Kitchings v. Shelton et al
MEMORANDUM OPINION Signed by Judge Paul W. Grimm on 1/12/2018. (c/m 1/12/18 cags, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOHN H. KITCHINGS, JR.,
Case No.: PWG-17-882
WILLIAM JOSEPH SHELTON., et al.,
Plaintiff John Kitchings, Jr. (who is proceeding without counsel, but who, in the past has
practiced law) brings claims against Defendants for violations of the Federal Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692, the Maryland Consumer Debt Collection Act
(“MCDCA”), Md. Code Ann. Com. Law §§ 14-201–204, the First and Fourth Amendments of
the U.S. Constitution pursuant to 42 U.S.C. § 1983, and 22 other state law claims. 2d Am.
Compl., ECF No. 37. Defendants have filed a consolidated motion to dismiss all of Plaintiff’s
claims. ECF No. 38.1 Accordingly, I will grant the motion and dismiss this action. Because
Plaintiff does not state a FDCPA or § 1983 claim—the sole basis for this Court to exercise
jurisdiction over the case—I will dismiss his FDCPA, MCDCA, and § 1983 claims
with prejudice.2 Plaintiff also failed to respond in any substantive way to Defendants’ arguments
The parties fully briefed the motion. ECF Nos. 38-1, 44, 47. A hearing is not necessary. See
Loc. R. 105.6.
Before Defendants filed their Motion, I gave Plaintiff an opportunity to amend his Amended
Complaint based on letters filed by the Defendants setting forth the deficiencies they perceived
in the document. ECF Nos. 30, 31, 34. He took this opportunity, and filed a Second Amended
Complaint, ECF No. 37. But, because Plaintiff failed to address those deficiencies in his Second
with respect to Counts 4, 5, 7, 11, 12, and 14 through 18, thereby abandoning these claims.
They, too, will be dismissed with prejudice. But, pursuant to 28 U.S.C. § 1367(c)(3), I will
decline to exercise supplemental jurisdiction over his remaining state-law claims, which
Defendants argue that many are barred by res judicata and collateral estoppel, and they will be
dismissed without prejudice.
Plaintiff and Ms. Kitchings filed for and finalized their divorce in Anne Arundel County
Circuit Court in Maryland.
2d Am. Compl. ¶ 34.
During the proceedings, Plaintiff was
represented by Norman Sanders and Ms. Kitchings was represented by William Shelton. State
Court Docket 02-C-06-117714.4 Plaintiff alleges that during those proceedings, Ms. Kitchings,
through her counsel, created a fraudulent request for Writ of Property Garnishment. Id. ¶ 16. He
further alleges that Mr. Shelton “unilaterally added his name to the caption as a party (plaintiff)
and submitted a Writ of Garnishment, under the Kitchings’ former divorce case number.” Id. ¶
23. On May 31, 2013, during the divorce proceedings, the court entered judgment against
Amended Complaint, despite having ample notice and an opportunity to correct them, it appears
that further attempts to amend would be futile. When, as here, “a party is granted leave to amend
but fails to address the problem, that party should not be surprised” when the Court does not
grant further opportunities to amend. Steven S. Gensler, Federal Rules of Civil Procedure Rules
and Commentary 363–64 (2016); see also Forquer v. Schlee, No. RBD-12-969, 2012 WL
6087491, at *4 (D. Md. Dec. 4, 2012). Moreover, Plaintiff did not seek leave to amend further.
Accordingly, I will dismiss the FDCPA, MCDCA, and § 1983 claims with prejudice.
I accept the facts as alleged in Plaintiff’s Second Amended Complaint as true for the purposes
of this Motion to Dismiss. See Aziz v. Alcolac, 658 F.3d 388, 390 (4th Cir. 2011).
I take judicial notice of the state court docket on the Maryland Judiciary Case Search website,
http://casesearch.courts.state.md.us/casesearch/inquiryByCaseNum.jis. See Fed. R. Evid.
Plaintiff, ordering him to pay Mr. Shelton $5,100.00 in attorneys’ fees and to pay Ms. Kitchings
$1,600 for costs.5 State Court Docket 02-C-06117714.
