SHAMBERGER v. FIRSTPOINT COLLECTION SERVICE

Filing 18

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 08/23/2013; that Plaintiff's Motion for Entry of Default Judgment (Docket Entry 14 ) be denied and that Defendant's Motion to Dismiss (Docket Entry 12 ) be granted. (Garland, Leah)

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

TORAN SHAMBERGER,

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)
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)
)
)
)
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Plaintiff,
v.
FIRSTPOINT COLLECTION
SERVICE,
Defendant.

1:12CV876

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

(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 his 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

Equifax Trans Union and Experian consumer credit report that
Defendant had obtained Plaintiffs [sic] Equifax Trans Union and
Experian consumer credit report in 11/2010.”

(Id. at 2.)

The Court (per the undersigned Magistrate Judge) granted the
IFP Application and ordered service of process.

(Docket Entry 4.)

The Clerk subsequently docketed a Process Receipt and Return form
submitted by the United States Marshals Service reflecting that it
served Defendant on August 17, 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 9, 2012, the deadline for Defendant to make a
responsive filing (Text Order dated Sept. 6, 2012).
On October 9, 2012, Defendant filed its instant Motion to
Dismiss.

(Docket Entry 12.)

The Clerk promptly mailed Plaintiff

a letter explaining that he had “the right to file a 20-page

1

Defendant originally had 21 days from August 17, 2012, to
respond to the Complaint. See Fed. R. Civ. P. 12(a)(1)(A)(i).
-2-

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 him 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.”
(Id.)

It further warns that, “unless [Plaintiff] files a response

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

(Id.)

Plaintiff did not

(See Docket Entries dated Oct. 9, 2012, to present.)2

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 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 at 9; Docket Entry 14 at 2.)

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,

2

On October 10, 2012, Plaintiff (or someone using Plaintiff’s
name) filed his instant Motion for Entry of Default Judgment.
(Docket Entry 14.) On October 23, 2012, Defendant timely responded
in opposition (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-

complaints, motions, 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, and Docket Entry 12 at
2, 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; Golden v. Firstpoint
Collection Serv., No. 1:12CV875, Docket Entry 1 at 1-3, Docket
Entry 2 at 9, Docket Entry 12 at 2, Docket Entry 12-2 at 1; 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.)
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,”

-4-

“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; Golden, No.
1:12CV875, 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.)
Given the foregoing circumstances, the undersigned Magistrate
Judge set this case for a hearing on Plaintiff’s instant Motion for
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.)3
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

3

The Clerk maintains an
proceedings from that calendar.
-5-

audio-recording

of

all

the

dismissing Plaintiff’s claims . . . [for] fail[ure] to state a
claim for which relief can be granted . . . .”

(Docket Entry 12 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.
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

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

unadorned,
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.”

4

Id.4

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,”
(continued...)
-6-

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

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 debts and 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 his credit report, see 15 U.S.C. § 1681b (a)(3)(A), (C),
(E), and (F).5

Further, the Complaint contains only a bald

assertion that Defendant acted wilfully and that Plaintiff suffered
actual damages.

(See Docket Entry 2 at 3.)

In two separate,

recent cases, this Court, under similar circumstances, dismissed

4

(...continued)
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)).
5

Had Plaintiff appeared at the scheduled hearing, the
undersigned Magistrate Judge would have inquired as to whether
Plaintiff possessed any additional factual information that would
support an inference that Defendant lacked a permissible purpose in
obtaining Plaintiff’s credit report, such that he should have an
opportunity to amend his Complaint.
By failing to appear as
directed, Plaintiff has waived any right to such consideration.
-7-

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,
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

-8-

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)).6
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.
IT IS THEREFORE RECOMMENDED that Plaintiff’s Motion for Entry
of

Default

Judgment

(Docket

Entry

14)

be

denied

and

that

Defendant’s Motion to Dismiss (Docket Entry 12) be granted.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 23, 2013

6

Similarly, for reasons well-explained by Defendant (see
Docket Entry 13 at 12-18), the allegation that Defendant obtained
Plaintiff’s credit report cannot sustain his 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 he had factual information that would warrant an
opportunity to amend) supports proceeding directly to dismissal of
the FDCPA and state-law claims.
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