GOLDEN v. FIRSTPOINT COLLECTION SERVICE

Filing 18

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 8/23/2013, recommending that Plaintiff's Motion for Entry of Default Judgment (Docket Entry 12 ) be denied and that Defendant's Motion to Dismiss (Docket Entry 13 ) be granted.(Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MICHELLE GOLDEN,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
FIRSTPOINT COLLECTION
SERVICE,
Defendant.

1:12CV875

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This
Magistrate

case

comes

Judge

on

before

the

Plaintiff’s

undersigned

Motion

for

United

Entry

of

States
Default

Judgment (Docket Entry 12) and Defendant’s Motion to Dismiss
(Docket Entry 13).

(See Docket Entry dated Jan. 16, 2013.)

For

the reasons that follow, the Court should decline to enter a
default judgment against Defendant and, instead, should dismiss
Plaintiff’s Complaint for failure to state a claim.
BACKGROUND
This case began August 14, 2012, when Plaintiff (or someone
using her name) filed a pro se Complaint (Docket Entry 2), along
with an Application for Leave to Proceed In Forma Pauperis (“IFP
Application”)

(Docket

Entry

1).

The

Complaint

contains

a

“PRELIMINARY STATEMENT,” describing the case as “an action for
damages brought for violations of the Fair Credit Reporting Act
(FCRA) 15 U.S.C. §1681 et seq[.]”

(Docket Entry 2 at 1; see also

id. at 3-4 (setting forth two causes of action under FCRA).)

It

also purports to assert a claim under the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and various
state-law claims.

(See id. at 5-9.)

The only material, non-

conclusory factual allegation in the Complaint regarding Defendant
appears as follows:

“Plaintiff found after examination of his

[sic] Equifax Trans Union and Experian consumer credit report that
Defendant had obtained Plaintiffs [sic] Equifax Trans Union and
Experian consumer credit report in January 2011.”

(Id. at 2.)

The Court (per United States Magistrate Judge Joi E. Peake)
granted

the

IFP

Application

(Docket Entry 4.)

and

ordered

service

of

process.

The Clerk subsequently docketed a Process

Receipt and Return form submitted by the United States Marshals
Service reflecting that it served Defendant on August 21, 2012.
(Docket Entry 7.)

On September 4, 2012, Defendant timely moved1

for an extension of time to answer or otherwise to respond (Docket
Entry 9), which the Court (per the undersigned Magistrate Judge)
granted, thereby extending until October 11, 2012, the deadline for
Defendant to make a responsive filing (Text Order dated Sept. 10,
2012).

On

October

10,

2012,

Plaintiff

(or

someone

using

Plaintiff’s name) filed her instant Motion for Entry of Default

1

Defendant originally had 21 days from August 21, 2012, to
respond to the Complaint. See Fed. R. Civ. P. 12(a)(1)(A)(i).
-2-

Judgment.

(Docket Entry 12.)

instant Motion to Dismiss.

That same day, Defendant filed its

(Docket Entry 13.)2

The Clerk promptly mailed Plaintiff a letter explaining that
she had “the right to file a 20-page response in opposition to
[D]efendant’s [M]otion [to Dismiss].” (Docket Entry 15 at 1.) The
letter advises Plaintiff of the amount of time for a response and
specifically cautions her that a “failure to respond . . . within
the

allowed

time

may

cause

the

[C]ourt

to

conclude

that

[D]efendant’s contentions are undisputed and/or that [Plaintiff] no
longer wish[es] to pursue the matter.”
that,

“unless

[Plaintiff]

files

a

(Id.)

response

It further warns
in

opposition

to

[D]efendant’s [M]otion [to Dismiss], it is likely [her] case will
be dismissed . . . .”

(Id.)

Plaintiff did not respond.

(See

Docket Entries dated Oct. 10, 2012, to present.)
Upon further review, the undersigned Magistrate Judge noticed
that the signatures on Plaintiff’s IFP Application, Complaint, and
instant Motion for Entry of Default Judgment differed and that the
third of those filings in particular featured a mere printed
version of Plaintiff’s name in the signature block (rather than a
traditional signature).

(See Docket Entry 1 at 3; Docket Entry 2

2

On October 23, 2012, Defendant timely responded to
Plaintiff’s instant Motion for Entry of Default Judgment (Docket
Entry 16) and Plaintiff did not reply (see Docket Entries dated
Oct. 23, 2012, to present).
Because Defendant responded to
Plaintiff’s Complaint by filing its instant Motion to Dismiss
within the time allowed by the Court, the Court should deny
Plaintiff’s instant Motion for Entry of Default Judgment.
-3-

at 9; Docket Entry 12 at 2.) Indeed, aspects of these “signatures”
(again, particularly on the instant Motion for Entry of Default
Judgment) matched the printed version of Plaintiff’s name on the
envelope used to convey that filing to the Clerk.

(Compare Docket

Entry 1 at 3, Docket Entry 2 at 9, and Docket Entry 12 at 2, with
Docket Entry 12-2 at 1.)

