Wattleton Jones V Atlantic Acceptance Corp

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION

Desimber Rose Wattleton, ) C/A No. 6:24-cv-4827-BHH-WSB
)
Plaintiff, )
)
vs. ) REPORT AND RECOMMENDATION
)
Atlantic Acceptance Corp., Atlantic )
Acceptance Holdings, LLC, Atlantic Auto )
Finance Group, LLC, Agora Data Inc., )
Agora Capital, Agoratrade, LLC, Westlake )
Services, LLC d/b/a Westlake Financial )
Services, Walter Auto Loan Trust, Walt )
LLC, )
)
Defendants. )
____________________________________)

This matter is before the Court on Westlake Services, LLC d/b/a Westlake Financial
Services’ (“Westlake”) Motion to Dismiss (ECF No. 71); Agora Data Inc. (“Agora Data”), Agora
Capital, and Agoratrade, LLC’s (“Agoratrade”) (collectively “the Agora entities”) Motion to
Dismiss (ECF No. 72); Walter Auto Loan Trust (“Walter Auto”) and Walt, LLC’s (“Walt”)
(collectively “the Walt entities”) Motion to Dismiss (ECF No. 78); and Desimber Rose Wattleton’s
(“Plaintiff”) Motion for Service of Process (ECF No. 92). Plaintiff is proceeding pro se, and,
pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(e)
(D.S.C.), this United States Magistrate Judge is authorized to review all pretrial matters in cases
involving pro se litigants and submit findings and recommendations to the district court.

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PROCEDURAL BACKGROUND
Plaintiff filed a Complaint against the Agora entities and Westlake, as well as Atlantic
Acceptance Corp., Atlantic Acceptance Holdings, LLC, and Atlantic Auto Finance Group, LLC
(collectively “the Atlantic entities”), on September 5, 2024. ECF No. 1. The Court issued an

Order authorizing service of process on October 29, 2024 (“First Serve Order”). ECF No. 22. A
summons was issued on the same date, with service due by January 27, 2025. ECF No. 23.
On December 2, 2024, Westlake filed a Motion to Dismiss, ECF No. 27, and a Motion for
Protective Order and Motion to Stay, ECF No. 28. On December 17, 2024, the Agora entities filed
a Motion to Dismiss, ECF No. 40, and a Motion for Protective Order and Motion to Stay, ECF No.
41. Plaintiff filed Responses to these Motions. ECF Nos. 31; 32; 45; 46. Plaintiff also filed a
Motion to Amend her Complaint on December 26, 2024. ECF No. 47.
The Court issued an Order on February 10, 2025, granting Plaintiff’s Motion to Amend,
finding Westlake and the Agora entities’ Motions to Dismiss moot, and denying Westlake and the
Agora entities’ Motions for Protective Order and Motions to Stay. ECF No. 63. The Clerk of

Court filed Plaintiff’s Amended Complaint on the same date. ECF No. 64. In her Amended
Complaint, Plaintiff brought claims for (1) breach of contract, (2) fraud, (3) violation of the Fair
Credit Reporting Act (“FCRA”), (4) negligence, (5) violation of the Racketeer Influenced and
Corrupt Organizations Act (“RICO”), (6) civil conspiracy, (7) violation of the South Carolina
Unfair Trade Practices Act (“SCUTPA”), and (8) conversion against the Atlantic entities, the Agora
entities, Westlake, and the Walt entities. Id. The Court issued an Order authorizing service of
process on February 24, 2025 (“Second Serve Order”). ECF No. 68. A summons was issued on
February 24, 2025, with service due by May 27, 2025. ECF No. 69.

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On February 24, 2025, Westlake file a Motion to Dismiss pursuant to Federal Rules of Civil
Procedure 12(b)(1), 12(b)(5), and 12(b)(6). ECF No. 71. The Agora entities filed a Motion to
Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(5), and 12(b)(6) on the same
date. ECF No. 72. On February 25, 2025, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th

Cir. 1975), the Court advised Plaintiff of the summary judgment and dismissal procedures and the
possible consequences if she failed to respond adequately to these Motions to Dismiss. ECF No.
75. The Walt entities filed a Motion to Dismiss pursuant to Federal Rules of Civil Procedure
12(b)(1), 12(b)(5), and 12(b)(6) on March 26, 2025. ECF No. 78. The Court issued an Order
pursuant to Roseboro, 528 F.2d 309, on March 27, 2025, advising Plaintiff of the summary
judgment and dismissal procedures and the possible consequences if she failed to respond
adequately to the Motion. Plaintiff filed separate Responses to the three Motions to Dismiss on
March 28, 2025. ECF Nos. 82; 83; 84. Westlake, the Agora entities, and the Walt entities filed
Replies on April 4, 2025. ECF Nos. 88; 86; 87. Also on April 4, 2025, Plaintiff filed a Motion for
Service of Process. ECF No. 92. Westlake and the Agora entities filed Responses to Plaintiff’s

Motion on April 17, 2025. ECF Nos. 95; 96. Plaintiff filed a Reply on April 18, 2025. ECF No.
99. These matters are ripe for review.
FACTUAL ALLEGATIONS
Federal Court Action
In her Amended Complaint, Plaintiff alleges that she visited A&K Auto Sales and Leasing,
LLC (“A&K Auto”) on October 7, 2022, and discussed her desire to purchase a vehicle because
she was in need of reliable transportation and was trying to rebuild her credit to purchase a home.
ECF No. 64 ¶ 11. Plaintiff decided to purchase a vehicle, and she was informed that she was
approved for financing through Atlantic Acceptance Corp. Id. ¶¶ 12-13. The purchase price of
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the vehicle was $27,400, and Plaintiff paid $2,000 as a down payment. Id. ¶¶ 13, 56. Because it
was late in the evening, Plaintiff was asked to return to A&K Auto the following day to complete
all of the paperwork, but she was allowed to place insurance on the vehicle and drive the vehicle
home that evening. Id. ¶ 13.

The following day, Plaintiff returned to A&K Auto and completed the paperwork, including
a retail purchase agreement and retail installment contract (“RIC”). ECF No. 64 ¶ 14. Plaintiff
was informed that Atlantic Acceptance Corp. was the finance company and lienholder. Id.
Plaintiff appears to allege that Atlantic Acceptance Corp. sold her loan to Agora Data through a
master receivables agreement (“MRA”) and that Agora Data hired Westlake to service the loan.
Id. ¶¶ 39, 74. Plaintiff contends that she received a phone call from Atlantic Acceptance Corp. and
an email from Westlake on October 28, 2022, telling her to direct her payments for the vehicle to
Westlake. Id. ¶ 15. Plaintiff set up her account and commenced making payments on the vehicle.
Id.
Plaintiff alleges that she received five notifications that hard credit inquiries were made to

her Equifax Credit Report on January 4, 2023. ECF No. 64 ¶ 17. Plaintiff reached out to A&K
Auto about these inquiries, and she was informed that “everything [was] working in [her] favor”
and she was “100 per cent good.” Id. ¶ 18. The following day, Plaintiff received six notifications
that hard inquiries were made. Id. Plaintiff again called A&K Auto about these inquiries. Id. ¶
19. Plaintiff was informed that Atlantic Acceptance Corp. “went belly up,” A&K Auto had not
received payment for Plaintiff’s vehicle, and A&K Auto had secured another lender for Plaintiff.
Id. Plaintiff was informed that she needed to return to A&K Auto to sign the new paperwork. Id.
Plaintiff alleges that she called Westlake and informed it about Atlantic Acceptance Corp., and
Westlake was unaware of this information. Id. Westlake processed another payment from Plaintiff
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regarding the vehicle on that date. Id. Plaintiff contends that the Walt entities, Agora Data, and
Westlake pursued payment from her for an “illegitimate debt,” did not transfer Plaintiff’s payments
to Atlantic Acceptance Corp. or A&K Auto, and did not return the payments to her. Id. ¶¶ 64-65,
71-73.

