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Nix v. McCabe Trotter & Beverly P.C.

United States District Court, D. South Carolina, Charleston Division

October 23, 2018

Alan G. Nix, Plaintiff,
McCabe Trotter & Beverly, P.C. and Todd M. Musheff LLC, Defendant.



         This matter is before the Court on the Report and Recommendation ("R & R") of the Magistrate Judge (Dkt. No. 26) recommending that the Court grant Defendants' Motion to Dismiss (Dkt. No. 9). For the reasons set forth below, the Court adopts the R & R as the order of the Court.

         I. Background

         Plaintiff Alan G. Nix owns a home subject to the Churchill Park Homeowners' Association, Inc., ("Churchill") a homeowners' association ("HOA") that charges annual assessments pursuant to the HOA's covenants and restrictions ("CRs"). (Dkt. No. 1-1 at 5, 16, 59.) The HOA employs Defendant McCabe, Trotter & Beverly, P.C. ("MTB") to represent it in the collection of assessments. (Id. at 6) Todd. M. Musheff ("Musheff'), whose law firm is named as a Defendant here, [1] wrote the letter at issue in this action. (Id. at 12.)

         On February 16, 2017, Plaintiff filed a "Scam Report" with the South Carolina Department of Consumer Affairs, alleging that the HOA's former management company, LPPM, Inc., refused to validate the company it was working for when it sent certain letters in 2016. (Dkt. No. 1-1 at 21 - 26.) Musheff responded to the complaint in a letter to the South Carolina Department of Consumer Affairs dated April 27, 2017, [2] denying the charge and noting the ongoing litigation between the parties. (Id. at 10 - 11.) The letter further noted that there is different nomenclature for the neighborhoods at Churchill Park and that the HOA has used management companies. (Id.) Documents attached to the Complaint also show that the management company for the HOA changed from LPPM to Gold Crown Management, Inc. on December 21, 2016. (Id. at 12 - 13.)

         Plaintiff alleges that the letter dated April 27, 2017, violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692. Plaintiff seems to allege that the letter was a debt collection letter and, in responding to Plaintiffs consumer complaint, made a misrepresentation that violated the FDCPA, such as by alluding to Gold Crown as the HOA's management company. The Magistrate Judge recommended granting the motion to dismiss, and Plaintiff filed objections. (Dkt. Nos. 26, 31.)

         II. Legal Standard

         A. Motion to Dismiss

         Rule 12(b)(6) of the Federal Rules of Civil Procedure permits dismissal if the complaint fails "to state a claim upon which relief can be granted." Such a motion tests the legal sufficiency of the complaint and "does not resolve contests surrounding the facts, the merits of the claim, or the applicability of defenses.... Our inquiry then is limited to whether the allegations constitute 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (quotation marks and citation omitted). In a 12(b)(6) motion, the Court is obligated to "assume the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations." E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). However, while the Court must accept the facts in a light most favorable to the non-moving party, it "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Id.

         To survive a motion to dismiss, the complaint must state "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although the requirement of plausibility does not impose a probability requirement at this stage, the complaint must show more than a "sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint has "facial plausibility" where the pleading "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

         B. Pro Se Pleadings

         This Court liberally construes complaints filed by pro se litigants to allow the development of a potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a viable claim, nor can the Court assume the existence of a genuine issue of material fact where none exists. See Weller v. Dep 't of Social Services, 901 F.2d 387 (4th Cir. 1990).

         C. Report and Recommendation

         The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility for making a final determination remains with this Court. See Mathews v. Weber,423 U.S. 261, 270 - 71 (1976). This Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made. Additionally, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). In the absence of any specific objections, "a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the ...

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