Alston v. Orion Portfolio Services, LLC et al
Filing
80
MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 6/11/2019. (c/m 6/12/19 km4s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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JONATHAN T. ALSTON
Plaintiff, pro se
v.
ORION PORTFOLIO
SERVICES, LLC, et al.
Defendants.
Civil No. PJM 16-3697
MEMORANDUM OPINION
Pro se plaintiff Jonathan Alston has sued Orion Portfolio Services, LLC (“Orion”) and
Trident Asset Management, LLC (“Trident”) (hereinafter, collectively “Defendants”) in
connection with a debt he purportedly owed to Verizon Communications (“Verizon”) for
unreturned television equipment and associated fees. Alston claims that Orion, which he says
purchased the debt from Verizon, and Trident, which he says sought to collect the debt on behalf
of Orion, attempted to collect the $1,391 debt in violation of the Fair Debt Collection Practices
Act (the “FDCPA”), 15 U.S.C. § 1692, et seq.
Defendants have moved for dismissal of the remaining counts in Alston’s Amended
Complaint, as well as for sanctions. ECF No. 67. Alston opposes the Motion and has filed a
Motion to Reconsider the Court’s Order (ECF No. 58) denying his earlier Motion to Reconsider.
ECF No. 73. For the following reasons, the Court will DENY Plaintiff’s Motion to Reconsider,
ECF No. 73, and GRANT Defendants’ Motion to Dismiss and Motion for Sanctions, ECF No. 67.
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I.
FACTUAL BACKGROUND
The Court has recited the facts of this case in two prior Memorandum Opinions, ECF Nos.
15, 51, but believes they should be recounted again for context.
Alston states in his Amended Complaint that he obtained a credit report from Trans Union
and discovered a collection account reported by Trident that indicated that he owed $1,391 to
Verizon for utility services. Amended Complaint (“AC”) ¶¶ 5-6, ECF No. 19. Alston says he
disputed the Trident collection account with Trans Union in a letter dated June 11, 2016. Id. ¶ 10.
On July 12, 2016, Trans Union allegedly issued its investigation results, advising Alston that
Trident had verified the account and determined that no changes to the report were appropriate,
indicating it found no notation that the amount was in dispute. Id. ¶ 11.
On August 22, 2016, Alston again purportedly contacted Trident, this time by phone, to
dispute the debt. Id. ¶ 12. He says he was told that Trident would send him a letter providing a
breakdown of how the $1,391 was calculated and advising him of his right to request validation
and/or verification of the debt. Id. ¶¶ 13-14. Alston was further supposedly told that Trident had
not sent him a letter after it acquired the Verizon debt because Trident’s policy was to contact
debtors by phone, not by mail, and Trident did not have a phone number for Alston on file. Id. ¶
15.
Alston says he called Trident yet again on August 25, 2016. Id. ¶ 16. He says he was
advised at that time that Orion had purchased the debt from Verizon and that Trident was collecting
the debt on behalf of Orion. Id. ¶ 17. Alston also says he was told that the debt was considered
“disputed” as of August 22, 2016 and that Trident had reported information regarding the debt to
credit reporting agencies (such as Trans Union) on the 23rd of every month. Id. ¶¶ 18-19.
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On August 26, 2016, Alston received correspondence from Trident, which informed him
of his right to dispute the validity of the debt within 30 days of receiving the notice, but the notice
still requested that he send a $1,390.81 payment to Trident’s address. Id. ¶¶ 22-23. Either during
one of his alleged phone calls with Trident or in this letter, Alston says he was informed that the
$1,390.81 debt stemmed from unreturned Verizon FIOS TV equipment ($742.00) and from past
due charges ($648.81). See Id. ¶ 29.
Alston goes on to say that on August 29, 2016, he sent a dispute letter to Trans Union,
challenging the claim. Id. ¶ 26. He also says he sent a letter directly to Trident. Id. ¶ 27. The letters
purportedly disputed the fact that Trident or Orion acquired the account from Verizon, or that
$1,390.81 was owed on the account, or that Alston owed $742.00 for FIOS TV equipment and
$648.81 for past due charges. Id. ¶¶ 28-29. Even so, says Alston, Trident continued its debt
collection activity and reported the debt to Trans Union prior to providing Alston with validation
of the debt. Id. ¶ 32.
