Vuong v. CBAC Borrower, LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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RICKY VUONG, 	*
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Plaintiff, 	*
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v. 	* 	Civil No. SAG-25-3418
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CBAC BORROWER, LLC, 	*
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Defendant. 	*
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* 	* 	* 	* 	* 	* 	* 	* 	* 	* 	* 	* 	*
MEMORANDUM OPINION
Plaintiff Ricky Vuong (“Plaintiff”), who is self-represented, filed this lawsuit in state court
against Defendant CBAC Borrower, LLC (“Defendant”), seeking to recover damages he suffered
as a result of an identity theft. ECF 1. Defendant removed the case to this Court. Id. Defendant has
now filed a motion to dismiss Plaintiff’s Second Amended Complaint (“SAC”), ECF 9, for failure
to state a claim, ECF 6. Plaintiff filed an opposition, ECF 12, Defendant filed a reply, ECF 14, and
Plaintiff filed a motion seeking leave to file a sur-reply, ECF 16, which will be granted as
unopposed. This Court has reviewed all of the briefing and finds that no hearing is necessary. See
Loc. R. 105.6 (D. Md. 2025). For the reasons stated herein, Defendant’s motion to dismiss will be
GRANTED and Plaintiff’s Complaint will be dismissed without prejudice.
I. 	FACTUAL BACKGROUND
The following facts are derived from Plaintiff’s SAC, liberally construed by this Court.
ECF 9. Defendant operates Horseshoe Casino Baltimore (“Horseshoe”). Id. ¶ 4. In 2024, Plaintiff
resided in Texas. Id. ¶¶ 5, 6. That year, however, multiple jackpot payouts were paid in his name
at Horseshoe, without his knowledge or authorization. Id. ¶ 5. Plaintiff alleges that, “Defendant
failed to take reasonable steps to verify the identity of the person or persons claiming those jackpots
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using Plaintiff’s name.” Id. ¶ 7. He also later asserts, without further factual explanation, that
Defendant “fail[ed] to verify identification” of the persons collecting the jackpots. Id. ¶ 14.
Plaintiff contacted Defendant in May 2025 to report and try to resolve the issue. Id. ¶¶ 8–
10. Plaintiff alleges that he has suffered “severe emotional distress, familial conflict, and
reputational harm” as a result. Id. ¶ 11.
II. 	LEGAL STANDARDS
A defendant is permitted to test the legal sufficiency of a complaint by way of a motion to
dismiss. See, e.g., In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs.
Bd., 822 F.3d 159, 165–66 (4th Cir. 2016). A Rule 12(b)(6) motion constitutes an assertion by a
defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of
law “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
Whether a complaint states a claim for relief is assessed by reference to the pleading
requirements of Federal Rule of Civil Procedure 8(a)(2). That rule provides that a complaint must
contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). The purpose of the rule is to provide the defendants with “fair notice” of the
claims and the “grounds” for entitlement to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007).
To survive a motion under Fed. R. Civ. P. 12(b)(6), a complaint must contain facts
sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see
Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in Twombly expounded the pleading
standard for ‘all civil actions’ . . . .” (citation omitted)); see also Willner v. Dimon, 849 F.3d 93,
112 (4th Cir. 2017). A plaintiff need not include “detailed factual allegations” in order to satisfy
Rule 8(a)(2). Twombly, 550 U.S. at 555. Moreover, federal pleading rules “do not countenance
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dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.”
Johnson v. City of Shelby, 574 U.S. 10, 11 (2014) (per curiam).
Nevertheless, the rule demands more than bald accusations or mere speculation. Twombly,
550 U.S. at 555; see Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). If a
complaint provides no more than “labels and conclusions” or “a formulaic recitation of the
elements of a cause of action,” it is insufficient. Twombly, 550 U.S. at 555. Rather, to satisfy the
minimal requirements of Rule 8(a)(2), the complaint must set forth “enough factual matter (taken
as true) to suggest” a cognizable cause of action, “even if . . . [the] actual proof of those facts is
improbable and . . . recovery is very remote and unlikely.” Id. at 556 (internal quotation marks
omitted).