Plaintiff alleges that she contacted A&K Auto and informed them that Westlake did not
know about Atlantic Acceptance Corp. dissolving and accepted a payment from her. ECF No. 64
¶ 20. Accordingly, Plaintiff was not going to return to A&K Auto to “essentially purchase the
vehicle a second time ….” Id. On February 7, 2023, Plaintiff received notice that her FICO score
had decreased. Id. ¶ 21. Plaintiff contends that “[t]here was zero contact” between her and A&K
Auto from January 6, 2023, through February 26, 2023. Id.
Between 11:00 p.m. and 12:00 a.m. on February 25, 2023, Roy Owens (“Owens”) of Roy
Owens towing attempted to repossess the vehicle from Plaintiff’s residence. ECF No. 64 ¶ 22.
Plaintiff initially believed that the vehicle was being stolen because she had not received any notice
or otherwise been made aware of any pending repossession. Id. Plaintiff responded “frantically,”

ran out of her house to see what was happening, stepped off an embankment in her yard, and
fractured her left foot and sprained her left ankle. Id. ¶¶ 22, 88. Owens informed Plaintiff that
A&K Auto was repossessing the vehicle, and Plaintiff explained that there was no legal right to
repossess the vehicle and that A&K Auto was not the lienholder. Id. ¶ 23. A dispute ensued, and
“Plaintiff would not allow … Owens to depart with the vehicle.” Id. The Greenville County Police
Department was called to the residence. Id. ¶ 24. Owens produced a repossession order form
dated February 23, 2023, which showed that the creditor was A&K Auto. Id.
Plaintiff informed an officer about the situation, and the officer told Plaintiff that this was
a civil matter; she could seek remedy with the courts; he would allow Owens to repossess the
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vehicle since he had produced documentation authorizing the repossession; and if she did not allow
Owens to do his job, she would be arrested for disturbing the peace. ECF No. 64 ¶ 25. Plaintiff’s
children and sister, as well as neighbors, witnessed these events. Id. ¶ 26. Plaintiff then agreed to
exit the vehicle. Id.

Plaintiff alleges that she was later informed by someone from A&K Auto that Atlantic
Acceptance Corp. “had gone bankrupt” and “released the car back to A&K Auto.” ECF No. 64 ¶
28. A&K Auto informed Plaintiff that they had lost nearly $100,000 due to Atlantic Acceptance
Corp. and “there were about 5 vehicles caught up in this bankruptcy ….” Id. ¶ 29. A&K Auto
offered to “make this right” and recoup Plaintiff’s payments from Westlake, deduct these payments
from the cost of the vehicle, and get Plaintiff refinanced “at a better rate.” Id. ¶¶ 29-31. Plaintiff
alleges that A&K Auto informed her that Westlake should not have been accepting payments
because Atlantic Acceptance Corp. never paid A&K Auto for the vehicle. Id. ¶ 32. Plaintiff
submits that she decided to not return to A&K Auto to refinance the vehicle. Id. ¶ 33.
Plaintiff also sets forth information related to Atlantic Acceptance Corp.’s bankruptcy and

Agoratrade, Agora Data, Walter Auto, and Walt LLC’s lawsuit against the Atlantic entities, among
others. ECF No. 47-1 at ¶¶ 38-54. The Court takes judicial notice of these actions. See In re
Atlantic Acceptance Corp., No. 23-11339-MAM (Bankr. S.D. Fla.); Walter Auto Loan Trust v.
Atlantic Acceptance Corp., No. 9:23-cv-80007-WPD (S.D. Fla.).1

1 See Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining that courts
“may properly take judicial notice of matters of public record”); Colonial Penn Ins. Co. v. Coil,
887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in
noticing the content of court records.’”).
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State Court Action
The Court also takes judicial notice that Plaintiff previously filed a lawsuit in the Greenville
County Court of Common Pleas on March 1, 2023, against several parties, including Westlake,
Atlantic Acceptance Corp., A&K Auto, and Roy Owens Towing. See Greenville County Public

Index, https://www2.greenvillecounty.org/SCJD/PublicIndex/PISearch.aspx at Case No. 2023-
CP-23-01039 (last visited June 20, 2025). In her state court complaint, Plaintiff brought claims
for (1) breach of contract, (2) breach of good faith and fair dealing, (3) civil conspiracy to commit
fraud, (4) predatory lending, (5) violation of the FCRA, (6) false and misleading representations,
(7) invasion of privacy, (8) emotional distress, and (9) promissory estoppel. Plaintiff subsequently
filed an amended complaint on March 8, 2023, adding a claim for contributory negligence.
After Atlantic Acceptance Corp. filed bankruptcy, Plaintiff filed a voluntary dismissal of
Atlantic Acceptance Corp. in the state court action. Moreover, Plaintiff settled with A&K Auto.
ECF No. 64 ¶ 52. Westlake filed a motion to dismiss pursuant to South Carolina Rule of Civil
Procedure 12(b)(6) on April 21, 2023, and a memorandum in support on June 29, 2023. The circuit

court granted Westlake’s motion to dismiss by issuing a Form 4 Order on July 10, 2023, but the
court permitted Plaintiff 10 days to replead her causes of action against Westlake. Plaintiff filed a
second amended complaint on the same date, alleging claims for breach of contract, breach of
good faith and fair dealing, fraud, violation of the FCRA, and negligence. Westlake filed a second
motion to dismiss on July 26, 2023. The circuit court granted Westlake’s motion to dismiss on
September 18, 2023, by issuing a Form 4 Order and noting that a formal order was forthcoming.
Prior to the issuance of the formal order, Plaintiff filed an appeal. The South Carolina Court of
Appeals dismissed Plaintiff’s appeal and found that the Form 4 Order was not immediately
appealable given the forthcoming formal order. See South Carolina Appellate Case Management
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System, https://www.sccourts.org/ACMS/index.cfm at case number 2023-001469 (last visited
June 20, 2025). The circuit court issued a formal order on October 9, 2023, and Plaintiff did not
appeal that order. In her Amended Complaint in the instant matter, Plaintiff asserts that she
“decided not to pursue the [a]ppeal further and opted instead” to file a complaint in federal court.

