White v. RCS Recovery Services LLC et al

Filing 75

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION 61 : The Court ADOPTS the R&R 61 ; OVERRULES Whites objections 65 ; GRANTS the motion to dismiss filed by RCS 5 ; GRANTS the motion to dismiss filed by Lorain 6 ; GRANTS the moti on to dismiss filed by Wells Fargo 18 ; DENIES AS MOOT the motion to dismiss filed by BOA 48 ; DENIES AS MOOT the remaining motions filed by White 11 , 12 , 13 , 24 , 26 , 42 , 43 , and 54 ; andDISMISSES this case WITH PREJUDICE and ORDERS that it be stricken from the Courts active docket. Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk ofCourt to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 2/22/17. (Attachments: # 1 Certified Mail Return Receipt)(jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KENNETH A. WHITE
Plaintiff,
v.

//

CIVIL ACTION NO. 1:15CV140
(Judge Keeley)

RCS RECOVERY SERVICES LLC,
FIA CARD SERVICES, WELLS
FARGO BANK, AND LORAIN
NATIONAL BANK
Defendants.
MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 61]
Pending before the Court is the Report and Recommendation
entered by Magistrate Judge Michael J. Aloi, as well as the
objections

filed

by

the

pro

se

plaintiff,

Kenneth

A.

White

(“White”). For the reasons that follow, the Court ADOPTS the R&R,
OVERRULES

White’s

objections,

and

DISMISSES

his

claims

WITH

PREJUDICE.
I. BACKGROUND
On July 21, 2015, the pro se plaintiff, Kenneth A. White
(“White”), filed a complaint in the Circuit Court of Preston County
against the defendants, RCS Recovery Services LLC (“RCS”), FIA Card
Services (“FIA”),1 Wells Fargo Bank (“Wells Fargo”), and Lorain

1

White incorrectly named FIA Card Services as a defendant. Bank
of America, N.A. (“BOA”) is the proper defendant. BOA has filed
motions in FIA’s place and also responded to any of White’s motions
directed at FIA. Accordingly, the Court refers to FIA as BOA for the
balance of this Memorandum Opinion and Order.

WHITE V. RCS RECOVERY SVCS., LLC, ET AL.

1:15CV140

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 61]
National

Bank

(“Lorain”)

(collectively

“defendants”).

White’s

complaint sought damages for violations of the Fair Debt Collection
Practices Act, the Truth in Lending Act, contract fabrication, and
fraud (dkt. no. 1). The defendants removed the case to this Court
on August 17, 2015, at which time the Court referred it to United
States Magistrate Judge Michael J. Aloi2 for initial screening and
a Report and Recommendation (“R&R”) in accordance with LR PL P 2.
Subsequently, pursuant to Fed. R. Civ. P. 12(b)(6), RCS, Wells
Fargo, and BOA each filed separate motions to dismiss asserting,
among other grounds, failure to state a claim upon which relief may
be granted (dkt. nos. 5, 18, and 48). In addition, pursuant to Fed.
R. Civ. P. 12(b)(2), Lorain filed its motion to dismiss for lack of
personal jurisdiction (dkt. no. 6). In a one month period, from
August 27, 2015, to September 28, 2015, White filed no less than
eight motions, including a motion for default judgment (dkt. no.
42), several for summary judgment (dkt. nos. 11, 12, 24, and 43),
and one moving the Court to transfer the case to the Northern
District of Ohio (dkt. no. 26).
During the same time frame, the defendants jointly moved to

2

The case was originally referred to Magistrate Judge John S.
Kaull, but was reassigned to Magistrate Judge Aloi on October 1,
2015.
2

WHITE V. RCS RECOVERY SVCS., LLC, ET AL.