According to Alston, on September 12, 2016, Trans Union issued its investigation results,
finding once again that Trident had verified the amount of the debt, and indicating once again that
no changes would be made as to how the debt would be reported, and indicating once again that it
found no notation that the collection account was disputed. Id. ¶ 33
Alston thereafter filed a Complaint in the Circuit Court for Prince George’s County, ECF
No. 2, which Defendants removed to this Court in timely fashion. ECF No. 1. On November 22,
2016, Defendants filed a Motion to Dismiss Counts I and II of the Complaint on the grounds that
Alston had failed to state a claim upon which relief could be granted. ECF No. 9. The Court granted
Defendants’ Motion and dismissed the two Counts, but did so without prejudice, granting Alston
leave to file an amended complaint. ECF No. 15.
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In a lengthy footnote, the Court also directed Alston to file an affidavit establishing that
the case was brought in good faith. ECF No. 15 at 1 n.1. The footnote observed that the case was
one of dozens of suits alleging violations of fair debt collection laws brought by members of the
Alston family, all of whom claimed to reside at 10012 Cedarhollow Lane, Largo, MD 20774. Id.
The footnote also noted that Plaintiff’s brother, Thomas Alston, a non-attorney who also invokes
the Cedarhollow Lane address, has been both a plaintiff in many of these lawsuits as well as the
de facto author of several of them. Id. Thomas Alston advertises legal services on LinkedIn,
including his claim of work on debt collection cases, despite not being an attorney barred in any
jurisdiction. Given the similarities between the present suit and many others brought in this and
other courthouses by members of the Alston family, the Court directed the current Plaintiff
Jonathan Alston to declare, under oath, among other things, (a) whether he in fact resides at 10012
Cedarhollow Lane, Largo, MD 20774, (b) what his other residences are, and (c) whether Thomas
Alston in any way assisted him in the preparation or filing of the present suit. The Court also
directed Plaintiff to “set forth the names of every individual (including, but not limited to Thomas
Alston) or entity that has provided him with any advice, documents, or pleadings in connection
with the present lawsuit.” Id.
On March 20, 2017, Alston filed an affidavit. In it, he disputes that the LinkedIn profile
about Thomas Alston was written by Thomas Alston. Pl. Aff. ¶ 15, ECF No. 17-3. He also states
that he talks “generally to [his] family including Thomas Alston about the law and in particular
the federal statutes such as the Fair Credit Reporting Act [“FCRA”] and Federal Debt Collection
Practices Act,” but that they do not talk about “the specifics of a particular case,” and that he
primarily uses PACER and the National Consumer Law Center to assist him in drafting his
pleadings. Id. ¶¶ 16-17, 19 (emphasis in original). Jonathan Alston affirmed that he has not kept
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“a mental record of whether [he] received any particular advice, documents or pleadings from
Thomas Alston or any other person or source other than PACER or the National Consumer Law
Center.” Id. ¶ 20. Finally, Jonathan Alston noted that he has three addresses, including the 10012
Cedarhollow Lane, Largo, MD 20774 address, that he regularly uses. Id. ¶ 1-4. He stated that he
could not affirm how he divides his time between the homes but said that he spends most of his
time at a different residence. Id. ¶¶ 6-7.
In addition to filing his affidavit, Alston also filed an Amended Complaint, which closely
parallels the Original Complaint. ECF No. 19.
On October 30, 2017, Defendants filed a Partial Motion for Summary Judgment as to
Counts III and IV of Alston’s Amended Complaint, asking the Court to limit Alston at most to
statutory damages on Counts I and II. Defendants argued that Alston had failed to provide any
evidence of damages beyond the limited amounts provided by statute, and that he had failed to
provide any evidence supporting his allegations under the FCRA or for defamation. On November
27, 2017, Alston filed both an Opposition and a Cross-Motion for Partial Summary Judgment,
arguing that there was sufficient evidence to find Defendants liable under the FDCPA that also
supports his claims for damages. ECF No. 46. Although Jonathan Alston claimed to attach a series
of exhibits supplementing the evidentiary record as to these issues, it appears that he did not file
any attachments with the Court nor apparently did he share them with defense counsel.
On April 12, 2018, the Court issued a Memorandum Opinion and Order granting
Defendants’ Partial Motion for Summary Judgment and denying Alston’s Cross-Motion for Partial
Summary Judgment. ECF Nos. 51, 52. The Court dismissed Counts III and IV of Alston’s
Amended Complaint, limiting his possible recovery on Counts I and II of the Amended Complaint
to statutory damages only. Id. Subsequently, the parties agreed to hold a Pre-Trial Conference in
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Court on August 30, 2018, ECF No. 55, which was later postponed until September 20, 2018.1
ECF No. 57. Alston, however, did not participate in the preparation of the Pre-Trial Order filed
by Defendants, as required by the Local Rules of Court, seeking instead leave to postpone the PreTrial Conference, ECF No. 60, which the Court denied. ECF No. 62.