The undersigned Magistrate Judge also

determined that printing and “signatures” on these materials all
bear significant,

distinctive

similarities

to

printing

and/or

“signatures” on many other pauper applications, complaints, and/or
envelopes used to convey such documents in similar cases filed pro
se in this Court, particularly as to a unique, bubble-type dot on
the lower-case “i.”

(Compare, e.g., Docket Entry 1 at 1-3, Docket

Entry 2 at 9, Docket Entry 12 at 2, and Docket Entry 12-2 at 1,
with Wiggins v. Firstpoint Collections Res., No. 1:12CV451, Docket
Entry 1 at 1, 3, Docket Entry 2 at 9; Ferguson v. North Carolina
Dep’t of Health & Human Servs., No. 1:12CV493, Docket Entry 1 at 1,
3, Docket Entry 2 at 9; Shamberger v. Firstpoint Collection Serv.,
No.

1:12CV876,

Docket

Entry

1

at

1,

3;

Durham

v.

Absolute

Collection Servs., No. 1:12CV957, Docket Entry 1 at 3, Docket Entry
2-1 at 1; Grant v. Absolute Collection Servs., No. 1:12CV958,
Docket Entry 1 at 1, 3; Ferguson v. Absolute Collection Serv., No.
1:12CV1023, Docket Entry 1 at 1, 3, Docket Entry 2 at 9, Docket
Entry 2-1 at 1; and James v. Firstpoint Collection Serv., No.
1:12CV1098, Docket Entry 1 at 3, Docket Entry 2-1 at 1.)

-4-

Moreover, a review of the complaints in those cases revealed
a number of other unusual similarities both of form and substance,
including that most (like Plaintiff’s Complaint):

1) state under

the heading “JURISDICTION AND VENUE” that “jurisdiction of this
Court is conferred by 15 U.S.C. §1681p” and that “[v]enue is proper
in this Circuit pursuant to 28 U.S.C. §1391b”; and 2) set forth
virtually identical sections (including as to content, format,
style, and even typographical/scrivener errors) entitled “COUNT I,”
“COUNT II,” “15 U.S.C 1681b,” “COUNT III,” “RECKLESS AND WANTON
CONDUCT,” “COUNT THREE,” “COUNT FOUR,” “COUNT FIVE,” and “COUNT
SIX.” (Compare Docket Entry 2, with Wiggins, No. 1:12CV451, Docket
Entry 2; Ferguson, No. 1:12CV493, Docket Entry 2; Shamberger, No.
1:12CV876, Docket Entry 2; Durham, No. 1:12CV957, Docket Entry 2;
Grant, No. 1:12CV958, Docket Entry 2; Ferguson, No. 1:12CV1023,
Docket Entry 2; and James, No. 1:12CV1098, Docket Entry 2.)3
Given the foregoing circumstances, the undersigned Magistrate
Judge set this case for a hearing on Plaintiff’s instant Motion for

3

Another similar lawsuit also shared such characteristics,
except that it did not contain the sections after “COUNT III.”
(See Wiggins v. Credit Mgmt., No. 1:11CV1093, Docket Entry 1 at 13, Docket Entry 2 at 5.) Yet another lawsuit (not listed above)
matches the cases cited here except that its original complaint
appears to have a traditional signature.
(See Covington v.
Absolute Collection Serv., No. 1:12CV811, Docket Entry 2; but see
id., Docket Entry 12 at 5 (setting out printed name in signature
box for amended complaint).) Finally, Plaintiff (or someone using
Plaintiff’s name) also filed two additional cases with similar
features.
(See Golden v. Absolute Collection Servs., No.
1:12CV956; Golden v. NCO Fin. Sys., No. 1:12CV1097.)
-5-

Entry

of

Default

Judgment

and

Defendant’s

instant

Motion

to

Dismiss, on the same calendar with other similar cases.

(See

Docket Entry 17.)

(See

Plaintiff did not appear as directed.

Docket Entry dated Nov. 26, 2012.)

Moreover, only one of the

plaintiffs from the other similar cases noticed for proceedings
that day appeared and he denied preparing, signing, or filing any
documents in his case (or authorizing anyone else to do so), but
did acknowledge that he had talked to someone he knew only as
“Mussa” about

improving

his

credit

record.

(See

Grant,

No.

1:12CV958, Docket Entry dated Nov. 26, 2012.)4
DISCUSSION
“[P]ursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, [Defendant has] move[d] this Court for [an] [o]rder
dismissing Plaintiff’s claims . . . [for] fail[ure] to state a
claim for which relief can be granted . . . .”

(Docket Entry 13 at

1.) Under this Court’s Local Rules, Plaintiff’s failure to respond
to Defendant’s instant Motion to Dismiss generally warrants the
granting of the relief requested.

See M.D.N.C. R. 7.3(k).

reason exists to depart from that general rule here.

No

To the

contrary, a review of the record and relevant authority confirms
that the Court should dismiss this case.

