KIRBY v. PINNACLE CORPORATION SERVI

Filing 4

MEMORANDUM OPINION, ORDER AND RECOMMENDATION signed by MAG/JUDGE L. PATRICK AULD on 3/25/2014. 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. RECOMMENDED that this action be dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B). (Butler, Carol)

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

JAIME KIRBY,
Plaintiff,
v.
PINNACLE CORPORATE SERVI,
Defendant.

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1:13CV1047

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This

case

comes

before

the

undersigned

United

States

Magistrate Judge on Plaintiff’s Application for Leave to Proceed In
Forma Pauperis (Docket Entry 1).

For the reasons that follow,

pauper

solely

status

will

be

granted

for

the

purpose

of

recommending dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B).
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 standards than formal pleadings drafted by lawyers,”
(continued...)
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DISCUSSION
This case began November 20, 2013, 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 and for violations of the Fair Debt
Collection

Practices

Act

(FDCPA)

15

U.S.C.

§1692

et

seq[.]”

(Docket Entry 2 at 1; see also id. at 3-5 (setting forth two causes
of action under FCRA and one under FDCPA).)
assert state-law claims.
non-conclusory

factual

(See id. at 5-7.)
allegation

Defendant appears as follows:

in

the

It also purports to
The only material,
Complaint

regarding

“Plaintiff found after examination

of her Equifax, Trans Union and Experian consumer credit reports
that Defendant had obtained Plaintiffs [sic] Equifax, Trans Union

1

(...continued)
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)).
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and Experian consumer credit reports in 3 2012.”
(underlining

in

original).)

The

Complaint

also

(Id. at 2
states

that

“Plaintiff sent dispute letter and asked for validation of alleged
debt by USPS mail” (id.), but fails to identify to whom Plaintiff
sent said dispute letter or what it disputed.
The

undersigned

Magistrate

Judge

also

determined

that

Plaintiff’s IFP Application and Complaint bear a number of unusual
similarities both of form and substance to a number of other pauper
applications and complaints filed pro se in this Court, 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,” “COUNT III,” “RECKLESS AND WANTON CONDUCT,” “ALL DEFENDANTS
INVASION

OF

PRIVACY,”

“ALL

DEFENDANTS

DEFENDANTS INTENTIONAL MISREPRESENTATION.”

DEFAMATION,”

and

“ALL

(Compare Docket Entry

2, with Nowlin v. Fair Collections, No. 1:13CV1109, Docket Entry 2;
Nowlin v. Capital One, No. 1:13CV1108, Docket Entry 2; Ferguson v.
North Carolina Dep’t of Health & Human Servs., No. 1:12CV493,
Docket

Entry

2;

Golden

v.

Firstpoint

Collection

Serv.,

No.

1:12CV875, Docket Entry 2; Shamberger v. Firstpoint Collection
Serv., No. 1:12CV876, Docket Entry 2; Golden v. Absolute Collection

-4-

Servs.,

No.

1:12CV956,

Docket

Entry

2;

Durham

v.

Absolute

Collection Servs., No. 1:12CV957, Docket Entry 2; Grant v. Absolute
Collection Servs., No. 1:12CV958, Docket Entry 2; Ferguson v.
Absolute Collection Serv., No. 1:12CV1023, Docket Entry 2; Golden
v.

NCO

Fin.

Sys.,

No.

1:12CV1097,

Docket

Entry

2;

James

v.