ECF No. 64 ¶¶ 51-53.
APPLICABLE LAW AND ANALYSIS
Service of Process
1. Westlake and the Agora Entities
Westlake and the Agora entities argue that Plaintiffs’ claims against them should be
dismissed for insufficient service of process. ECF Nos. 71 at 5; 72 at 3-4. A defendant may move
to dismiss a case under Federal Rule of Civil Procedure 12(b)(5) based on “insufficient service of
process.” Fed. R. Civ. P. 12(b)(5). Federal Rule of Civil Procedure 4 provides that a domestic
corporation, partnership, or other unincorporated association must be served by “following state
law for serving a summons in an action brought in courts of general jurisdiction in the state where

the district court is located or where service is made” or “by delivering a copy of the summons and
of the complaint to an officer, a managing or general agent, or any other agent authorized by
appointment or by law to receive service of process ….” Fed. R. Civ. P. 4(e), (h). Further,
If a defendant is not served within 90 days after the complaint is
filed, the court--on motion or on its own after notice to the plaintiff-
-must dismiss the action without prejudice against that defendant or
order that service be made within a specified time. But if the plaintiff
shows good cause for the failure, the court must extend the time for
service for an appropriate period. …

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Fed. R. Civ. P. 4(m). “The plaintiff bears the burden of proving adequate service once a motion to
dismiss for insufficient service of process has been filed pursuant to Fed. R. Civ. P. 12(b)(5).”
Scott v. Md. State Dep’t of Labor, 673 F. App’x 299, 304 (4th Cir. 2016).
Plaintiff has not met her burden of showing that she properly served Westlake and the

Agora entities. Plaintiff filed a Certificate of Service regarding her first Complaint on November
21, 2024, claiming that she served Westlake, the Agora entities, and Atlantic Auto Finance Group,
LLC by serving their registered agents via certified mail. ECF No. 25 at 6-11. Moreover, Plaintiff
filed a Certificate of Service regarding her Amended Complaint on March 11, 2025, indicating that
she served her Amended Complaint on Westlake and the Agora entities’ counsel via certified mail.
ECF No. 77. Plaintiff’s attempts do not satisfy the requirements of Federal Rule of Civil Procedure
4. See ECF Nos. 25; 77; see also Fed. R. Civ. P. 4; Rule 4(d)(3), (8), SCRCP; Cal. Civ. P. Code §
415.30, 416.40; Tex. R. Civ. P. 106.2
However, “[d]ismissal of an action against a defendant under Rule 12(b)(5) for
insufficiency of service is within the discretion of the court and will not necessarily be granted

when there is no prejudice to the defendant and proper service is likely to be accomplished.”
Henderson v. Scott, C/A No. 4:23-5280-SAL-TER, 2024 WL 2333950, at *2 (D.S.C. May 1, 2024)
(citation and internal quotation marks omitted). “When there is actual notice, every technical
violation of the rule or failure of strict compliance may not invalidate the service of process.”
Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984). “Generally,
when service of process gives the defendant actual notice of the pending action, [a] court[ ] may

2 California is where Plaintiff attempted service on Westlake and where one of Westlake’s
registered agents is located, ECF Nos. 25 at 8; 27 at 6, and Texas is where the Agora entities are
located, ECF No. 40 at 4.
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construe Rule 4 liberally to effectuate service and uphold the jurisdiction of the court.” Aten v.
Boan, C/A No. 3:20-cv-01390-DCC-KDW, 2020 WL 8455070, at *2 (D.S.C. Oct. 9, 2020); see
Scott, 673 F. App’x at 304 (“[T]he real purpose of service of process is to give notice to the
defendant, and mere technicalities should not stand in the way of consideration of a case on its

merits.”) (internal citations and quotation marks omitted). In light of Plaintiff’s good faith attempts
to serve Westlake and the Agora entities, her pro se status, the lack of prejudice to Westlake and
the Agora entities, and Westlake and the Agora entities’ actual notice of this lawsuit, the
undersigned recommends that the district court decline to dismiss this case under Federal Rule of
Civil Procedure 12(b)(5) and uphold the Court’s jurisdiction. However, as discussed below, the
undersigned recommends that the district court dismiss Westlake and the Agora entities pursuant
to Federal Rule of Civil Procedure 12(b)(6).
2. The Atlantic Entities
The Atlantic entities have not appeared in this matter. The Court’s First Serve Order
directed as follows:

Because Plaintiff paid the full filing fee, Plaintiff is responsible
for service of process under Rule 4 of the Federal Rules of Civil
Procedure. Therefore, Plaintiff shall serve the Complaint,
Summons, and this Order on Defendants in accordance with Rule 4.
The Court cannot sua sponte serve initial process on any fee-paying
litigant’s behalf, and the Court’s electronic case filing system does
not effect initial service on any defendant. …

Under Rule 4(m), unless a Defendant is served within 90 days
after the summons is issued as directed by this Order, that
particular unserved Defendant may be dismissed without
prejudice from this case.

ECF No. 22 at 2 (emphasis in original). Plaintiff filed a Certificate of Service on November 21,
2024, indicating that she served her Complaint on Atlantic Acceptance Holdings, LLC and Atlantic
10
Acceptance Corp. by serving their alleged counsel from another lawsuit via certified mail. ECF
No. 25 at 1-3. Plaintiff also indicated that she tried to effect service on Atlantic Auto Finance
Group, LLC, by serving its registered agent.3 Id. at 4-5.
In the Order granting Plaintiff’s Motion to Amend her Complaint, the Court noted that

Westlake and the Agora entities questioned whether they had been properly served. ECF No. 63
at 11. The Court directed Plaintiff to “serve the Amended Complaint on the registered agents for
all Defendants ….” Id. The Court’s Second Serve Order contained the same language set forth
above from the First Serve Order and the directive to serve Defendants via their registered agents.
ECF No. 68. Nonetheless, Plaintiff filed a Certificate of Service on March 11, 2025, indicating
that she served her Amended Complaint on the Atlantic entities’ alleged counsel from another
lawsuit via certified mail. ECF No. 77 at 1.
Plaintiff has failed to provide proof of proper service pursuant to Federal Rule of Civil
Procedure 4. Moreover, the Court finds that Plaintiff has not shown good cause for her failure to
serve the Atlantic entities, and an extension is therefore not warranted. Accordingly, the

undersigned recommends that the district court dismiss the Atlantic entities without prejudice
under Rule 4(m).4

3 Plaintiff has not attached proof that she mailed the appropriate documents with “return receipt
requested and delivery restricted to the addressee,” Rule 4(d)(3), (8), SCRCP, or that she served
Atlantic Auto Finance Group, LLC’s registered agent in person, Fl. Stat. § 48.062. See ECF No.
25 at 4-5.

4 To the extent Plaintiff properly serves the Atlantic entities during the time period for filing
objections to this Report and Recommendation, this matter should be recommitted to the
undersigned United States Magistrate Judge.
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Federal Rule of Civil Procedure 12(b)(6) - Standard of Review
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams
v. Preiss-Wal Pat III, LLC, 17 F. Supp. 3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). Rule 8(a) sets forth a liberal pleading standard,

which requires only a “short and plain statement of the claim showing the pleader is entitled to
relief, in order to give the defendant fair notice of what ... the claim is and the grounds upon which
it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation and internal quotation
marks omitted). “In assessing the sufficiency of a complaint, [the court] assume[s] as true all its
well-pleaded facts and draw[s] all reasonable inferences in favor of the plaintiff.” Nanni v.
Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th Cir. 2017) (citing Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)). “[T]he facts alleged ‘must be
enough to raise a right to relief above the speculative level’ and must provide ‘enough facts to state
a claim to relief that is plausible on its face.’” Robinson v. Am. Honda Motor Co., Inc., 551 F.3d
218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “The plausibility standard is

not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks
omitted).
Westlake’s Motion Pursuant to Rule 12(b)(6)
Westlake argues that Plaintiff’s claims against it should be dismissed based on res judicata.
ECF No. 71 at 7-9. Res judicata may be a basis for dismissal under Federal Rule of Civil Procedure
12(b)(6). Toney v. LaSalle Bank Nat’l Ass’n, 896 F.Supp.2d 455, 464 (D.S.C. 2012) (“[R]es
judicata or claim preclusion challenge is to be considered pursuant to Rule 12(b)(6)”) (citing
Davani v. Va. Dep’t of Transp., 434 F.3d 712, 720 (4th Cir. 2006)). “[A]n affirmative defense such
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as res judicata may be raised under Rule 12(b)(6) only if it clearly appears on the face of the
complaint.” Andrews v. Daw, 201 F.3d 521, 524 n.1 (4th Cir. 2000). “[W]hen entertaining a motion
to dismiss on the ground of res judicata, a court may take judicial notice of facts from a prior
judicial proceeding when the res judicata defense raises no disputed issue of fact.” Id.

