.3d
1162 (4th Cir. 1998).
7

Defendants allegedly violated those laws.
must

meet

the

federal

pleading

Any amended complaint

standards

described

in

the

Standard of Review section above, including factual allegations
sufficient to establish a plausible basis for his claims.
IV.

Plaintiff’s Motion to Strike
Plaintiff has also moved to strike the affidavit of Cindy

Cook attached to Defendants’ motion to dismiss.

“Ordinarily, a

court cannot consider matters outside the pleadings or resolve
factual

disputes

when

ruling

on

a

Rule

12(b)(6)

motion

to

See Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th

dismiss.”
Cir. 2007).
affidavit

Accordingly, the court did not consider Ms. Cook’s
in

Plaintiff’s

reaching

motion

will

the
be

decision

denied

as

above.
moot.

Therefore,
See

Wheeler

v.

Leonard, No. DKC-2008-0774, 2010 WL 1141199, at *5 n.2 (D.Md.
Mar.

22,

2010);

L.M.P.

Serv.,

Inc.

v.

Shell

Oil

Co.,

116

F.Supp.2d 645, 648 (D.Md. 2000).
V.

Conclusion
For the foregoing reasons, the motion to dismiss filed by

Defendants Brand Group Holdings, Inc. and Brand Mortgage Group
will be granted, and the motion to strike filed by Plaintiff
Jeffrey Nix El will be denied as moot.

A separate order will

follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
8