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
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