Following the divorce proceedings, Plaintiff sued Norman Sanders, Lisa Sanders, and
their law firm for malpractice. 2d Am. Compl. ¶ 40. Eccelston & Wolf, and more specifically
Alvin Frederick and Lauren Marini, represented the Sanders and their firm in the malpractice
action, while Plaintiff was represented by Wes Henderson and Elizabeth Boone of Henderson
Law. Id. ¶ 78. The malpractice litigation was settled between the parties, and a Term Sheet,
ECF No. 38-6, and Release Agreement, ECF No. 38-8, were signed. Id. ¶¶ 46, 116–21. Plaintiff
alleges that during the negotiations, Ms. Kitchings’s and Mr. Shelton’s Writ of Garnishment was
improperly included and the amount he owed was increased illegally from $6,700.00 to
$7,800.00. Id. ¶¶ 48–55. The agreements entered into gave Henderson Law two options. Id.
¶ 84. The Release Agreement provided that
Mr. Kitchings, through his counsel, shall be responsible for resolving the
Judgment entered against Kitchings on May 30, 2013 in favor of Valerie E.
Kitchings and William Shelton . . . in the total amount of $6,700.00 plus postjudgment interest . . . The Judgment may be resolved with [Ms. Kitchings and Mr.
Shelton], by Henderson Law, LLC filing an Interpleader action, or Henderson
Law, LLC shall hold the sum of $7,800.00 on its attorney trust account until the
matter is ether resolved or a Court orders otherwise.
Release Agr. ¶ 6. Plaintiff alleges that Ms. Kitchings and Mr. Shelton should not have been
included in the Term Sheet or Release Agreement. 2d Am. Compl. ¶ 88. Plaintiff further alleges
that “Defendants illegally added post interest judgment [sic] to the alleged $6700.00 initial debt”
and that “[t]he $7800.00 extracted from the Sanders’ settlement, with no explanation by any of
the Defendants, amounted to both a breach of contract and legal malpractice by Henderson Law
Plaintiff alleges that the Anne Arundel Circuit Court did not rule on the Writ of Garnishment,
2d Am. Compl. ¶ 72, however, the state court docket clearly indicates it was ordered and
judgment was entered on May 31, 2013. State Court Docket 02-C-06117714.
and Boone.” Id. ¶¶ 119–20. Henderson Law then filed an interpleader action regarding the
$7,800.00. Id. ¶ 138. The Prince George’s County Circuit Court presiding over the interpleader
action ordered Henderson Law to deposit the $7,800.00 with the court and then on April 1, 2016,
ordered that the Clerk release the funds to Mr. Shelton. State Court Docket CAL14-37205.
Plaintiff brings this litigation alleging that Defendants are debt collectors that were
unlawfully collecting a debt against him in violation of the FDCPA and MCDCA. Id. ¶¶ 4, 6,
23, 32, 99, 176. Specifically, Plaintiff alleges that Defendants violated the FDCPA in twelve
distinct ways including falsely implying communications emanating from an attorney, threating
illegal action, false representation, and “falsely advancing an unlawful lien.” Id. ¶ 189. Plaintiff
also alleges that Ms. Kitchings “was acting under color of state law as an Assistant Attorney
General of Child Support Enforcement, Supervisory Attorney, Texas, when she testified under
oath in Anne Arundel County Circuit Court to create the alleged ‘consumer debt,’” and when she
“authorized Shelton to violate federal law by the introduction of the Writ.” Id. ¶ 207–08.
Plaintiff alleges that Ms. Kitchings’s actions deprived him of his “rights, privileges or
immunities secured by the First and Fourteen Amendments” in violation of 42 U.S.C. § 1983.
Id. ¶ 229. Plaintiff also alleges 22 other claims, which arise under state law (e.g. abuse of
process, breach of contract, intentional infliction of emotional distress, fraud, and conversion).
Id. ¶¶ 235–437. Defendants argue that they are not debt collectors, and that Ms. Kitchings is not
a state actor. Def.’s Mem. 10–16. Defendants offer a litany of reasons for dismissing the 22
state law claims, including, that Plaintiff’s claims are barred by the doctrines of res judicata and
collateral and that he failed to state a claim. Id. at 10–37. Plaintiff responds to some of
Defendant’s arguments but fails to address many others.
Standard of Review
Plaintiff is proceeding pro se, and requests that his Second Amended Complaint be
construed liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972). This is disingenuous and
Plaintiff is not entitled to the deference afforded to pro se litigants lacking legal training, and
accordingly, deserving of a more lenient interpretation of their filings. Plaintiff was admitted to
the Bar of the District of Columbia, but has been suspended. Bar Member Status, ECF No. 38-2.
