United States District Court, D. South Carolina, Charleston Division
Alan G. Nix, Plaintiff,
McCabe Trotter & Beverly, P.C. and Todd M. Musheff LLC, Defendant.
ORDER AND OPINION
RICHARD MARK GERGEL, UNITED STATES DISTRICT COURT JUDGE
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.
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,  wrote the letter at issue in this action.
(Id. at 12.)
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,
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.)
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.)
Motion to Dismiss
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.
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.
Pro Se Pleadings
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).
Report and Recommendation
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