Nix El v. Brand Group Holdings, Inc et al
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
Civil Action No. DKC 16-0696
BRAND GROUP HOLDINGS, INC.,
Presently pending and ready for resolution are a motion to
dismiss filed by Defendants Brand Group Holdings, Inc. and Brand
strike filed by Plaintiff Jeffrey Nix El (“Plaintiff”) (ECF No.
The issues have been briefed, and the court now rules, no
hearing being deemed necessary.
Local Rule 105.6.
following reasons, the motion to dismiss will be granted and the
motion to strike will be denied as moot.
(ECF No. 1 ¶¶ 5-6).
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.
(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
began corresponding with Defendants over the validity of his
contract and was seeking rescission.
(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
violation of 15 U.S.C. § 80a-35 and 29 U.S.C. § 1109(a) (Count
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).
Defendants contend that Plaintiff’s claims are barred under
the Rooker-Feldman doctrine.
(ECF No. 4, at 5).
determinations made in state courts.
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
Younger abstention doctrine (ECF No. 10, at 1), which “requires
proceeding, instituted prior to any substantial progress in the
federal proceeding; that (2) implicates important, substantial,
constitutional claim advanced in the federal lawsuit.”
Sand & Gravel, Inc. v. Wilson, 519 F. 3d 156, 165 (4th Cir.
Defendants argue that the
related to a state foreclosure proceeding.
(ECF No. 4, at 5).
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
As pleaded, it is not clear that the harms
alleged in the complaint are related to the foreclosure, and
“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.”
Gilchrist, 444 F.3d 237, 247 (4
If the Younger
elements are met, restraint is demanded “so long as there is no
showing of bad faith, harassment, or some extraordinary
Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S.
423, 435 (1982).
therefore these two doctrines do not preclude jurisdiction at
III. Motion to Dismiss
Standard of Review
Defendants also challenge the complaint under Fed.R.Civ.P.
12(b)(6) is to test the sufficiency of the complaint.
v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).
complaint need only satisfy the standard of Rule 8(a), which
requires a “short and plain statement of the claim showing that
“Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket
consist of more than “a formulaic recitation of the elements of
a cause of action” or “naked assertion[s] devoid of further
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citations omitted).
complaint must be considered as true, Albright v. Oliver, 510
construed in the light most favorable to the plaintiff.
Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783
(4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d
unsupported legal allegations need not be accepted.
Charles Cty. Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
Iqbal, 556 U.S. at 678, as are conclusory factual allegations
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
Thus, “[d]etermining whether a complaint states a
plausible claim for relief will . . . be a context-specific task
experience and common sense.”
held to a less stringent standard than pleadings drafted by
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
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.
(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.”).
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
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
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.”
Plaintiff has presented facts in the complaint indicating
that he sent letters attempting to rescind the loan contract.
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
(ECF No. 1 ¶ 2).
Plaintiff has not alleged,
however, what disclosures Defendants failed to make that were
requirements under current law.
(See ECF No. 7-1, at 3).
noted, Rule 8(a) requires the “allegations must be enough to
raise a right to relief above the speculative level.”
550 U.S. at 555; see also Giacomelli, 588 F.3d at 193.
after affording the complaint a generous construction, the court
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).
Defendants allegedly violated those laws.
Any amended complaint
Standard of Review section above, including factual allegations
sufficient to establish a plausible basis for his claims.
Plaintiff’s Motion to Strike
Plaintiff has also moved to strike the affidavit of Cindy
Cook attached to Defendants’ motion to dismiss.
court cannot consider matters outside the pleadings or resolve
See Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th
Accordingly, the court did not consider Ms. Cook’s
Leonard, No. DKC-2008-0774, 2010 WL 1141199, at *5 n.2 (D.Md.
F.Supp.2d 645, 648 (D.Md. 2000).
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
DEBORAH K. CHASANOW
United States District Judge
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