1:15CV140

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 61]
stay the case, suspend discovery, and suspend briefings and future
motions until the Court ruled on the pending motions to dismiss
(dkt. no. 27). Magistrate Judge Kaull agreed, granted the motion,
and stayed the case on September 15, 2015 (dkt. no. 33). Realizing,
however, that White had not been afforded an opportunity to respond
to the motion, Magistrate Judge Kaull lifted the stay on September
24, 2015, and gave White ten days from service of the order to file
his response (dkt. no. 41). On the October 8, 2015, deadline, White
moved for an extension of time to file his response to the motion
to stay, arguing that he had never actually received a copy of the
motion (dkt. no. 50). On October 16, 2015, Magistrate Judge Aloi
granted White’s motion, ordered the Clerk to serve him with a copy
of the motion to stay, and ordered that he file his response within
thirty days (dkt. no. 52). White timely filed his response, and, on
November 30, 2015, Magistrate Judge Aloi granted the defendants’
motion to stay the case.
On December 10, 2015, Magistrate Judge Aloi issued an R&R,
finding that White’s complaint failed to satisfy the pleading
requirements of Fed. R. Civ. P. 8(a) and 9(b). Dkt. No. 61 at 13.
Furthermore, he concluded that United States District Judge Irene
Berger of the Southern District of West Virginia had previously
ruled

on

the

jurisdictional

question,
3

finding

no

personal

WHITE V. RCS RECOVERY SVCS., LLC, ET AL.

1:15CV140

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 61]
jurisdiction over Lorain; thus, the magistrate judge concluded the
doctrine of collateral estoppel barred White from re-litigating the
issue in this Court. Id. at 16. Consequently, he recommended that
the Court grant each of the defendants’ motions and dismiss with
prejudice White’s complaint based on, inter alia, failure to state
a claim upon which relief may be granted, and, in Lorain’s case,
collateral estoppel based on the lack of personal jurisdiction. Id.
at 13, 16. The R&R also warned White that his failure to object to
the R&R within 14 days would result in the waiver of any appellate
rights he might otherwise have on this issue.3 Id. at 17.
On

December

28,

2015,

pursuant

to

Fed.

R.

Civ.

P.

41(a)(1)(A)(I), White filed a notice of dismissal, informing the
Court that he had settled all claims with BOA and therefore was
dismissing them from this suit (dkt. no. 64). Accordingly, BOA is
no longer a party in this matter.
Subsequently, on January 4, 2016, White filed his objections
to the R&R, noting four objections in total (dkt. no. 61). Wells

3

The failure to object to the Report and Recommendation not
only waives the appellate rights in this matter, but also relieves
the Court of any obligation to conduct a de novo review of the issue
presented. See Thomas v. Arn, 474 U.S. 140, 148-153 (1985); Wells
v. Shriners Hosp., 109 F.3d 198, 199-200 (4th Cir. 1997). It should
be noted that White untimely filed objections to the R&R. (Dkt. No.
65).
4

WHITE V. RCS RECOVERY SVCS., LLC, ET AL.

1:15CV140

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 61]
Fargo and Lorain filed responses to White’s objections on January
7, 2016, and January 14, 2016, respectively.
II. STANDARD
“The Court will review de novo any portions of the magistrate
judge’s Report and Recommendation to which a specific objection is
made . . . and the Court may adopt, without explanation, any of the
magistrate judge’s recommendations to which the prisoner does not
object.” Dellacirprete v. Gutierrez, 479 F. Supp. 2d 600, 603-04
(N.D.W. Va. 2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th
Cir.1983)).
Vague objections to an R&R distract a district court from
“focusing on disputed issues” and defeat the purpose of an initial
screening by the magistrate judge. McPherson, 605 F. Supp.2d at 749
(citing Howard’s Yellow Cabs, Inc. v. United States, 987 F.Supp.
469, 474 (W.D.N.C. 1997)). Further, failure to raise “any specific
error of the magistrate’s review” waives the claimants right to a
de novo review. Id. (citing Orpiano v. Johnson, 687 F.2d 44, 47 (4th
Cir. 1982)). Likewise, “general and conclusory” objections to the
magistrate’s R&R do not warrant a de novo review by the District
Court. Id. (citing Howard’s Yellow Cabs, 987 F.Supp. at 474); see
also Green v. Rubenstein, 644 F.Supp.2d 723 (S.D.W.Va. 2009).

5

WHITE V. RCS RECOVERY SVCS., LLC, ET AL.

1:15CV140

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 61]
III. DISCUSSION
White raises four objections to the R&R.

First, he objects to

the recommendation that the Court should dismiss his claims without
providing him with an opportunity to amend his complaint. Second,
he objects that the R&R fails to address his request for sanctions
on the defendants.

