NOWLIN v. FIRST BANK AND TRUST
Filing
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MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 06/25/2013. ORDERED that Plaintiff's Application to Proceed In Forma Pauperis (Docket Entry 1 ) is GRANTED F OR THE LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL. RECOMMENDED that this action be dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and for failure to comply with a court order pursuant to Federal Rule of Civil Procedure 41(b).(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
HASSIE-DEMOND NOWLIN,
Plaintiff,
v.
FIRST BANK AND TRUST,
Defendant.
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1:12CV1207
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on Plaintiff’s Application
for Leave to Proceed In Forma Pauperis (Docket Entry 1), filed with
a pro se Complaint (Docket Entry 2).
For the reasons that follow,
pauper status will be granted for the limited purpose of entering
a recommendation of dismissal for failure to state a claim and
failure to comply with a court order.
LEGAL BACKGROUND
“The federal in forma pauperis statute, first enacted in 1892
[and now codified at 28 U.S.C. § 1915], is intended to guarantee
that no citizen shall be denied access to the courts ‘solely
because his poverty makes it impossible for him to pay or secure
the costs.’”
Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953
(4th Cir. 1995) (en banc) (quoting Adkins v. E.I. DuPont de Nemours
& Co., 335 U.S. 331, 342 (1948)).
“Dispensing with filing fees,
however, [is] not without its problems.
Parties proceeding under
the statute d[o] not face the same financial constraints as
ordinary litigants.
In particular, litigants suing in forma
pauperis d[o] not need to balance the prospects of successfully
obtaining relief against the administrative costs of bringing
suit.”
Nagy v. Federal Med. Ctr. Butner, 376 F.3d 252, 255 (4th
Cir. 2004).
To address this concern, the relevant statute provides, in
pertinent part, that “the [C]ourt shall dismiss the case at any
time if [it] determines that . . . the action . . . fails to state
a claim on which relief may be granted . . . .”
§ 1915(e)(2).
28 U.S.C.
A complaint falls short under this standard when it
does not “contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (internal
citations omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). In other words, the applicable standard “demands
more
than
an
accusation.”
true
all
of
unadorned,
Id.
Moreover, “the tenet that a court must accept as
the
the-defendant-unlawfully-harmed-me
allegations
contained
inapplicable to legal conclusions.
in
a
complaint
is
Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.”
Id.1
1
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
2
DISCUSSION
The instant Complaint purports to assert a claim by Plaintiff
under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C.
§
1692k(a),
based
on
Defendant’s
alleged
violation
of
said
statute’s restrictions on collection activities after demands for
validation of a debt, 15 U.S.C. § 1692g(b).
3-4.)
(See Docket Entry 2 at
It alleges that Defendant is a “debt collector[] within the
meaning of the FDCPA” (id. at 3), but lacks any factual matter to
support
that
bald
assertion
(id.
at
1-4).
Moreover,
other
allegations in the Complaint indicate that Defendant was seeking to
collect on a credit card it issued to Plaintiff (see id. at 2),
such that Defendant was a creditor, not a debt collector, within
the meaning of the FDCPA, see 15 U.S.C. § 1692a(4) and (6).
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)).
3
In an attempt to determine, inter alia,2 if Plaintiff could
provide factual matter sufficient to support an inference that
Defendant qualified as a “debt collector” under the FDCPA, such
that Plaintiff could state a claim under the FDCPA and could pursue
this action as a pauper, the Court (per the undersigned United
States Magistrate Judge) noticed this case for a hearing to occur
on June 24, 2013.
(See Docket Entry 6.)
Said Notice expressly
warned Plaintiff that a “[f]ailure to appear for proceedings may
result in dismissal of this action pursuant to Fed[eral] Rule [of]
Civil Procedure 41(b).”
directed.
(Id. at 1.)
Plaintiff did not appear as
(See Minute Entry dated June 24, 2013.)
Under these circumstances, the Court should dismiss this case
under Section 1915(e)(2) for failure to state a claim.
See, e.g.,
Iqbal, 556 U.S. at 678 (mandating that plaintiffs provide “factual
matter” to support claims and ruling “legal conclusions” and
“conclusory statements” insufficient); Horton v. HSBC Bank, No.