4

The Clerk maintains an
proceedings from that calendar.
-6-

audio-recording

of

all

the

Under Rule 12(b)(6), Plaintiff’s Complaint falls short if it
does not “contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’”
v. Iqbal, 556

Ashcroft

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). In other words, the applicable
standard

“demands

more

than

an

unadorned,

the-defendant-unlawfully-harmed-me accusation.”

Id.

Moreover,

“the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.”

Id.5

In this case, the Complaint purports to assert two claims
under

the

FCRA

based

on

Defendant’s

alleged

obtaining

of

Plaintiff’s credit report without a permissible purpose. (See
Docket Entry 2 at 3.)

The Complaint lacks any indication that

5

Although the Supreme Court has reiterated that “[a] document
filed pro se is to be liberally construed and a pro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers,” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (internal citations and quotation
marks omitted), the United States Court of Appeals for the Fourth
Circuit has “not read Erickson to undermine Twombly’s requirement
that a pleading contain more than labels and conclusions,”
Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008)
(internal quotation marks omitted) (applying Twombly in dismissing
pro se complaint); accord Atherton v. District of Columbia Off. of
Mayor, 567 F.3d 672, 681–82 (D.C. Cir. 2009) (“A pro se complaint
. . . ‘must be held to less stringent standards than formal
pleadings drafted by lawyers.’ But even a pro se complainant must
plead ‘factual matter’ that permits the court to infer ‘more than
the mere possibility of misconduct.’” (quoting Erickson, 551 U.S.
at 94, and Iqbal, 556 U.S. at 679, respectively)).
-7-

Plaintiff ever contacted Defendant directly to ask why Defendant
obtained Plaintiff’s credit report.

(See id. at 1-9.)

Moreover,

Plaintiff’s IFP Application acknowledges several service accounts
(see Docket Entry 1 at 3), as to which collection or other activity
could occur so as to give rise to permissible grounds to obtain her
credit report, see 15 U.S.C. § 1681b (a)(3)(A), (C), (E), and (F).6
Further,

the

Complaint

contains

wilfully

and

only

Defendant

acted

that

damages.

(See Docket Entry 2 at 3.)

a

bald

Plaintiff

assertion
suffered

that

actual

In two separate, recent

cases, this Court, under similar circumstances, dismissed for
failure to state a claim complaints featuring such FCRA claims.
See James v. Paragon Revenue Grp., No. 1:12CV1371, 2013 WL 3243553
(M.D.N.C. June 26, 2013) (unpublished), recommendation adopted,
slip op. (M.D.N.C. July 23, 2013) (Schroeder, J.); King v. Equable,
No.

1:12CV443,

2013

WL

(unpublished) (Eagles, J.).

2474377

(M.D.N.C.

June

10,

2013)

The same result should occur here.

The other causes of action in the Complaint suffer from even
greater deficiencies.

For example, although Plaintiff purports to

assert a claim for violation of the FDCPA (see Docket Entry 2 at 56), the lone non-conclusory factual allegation in the Complaint,

6

Had Plaintiff appeared at the scheduled hearing, the
undersigned Magistrate Judge would have inquired as to whether she
possessed any additional factual information that would support an
inference that Defendant lacked a permissible purpose in obtaining
Plaintiff’s credit report, such that the Court should allow her an
opportunity to amend her Complaint.
By failing to appear as
directed, Plaintiff has waived any right to such consideration.
-8-

i.e., that Defendant obtained Plaintiff’s credit report (see id. at
2), does not even relate to, much less sufficiently support, a
finding that Defendant violated any of the cited FDCPA provisions
(such as “falsely representing the character, amount, or legal
status of any debt,” “communicating or threatening to communicate
to any person credit information which is known or which should be
known to be false,” “use of any false representation or deceptive
means to collect or attempt to collect any debt or to obtain
information concerning a consumer,” “failure to disclose in the
initial written communication . . . that the debt collector is
attempting to collect a debt,” “collection of any amount . . .
unless

such

amount

is

expressly

authorized

by

the

agreement

creating the debt or permitted by law,” and failing to send timely
written notice of rights to dispute the debt (id. at 5)).7
CONCLUSION
Defendant timely responded to Plaintiff’s Complaint and said
Complaint (which appears to represent part of a pattern of sham
litigation) fails to state a claim.

7

Similarly, for reasons well-explained by Defendant (see
Docket Entry 14 at 12-18), the allegation that Defendant obtained
Plaintiff’s credit report cannot sustain her purported state-law
claims (Docket Entry 2 at 6-9). Indeed, those claims appear to
focus on unspecified reporting of information about Plaintiff (see
id.), but the Complaint contains no factual allegations of such
conduct by Defendant (see id. at 1-9).
Plaintiff’s failure to
appear as directed at the hearing (at which time the Court could
have determined if she had factual information that would warrant
an opportunity to amend) supports proceeding directly to dismissal
of the FDCPA and state-law claims.
-9-

IT IS THEREFORE RECOMMENDED that Plaintiff’s Motion for Entry
of

Default

Judgment

(Docket

Entry

12)

be

denied

and

Defendant’s Motion to Dismiss (Docket Entry 13) be granted.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 23, 2013

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that