Barbagallo v. Niagra Credit Solutions, Inc. et al, No. 8:2012cv01885 - Document 54 (D. Md. 2013)
Court Description: MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 6/27/13. (sat, Chambers)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : RICHARD BARBAGALLO : v. : Civil Action No. DKC 12-1885 : NIAGARA CREDIT SOLUTIONS, INC., et al. : MEMORANDUM OPINION Presently pending and ready for review in this consumer debt collection case is the motion for judgment on the pleadings or, in the alternative, for partial summary judgment filed by Defendant Nissan Motor Acceptance Corporation ( NMAC ), (ECF No. 46) and two motions for voluntary dismissal filed by Plaintiff Richard Barbagallo (ECF Nos. 47 & 52). The issues have been briefed, hearing and necessary. the court now rules, Local Rule 105.6. no being deemed For the following reasons, the second motion for voluntary dismissal will be granted. The first motion for voluntary dismissal and the motion for judgment on the pleadings or, in the alternative, for partial summary judgment will be denied as moot. I. Background A. Factual Background On December 30, 2006, purchased a 2006 Nissan Altima. Plaintiff Richard Barbagallo (ECF No. 17, at 3). At the time of purchase, he entered into a retail installment sale contract with Defendant NMAC to finance the purchase. 1-2, at 3-4). (ECF No. Plaintiff defaulted on the agreement by failing to keep current on his payments, and the Altima was repossessed. (ECF No. 17, at 4). After selling the Altima at auction, NMAC filed a lawsuit against Plaintiff for the amount remaining on the loan, approximately $13,665.59, in the District Court of Maryland on October 8, 2009. NMAC voluntarily dismissed (Id. at 4). the prejudice, under Md. Rule 3-506. On March 10, 2010, deficiency lawsuit, (Id. at 4). without NMAC then hired Niagara Credit Solutions, Inc. ( Niagara ) to collect this debt. (Id. at 5). In November 2011, Niagara began calling and mailing letters to Plaintiff to collect the debt. B. (Id. at 5). Procedural Background In response to Niagara s attempts to collect the debt, Plaintiff filed a complaint in the Circuit Court for Montgomery County, Maryland against NMAC and Niagara on February 3, 2012. (ECF No. 2). The original complaint alleged violations of the Maryland Consumer Debt Collection Act ( MCDCA ) by Niagara and NMAC. NMAC filed counterclaims against Plaintiff for breach of contract and unjust underlying debt. enrichment, (ECF No. 16). seeking to recover the Plaintiff filed an amended complaint on June 7, adding a claim that Niagara violated the Fair Debt Collection Practices Act ( FDCPA ). 2 (ECF No. 17). On June 25, Niagara removed the case to federal court, based on federal question jurisdiction. (ECF No. 1). Niagara settled with Plaintiff and was dismissed on November 19, 2012. (ECF Nos. 34 & 35). Defendant NMAC had filed a motion to compel arbitration in state court, seeking to enforce an arbitration clause in the retail installment sale contract. (ECF No. 15). The motion to compel arbitration was denied on December 4, 2012. (ECF No. 38). for judgment On April 3, 2013, Defendant NMAC filed a motion on the pleadings partial summary judgment. or, in (ECF No. 46). the alternative, Plaintiff opposed this motion (ECF No. 48), and Defendant replied (ECF No. 50). April 23, Plaintiff (ECF No. 47). No. 49). filed a motion for for voluntary On dismissal. Defendant filed its opposition on May 10. (ECF Plaintiff s claims against NMAC are based solely on a theory of vicarious liability. Plaintiff does not allege NMAC directly violated the MCDCA. II. Analysis Federal Rule of Civil Procedure 41(a)(2) provides that, after an answer has been filed, an action may be dismissed at the plaintiff s request only by court order, on terms that the court considers proper. Fed.R.Civ.P. 41(a)(2). The purpose of the rule is freely to allow voluntary dismissals unless the parties will be unfairly prejudiced. F.2d 1270, 1273 (4th Cir. 1987). 3 Davis v. USX Corp., 819 Because Plaintiff seeks voluntary dismissal of his claim against NMAC with prejudice, Defendant will not be unfairly foregoing reasons, prejudiced by a grant of dismissal. III. Conclusion For the the motion for voluntary dismissal filed by Defendant Richard Barbagallo will be granted. The motion for judgment on the pleadings or, in the alternative, for partial summary judgment filed by Defendant NMAC will be denied as moot. A separate Order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 4
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