On September 20, 2018, Jonathan Alston failed to attend the Pre-Trial Conference, but
instead had his brother, Thomas Alston, the referenced non-attorney, appear on his behalf. PreTrial Conference Transcript (“PTC Tr.”) 2:7–12, ECF No. 74. Despite Thomas Alston’s nonattorney status, the Court was prepared to ask questions of him, but he began by refusing to answer
questions under oath. PTC Tr. 3:15–21. Thomas Alston did, however, agree to answer the Court’s
questions to the extent he felt comfortable doing so. Id. The Court then questioned Thomas Alston
extensively about the claims on his LinkedIn page, asking, for example, what he meant in saying
he had “helped many borrowers stop their banks from foreclosing,” had “helped borrowers sue
their banks and get money,” and could “give you everything you need to properly challenge your
foreclosure.” Id. at 16:22–17:4. Thomas Alston claimed that he intended to promote his services
as a paralegal to potential attorneys who specialized in FDCPA and FCRA cases and blamed a
freelance writer he said he hired to draft his LinkedIn page for any misrepresentations as to the
nature of his services. Id. at 18:14–19:21.
The Court also asked Thomas Alston if he had assisted Jonathan Alston in any way in
preparing any of the pleadings in the present case. Id. at 26:11–17. Thomas Alston responded that
he “may have had a hand” in preparing the pleadings, saying he “normally . . . will give somebody
a template [for drafting pleadings].” Id. at 26:18–19. Thomas Alston also claimed that he had
discussed this and other cases with family members. Id. at 26:23–27:8. However, when defense
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In the interim, on September 10, 2018, the Court denied Alston’s Motion to Enforce an alleged settlement agreement
with Defendants. ECF No. 58.
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counsel pointed out to Thomas Alston that Jonathan Alston, at his deposition in 2017, testified that
he had not spoken about the facts of his case with Thomas Alston, and that Thomas Alston had not
provided him with any pleading templates or forms, Thomas Alston responded that Jonathan
Alston may in fact have used a template to prepare his pleadings in a prior case. Id. at 27:14–28:8.
Thomas Alston then stated he was unsure if Jonathan Alston had used a template to prepare the
pleadings for the present case. Id. at 28:6–8.
Based in part on Jonathan Alston’s failure to assist in preparation of the Pre-Trial Order
and his failure to appear at the Pre-Trial Conference, on September 26, 2018, Defendants filed a
Motion to Dismiss Under Federal Rule of Civil Procedure 41(b) and a Motion for Sanctions. ECF
No. 67. Alston filed his Opposition on October 30, 2018, after the Court granted him an extension
of the time to file. ECF No. 76.2 Defendants filed their Reply on November 8, 2018. ECF No.
77.
II.
ANALYSIS
A. Defendants’ Motion to Dismiss and Motion for Sanctions
Defendants ask the Court to dismiss the case on the grounds that Alston has consistently
failed to prosecute this case in good faith, as exemplified by his failure to participate in the
preparation of a proposed Pre-Trial Order, his failure to appear at the Pre-Trial Conference on
September 20, 2018, and his refusal to produce documents or answer questions at his deposition
on September 25, 2017, among other derelictions. The Court finds Defendants’ position to be
well-taken.
If a plaintiff “fails to prosecute” a case or does not “comply with [the Federal Rules of
Civil Procedure] or a court order,” the court may dismiss the case at the request of a defendant,
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Additionally, on October 9, 2018, Alston filed a Motion to Reconsider the Court’s earlier denial of an earlier Motion
to Reconsider. ECF No. 73. Defendants did not respond to this Motion.
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and, unless it states otherwise, the dismissal order “operates as an adjudication on the merits.”
Fed. R. Civ. P. 41(b). In deciding whether to grant a Rule 41(b) dismissal motion, the court
considers “(1) the degree of personal responsibility of the plaintiff, (2) the amount of prejudice
caused the defendant, (3) the existence of ‘a drawn out history of deliberately proceeding in a
dilatory fashion,’ and (4) the existence of a sanction less drastic than dismissal.” Black Water
Marine Explorer, LLC v. Unidentified Shipwrecked Vessel or Vessels, 714 Fed. App’x 296, 297
(4th Cir. 2018) (quoting Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982)).