The Court looks to South Carolina law to determine the preclusive effect of Plaintiff’s
previous state court action. See Allen v. McCurry, 449 U.S. 90, 95-96 (1980) (“The federal courts
generally have also consistently accorded preclusive effect to issues decided by state courts. Thus,
res judicata … not only reduce[s] unnecessary litigation and foster[s] reliance on adjudication, but
also promote[s] the comity between state and federal courts that has been recognized as a bulwark
of the federal system.”); Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, 161-62 (4th Cir.
2008) (“Generally, the preclusive effect of a judgment rendered in state court is determined by the
law of the state in which the judgment was rendered.”); Wilder v. Krebs, C/A No. 2:17-763-CMC-
MGB, 2019 WL 1862648, at *2 (D.S.C. Apr. 25, 2019) (“If the prior proceeding is a state court
one, federal courts use the law of the state to determine if preclusion applies.”); Zimmerman v.

Coll. of Charleston, C/A No. 2:12–cv–00505–DCN, 2013 WL 4523585, at *3 (D.S.C. Aug. 26,
2013) (noting that “[t]o determine the preclusive effect of a state court judgment, federal courts
look to state law” and applying South Carolina law to the doctrine of res judicata).
In South Carolina, “[r]es judicata bars subsequent actions by the same parties when the
claims arise out of the same transaction or occurrence that was the subject of a prior action between
those parties.” Judy v. Judy, 712 S.E.2d 408, 414 (S.C. 2011) (citation omitted). “Under the
doctrine of res judicata, [a] litigant is barred from raising any issues which were adjudicated in the
former suit and any issues which might have been raised in the former suit.” Id. (citation omitted).
“Res judicata’s fundamental purpose is to ensure that no one should be twice sued for the same
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cause of action.” S.C. Pub. Int. Found. v. Greenville Cnty., 737 S.E.2d 502, 507 (S.C. Ct. App.
2013) (citation omitted). “Res judicata bars a second suit where there is (1) identity of parties; (2)
identity of subject matter; and (3) adjudication of the issue in the first suit.” Yelsen Land Co., Inc.
v. State, 723 S.E.2d 592, 596 (S.C. 2012).

Plaintiff filed suit against several defendants, including Westlake, in the Greenville County
Court of Common Pleas based on her purchase of the subject vehicle and its subsequent
repossession. In her second amended complaint in the state court action, Plaintiff asserted claims
for breach of contract, breach of good faith and fair dealing, fraud, violation of the FCRA, and
negligence against Westlake. Westlake filed a motion to dismiss under South Carolina Rule of
Civil Procedure 12(b)(6) based on Plaintiff’s failure to state claim, which the circuit court granted.
Plaintiff did not appeal the circuit court’s formal order. Plaintiff subsequently filed this lawsuit
against Westlake in federal court based on the purchase and repossession of the same vehicle,
asserting claims against Westlake for breach of contract, fraud, violation of the FCRA, negligence,
violation of the RICO, civil conspiracy, violation of the SCUTPA, and conversion.

There is identity of the parties in the state court action and the instant matter, as both
lawsuits were brought by Plaintiff against Westlake. The fact that Plaintiff named additional
defendants beyond Westlake in the state court action and the present action does not preclude
application of the doctrine of res judicata as to her claims against Westlake. See Machado v. Davis,
C/A No. 4:11–1758–KDW, 2012 WL 4051123, at *7 (D.S.C. Sept. 13, 2012) (“The fact that there
were additional defendants in the earlier action does not preclude application of the doctrine of res
judicata as to the parties in the present action.”); RFT Mgmt. Co., LLC v. Gilbert, C/A No. 8:10-
02503-HFF, 2011 WL 13142633, at *4 (D.S.C. May 24, 2011) (noting that “[i]t is axiomatic that
joining additional defendants in a subsequent action does not allow a plaintiff to litigate claims
14
against a defendant that were or should have been brought in a prior action against that defendant”
and finding that “the presence of additional defendants in this action [did] not disrupt the identity
of the parties.”).
There is also identity of subject matter, as both lawsuits are related to Plaintiff’s purchase

of the same vehicle and the vehicle’s subsequent repossession. As noted, Plaintiff acknowledges
in her Amended Complaint in this matter that she chose to not to appeal the circuit court’s formal
order dismissing Westlake and instead refiled her complaint in federal court. ECF No. 61 at 51-
53; see Plum Creek Dev. Co., Inc. v. City of Conway, 512 S.E.2d 106, 109 (S.C. 1999) (noting that
the subject matter is the same “when the claims arise out of the same transaction or occurrence
that was the subject of a prior action.”). Although Plaintiff asserts slightly different claims, in the
res judicata context, “‘cause of action’ is not the form of action in which a claim is asserted but,
rather the ‘cause for action, meaning the underlying facts combined with the law giving the party
a right to a remedy of one form or another based thereon.’” Judy, 3712 S.E.2d at 414. “[S]imply
seeking a different remedy in the second lawsuit for the same cause of action does not negate the

identical nature of the subjects of the two actions.” Id. “[A] claim for damages is a claim for relief
rather than an assertion of a different cause of action for purposes of determining the applicability
of res judicata.” Id. Because Plaintiff’s claims in the instant action arise out of the same
transaction or occurrence that was the subject of the state court action, there is identity of subject
matter.
Further, the circuit court’s grant of Westlake’s motion to dismiss under South Carolina Rule
of Civil Procedure 12(b)(6) constitutes an adjudication of the issue in the first suit. Adjudication
of the issue requires that “a final, valid judgment was entered on the merits of the first suit.” Judy
v. Judy, 677 S.E.2d 213, 217 (S.C. Ct. App. 2009). Because the circuit court held that Plaintiff
15
failed to state a claim against Westlake and Plaintiff did not appeal the circuit court’s formal order,
there was final adjudication of the issue in the first suit. See, e.g., Jones v. City of Folly Beach,
483 S.E.2d 770, 773 (S.C. Ct. App. 1997) (“It is generally recognized that a dismissal with
prejudice indicates an adjudication on the merits and precludes subsequent litigation to the same

extent as if the action had been tried to a final adjudication.”); McLean v. United States, 566 F.3d
391, 396 (4th Cir. 2009) (“Courts have held that, unless otherwise specified, a dismissal for failure
to state a claim under Rule 12(b)(6) is presumed to be both a judgment on the merits and to be
rendered with prejudice.”), overruled in part on other grounds by Lomax v. Ortiz-Marquez, 140 S.
Ct. 1721 (2020). Accordingly, Plaintiff’s claims against Westlake in the present matter are barred
by res judicata, and the undersigned recommends that the district court grant Westlake’s Motion
to Dismiss.5
The Agora Entities’ and the Walt Entities’ Motions Pursuant to Rule 12(b)(6)
The Agora entities and the Walt entities argue that all of Plaintiff’s claims should be
dismissed because she has failed to state a claim under Rule 12(b)(6). ECF Nos. 72 at 4-21; 78 at