Third, he objects that his claims against BOA

should not be dismissed because he has already settled that claim.
Finally, he objects to the conclusion that he “had a full and fair
opportunity to dispute the jurisdictional issue in the Southern
District” (dkt. no. 65 at 1-2). The Court will address these
objections in turn.
A.

Opportunity to Amend
White begins by acknowledging the bases on which Magistrate

Judge Aloi recommended dismissing his claims, namely that they
failed to meet the federal pleading standards of Fed. R. Civ. P. 8
or 9, and that his complaint failed to allege sufficient facts to
support his claims. Id. at 1. At no point, however, does White
argue that the R&R is incorrect in its findings or reasoning, which
means that he has not objected to the recommendation that his claims
be dismissed for the reasons articulated by Magistrate Judge Aloi.
Consequently, he has waived any de novo review of that conclusion
in the R&R, and, after a thorough review, the Court finds no clear
6

WHITE V. RCS RECOVERY SVCS., LLC, ET AL.

1:15CV140

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 61]
error contained therein. See Dellacirprete, 479 F. Supp. 2d at 60304 (citing Camby, 718 F.2d at 199).
White does contend, however, that he should have been given the
opportunity to amend his complaint to correct its deficiencies.

He

argues that, because Magistrate Judge Kaull Kaull stayed the case
and suspended any further briefing in his Order and Opinion dated
September 15, 2015 (dkt. no. 33), he could not have amended his
complaint without violating that order. White’s contention lacks
merit.
To begin, the stay was imposed from September 15, 2015 to
September 24, 2015, a period of only nine days, and then again on
November 30, 2015, ten days before Magistrate Judge Aloi issued the
R&R to which White objects. Further, he was already aware of the
deficiencies of his complaint from the defendants’ various motions
to dismiss, as well as the complaint’s deficiencies that were
documented during the nearly identical litigation in the Southern
District of West Virginia. See Dkt. No. 61 at 14-15 (noting previous
litigation over the same claims in the Southern District at Case No.
1:13-cv-08738). Other than during the nineteen days that the case
was stayed prior to entry of the R&R, White was free to file an
amended complaint at any point. Nevertheless, he failed to do so,
instead utilizing that time to file multiple other motions with the
7

WHITE V. RCS RECOVERY SVCS., LLC, ET AL.

1:15CV140

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 61]
Court. See Mason v. Wexford Health Sources, 2011 WL 96571, at *8
(N.D.W. Va. Jan. 11, 2011) (overruling objection to complaint being
dismissed with prejudice because plaintiff had chance to respond to
motion to dismiss); Sweeting v. McCabe, 141 Fed. Appx. 177 (4th Cir.
2005) (affirming dismissal

with prejudice even though pro se

plaintiff asked in his complaint for leave to amend); Unthank v.
Freedom Mortg. Corp., 539 Fed. Appx. 132 (4th Cir. 2013) (affirming
dismissal of complaint where pro se plaintiffs argued that court
erred by not “advising them of their right to amend the complaint
or providing them an opportunity to do so”).
Additionally,

other

than

providing

several

statements

indicating that he intended to amend his complaint,4 he failed to
provide even the slightest indication as to what factual amendments
he intended to make, let alone any details as to how they might lend
credence to his claims. See Wisdom v. First Midwest Bank, of Poplar
Bluff, 167 F.3d 402, 409 (8th Cir. 1999) (“[P]arties should not be
allowed to amend their complaint without showing how the complaint
could be amended to save the meritless claim.”).

4

See Dkt. nos. 54, 54, and 58. At least as early as October 23,
2015, White indicated that he was “currently amending his
Complaint.” Dkt. No. 54 at 3 (written by White on October 23, 2015,
but not filed with the Court until October 28, 2015). Yet he failed
to do so, despite taking the opportunity to file multiple other
documents with the Court.
8

WHITE V. RCS RECOVERY SVCS., LLC, ET AL.

