Smith v. Capitol One/Yamaha et al

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATION (DKT. NO. 23]). The Court adopts the Magistrate Judge's 23 Report and Recommendation in its entirely; GRANTS Capital One's 9 Motion to Dismiss; GRANTS HSBC's 11 Motion to Dismiss; DENIES AS MOOT Smith's 15 and 18 motions for default judgment; DENIES AS MOOT Smith's 16 and 17 motions for summary judgment; and DISMISSES Smith's Complaint, WITH PREJUDICE. The Clerk is directed to enter a separate judgment order in this matter. Signed by District Judge Irene M. Keeley on 5/26/16. (Copy to PS Plaintiff via cert. mail)(mh) (Additional attachment(s) added on 5/26/2016: # 1 Certified Mail Return Receipt) (mh).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TAVIUS L. SMITH,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:15CV174
(Judge Keeley)

CAPITAL ONE/YAMAHA
and HSBC BANK,
Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 23]
On September 25, 2015, the pro se plaintiff, Tavius L. Smith
(“Smith”), filed a complaint in the Circuit Court of Harrison
County, West Virginia (dkt. no. 1-1). Smith’s complaint asserted
claims against Capital One/Yamaha1 (“Capital One”) and HSBC Bank2
(“HSBC”) for violations of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. §§ 1692, et seq. Specifically, Smith claimed
that the defendants maintained open credit accounts in his name,
showing a past due balance of $12,590, which he argues he did not
authorize or incur. On September 25, 2015, Capital One, with the
consent of HSBC, removed to this Court based on federal question
jurisdiction pursuant to 28 U.S.C. § 1331. The Court then referred
this matter to the Honorable Michael J. Aloi, United States

1

In his complaint, Smith incorrectly labeled defendant Capital One,
N.A., as “Capital One/Yamaha.”
2

In his complaint, Smith incorrectly labeled defendant HSBC Card
Services, Inc., as “HSBC Bank.”

SMITH V. CAPITAL ONE/YAMAHA, ET AL.

1:15CV174

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 23]
Magistrate

Judge,

for

initial

screening

and

a

Report

and

Recommendation (“R&R”) in accordance with LR PL P 2.
On September 25, 2015, Smith filed separate motions for
default judgment against both Capital One (dkt. no. 15) and HSBC
(dkt. no. 18). On the same date, Smith also filed two separate
motions for summary judgment, both against Capital One (dkt. nos.
16 and 17). Capital One and HSBC responded to Smith’s motions and
countered by filing their own separate motions to dismiss Smith’s
claims against them (dkt. nos. 9 and 11).
On December 15, 2015, Magistrate Judge Aloi issued his R&R
(dkt. no. 23), in which he concluded that Smith had failed to
allege

facts

establishing

that

either

defendant

was

a

debt

collector under the FDCPA, an essential element of such a claim.
Accordingly, pursuant to Fed. R. Civ. P. 8, Magistrate Judge Aloi
recommended that the Court grant both motions to dismiss filed by
Capital One and HSBC, and dismiss Smith’s complaint with prejudice.
He concluded by recommending that Smith’s motions for default
judgment and for summary judgment be terminated as moot.
The R&R specifically warned Smith that his failure to object
to the recommendation would result in the waiver of any appellate
rights he might otherwise have on this issue. Id. at 22. The

2

SMITH V. CAPITAL ONE/YAMAHA, ET AL.

1:15CV174

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 23]
parties did not file any objections.3 Consequently, finding no
clear error, the Court:
•

ADOPTS the Report and Recommendation in its entirety (dkt. no.
23);

•

GRANTS Capital One’s motion to dismiss (dkt. no. 9);

•

GRANTS HSBC’s motion to dismiss (dkt. no. 11);

•

DENIES as MOOT Smith’s motions for default judgment (dkt. nos.
15 and 18);

•

DENIES as MOOT Smith’s motions for summary judgment (dkt. nos.
16 and 17); and

•

DISMISSES Smith’s complaint WITH PREJUDICE.
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 petitioner,
certified mail, return receipt requested.
Dated:

May 26, 2016.

/s/ Irene M. Keeley
IRENE M. KEELEY

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).
3

SMITH V. CAPITAL ONE/YAMAHA, ET AL.

1:15CV174

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 23]
UNITED STATES DISTRICT JUDGE

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