3-19. Plaintiff argues that these Motions should be denied. ECF Nos. 84 at 1-8; 82 at 1-7.
1. Agora Capital and Agoratrade
As an initial matter, the Agora entities argue that Agora Capital and Agoratrade should be
dismissed because Plaintiff does not make any specific allegations against those entities in the
Amended Complaint. ECF No. 72 at 4-5. Plaintiff argues that “allegations against a corporate
entity can support individual claims against specific corporate divisions and contractually adjacent

5 Because Plaintiff’s claims against Westlake are barred by res judicata, Westlake’s remaining
arguments are not addressed. See ECF No. 71.
16
entities” and that her Amended Complaint offers factual context that allows for a “reasonable
inference of each Defendant’s direct and indirect involvement through collective corporate
actions.” ECF No. 84 at 3.
Plaintiff named Agoratrade in the caption of the Amended Complaint, alleged that Atlantic

Acceptance Corp. listed Agoratrade as one of its creditors in its bankruptcy action, and alleged that
Agoratrade filed a notice of appearance in Atlantic Acceptance Corp.’s bankruptcy action. ECF
No. 64 ¶¶ 41, 45. Moreover, Plaintiff identifies Agora Capital in the caption and in the “Parties”
section and alleges that “Westlake did have indirect contractual obligations to the Plaintiff via the
assignment of the debt from Agora Data Inc. dba Agora Capital ….” Id. ¶¶ 6, 65. Plaintiff does
not otherwise mention Agoratrade or Agora Capital in her Amended Complaint.
The Court finds that Plaintiff has failed to set forth any specific factual allegations or
wrongdoing from Agoratrade or Agora Capital sufficient to state a claim. To survive a motion to
dismiss under Rule 12(b)(6), a plaintiff must provide “enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at 555, 570; see Hall v. Grant, C/A No. 602–817–10AK,

2002 WL 32078923, at *3 (D.S.C. July 31, 2002) (“[A] well-pleaded complaint must contain
something more than mere conclusory statements that are unsupported by specific facts.”) (citation
and internal quotation marks omitted); Deabreu v. Novastar Home Mortg., Inc., 536 F. App’x 373,
375 (4th Cir. 2013) (“While pro se pleadings must be construed liberally, courts are not required
to conjure up questions never presented to them.”) (internal citations and quotation marks omitted);
Gibson v. Am.’s Servicing Co., C/A No. 5:10–CV–342–FL, 2010 WL 4974552, at *1 n.1 (E.D.N.C.
Nov. 30, 2010) (noting that pro se pleadings must still meet the requirement of plausibility).
Because Plaintiff has failed to provide any specific allegations regarding Agora Capital and
Agoratrade, her Amended Complaint lacks sufficient factual detail to state a plausible claim
17
against those entities upon which relief can be granted. See, e.g., Bilbro v. Haley, 229 F.Supp.3d
397, 406 (D.S.C. 2017) (granting Hammond’s motion to dismiss when the plaintiff only named
Hammond in the caption of the complaint); Cleveland v. Duvall, C/A No. 8:14-4305-RBH-TER,
2015 WL 6549278, at *3 (D.S.C. Feb. 20, 2015) (dismissing a claim when “Plaintiff offers no

specific allegations against the Defendant ….”); Lewallen v. McCarley, C/A No. 8:21-1171-SAL-
MHC, 2022 WL 3161855, at *4 (D.S.C. July 7, 2022) (recommending granting a defendant’s
motion to dismiss when the plaintiff made “no specific allegations in his Second Amended
Complaint regarding any wrongdoing by” that defendant), R&R adopted by 2022 WL 3161684
(D.S.C. 2022). Therefore, the undersigned recommends that the district court dismiss Agora
Capital and Agoratrade from this matter.
2. The Walt Entities
The Walt entities argue that Walter Auto should be dismissed because Walter Auto never
had any relationship with Plaintiff or the vehicle at issue. ECF No. 78 at 3-4. The Walt entities
assert that Walt and Walter Auto entered into separate MRAs with the Atlantic entities, which

covered separate portfolios of RICs. Id. at 3. Plaintiff’s RIC fell under the MRA between Walt
and the Atlantic entities, not the MRA between Walter Auto and the Atlantic entities. See ECF

18
Nos. 47-5; 78-1 at 64.6 Because Plaintiff has failed to allege that Walter Auto had a relationship
to her or her RIC, Plaintiff has failed to state a claim against Walter Auto.7
3. Breach of Contract
In her Amended Complaint, Plaintiff alleges that she entered into a RIC with A&K Auto to

purchase the vehicle. ECF No. 64 ¶¶ 14, 56, 61. Plaintiff alleges that Atlantic Acceptance Corp.
was the finance company and lien holder of the vehicle but sold her loan through a MRA to Agora
Data. Id. ¶¶ 14, 39, 74. Plaintiff contends that Agora Data hired Westlake to service the loan. Id.
¶ 39, 65. Plaintiff alleges that (1) Atlantic Acceptance Corp. and Agora Data breached the RIC by
failing to pay A&K Auto for the vehicle and releasing the vehicle back to A&K Auto, (2) Atlantic
Acceptance Corp. and Agora Data’s breach effectuated the repossession of the vehicle, and (3)
Atlantic Acceptance Corp. and Agora Data did not provide her with the notice required by the RIC
prior to repossessing the vehicle. Id. ¶¶ 56, 61-63. Plaintiff does not set forth any allegations
against Walt in her breach of contract claim. See id. ¶¶ 55-67.

6 Walt attached a copy of the MRA between Walt and the Atlantic entities to its Motion to Dismiss.
See ECF No. 78-1. At the motion to dismiss stage, the Court can consider documents not attached
to a complaint if the documents were “integral to and explicitly relied on in the complaint” and
there is no authenticity challenge. E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d
435, 448 (4th Cir. 2011). Although Plaintiff did not attach the MRA between Walt and the Atlantic
entities, she referenced the MRA between the parties in her Amended Complaint and, in her
Response, did not challenge the document’s authenticity. ECF Nos. 64 ¶ 39; 82 at 1-7.
Accordingly, the Court has considered the MRA between Walt and the Atlantic entities herein as
integral and explicitly relied on in the complaint.”