For that reason, his pleadings should be subject to the same analytical scrutiny as those filed by
practicing attorneys, but even if I were to construe his Second Amended Complaint liberally,
despite his prior membership to the D.C. Bar, it does not absolve him from pleading plausible
claims. See Holsey v. Collins, 90 F.R.D. 122, 128 (D. Md. 1981) (citing Inmates v. Owens, 561
F.2d 560, 562–63 (4th Cir. 1977)).
Federal Rule of Civil Procedure 12(b)(6) provides for “the dismissal of a complaint if it
fails to state a claim upon which relief can be granted.” Velencia v. Drezhlo, No. RDB-12-237,
2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012). This rule’s purpose “‘is to test the sufficiency
of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses.’” Id. (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483
(4th Cir. 2006)). To that end, the Court bears in mind the requirements of Fed. R. Civ. P. 8, Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009),
when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, a complaint must
contain “a short and plain statement of the claim showing that the pleader is entitled to relief,”
Fed. R. Civ. P. 8(a)(2), and must state “a plausible claim for relief,” as “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice,”
Iqbal, 556 U.S. at 678–79. See Velencia, 2012 WL 6562764, at *4 (discussing standard from
Iqbal and Twombly). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
When reviewing a motion to dismiss, “[t]he court may consider documents attached to
the complaint, as well as documents attached to the motion to dismiss, if they are integral to the
complaint and their authenticity is not disputed.” Sposato v. First Mariner Bank, No. CCB-121569, 2013 WL 1308582, at *2 (D. Md. Mar. 28, 2013); see CACI Int’l v. St. Paul Fire &
Marine Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009); see also Fed. R. Civ. P. 10(c) (“A copy of a
written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”).
Moreover, where the allegations in the complaint conflict with an attached written instrument,
“the exhibit prevails.” Fayetteville Inv’rs v. Commercial Builders, Inc., 936 F.2d 1462, 1465
(4th Cir. 1991); see Azimirad v. HSBC Mortg. Corp., No. DKC-10-2853, 2011 WL 1375970, at
*2–3 (D. Md. Apr. 12, 2011). Additionally, Fed. R. Evid. 201(b)(2) permits the Court to take
judicial notice of “fact[s] that [are] not subject to reasonable dispute because [they] can be
accurately and readily determined from sources whose accuracy cannot reasonably be
questioned,” such as matters of public record. Fed. R. Evid. 201(b)(2); see Alston v. Wells Fargo
Home Mortg., No. TDC-13-3147, 2016 WL 816733, at *1 n.1 (D. Md. Feb. 26, 2016).
Count 1: Fair Debt Collection Practices Act and Maryland Consumer Debt Collection Act
Fair Debt Collection Practices Act
“‘The FDCPA protects consumers from abusive and deceptive practices by debt
collectors, and protects non-abusive debt collectors from competitive disadvantage.’” Stewart v.
Bierman, 859 F. Supp. 2d 754, 759 (D. Md. 2012) (quoting United States v. Nat’l Fin. Servs.,
Inc., 98 F.3d 131, 135 (4th Cir. 1996) (quotation omitted)). To state a claim for relief under the
FDCPA, Plaintiff must allege that “(1) [he] has been the object of collection activity arising from
consumer debt, (2) the defendant is a debt  collector as defined by the FDCPA, and (3) the
defendant has engaged in an act or omission prohibited by the FDCPA.” Stewart, 859 F. Supp.
2d at 759–60 (citation omitted); see Ademiluyi v. PennyMac Mortg. Inv. Trust Holdings I, LLC,
929 F. Supp. 2d 502, 524 (D. Md. 2013) (citing 15 U .S.C. § 1692). In Count One, Plaintiff
alleges that Defendants violated the FDCPA when Ms. Kitchings through her counsel, Mr.
Shelton, “create[d] his fraudulent ‘Request for Writ of Property Garnishment’ . . . on July 24,
2014.” 2d Am. Compl. ¶ 16. Plaintiff further alleges that Frederick of Eccelston & Wolf
advised Norman and Lisa Sanders “to collect a debt in the names of Ms. Kitchings and Shelton
when the alleged debt or lien actually belonged to Frederick and [Eccelston & Wolf].” Id. ¶ 30.