These four factors are not exhaustive, however, and “the propriety of a dismissal [pursuant to Rule
41(b)] depends on the particular circumstances of the case.” Ballard v. Carlson, 882 F.2d 93, 95
(4th Cir. 1989).
Alston has clearly failed to prosecute his case in good faith. As a pro se litigant, he remains
responsible for initiating and litigating this case; he cannot blame any delay in prosecuting it on
any counsel acting on his behalf.3 Defendants have sustained considerable prejudice by way of
Alston’s actions in this case and have most assuredly incurred significant legal expenses associated
with defending the case over nearly three years. The Court has already either dismissed some of
Alston’s claims outright, or has granted summary judgment to Defendants on others, while
severely limiting the damages available to Alston. It has been an extraordinarily long haul, and no
other remedy appears to be available that would bring Mr. Alston to book.
But the factor weighing most heavily in favor of dismissal is Alston’s unbroken history of
dilatory tactics, dating from at least the beginning of the discovery period. After he failed to
produce his Initial Disclosures by the deadline prescribed in the Court’s Scheduling Order,
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Despite Thomas Alston’s admissions during the Pre-Trial Conference that he may have discussed his case with
Jonathan Alston and provided him as well with a template for drafting pleadings, the Court still considers Jonathan
Alston a pro se litigant. No barred attorney has ever formally entered an appearance on behalf of Jonathan Alston.
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Defendants were forced to move to compel their production at Alston’s expense.4 ECF Nos. 22–
25. Further, Alston did not respond to Defendants’ request for production of documents prior to
his deposition on September 25, 2017. Instead, he brought just six documents with him to the
deposition in response to Defendants’ subpoena duces tecum: (1) his Initial Disclosures, (2) the
Scheduling Order in the case, (3) his Affidavit (ECF No. 17-3) regarding the extent to which he
had or had not received assistance in litigating the case, (4) a letter dated August 29, 2016
addressed to Defendant Trident, (5) a letter dated August 29, 2016 addressed to the credit reporting
agency TransUnion, LLC, and (6) Alston’s objections to the Order compelling him to produce his
Initial Disclosures. Jonathan Alston Deposition Transcript, September 25, 2017 (“J. Alston Dep.
Tr.”) at 19:3–20, ECF No. 67-6. All of these documents, however, were either available on the
docket or already in Defendants’ possession.
Further, at his deposition, Alston consistently dodged defense counsel’s questions. For
example, he testified that he suffered “embarrassment [and] humiliation” after being denied credit
on the basis of the allegedly illegitimate debt at issue in this case and claimed to have discussed
these emotions with “[b]asically anybody that will listen.” J. Alston Dep. Tr. at 53:20; 55:18–22.
Overall, Alston said he told “probably a hundred people” about his purported emotional distress.
Id. at 57:11. Yet, when defense counsel asked Alston to provide the names of any of these potential
witnesses, Alston responded “Well, I don’t know the first names, last names and all that. I can’t
really give you a whole bunch of names,” and, when pressed by defense counsel, offered the names
of only his wife, mother, and three friends. Id. at 57:18–58:12. More importantly, Alston refused
to identify any specific instance where he was denied credit based on Defendants’ purported
4
Defendants note that a check they received as payment of these sanctions appears to have been remitted by “Thomas
J. Alston,” suggesting further Thomas Alston’s involvement and assistance in the present case. See ECF No. 67-11
(photocopy of check for $200.00 remitted by “Thomas J. Alston”).
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wrongdoing that occasioned embarrassment and humiliation on his part, responding “It’s not your
business to know who I went to go try to buy something, use my credit with.” Id. at 30:21–31:1.
Alston was equally cagey when he refused to answer questions about whether and how
much legal assistance he had received in the case. Initially, he claimed that he had drafted his
Complaint entirely by himself.5 Id. at 25:19–21. But then he said that he in fact had consulted
with “an attorney,” Id. at 26:14–20, stating, however, that he would prefer to “keep [the attorney]
out of the game” and that there was “no need to talk about him.” Id. at 27:3–4. For the remainder
of his deposition, Alston persisted in refusing to tell defense counsel the identity of the attorney
with whom he had consulted. See id. at 27:19–28:4; 51:10–13; 74:10–12; 96:15–98:1.