7 Even if Agora Capital, Agoratrade, and Walter Auto were not dismissed for these reasons, they
should be dismissed for the reasons stated below regarding Agora Data and Walt. Plaintiff’s claims
against the remaining Agora entity – Agora Data – and the remaining Walt entity – Walt – are
addressed below.
19
“The elements for a breach of contract are the existence of the contract, its breach, and the
damages caused by such breach.” Johnson v. Little, 827 S.E.2d 207, 210 (S.C. Ct. App. 2019).
Plaintiff has not alleged that she entered into a contract with Agora Data. However, even assuming
that Agora Data was a party to the RIC or in privity of contract with a party to the RIC,8 Plaintiff

has failed to sufficiently allege that Agora Data breached the RIC. Plaintiff does not set forth any
specific allegations that Agora Data had an obligation to provide financing to A&K Auto for the
vehicle. Rather, the factual allegations in Plaintiff’s Amended Complaint reflect that Atlantic
Acceptance Corp. was the finance company and responsible for paying A&K Auto for the vehicle.
ECF No. 64 ¶¶ 14, 19, 29, 32. Moreover, Plaintiff does not allege with any specificity that Agora
Data released the vehicle to A&K or played any role in the repossession. Instead, Plaintiff alleges
that A&K Auto initiated the repossession with the assistance of Roy Owens Towing. Id. ¶¶ 23-24.
Plaintiff’s conclusory allegations fall short of the requirements of Iqbal and Twombly. See Iqbal,
556 U.S. at 678 (“Nor does a complaint suffice if it tenders naked assertion[s] devoid of further
factual development. … A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”) (citation and internal quotation marks omitted); Cleveland, 2015 WL 6549278, at *3
(“The court ‘need not accept the [Plaintiff’s] legal conclusions drawn from the facts,’ nor need it
‘accept as true unwarranted inferences, unreasonable conclusions, or arguments.’”) (quoting Kloth
v. Microsoft Corp., 444 F.3d 312, 319 (4th Cir. 2006)). Moreover, because Plaintiff has failed to

8 “Generally, one not in privity of contract with another cannot maintain an action against him in
breach of contract ….” Windsor Green Owners Ass’n, Inc. v. Allied Signal, Inc., 605 S.E.2d 750,
752 (S.C. Ct. App. 2004). “‘Privity’ denotes [a] mutual or successive relationship to the same
rights of property.” Thompson v. Hudgens, 159 S.E. 807, 812 (S.C. 1931).
20
set forth any allegations against Walt, her breach of contract claim against Walt should be
dismissed. Therefore, the undersigned recommends that the district court grant Agora Data and
Walt’s Motions to Dismiss Plaintiff’s breach of contract claim.
4. Fraud

A claim for fraud requires a plaintiff to show the following elements:
(1) a representation of fact; (2) its falsity; (3) its materiality; (4)
either knowledge of its falsity or reckless disregard of its truth or
falsity; (5) intent that the representation be acted upon; (6) the
hearer’s ignorance of its falsity; (7) the hearer’s reliance on its truth;
(8) the hearer’s right to rely thereon; and (9) the hearer’s consequent
and proximate injury.
Schnellmann v. Roettger, 645 S.E.2d 239, 241 (S.C. 2007). “In alleging fraud …, a party must
state with particularity the circumstances constituting fraud ….” Fed. R. Civ. P. 9(b). “To meet
this standard, the complaint must describe ‘the time, place and contents of the false representations,
as well as the identity of the person making the misrepresentation and what he obtained thereby.’”
United States v. Berkeley Heartlab, Inc., 247 F. Supp. 3d 724, 729 (D.S.C. 2017) (quoting U.S. ex
rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 379 (4th Cir. 2008)).
Plaintiff alleges that Agora Data and Walt communicated false information to gain her trust
and cooperation “to obligate [her] via financial instruments that [Agora Data and Walt] did not
fully and legally finalize and/or execute financially, never intended to honor, and/or deliberately,
willfully, and maliciously breached.” ECF No. 64 ¶ 69. Moreover, Plaintiff contends that after
Walt and Agora Data became aware that Atlantic Acceptance had filed bankruptcy, they
fraudulently continued to attempt to collect payments from Plaintiff and reported this illegitimate
debt on Plaintiff’s credit reports. Id. ¶¶ 72-73. Plaintiff alleges that repossessing vehicles that are
not in default “to shield their businesses from losses by passing on those losses to … Plaintiff is
fraudulent in nature.” Id. ¶ 76.
21
Although Plaintiff generally asserts that Agora Data and Walt communicated false
information to gain her trust and cooperation and tried to collect payments from her, she does not
set forth any specific factual allegations of Agora Data or Walt having any communication with
her or making any particular false representation of fact. As noted, “a party must state with

particularity the circumstances constituting fraud …,” Fed. R. Civ. P. 9(b), including “the time,
place and contents of the false representations,” Kellogg, 525 F.3d at 379. Plaintiff has failed to
do so. See Schnellmann, 645 S.E.2d at 241 (“The failure to prove any element of fraud or
misrepresentation is fatal to the claim.”). Additionally, Plaintiff has not set forth any allegations
that Agora Data or Walt were involved in the repossession of her vehicle. Instead, Plaintiff alleges
these actions were taken by A&K Auto and Roy Owens Towing. ECF No. 64 ¶¶ 23-24. Because
Plaintiff has failed to allege that Agora Data and Walt made a false a representation of fact or plead
her fraud claim with sufficient particularly, the district court should dismiss this claim against
Agora Data and Walt.
5. Fair Credit Reporting Act

The FCRA was enacted to regulate the consumer reporting industry and ensure fair and
accurate credit reporting. Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52 (2007). “To this end,
[the] FCRA requires [credit reporting agencies (“CRAs”)] to follow procedures in reporting
consumer credit information that both ‘meet[] the needs of commerce’ and are ‘fair and equitable
to the consumer.’” Saunders v. Branch Banking & Trust Co. of Va., 526 F.3d 142, 147 (4th Cir.
2008) (quoting 15 U.S.C. § 1681(b)). “In addition to the duties it imposes on CRAs, [the] FCRA
also imposes duties on ‘furnishers of information.’” Id. (quoting 15 U.S.C. § 1681s-2).
Plaintiff has brought her claim pursuant to 15 U.S.C. § 1681s-2(b). ECF No. 64 ¶ 85.
Section 1681s-2(b) provides duties a furnisher incurs if a consumer disputes the accuracy of the
22
information a furnisher reports. “If a consumer notifies a CRA that he disputes the accuracy of an
item in his file, FCRA requires the CRA to notify the furnisher of the dispute.” Sanders, 526 F.3d
at 148 (citing 15 U.S.C. § 1681i(a)(2)). Upon receipt of this notice, a furnisher must:

(A) conduct an investigation with respect to the disputed
information;

(B) review all relevant information provided by the consumer
reporting agency pursuant to section 1681i(a)(2) of this title;

(D) if the investigation finds that the information is incomplete or
inaccurate, report those results to all other consumer reporting
agencies to which the person furnished the information and that
compile and maintain files on consumers on a nationwide basis
....
15 U.S.C. § 1681s–2(b)(1).
To state a claim for a violation of § 1681s-2(b), a plaintiff must allege that (1) she disputed
specific information on her credit report with a CRA, (2) the CRA alerted the defendant of the
disputed information, and (3) the defendant failed to reasonably investigate and modify the
inaccurate information. Wilson v. Wells Fargo Bank, C/A No. 2:22-3594-BHH-MHC, 2023 WL
4466948, at *4 (D.S.C. June 13, 2023), R&R adopted by 2023 WL 4458944 (D.S.C. July 10, 2023).
“[A] furnisher’s duty to investigate is not triggered until it receives notification of a dispute from
a [CRA].” Mavilla v. Absolute Collection Serv., Inc., 539 F. App’x 202, 208 (4th Cir. 2013). “Once
the duty to investigate is triggered, a furnisher breaches that duty if it fails to comply within 30
days.” Id.
Plaintiff alleges that Agora Data and Walt were made aware in February 2023, both by
Plaintiff and a notice to creditors filed in Atlantic Acceptance’s bankruptcy, that the debt regarding
23
Plaintiff’s vehicle was illegitimate because Atlantic Acceptance never paid A&K Auto. ECF No.
64 ¶ 81. Plaintiff contends that Westlake reported this loan on her credit reports with Experian,
Equifax, and Transunion from March 2023 to June 2023, which negatively impacted her credit
score and delayed her ability to obtain financing for a different vehicle. Id. Plaintiff submits that