Plaintiff also states that “this [alleged] fraudulent Writ was allegedly from ‘Ms. Kitchings’ and
‘Shelton’ both named as co-Plaintiffs in the caption under the Kitchings’ former divorce case,
Kitchings v. Kitchings, Anne Arundel County Circuit Court No. 02-C-06-117714.” Id. ¶ 34.
Plaintiff argues that the $7,800 debt that is the subject of this litigation stems from the Term
Sheet and Release Agreement in his malpractice suit against Norman and Lisa Sanders, who
were represented by Eccelston & Wolf.6 Id. at ¶¶ 40, 46. Defendants dispute that they are debt
collectors and that they attempted to collect a debt subject to the FDCPA.7 Defs.’ Mot. 16–19.
“A threshold requirement for application of the FDCPA is that the prohibited practices
are used in an attempt to collect a ‘debt.’” Mabe v. G.C. Servs. Ltd. P’ship, 32 F.3d 86, 88 (4th
Plaintiff wrongfully argues that this debt does not stem from his divorce proceedings as he
believes no action was taken by the Anne Arundel Circuit Court. 2d Am. Compl. ¶ 72.
However, the records of that proceeding indicate that the court in the divorce proceeding entered
sanctions against Plaintiff in the amount of $6,700.00. State Court Docket 02-C-06-117714. I
take judicial notice of the state court docket entries and filings in this case pursuant to Fed. R.
Defendants also move to dismiss this claim on the basis of res judicata and collateral estoppel
and that it is barred by the statute of limitations. Defs.’ Mot. 10–16.
Cir. 1994). The statute defines a debt as “any obligation or alleged obligation of a consumer to
pay money arising out of a transaction in which the money, property, insurance, or services
which are the subject of the transaction are primarily for personal, family, or household
purposes.” 15 U.S.C. § 1692a(5). As the word “transaction” is not defined by the statute, I will
depend on the case law interpreting it to determine if the alleged debt in this case falls within the
statutory meaning of a debt.
In adopting the views of other Circuit Courts, the Fourth Circuit has stated that “the type
of transaction which creates a debt under the FDCPA is one which a consumer is offered or
extended the right to acquire money, property, insurance, or services which are primarily for
household purposes and to defer payment. Mabe, 32 F.3d at 88 (quoting Zimmerman v. HBO
Affiliate Group, 834 F.2d 1163, 1168–69 (3d Cir. 1987); Bloom v. I.C. Sys., Inc., 972 F.2d 1067,
1068 (9th Cir. 1992); Staub v. Harris, 626 F.2d 275, 278 (3d Cir. 1980)) (internal quotations
omitted); see also Bass v. Stolper, Koritzinsky, Brewster & Nieder, S.C., 111 F.3d 1322, 1326
(7th Cir. 1997).
Here, the $7,800.00 was eventually turned over to Shelton in the interpleader action
pursuant to a court order. State Court Docket CAL14-37205. However, the fact that it was
pursuant to a court order is not dispositive in determining if it arose from a transaction that
would make it subject to the FDCPA. See Mabe, 32 F.3d at 88; Beal v. Himmel & Bernstein,
LLP, 615 F. Supp. 2d 214, 217 (S.D.N.Y. 2009). Therefore, I must look to what created the
$7,800 debt Plaintiff owed Ms. Kitchings and Mr. Shelton.
Initially, Plaintiff was ordered to pay $6,700—$1,600 in costs to Ms. Kitchings and
$5,100 in attorneys’ fees to Mr. Shelton—in connection with Plaintiff’s divorce litigation. The
Anne Arundel Circuit Court ordered these payments on October 16, 2012 and judgment was
entered on May 31, 2013. State Court Docket 02-c-06-117714. A debt that is owed out of a
court order in a divorce proceeding is not a consumer transaction because it cannot plausibly be
regarded as an obligation flowing from the use of money credit, or services primarily for
consumer goods or services. See Mabe, 32 F.3d at 88 (assessing that court ordered child support
obligations were not FDCPA debts because “they were not incurred to receive consumer goods
or services. Rather, the DSS imposed these obligations upon appellants to force them to fulfill
their parental duty to support their children.”); Beal, 615 F. Supp. 2d at 217 (holding that a debt
was not subject to the FDCPA when the court ordered the plaintiff to pay his ex-wife’s legal fees
from post-divorce litigation based on his non-compliance with court orders); Vaile v. Willick, No.