Overall, Alston has displayed a pattern of total disregard for the basic requirements of good
faith litigation. On the basis alone of his refusal to participate in the preparation of the required
joint Pre-Trial Order and his failure to attend the required Pre-Trial Conference, such a cavalier
attitude would convince the Court that dismissal of the case with prejudice is appropriate. See,
e.g., Callahan v. Communication Graphics, Inc., 657 Fed. App’x 739, 744–45 (10th Cir. 2016)
(affirming dismissal of pro se action pursuant to Rule 41(b), in part due to plaintiff’s failure to
appear at Pre-Trial Conference). But there is more. The fair debt collection laws unquestionably
provide important protections for consumers in their everyday lives. But, in the present case,
Jonathan Alston has floated claims of dubious veracity, has held back documents, and has given
dodgy responses to critical inquiries when it has suited him to do so. Sad to say, this appears to
be little more than a classic nuisance suit.
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Jonathan Alston asked, as to the Complaint he purportedly drafted himself, if the Complaint “is a class action or it’s
not?” J. Alston Dep. Tr. at 25:7–8. More concerning, Jonathan Alston may have exposed himself to charges of
perjury, since his brother, Thomas Alston, claimed at the Pre-Trial Conference that he had given Jonathan Alston a
template for drafting the pleadings in the case—contradicting Jonathan Alston’s claim under oath that he drafted the
Complaint by himself.
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Defendants seek attorney’s fees and costs, pursuant to the FDCPA. See 15 U.S.C. §
1692k(a)(3) (“On a finding by the court than an action under this section was brought in bad faith
and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable
in relation to the work expended and costs.”). The Court finds there is ample evidence indicating
that Alston has litigated this case in bad faith, including his failure to prepare for the Pre-Trial
Conference, his failure to appear at the Pre-Trial Conference, his resistance to producing
documents in discovery, and his excessive evasiveness at his deposition. In view of that, the Court
will award attorney’s fees and related costs to Defendants.
Accordingly, the Court GRANTS Defendants’ Motion to Dismiss and Motion for
Sanctions.
Defendants are directed to file a more specific Motion for Fees and Costs within fourteen
days hereof. Plaintiff may respond, and Defendants may reply in the ordinary course.
B. Alston’s Motion to Reconsider
Alston has filed a Motion to Reconsider (ECF No. 73), which is actually a Motion to
Reconsider an earlier Order of the Court denying a prior Motion to Reconsider. In it, Alston argues
that the Court improperly denied his earlier Motion to Reconsider (ECF No. 65) before he had a
chance to file a reply brief to Defendants’ response in opposition (ECF No. 66). Motions to
reconsider are “extraordinary” and are “only to be invoked up on a showing of exceptional
circumstances.” Johnson v. Montminy, 289 F. Supp. 2d 705, 705 (D. Md. 2003) (quoting Compton
v. Alton Steamship Co., Inc., 608 F.2d 96, 102 (4th Cir. 1979)) (internal quotation marks omitted).
A motion to reconsider may be appropriate when:
the Court has patently misunderstood a party, or has made a decision outside the adversarial
issues presented to the Court by the parties, or has made an error not of reasoning but of
apprehension. A further basis for a motion to reconsider would be a controlling or
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significant change in the law or facts since the submission of the issue to the Court. Such
problems rarely arise and the motion to reconsider should be equally rare.
Solomon v. Dawson, No. PWG-13-1953, 2013 WL 4747987, at *1 (D. Md. Sep. 13, 2013)
(quoting Above the Belt, Inc. v. Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va. 1983))
(emphasis added). While Alston claims that his Motion to Reconsider is justified because the
Court ruled on his prior Motion to Reconsider before he filed a reply, his original Motion to
Reconsider asked the Court to review its Order denying a motion to enforce an alleged settlement
agreement (ECF No. 58). Alston contended that the Court had incorrectly held that the parties had
not reached a settlement agreement, arguing that, under principles of contract law, an agreement
had in fact been formed. ECF No. 65 at 1–5. But the Court disagreed, finding no such settlement.
At best, then, Alston’s Motions to Reconsider, including the one presently before the Court, have
been founded on alleged errors of legal reasoning (a proposition which the Court obviously
rejects), which do not constitute “exceptional circumstances” sufficient to justify granting a motion
to reconsider.
The Court will DENY Alston’s Motion to Reconsider.
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III.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Reconsider, ECF No. 73, is DENIED, and
Defendants’ Motion to Dismiss and Motion for Sanctions, ECF No. 67, is GRANTED WITH
PREJUDICE.
Within fourteen (14) days, Defendants shall file a more particular Motion for Attorney’s
Fees and Costs. Plaintiff may file an Opposition, and Defendants a Reply in the ordinary course.
A separate Order will ISSUE.
June 11, 2019
/s/
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PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE
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