Agora Data and Walt were required to take reasonable measures to resolve this loan once they
realized that the debt was illegitimate. Id. ¶ 84. Plaintiff states she “disputed the tradeline with
the Bureaus and with Westlake directly.” Id. ¶ 85.
Plaintiff fails to state a claim under § 1681s-2(b). Plaintiff has not alleged any facts as to
when she allegedly disputed information with CRAs. Moreover, while Plaintiff alleges that she
disputed the information with “the Bureaus,” she fails to allege with which specific CRAs she
disputed the information, how she disputed the information, and other facts to support her belief
that these unidentified CRAs notified Agora Data and Walt of the dispute. Plaintiff contends that
she informed Agora Data and Walt about the disputed information, but “notice of dispute given by
a consumer directly to the furnisher is not sufficient to trigger the furnisher’s statutory duties under

§ 1681s-2(b).” Wilson v. Wells Fargo Bank, N.A., C/A No. 2:20-cv-2780-BHH-MHC, 2021 WL
2003524, at *5 (D.S.C. Apr. 30, 2021) (collecting cases), R&R adopted by 2021 WL 2003184
(D.S.C. May 19, 2021). Rather, under § 1681s-2(b), a furnisher’s duty to investigate is not
triggered until the furnisher is notified of a dispute by a CRA. Mavilla, 539 F. App’x at 208.
Because Plaintiff has not set forth specific factual allegations that she disputed information
on her credit report with a CRA and the CRA alerted Agora Data and Walt of the disputed
information, she has failed to state a claim under § 1681s-2(b). Therefore, the undersigned
recommends that the district court dismiss Plaintiff’s claim under the FCRA against Agora Data
and Walt. See Wilson, 2023 WL 4466948, at *4 (“Plaintiff fails to state a claim under § 1681s-
24
2(b) because she has not alleged any facts as to when she allegedly disputed information, with
CRA(s) she disputed the information, how she disputed the information, what information about
which account she disputed, and other facts to support her belief that these unidentified CRA(s)
notified Wells Fargo of the dispute.”); Blick v. Wells Fargo Bank, N.A., C/A No. 3:11–cv–00081,

2012 WL 1030137, at *9 (W.D. Va. Mar. 27, 2012) (dismissing a claim under the FCRA when
“Plaintiff’s Complaint fail[ed] to allege that any Defendant received notification from a [CRA]
regarding Plaintiffs’ dispute….”), aff’d by 474 F. App’x 932 (4th Cir. 2012).
6. Negligence
“To establish a negligence cause of action under South Carolina law, the plaintiff must
prove the following three elements: (1) a duty of care owed by defendant to plaintiff; (2) breach
of that duty by a negligent act or omission; and (3) damage proximately resulting from the breach
of duty.” J.T. Baggerly v. CSX Transp., Inc., 635 S.E.2d 97, 101 (S.C. 2006).
In her negligence claim, Plaintiff alleges that she fractured her left foot in two places and
severely sprained her ankle when running to her vehicle as it was being towed. ECF No. 64 ¶¶ 88-

92. Plaintiff contends that Agora Data and Walt owed her a duty of care to adhere to the contracts
in place, and had they honored these contracts, she would not have injured her foot and ankle. Id.
¶¶ 94-96. Plaintiff asserts that Agora Data and Walt’s actions proximately caused her injuries. Id.
¶¶ 97-99.
Plaintiff’s claim is devoid of specific factual allegations against Agora Data and Walt.
Plaintiff does not allege that Agora Data and Walt failed to pay A&K Auto or filed bankruptcy.
Rather, Plaintiff attributes those actions to Atlantic Acceptance. Additionally, Plaintiff does not
allege that Agora Data and Walt played any role in repossession of her vehicle. Instead, Plaintiff
attributes those actions to A&K Auto and Roy Owens Towing. As a result, Plaintiff has failed to
25
sufficiently allege that Agora Data and Walt proximately caused her injuries. See Hurd v.
Williamsburg Cnty., 579 S.E.2d 136, 144 (S.C. Ct. App. 2003) (“Proximate cause requires proof
of both causation in fact and legal cause. … Legal cause … is proved by establishing
foreseeability. … The standard by which foreseeability is determined is that of looking to the

natural and probable consequences of the complained of act.”); Parks v. Characters Night Club,
548 S.E.2d 605, 609 (S.C. Ct. App. 2001) (“Foreseeability is not determined from hindsight, but
rather from the defendant’s perspective at the time of the alleged breach.”). Therefore, the
undersigned recommends that the district court grant Agora Data and Walt’s Motions to Dismiss
Plaintiff’s negligence claim.
7. Racketeer Influenced and Corrupt Organizations Act
Plaintiff alleges a violation of 18 U.S.C. § 1962 of RICO. ECF No. 64 ¶¶ 101-110.
Specifically, Plaintiff alleges that Defendants are “collaborators” and “person[s]” and that Agora
Data and Walt are an enterprise engaged in activities which affected interstate commerce. Id. ¶¶
104-105. Plaintiff contends the “Defendant Collaborators” were associated with or participated in

Walt’s affairs and conducted and participated in the management of Walt through a pattern of
racketeering activity. Id. ¶¶ 105-106. Plaintiff submits that this conduct “includes financial
institution fraud and/or mail fraud and/or extortionate credit transactions.” Id. ¶ 107.
RICO provides a civil cause of action for “[a]ny person injured in his business or property
by reason of a violation” of RICO’s substantive provisions in § 1962. 18 U.S.C. § 1964(c). Section
1962 provides, in relevant part, as follows:
It shall be unlawful for any person employed by or associated with
any enterprise engaged in, or the activities of which affect, interstate
or foreign commerce, to conduct or participate, directly or indirectly,
in the conduct of such enterprise’s affairs through a pattern of
racketeering activity ....
26
18 U.S.C. § 1962(c). Thus, to state a claim under § 1962(c), a plaintiff must allege that “(1) a
defendant person (2) employed or associated with (3) an enterprise, engaged in, or the activities of
which affect, interstate or foreign commerce, (4) conducts or participates in the conduct of the
affairs of the enterprise (5) through a pattern of racketeering activity.” West Town Bank & Trust v.
Forman, C/A No. 2:19-3203-BHH, 2020 WL 6585655, at *4 (D.S.C. Nov. 10, 2020); see Sedima,
S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985).
Although Plaintiff lists the elements of a claim under § 1962(c), her Amended Complaint
contains legal conclusions and lacks specific factual allegations regarding those elements. See
Nedimyer v. CooperSurgical, Inc., C/A No. 3:22-1454-MGL, 2023 WL 5806887, at *11 (D.S.C.