In reviewing a Rule 12(b)(6) motion, a court “must accept as true all of the factual
allegations contained in the complaint” and must “draw all reasonable inferences [from those facts]
in favor of the plaintiff.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440
(4th Cir. 2011) (citations omitted); see Semenova v. Md. Transit Admin., 845 F.3d 564, 567 (4th
Cir. 2017); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015). A court is not
required to accept legal conclusions drawn from the facts. See Papasan v. Allain, 478 U.S. 265,
286 (1986). Ultimately, “[a] court decides whether [the pleading] standard is met by separating the
legal conclusions from the factual allegations, assuming the truth of only the factual allegations,
and then determining whether those allegations allow the court to reasonably infer” that the
plaintiff is entitled to the legal remedy sought. A Soc’y Without a Name v. Virginia, 655 F.3d 342,
346 (4th. Cir. 2011).
Because Plaintiff is self-represented, his pleadings are “liberally construed” and “held to
less stringent standards than [those filed] by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
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(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). “However, liberal construction does not
absolve Plaintiff from pleading a plausible claim.” Bey v. Shapiro Brown & Alt, LLP, 997 F. Supp.
2d 310, 314 (D. Md. 2014), aff’d, 584 F. App’x 135 (4th Cir. 2014); see also Coulibaly v. J.P.
Morgan Chase Bank, N.A., Civ. No. DKC-10-3517, 2011 WL 3476994, at *6 (D. Md. Aug. 8,
2011) (“[E]ven when pro se litigants are involved, the court cannot ignore a clear failure to allege
facts that support a viable claim.”), aff’d, 526 F. App’x 255 (4th Cir. 2013).
Moreover, a federal court may not act as an advocate for a self-represented litigant. See
Brock v. Carroll, 107 F.3d 241, 242–43 (4th Cir. 1997) (Luttig, J., concurring in judgment); Weller
v. Dep’t of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990). Therefore, the court cannot “conjure up
questions never squarely presented,” or fashion claims for a self-represented plaintiff. Beaudett v.
City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); see also M.D. v. Sch. Bd. of Richmond, 560
F. App’x 199, 203 n.4 (4th Cir. 2014) (rejecting self-represented plaintiff’s argument that district
court erred in failing to consider an Equal Protection claim, because plaintiff failed to allege it in
the complaint).
III. 	ANALYSIS
Plaintiff’s SAC asserts two causes of action, a negligence claim in Count One and a claim
for “negligent infliction of emotional distress” in Count Two. ECF 9. Plaintiff now concedes that
there is no independent tort of “negligent infliction of emotional distress” in Maryland and that
Count Two should be dismissed. ECF 12 at 5. Plaintiff clarifies that he still claims emotional
distress damages as part of his remaining negligence claim.
The question, then, is whether his SAC plausibly pleads a claim for negligence. One of the
elements of negligence is the existence of a duty owed by the defendant to the plaintiff. See Bobo
v. State, 697 A.2d 1371, 1375–76 (Md. 1997). Plaintiff alleges that Defendant “owed a duty of
care to Plaintiff to protect his identity and properly verify recipients of jackpots.” ECF 9 ¶ 13.
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Plaintiff has not alleged, however, that Defendant itself stole Plaintiff’s identity or somehow
revealed Plaintiff’s identity to the individuals who used Plaintiff’s name to collect their jackpots.
Instead, Plaintiff appears to assert a more generalized duty on the part of the casino to protect
persons from actions of third parties. See ECF 12 at 4 (“By undertaking identity collection and
verification tasks, Defendant assumed a duty to exercise reasonable care in performing them.”);
ECF 16-1 at 2 (“Having chosen to identify claimants and issue tax forms tied to personal
identifiers, CBAC assumed a duty to perform those tasks competently and to avoid foreseeable
harm from misidentification.”). Maryland law generally imposes no such duty to protect others
from harm or misconduct by a third person, absent a special relationship. See Scott v. Watson, 359
A.2d 548, 552 (Md. 1976) (“[A] private person is under no special duty to protect another from
criminal acts by a third person.”) (citing Restatement (Second) of Torts § 315 (A.L.I. 1965)).1
Moreover, Maryland’s economic loss doctrine “bars recovery when the parties are not in
privity with one another or the alleged negligent conduct did not result in physical injury or risk
of severe physical injury or death.” Balfour Beatty Infrastructure, Inc. v. Rummel Klepper & Kahl,
1 Maryland courts have recognized some exceptions to this “no duty” rule: (1) if the defendant has
control over the conduct of the third party, see Warr v. JMGM Grp., LLC, 70 A.3d 347, 358 (Md.