6:07cv00011, 2008 WL 204477, *6 (W.D. Va. Jan. 24, 2008) (attempting to collect a debt that
arose from a tort or court order was not subject to the FDCPA because it was not a consumer
transaction). Had this been the only debt in question, my analysis would be complete because it
does not arise out of a consumer transaction, and therefore, it does not permit Plaintiff to bring a
claim under the FDCPA.
I now turn to the fact that the money turned over was not solely the $6,700.00 awarded to
Ms. Kitchings and Mr. Shelton, but an additional $1,100.00 for a total of $7,800.00. Plaintiff
alleges that this increase occurred during his malpractice suit against the Sanders and that it was
due to “Defendants illegally add[ing] post interest judgment [sic] to the alleged $6,700.00 initial
debt.” 2d Am. Compl. ¶¶ 113–14, 119. Plaintiff acknowledges that the $7,800 debt was reduced
to writing in the form of the Term Sheet and the Release Agreement.8 The Term Sheet and the
Release Agreement are unambiguous that reserving $7,800 from the $95,000 settlement was
Plaintiff refers to both of these documents repeatedly, and Defendants attached them to their
motion to dismiss. Plaintiff does not dispute the authenticity of either document. Therefore I am
permitted to rely on them and in doing so, I will not convert this motion to a motion for summary
judgment. See Sposato, 2013 WL 1308582, at *2.
based on the “garnishment held by Mr. Shelton and Valerie Kitchings.” Term Sheet ¶ 4; see also
Release Agreement ¶ 6. Further, the Release Agreement states that it is “in the total amount of
$6,700.00 plus post-judgment interest.”
Release Agreement ¶ 6.
It is clear from these
documents that it was not based on Plaintiff seeking services or conducting a consumer
transaction. Although it may have been part of the Sanders malpractice litigation and settlement,
the money Plaintiff received was segregated pursuant to a Writ of Garnishment issued in his
divorce proceeding. Id. At no time was this debt owed based on a consumer transaction, and
thus, Plaintiff cannot bring claims under the FDCPA.9 See Mabe, 32 F.3d at 88.
Maryland Consumer Debt Collection Act
Plaintiff parrots his FDCPA allegations against Defendants as a claim under the
MCDCA. “To plead a claim under the MCDCA, Plaintiff must set forth factual allegations
tending to establish two elements: (1) that Defendants did not possess the right to collect the
amount of debt sought; and (2) that Defendants attempted to collect the debt knowing that they
lacked the right to do so.” Lewis v. McCabe Weisberg & Conway, No. DKC 13-1561, 2014 WL
3845833, at *6 (D. Md. Aug. 4, 2014). However, it must first be established that Defendants
were attempting to collect a debt and that they were subject to the statutory prohibitions of the
MCDCA. The MCDCA defines a collector as “a person collecting or attempting to collect an
alleged debt arising out of a consumer transaction,” and a consumer transaction as “any
transaction involving a person seeking or acquiring real or personal property, services, money, or
credit for personal, family, or household purposes.” Md. Code Ann. Com. Law § 14-202. As
this claim depends upon the same factual allegations as previously discussed in Plaintiff’s
As the debt owed is not one subject to the FDCPA, I need not address Defendants’ arguments
that they are not debt collectors and that this claim is barred by the statute of limitations, res
judicata, and collateral estoppel.
FDCPA claim, Plaintiff has insufficiently pleaded that the debt arose out of a consumer
transaction. Again, the debt stems from a court award during a divorce proceeding wherein
Plaintiff was ordered to pay money to his ex-wife and her attorney. See Allen v. Silverman
Theologou, LLP, No. JFM-14-3257, 2015 WL 2129698, at *5 (D. Md. May 6, 2015) (finding the
MCDCA and FDCPA definitions for consumer transaction to be analogous).