1:15CV140

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 61]
Finally, the Court notes that, although White’s objection
contends that Magistrate Judge Kaull’s order of September 15, 2016,
foreclosed his ability to file any “documents” with the Court, an
order he claims the defendants have ignored, he himself filed no
less than fifteen documents with the Court after that date (dkt.
nos. 37, 39, 42, 43, 45, 50, 54, 55, 58, 62, 64, 69-72).5 White
filed the majority of these documents during the time that the case
was actually stayed. It is apparent that White’s after-the-fact
argument that he was somehow prevented from moving for leave not
only ignores the fact that he had ample opportunity to do so during
the periods when the stay was not in effect, but also that the stay
never actually prevented him from filing whatever he chose. His
objection rings hollow.
Based on the foregoing, the Court concludes that neither
Magistrate Judge Kaull nor Magistrate Judge Aloi denied White leave
to amend his complaint. On the contrary, White never moved to amend,
despite multiple claims that he was in the process of doing so for
over a month prior to entry of the R&R. He was aware of his
complaint’s potential deficiencies for an even longer period of
time, and he had plenty of opportunities to move for leave, as

5

White’s objections to the R&R are not included in this number,
as the R&R allowed him to file such notwithstanding the stay.
9

WHITE V. RCS RECOVERY SVCS., LLC, ET AL.

1:15CV140

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 61]
evidenced by his multiple other filings during the same time period.
It is evident that White simply chose not to move for leave to
amend. Accordingly, the Court OVERRULES his objection that the R&R
improperly dismissed his claims without allowing him to amend.
B.

Sanctions
White next objects that the R&R “necessarily implies that . .

. there is no need to address the appropriateness of sanctioning
Defendants.” Dkt. No. 65 at 2. Further, he posits that the Court
would benefit from further briefing on the issue. White is correct
that the recommendation of the R&R would render any discussion of
sanctions moot, but he is incorrect that further briefing on the
issue would benefit the Court in any way.
In his “Opposition to Motion for Protective Order”6 (dkt. no.
58), White sought sanctions for what he perceived as the defendants’
filing of a meritless motion. The Court need not address the
validity of his claim because the defendants prevailed on their
motion when, after reviewing the parties’ briefs and the entirety
of the docket, Magistrate Judge Aloi granted the motion and stayed

6

Based on the contents of the filing, it is clearly an
opposition to the defendants’ joint motion to stay the case (dkt.
no. 27).
10

WHITE V. RCS RECOVERY SVCS., LLC, ET AL.

1:15CV140

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 61]
the case.7 Accordingly, there is no legal basis to sanction the
defendants for presenting a successful motion, and any further
briefing on the matter would be pointless. See Fed. R. Civ. P. 11.
C.

White’s Claims Against BOA
White’s “third objection” is not an actual objection. Rather

it is merely informing the Court that he has settled all of his
claims with BOA, thereby rendering moot the R&R’s recommendation
that his claims against BOA be dismissed. Indeed, White noticed his
dismissal of BOA on December 28, 2016 (dkt. no. 64). Accordingly,
the Court need not address White’s “third objection.”
D.

White’s Full and Fair Opportunity to Dispute the Issue of the
Court’s Jurisdiction over Lorain in the Southern District
One of the bases on which Lorain had moved to dismiss White’s

claims against it was that “collateral estoppel, also known as issue
preclusion, bar[red] [White] from re-litigating the jurisdictional
question because it was already decided by District Court Judge
Irene Berger in the Southern District of West Virginia.” Dkt. No.
61 at 14 (citing White v. Alliance One Receivable, No. 1:13CV08738,
2014 WL 320123 (S.D.W. Va. Jan. 29, 2014)). In order to assert
collateral estoppel, a party must establish five elements:

7

In addition, Magistrate Judge Kaull had also initially granted
the defendants’ motion.
11

WHITE V. RCS RECOVERY SVCS., LLC, ET AL.

1:15CV140

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 61]
(1) that “the issue sought to be precluded is identical
to one previously litigated” (“element one”); (2) that
the issue was actually determined in the prior proceeding
(“element two”); (3) that the issue’s determination was
“a critical and necessary part of the decision in the
prior proceeding” (“element three”); (4) that the prior
judgment is final and valid (“element four”); and (5)
that the party against whom collateral estoppel is
asserted “had a full and fair opportunity to litigate the
issue in the previous forum” (“element five”).
Collins v. Pond Creek Mining Co., 468 F.3d 213, 217 (4th Cir. 2006)
(quoting Sedlack v. Braswell Servs. Group, Inc., 134 F.3d 219, 224
(4th Cir. 1998)).
In the earlier case in the Southern District of West Virginia,
Judge Berger ruled that Lorain had not purposefully availed itself
of the privilege of conducting activities in West Virginia, and that
it had no continuous and systematic contacts with West Virginia.
Consequently, Judge Berger held that the Court lacked personal
jurisdiction over Lorain. Id. at 15.
After analyzing all five elements of Collins, Magistrate Judge
Aloi’s R&R adopted Lorain’s collateral estoppel argument, finding
that: (1) the personal jurisdiction issue was identical to the one
raised

in

the

prior

litigation;