2013); (2) if there is a special relationship between the defendant and the third party or between
the defendant and the plaintiff, see Barclay v. Briscoe, 47 A.3d 560, 578–79 (Md. 2012); or (3) if
there is a statute or ordinance that is designed to protect a specific class of people, of which the
plaintiff is a member, see Kiriakos v. Phillips, 139 A.3d 1006, 1033–34 (Md. 2016). Plaintiff has
not alleged that Defendant had any control over the “impostors” he alleges fraudulently used his
identity, ECF 9 ¶¶ 7–8, ECF 16-1 at 3, nor that Defendant owed him a particular duty pursuant to
statute. In his motions briefing, ECF 12 at 4, ECF 16-1 at 2–3, Plaintiff does raise certain regulatory
and statutory provisions he asserts pertain to his claim; however, he also concedes that the “statute
or ordinance” exception applies to a “violation of a statute or regulation designed to protect a
specific class of persons,” without articulating a class to which the protections of those provisions
are aimed and of which he is a member. ECF 16-1 at 2 (emphasis added). Regardless, and as
mentioned, infra, Plaintiff may not amend his SAC through motions briefing. Finally, by the same
reasoning articulated in this Court’s discussion of the economic loss doctrine, infra, Plaintiff’s
SAC also fails to allege sufficient facts for the “special relationship” exception to apply.
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LLP, 155 A.3d 445, 452 (Md. 2017). “Where the failure to exercise due care creates a risk of
economic loss only, courts have generally required an intimate nexus between the parties as a
condition to the imposition of tort liability. This intimate nexus is satisfied by contractual privity
or its equivalent.” Jacques v. First Nat’l Bank of Md., 515 A.2d 756, 759–60 (1986).
Plaintiff’s SAC alleges “damages,” ECF 9 ¶ 15, without alleging any contractual privity or
other special relationship or intimate nexus between him and Defendant. In his briefing, however,
Plaintiff asserts that for “over eight years” he was “a Top Tier VIP patron of Horseshoe Casino
Baltimore.” ECF 12 at 1. His briefing suggests that, as a result of that prior status, Defendant
maintained Plaintiff’s personal identifying information (“PII”). Id. Plaintiff cannot, however,
amend his SAC to add those facts through motions briefing. See Zachair, Ltd. v. Driggs, 965 F.
Supp. 741, 748 n.4 (D. Md. 1997) (explaining that plaintiff “is bound by the allegations contained
in its complaint and cannot, through the use of motion briefs, amend the complaint.”), aff'd, 141
F.3d 1162 (4th Cir. 1998). And even if he could, he has not explained how his former status as a
Top Tier VIP patron created contractual privity or an enduring duty to protect him from identity
theft committed by a third person. Plaintiff cites cases discussing a duty to safeguard PII in one’s
possession. See ECF 16-1 at 1–2 (citing Jones v. Hyatt Ins. Agency, Inc., 741 A.2d 1099 (Md.
1999)). But, even in his motions briefing, Plaintiff does not assert any facts linking Defendant’s
possession or maintenance of Plaintiff’s PII to the identity theft. His former Top Tier VIP status
appears entirely disassociated from the events described in the SAC, at least as alleged to date.
IV. 	CONCLUSION
Because Plaintiff has not stated any claim plausibly entitling him to relief, Defendant’s
Motion to Dismiss, ECF 6, is granted and Plaintiff’s claims are dismissed without prejudice.
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Administratively, this case will be closed, subject to reopening should Plaintiff file a motion
seeking leave to amend his Complaint within thirty days of this opinion. A separate Order follows.
Dated: December 22, 2025 	/s/
Stephanie A. Gallagher
United States District Judge
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