Count 2: First and Fourteenth Amendment Violations pursuant to 42 U.S.C § 1983
“Section 1983 provides a remedy against any person who, acting under color of law,
deprives another of constitutional rights.” Bixler v. Harris, No. WDQ-12-1650, 2013 WL
2422892, at *5 (D. Md. June 3, 2013) (citing 42 U.S.C. § 1983). Liability under § 1983 “is
imposed only for deprivations carried out under color of law,” which is “‘equivalent to the “state
action” requirement under the Fourteenth Amendment.’” Goldstein v. Chestnut Ridge Volunteer
Fire Co., 218 F.3d 337, 341 (4th Cir. 2000) (citations omitted). “State action” exists where there
is “an alleged constitutional deprivation ‘caused by the exercise of some right or privilege
created by the State or by a rule of conduct imposed by the State or by a person for whom the
State is responsible,’” and the actor is “a person who may fairly be said to be a state actor.” Am.
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citation omitted).
Plaintiff alleges that Ms. Kitchings violated his First and Fourteenth Amendment rights
because she was acting under the color of law as an Assistant Attorney General for the State of
Texas’s Office of Child Support Enforcement. 2d Am. Compl. ¶¶ 9–10; 17–19. Additionally
Plaintiff alleges that Ms. Kitchings “is also employed as a state employed debt collecting
attorney of consumer debt (in the form of “child support”) for both the state of Texas and for the
custodial parents that she advocates on their behalf . . . .” Id. ¶ 32. Plaintiff also alleges that Ms.
Kitchings “was acting under color of state law as an Assistant Attorney General of Child Support
Enforcement, Supervisory Attorney, Texas, when she testified under oath in Anne Arundel
County Circuit Court to create the alleged ‘consumer debt.’” Id. ¶ 207. He believes his First
Amendment right to free speech was “stymie[d]” by Ms. Kitchings actions to collect the
judgment against him. Id. at ¶ 212. Although Count 2 states it is against Ms. Kitchings, the
Second Amended Complaint also claims that she allegedly is liable for the actions of her agent,
Mr. Shelton. Id. ¶¶ 211–15. Ms. Kitchings denies that she is an Assistant Attorney General in
Texas and that as a private individual, she is not a state actor pursuant to § 1983. Defs.’ Mot. 19.
Plaintiff has not named as defendants any government officials. “Action by a private
party . . . , without something more, [is] not sufficient to justify a characterization of that party as
a ‘state actor.’ . . . [T]hat ‘something more’ which would convert the private party into a state
actor might vary with the circumstances of the case.” Lugar v. Edmondson Oil Co., 457 U.S.
922, 939 (1982). The divorce proceeding between Plaintiff and Ms. Kitchings—where the
alleged state action occurred—is personal in nature and bears no relation to Ms. Kitchings
alleged employment or any action by the State itself. Ms. Kitchings and Mr. Shelton are private
persons, and Plaintiff only has made a conclusory allegation that they were “acting under color
of law.” See 2d Am. Compl. ¶¶ 207–08. Conclusory allegations that simply recite an element of
a § 1983 claim are insufficient to plead state action. See Iqbal, 556 U.S. at 678–79. Therefore,
as private parties, Ms. Kitchings and Mr. Shelton plausibly cannot be characterized as state
actors. See Lugar, 457 U.S. at 939. Consequently, there is no “state action” and Plaintiff cannot
state a § 1983 claim against Defendants. See Am. Mfrs. Mut. Ins. Co., 526 U.S. at 50; Goldstein,
218 F.3d at 341; see also Donlan v. Smith, 662 F. Supp. 352, 360 (D. Md. 1986) (finding that an
attorney was not subjected to § 1983 when representing his client in his official capacity at
divorce proceedings). Accordingly, I will dismiss Plaintiff’s § 1983 claims. See Fed. R. Civ. P.
12(b)(6). Because of Plaintiff’s failure to plead the essential state actor element, his § 1983
claims are not susceptible to amendment and will be dismissed with prejudice. See Curry v.
Farmer, 2 F.3d 1149, 1993 WL 311947, at *1 n.* (4th Cir. 1993) (modifying “district court’s
dismissal to a dismissal with prejudice” due to “absence of an allegation of actions under color of
state law or in conjunction with state actors”; citing Lugar, 457 U.S. at 937).
Counts 4, 5, 7, 11, 12, 14, 15, 16, 17, 18: Plaintiff’s Failure to Respond to Arguments
When a defendant’s motion to dismiss a complaint states specific deficiencies that
warrant dismissal, and presents supporting legal arguments, it is the plaintiff’s obligation to
respond substantively to address them.