(2)

the

issue

was

actually

adjudicated there; (3) it was a critical and necessary part of Judge
Berger’s decision, which dismissed the case; (4) “Judge Berger’s
decision stands as the final and valid judgment”; and (5) “[White]

12

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1:15CV140

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 61]
had a full and fair opportunity to dispute the jurisdictional issue
in the Southern District.” Id. at 15-16. Consequently, because the
Southern District of West Virginia had already ruled that it lacked
jurisdiction over Lorain, the R&R concluded that collateral estoppel
applied, and it therefore recommended that the Court grant Lorain’s
motion to dismiss.
White’s fourth and final objection begins by acknowledging that
the R&R correctly concluded that Judge Berger’s decision stands as
a

final

and

valid

judgment,

which

satisfies

element

four

of

collateral estoppel (dkt. no. 65 at 2). He makes no reference at all
to the R&R’s findings on the first three elements of collateral
estoppel. He does, however, express his disagreement with the R&R’s
statement that he had a “full and fair opportunity to dispute the
jurisdictional issue in the Southern District.” Dkt. No. 65 at 3.
Finally, White states that he “now recognizes that he must first
pursue relief from Judge Berger’s judgment . . . before he may
prosecute claims against Defendant [Lorain].” Id. at 2.
To the extent that White apparently is abandoning his pending
claim against Lorain, the Court need not comment. Insofar as he
objects to the R&R’s finding that the fifth element of collateral
estoppel was satisfied, the Court concludes that White was indeed
given a full and fair opportunity to dispute the jurisdictional
13

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1:15CV140

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 61]
issue in the Southern District. As the R&R recounts, and as the
Court

confirms,

opportunity

Berger

dispute

to

Judge

the

afforded
issue

White

during

the

a

full

and

fair

course

of

that

litigation. After Lorain moved to dismiss in that case, White filed
a response. See White, 2014 WL 320123 at *12. After Lorain filed its
reply, White filed an “Objection to Defendant’s Opposition to Motion
to Dismiss,” see id. at *13, and subsequently filed an affidavit in
support of that objection. Id. United States Magistrate Judge Clark
VanDervort summarized White’s response, objection, and affidavit,
and he factored them into his R&R, which Judge Berger adopted. Id.
at *12–13. As evidenced through his response, reply, and affidavit,
the Southern District gave White ample opportunity to dispute
Lorain’s jurisdictional argument in that case.
Accordingly,

the

Court

concludes

that

the

doctrine

of

collateral estoppel precludes the relitigation of the question
whether the Court has personal jurisdiction over Lorain. As a
consequence, the Court GRANTS Lorain’s motion to dismiss for lack
of jurisdiction.
IV. CONCLUSION
Based

on

the

foregoing

de

novo

review

of

White’s

valid

objections, and finding no clear error in the remaining portions of
the R&R to which he did not object, the Court:
14

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1:15CV140

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 61]
•

ADOPTS the R&R (dkt. no. 61);

•

OVERRULES White’s objections (dkt. no. 65);

•

GRANTS the motion to dismiss filed by RCS (dkt. no. 5);

•

GRANTS the motion to dismiss filed by Lorain (dkt. no.
6);

•

GRANTS the motion to dismiss filed by Wells Fargo (dkt.
no. 18);

•

DENIES AS MOOT the motion to dismiss filed by BOA (dkt.
no. 48);

•

DENIES AS MOOT the remaining motions filed by White (dkt.
nos. 11, 12, 13, 24, 26, 42, 43, and 54); and

•

DISMISSES this case WITH PREJUDICE and ORDERS that it be
stricken from the Court’s active docket.

It is so ORDERED.
Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk of
Court to enter a separate judgment order and to transmit copies of
both orders to counsel of record and to the pro se plaintiff,
certified mail, return receipt requested.
Dated: February 22, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

15