1:11CV3210TWT, 2013 WL 2452273, at *8 (N.D. Ga. June 5, 2013)
2
The Complaint also contains a number of inconsistencies or
omissions concerning the dates of relevant events, a matter
“material when testing the sufficiency of a pleading,” Fed. R. Civ.
P. 9(f). (See Docket Entry 2 at 2-3.) In addition, Plaintiff’s
Application seeking pauper status features inconsistent answers as
to the existence of a spouse (see Docket Entry 1 at 1-2), offers an
ambiguous response regarding his income (see id. at 2), and claims
100% responsibility for the support of a child as to whom another
litigant in this Court makes the same claim (compare id. at 3, with
Thompson v. SCA Collections, No. 1:12CV955, Docket Entry 1 at 3).
The Court intended to address those matters with Plaintiff at the
hearing as well.
4
(unpublished) (“Reciting the statutory definition without offering
any facts in support is insufficient to plausibly allege that
Defendants qualify as debt collectors under the FDCPA.
On this
basis alone, Plaintiff’s FDCPA claim should be dismissed.”); Garcia
v. Jenkins/Babb LLP, No. 3:11-CV-3171-N-BH, 2012 WL 3847362, at *7
(N.D. Tex. July 31, 2012) (unpublished) (“Plaintiffs’ description
of the Jenkins/Babb Defendants as ‘debt collectors’ is a legal
conclusion which courts are not bound to accept as true. . . .
The
factual allegations in the amended complaint are insufficient to
establish that any of the Jenkins/Babb Defendants were either
engaged ‘in any business the principal purpose of which is the
collection of any debts’ or that they ‘regularly collect or attempt
to collect debts.’ This failure is fatal to the claim against them
under Iqbal.” (internal ellipses omitted)).
Additionally,
“[t]he
Federal
Rules
of
Civil
Procedure
recognize that courts must have the authority to control litigation
before them, and this authority includes the power to order
dismissal of an action for failure to comply with court orders.”
Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (citing Fed. R.
Civ. P. 41(b)).
In this case, Plaintiff disobeyed the Court’s
directive to appear for a hearing under circumstances warranting
dismissal pursuant to Federal Rule of Civil Procedure 41(b) for
failure to comply with a court order.
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In making this recommendation, the undersigned Magistrate
Judge recognizes that “dismissal is not a sanction to be invoked
lightly.”
Id.
Generally, before dismissing an action under
Federal Rule of Civil Procedure 41(b), a court should consider:
“(i) the degree of personal responsibility of the plaintiff;
(ii) the amount of prejudice caused the defendant; (iii) the
existence of a history of deliberately proceeding in a dilatory
fashion; and (iv) the existence of a sanction less drastic than
dismissal.” Id. In this case, Plaintiff bears sole responsibility
for the instant non-compliance, the conduct at issue prejudiced
Defendant by delaying the litigation unduly (and thus depriving
Defendant of the opportunity to defend against this lawsuit while
memories remain freshest and before the risk of loss of pertinent
documents grows), the record reflects a pattern of unfounded
litigation
by
Plaintiff
(including
the
filing
of
a
legally
insufficient complaint in this case and at least two others, see
Nowlin v. Avis Budget Grp., No. 1:11CV511 (M.D.N.C. Jan. 24, 2012)
(unpublished) (adopting recommendation of dismissal for failure to
state a claim); Nowlin v. American Home MTG SVC, No. 1:11CV20
(M.D.N.C. Aug. 29, 2011) (unpublished) (same)), and no other
sanction appears feasible or sufficient.
As
to
that
last
point,
the
Notice
specifically
warned
Plaintiff that his failure to appear at the hearing could result in
dismissal of this case.
“In view of th[at] warning, the [Court]
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ha[s] little alternative to dismissal. Any other course would have
[the effect of] plac[ing] the credibility of the [C]ourt in doubt
and invit[ing] abuse.”
IT
IS
THEREFORE
Id.
ORDERED
that
Plaintiff’s
Application
to
Proceed In Forma Pauperis (Docket Entry 1) is GRANTED FOR THE
LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION
OF DISMISSAL.
IT IS RECOMMENDED that this action be dismissed for failure to
state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and for failure
to comply with a court order pursuant to Federal Rule of Civil
Procedure 41(b).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
June 25, 2013
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