Failure to respond to the defendants arguments
constitutes abandonment of those claims. See Whittaker v. David's Beautiful People, Inc., No.
DKC-14-2483, 2016 WL 429963, at *3 n.3 (D. Md. Feb. 4, 2016); Sewell v. Strayer Univ., 956
F. Supp. 2d 658, 669 n.9 (D. Md. 2013); Ferdinand–Davenport v. Children's Guild, 742 F. Supp.
2d 772, 777 & 783 (D. Md. 2010). Any abandoned claims are subject to dismissal with
prejudice. Sewell, 2013 WL 6858867, at *4 (“retaliation claim was dismissed with prejudice . . .
because she abandoned [the] claim by failing to address it in the reply brief.”); Farrish v. Navy
Fed. Credit Union, No. DKC-16-1429, 2017 WL 4418416, at *3 (D. Md. Oct. 5, 2017).
Defendants argue that Plaintiff has not sufficiently pleaded Counts 4 (intentional
infliction of emotional distress), 5 (fraud), 7 (unjust enrichment), 14 (legal malpractice), 15
(breach of fiduciary duty), 17 (violation of privacy), and 18 (breach of contract). In each count,
Defendants argue that he fails to plead specific facts to state one or more of the required
elements of each claim. While Plaintiff in many of these counts purports to respond to their
arguments in an off-hand and conclusory way, none of his responses address his failure to plead
the specific essential elements Defendants argue he failed to have plead in his Second Amended
Complaint. And in the case of Counts 12 and 18, Plaintiff did not offer any response at all to
Defendants arguments. Pl.’s Opp’n 18, 20. Therefore, Plaintiff has abandoned these counts by
not responding to Defendants’ arguments regarding his insufficient pleadings. See Ferdinand–
Davenport, 742 F. Supp. 2d at 777. Further, Plaintiff did not respond to the defense raised by
Defendants in Count 16 (defamation) or to the fact that Defendants argue that Counts 11 (civil
conspiracy) and 12 (vicarious liability) are not independent torts under Maryland law. As such,
these too are dismissed with prejudice. Id.
Counts 3, 6, 8, 9, 10, 13, and 19 through 24
Plaintiff’s remaining claims all arise under state law. 2d Am. Compl. ¶¶ 235–437. If
Plaintiff stated a viable FDCPA or § 1983 claim, then I could exercise supplemental jurisdiction
over these claims. 28 U.S.C. § 1367(a). But when a district court “dismisse[s] all claims over
which [it] enjoys original jurisdiction,” it “may decline to exercise supplemental jurisdiction”
over remaining state-law claims.
Id. § 1367(c)(3).
“[T]rial courts enjoy wide latitude in
determining whether or not to retain jurisdiction over state claims when all federal claims have
been extinguished.” Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995). I will decline to
exercise supplemental jurisdiction over the remaining state-law claims, especially in light of the
protracted litigation history and voluminous state court records that would have to be examined
to resolve them. Additionally, the remaining claims appear to be factually independent of those I
have addressed in this memorandum.
Further, Defendants’ argue that Counts 3, 6, 13, 20, 22, 23, and 24 are barred by res
judicata or collateral estoppel. Res judicata “bars a party from suing on a claim that has already
been litigated to a final judgment by that party or such party’s privies and precludes the assertion
by such parties of any legal theory, cause of action, or defense which could have been asserted in
that action.” Reid v. New Century Mortg. Corp., No. AW-12-2083, 2012 WL 6562887, at *3 (D.
Md. Dec. 13, 2012) (quoting Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 210
(4th Cir. 2009)) (citation and internal quotation marks omitted). When considering this defense,
“a court may take judicial notice of facts from a prior judicial proceeding when the res judicata
defense raises no disputed issue of fact.” Kalos, 2012 WL 6210117, at *2 (quoting Andrews, 201
F.3d at 524 n.1). And, when a federal court litigant asserts res judicata based on a state court
judgment, “[the] federal court must give to [the] state court judgment the same preclusive effect
as would be given that judgment under the law of the State in which the judgment was rendered.”
Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984). Under Maryland law, res
judicata, or claim preclusion, provides grounds for dismissal if a defendant establishes that
“(1) the present parties are the same or in privity with the parties to the earlier dispute, (2) the
claim presented is identical to the one determined in the prior adjudication, and (3) there has
been a final judgment on the merits.” Capel v. Countrywide Home Loans, Inc., No. WDQ-092374, 2010 WL 457534, at *3 (D. Md. Feb. 3, 2010) (citing Anne Arundel County Bd. of Educ. v.
Norville, 887 A.2d 1029, 1037 (Md. 2005)).
Collateral estoppel, also known as issue preclusion, “works to ensure that parties get ‘one
full and fair opportunity to litigate a particular issue, while preventing needless relitigation of
that issue.’” Barna Conshipping, S.L. v. 2,000 Metric Tons, More or Less, of Abandoned Steel,
410 Fed. App’x. 716, 720 (4th Cir. 2011) (quoting In re Cygnus Telecomms. Tech., LLC, Patent
Litig., 536 F.3d 1343, 1350 (Fed. Cir. 2008)). Collateral estoppel bars relitigation of an issue or
(1) the issue or fact is identical to the one previously litigated; (2) the issue or fact
was actually resolved in the prior proceeding; (3) the issue or fact was critical and
necessary to the judgment in the prior proceeding; (4) the judgment in the prior
proceeding is final and valid; and (5) the party to be foreclosed by the prior
resolution of the issue or fact had a full and fair opportunity to litigate the issue or
fact in the prior proceeding.
In re Microsoft Corp. Antitrust Litig., 355 F.3d 322, 326 (4th Cir. 2004) (emphasis added).
Under either theory, I would be required to delve into the voluminous records of the state
courts to determine the parties involved and the matters that were adjudicated on the merits to
determine if res judicata or collateral estoppel applied. As I stated above, all of these claims also
involve state law. In order to determine if either doctrine applied, I would also be required to
analyze the elements of each claim and if each were decided in a prior proceeding. Had any of
the federal claims survived, I would be responsible for doing so. But they did not, and the job of
analyzing the scope and extent of a series of court orders rendered by a variety of state courts
involving claims under state law more appropriately is done by those courts themselves. I
therefore, leave the remaining claims to the state courts to determine if they are barred by res
judicata or collateral estoppel.
In sum, Plaintiff has failed to state a claim against all Defendants in Count 1 under the
FDCPA and MCPA and against Ms. Kitchings and Mr. Shelton for constitutional violations
pursuant to § 1983 in Count 2. Therefore, Counts 1 and 2 are dismissed with prejudice. Plaintiff
already had the opportunity to amend to address the deficiencies Defendants identified in his
original complaint pertaining to his FDCPA and MCPA claims. As Ms. Kitchings and Mr.
Shelton are not state actors and were acting in their personal capacity further amendment would
be futile. Thus, Plaintiff’s § 1983 claims will be dismissed with prejudice. McLean v. United
States, 566 F.3d 391, 400–01 (4th Cir. 2009) (“Once a court has determined that the complaint is
truly unamendable, a dismissal without prejudice is of little benefit to the litigant, as the claim
cannot be made viable through reformulation.” (internal citation omitted)).
Due to Plaintiffs lack of response to Defendants’ arguments to dismiss his claims in
counts 4, 5, 7, 11, 12, and 14 through 18, he has abandoned those claims and they too are
dismissed with prejudice. Finally, I decline to exercise supplemental jurisdiction over counts 3,
6, 8, 9, 10, 13, and 19 through 24 or to determine if they are barred by res judicata or collateral
estoppel. Counts 3, 6, 8, 9, 10, 13, and 19 through 24 are dismissed without prejudice.
Accordingly, for the reasons stated in this Memorandum Opinion and Order, it is,
this 12th day of January, 2018, hereby ORDERED that
1. Defendants’ Motions to Dismiss, ECF No. 38, IS GRANTED;
2. Counts 1, 2, 4, 5, 7, 11, 12, 14 through 18 of Plaintiff’s Second Amended Complaint
ARE DISMISSED WITH PREJUDICE;
3. Counts 3, 6, 8, 9, 10, 13, and 19 through 24 of Plaintiff’s Second Amended
Complaint ARE DISMISSED WITHOUT PREJUDICE; and
4. The Clerk SHALL MAIL a copy of this Memorandum Opinion and Order to Plaintiff
and CLOSE THIS CASE.
Paul W. Grimm
United States District Judge
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