United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
Christopher L. Ray, United States Magistrate Judge
pro se, Todd McElroy was again ordered to amend his
civil rights complaint to elucidate the federal claim he was
leveling against defendant. Doc. 7. McElroy has filed a
Second Amended Complaint which only emphasizes that he has no
federal claim. Doc. 8. Plaintiff explains that, after
informing Lazega & Johnson, LLC, attorney Mark A. Moore
(who signed a dunning letter seeking repayment of a debt, and
filed a state court case against plaintiff) that his only
source of income was Social Security benefits which could not
be garnished, Moore moved to dismiss the state action.
Id. at 1-2. It also appears (though it is not clear)
that McElroy concedes the validity of the debt itself, but
dislikes that it was sold to a debt collector. See
Id. (“Unifund CCR, LLC had my debt that was in the
amount of $1, 023.66” but “removed ‘First
National Bank of Omaha' on my credit report WITHOUT my
knowledge.”). That dissatisfaction, of course, is not
enough to state a claim under the Federal Debt Collection
Practices Act (FDCPA).
again quotes extensively from the statute, invoking the
Act's prohibition on misrepresentation as an agency of
the United States to grumble about the initiation of the
state court action. Doc. 8 at 1. He also disputes
that “attorney” Mark A. Moore represented himself
as an attorney, apparently in violation of another section of
the Act. Id. at 2. And he somehow construes the
“dismissal without prejudice” in the state court
action as proof positive of a “false or misleading
representation” in violation of the FDCPA, to include
the “threat to take any action that cannot legally be
taken” (though, as he knows from this Court's first
screening order, “under Georgia law, the filing of a
lien by a creditor is a necessary step for securing payment
of a debt. See, e.g., Country Greens Village One
Owner's Ass'n, Inc. v. Meyers, 158 Ga.App. 609,
609-10 (1981).” (doc. 4 at 4)) and the “use of
any business, company, or organization name other than the
true name of the debt collector's business, company or
organization” (which is pure mush, given that Lazega
& Johanson clearly set forth both its own and its client
Unifund CCR's names in all correspondence and pleadings).
Court is forced to reiterate: “[n]othing in
McElroy's amendment indicates that Unifund (the original
debt [collector]) or Lazega & Johanson (the law firm
collecting the debt on Unifund's behalf) and Mark A.
Moore (the attorney that signed the collection letter)
violated the FDCPA.” Doc. 7 at 3; see also
doc. 4 at 3-6. His repeated invocation of the Social Security
Act as his sole source of income, as he has been repeatedly
informed, also gives McElroy no federal claim on which to
hang this Court's jurisdiction. See Id. In other
words, McElroy has thrice proved unable to muster a
cognizable federal claim. He was warned that such failure
would result in a recommendation of dismissal. Doc. 7 at 4.
plaintiff has demonstrated he is incapable of articulating
any cognizable federal claim over which this Court may assert
jurisdiction, and because a fourth attempt to amend would be
futile, McElroy's Complaint should be DISMISSED
without prejudice and without leave to amend.
See Fed. R. Civ. P. 12(h)(3) (“If the court
determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action”);
see also Arbaugh v. Y & H Corp., 546 U.S. 500,
514 (2006) (“[W]hen a federal court concludes that it
lacks subject matter jurisdiction, the court must dismiss the
complaint in its entirety”).
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
“Objections to Magistrate Judge's Report and
Recommendations.” Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendation pursuant to 28 U.S.C.
§ 636(b)(1)(C). The parties are advised that failure to
timely file objections will result in the waiver of rights on
appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing
Corp., 648 Fed.Appx. 787, 790 (11th Cir. 2016);
Mitchell v. United States, 612 Fed.Appx. 542, 545
(11th Cir. 2015).