Firstpoint Collection Serv., No. 1:12CV1098, Docket Entry 2; and
Wiggins v. Credit Mgmt., No. 1:11CV1093, Docket Entry 2.)
Given the foregoing circumstances, and in an attempt to
determine, inter alia, if Plaintiff could provide factual matter
sufficient to support an inference that Defendant qualified as a
“debt collector” under the FDCPA or, alternatively, that Defendant
did not have a “permissible purpose” for obtaining Plaintiff’s
credit report under the FCRA, the undersigned Magistrate Judge set
this case for a hearing on Plaintiff’s instant IFP Application.
(See Text Order dated Nov. 22, 2013.)2

At said hearing, Plaintiff

indicated that she had obtained the Complaint and IFP Application
from “friends of friends” and that she could provide more factual
information regarding the allegations in the Complaint.
Minute Entry dated Dec. 16, 2013.)3

(See

The Court ordered her to file

an amended complaint by February 18, 2014, detailing the facts

2

The Court also set for a hearing the same day a second,
nearly identical case Plaintiff filed against a different
Defendant.
See Kirby v. SCA Collections, No. 1:13CV1048, Text
Order dated Nov. 22, 2013.
3

The Clerk maintains an audio-recording of the proceeding.
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surrounding her allegations and the specific damages she suffered.
(See id.)

To date, Plaintiff has made no such filing.

(See Docket

Entries dated Dec. 16, 2013, to present.)
Under these circumstances, the Court should dismiss this case
under Section 1915(e)(2)(B) 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).

The Complaint purports

to assert two claims under the FCRA based on Defendant’s alleged
obtaining

of

Plaintiff’s

credit

report

purpose. (See Docket Entry 2 at 3.)

without

a

permissible

The Complaint lacks any

indication that Plaintiff ever contacted Defendant directly to ask
why Defendant obtained Plaintiff’s credit report or other factual
showing that Defendant lacked a permissible purpose.
1-8.)

(See id. at

Further, the Complaint contains only a bald assertion that

Defendant
damages.

acted

wilfully

(See id. at 3.)

and

that

Plaintiff

suffered

actual

In several separate, recent cases, this

Court, under similar circumstances, dismissed for failure to state
a claim complaints featuring such FCRA claims.

See, e.g., Golden

v. NCO Fin. Sys., No. 1:12CV1097, 2013 WL 4519774 (M.D.N.C. Aug.
26, 2013) (unpublished), recommendation adopted, slip op. (M.D.N.C.
Sept. 13, 2013) (Schroeder, J.); James v. Paragon Revenue Grp., No.
1:12CV1371, 2013 WL 3243553 (M.D.N.C. June 26, 2013) (unpublished),
recommendation

adopted,

slip

op.

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(M.D.N.C.

July

23,

2013)

(Schroeder, J.); King v. Equable, No. 1:12CV443, 2013 WL 2474377
(M.D.N.C. June 10, 2013) (unpublished) (Eagles, J.).

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 45), the lone non-conclusory factual allegation against Defendant in
the Complaint, i.e., that Defendant obtained Plaintiff’s credit
report (see

id.

at 2),4

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
4)). The Court therefore should likewise dismiss Plaintiff’s FDCPA

4

As previously noted, the allegation in the Complaint
about a dispute letter does not refer to Defendant or the contents
of the letter.
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claim.

See, e.g., Horton v. HSBC Bank, No. 1:11CV3210TWT, 2013 WL

2452273, at *8 (N.D. Ga. June 5, 2013) (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. 3:11CV-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)).5
IT

IS

THEREFORE

ORDERED

that

Plaintiff’s

Application

to

Proceed In Forma Pauperis (Docket Entry 1) is GRANTED FOR THE

5

Nor would any allegations in the Complaint sustain any of
the purported state-law claims. See generally Snipes v. Alamance
Cnty. Clerk of Cts., No. 1:11CV1137, 2013 WL 4833021, at *5
(M.D.N.C. Sept. 10, 2013) (unpublished) (discussing requirements of
same state-law claims), recommendation adopted, slip op. (M.D.N.C.
Sept. 30, 2013). Indeed, those state-law claims appear to focus on
unspecified reporting of information about Plaintiff (see Docket
Entry 2 at 5-7), but the Complaint lacks any non-conclusory
allegations of any such conduct by Defendant.
-8-

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).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
March 25, 2014

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