Sept. 7, 2023) (“The Court need not accept unsupported legal allegations, legal conclusions
couched as factual allegations, or conclusory factual allegations devoid of any reference to specific
acts, dates, or policies.”) (internal citations omitted); Doe 8 v. Varsity Brands, LLC, C/A No. 6:22-
3508-HMH, 2023 WL 4209843, at *14 (D.S.C. June 27, 2023) (“The requirements of section
1962(c) must be established as to each individual defendant.”) (quoting DeFalco v. Bernas, 244
F.3d 286, 306 (2d Cir. 2001)).
Moreover, the United States Court of Appeals for the Fourth Circuit mandates that “[t]he
enterprise must be distinct from the persons alleged to have violated § 1962(c).” Palmetto State
Med. Ctr., Inc. v. Operation Lifeline, 117 F.3d 142, 148 (4th Cir. 1997); see New Beckley Mining

Corp. v. Int’l Union, UMW of Am., 18 F.3d 1161, 1163 (4th Cir. 1994) (finding that the district
court properly dismissed a § 1962(c) claim because the defendant persons were not distinct from
the alleged enterprises). Plaintiff alleges that Walt and Agora Data are “person[s]” and an
“enterprise.” ECF No. 64 ¶¶ 103-04. Because Plaintiff has failed to allege a distinction between
27
Walt and Agora Data as persons and an enterprise, her RICO claim against them should be
dismissed.
Additionally, Plaintiff’s general allegations about fraud fail to meet the heightened pleading
standard, as she did not allege factual details regarding “the time, place and contents of the false

representations, as well as the identity of the person making the misrepresentation and what he
obtained thereby.” Berkeley, 247 F. Supp. 3d at 729 (citation and internal quotation marks
omitted); see Jones v. Ram Med., Inc., 807 F.Supp.2d 501, 513 (D.S.C. 2011) (“[A]llegations of
fraud pled as the basis of a RICO claim must meet the heightened pleading requirements set forth
in Rule 9(b) of the Federal Rules of Civil Procedure.”); Menasco, Inc. v. Wasserman, 886 F.2d 681,
684 (4th Cir. 1989) (“[P]laintiff must plead circumstances of the fraudulent acts that form the
alleged pattern of racketeering activity with sufficient specificity pursuant to Fed.R.Civ.P. 9(b).”)
(quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1400-01 (9th Cir.
1986)). Based on the foregoing, the undersigned recommends that the district court dismiss
Plaintiff’s RICO claim against Agora Data and Walt.

8. Civil Conspiracy
Plaintiff alleges that Defendants are liable for civil conspiracy. ECF No. 64 ¶¶ 112-117.
The elements of a civil conspiracy claim are: “(1) the combination or agreement of two or more
persons, (2) to commit an unlawful act or a lawful act by unlawful means, (3) together with the
commission of an overt act in furtherance of the agreement, and (4) damages proximately resulting
to the plaintiff.” Paradis v. Charleston Cnty. Sch. Dist., 861 S.E.2d 774, 780 (S.C. 2021). “Since
civil conspiracy is an intentional tort, an intent to harm … [is] an inherent part of the analysis.”
Id. at 780.

28
Plaintiff alleges that the Walt entities, Agora Data, and Westlake conspired to collect
payments that they were not entitled to and continued to do so after they became aware that Atlantic
Acceptance Corp. failed to honor finance agreements with dealerships. ECF No. 64 ¶ 113.
Plaintiff submits that the Walt entities, Agora Data, and Westlake conspired to retain illegitimate

accounts, which left consumers vulnerable to having their vehicles repossessed. Id. ¶ 114.
Plaintiff’s general allegations are insufficient to state a claim that is plausible on its face,
as she fails to allege any specific facts regarding how Agora Data and Walt conspired with each
other, or other Defendants, or any overt acts taken in furtherance of an alleged agreement. See
Middleton v. Georgetown Cnty., No. 2023-000615, 2024 WL 3441420, at *1 (S.C. Ct. App. 2024)
(dismissing civil conspiracy claim because claimant “failed to assert a foundation sufficient to
establish [this claim] and merely set forth conclusory statements without support.”).
Plaintiff’s claim also fails because she does not allege that Agora Data and Walt acted in
furtherance of the conspiracy in a manner separate and independent from her other causes of action.
“In a civil conspiracy claim, one must plead additional facts in furtherance of the conspiracy

separate and independent from other wrongful acts alleged in the complaint, and the failure to
properly plead such acts will merit the dismissal of the claim.” Hackworth v. Greywood at
Hammett, LLC, 682 S.E.2d 871, 875 (S.C. Ct. App. 2009), overruled on other grounds by Paradis,
861 S.E.2d 774. Stated another way, “[w]here the particular acts charged as a conspiracy are the
same as those relied on as the tortious act or actionable wrong, plaintiff cannot recover damages
for such act or wrong, and recover likewise on the conspiracy to do the act or wrong.” Id. at 876;
see Paradis, 861 S.E.2d at 779-80 (explaining that the court in Todd v. S.C. Farm Bureau Mut. Ins.
Co., 278 S.E.2d 607 (S.C. 1981), “correctly concluded the civil conspiracy claim failed as a matter
of law” where the “only wrongful acts alleged were those for which damages had already been
29
sought” and “the plaintiff’s repetition of the same acts as the prior claims was insufficient to
salvage the claim.”); Jinks v. Sea Pines Resort, LLC, C/A No. 9:21-cv-00138-DCN, 2021 WL
4711408, at *3 (D.S.C. Oct. 8, 2021) (finding a plaintiff’s civil conspiracy claim was subject to
dismissal because she did not allege that the defendant “acted in furtherance of the conspiracy in

a manner separate and independent from her other causes of action.”); Coker v. Norwich Com.
Grp., Inc., C/A No. 3:20-03071-MGL, 2021 WL 4037472, at *6 (D.S.C. Sept. 3, 2021) (granting
a motion to dismiss a civil conspiracy claim upon finding that a plaintiff “merely reincorporated
his previous claims and added conclusory allegations the individuals were engaged in a civil
conspiracy.”). Therefore, the undersigned recommends that the district court grant Agora Data and
Walt’s Motions to Dismiss Plaintiff’s civil conspiracy claim.
9. South Carolina Unfair Trade Practices Act
“SCUTPA declares unfair or deceptive acts or practices in trade or commerce unlawful.”
State ex rel. Wilson v. Ortho-McNeil-Janssen Pharm., Inc., 777 S.E.2d 176, 188 (S.C. 2015); see
S.C. Code Ann. § 39-5-20(a). To recover in an action under SCUTPA, a plaintiff must show: “(1)

the defendant engaged in an unfair or deceptive act in the conduct of trade or commerce; (2) the
unfair or deceptive act affected public interest; and (3) the plaintiff suffered monetary or property
loss as a result of the defendant’s unfair or deceptive act(s).” Wright v. Craft, 640 S.E.2d 486, 498
(S.C. Ct. App. 2006) (citing S.C. Code Ann. §§ 39-5-10 to -560).
Plaintiff alleges that “Defendants used unfair and deceptive practices in the conduct of its
business with Plaintiff to obtain funds from the Plaintiff ….” ECF No. 64 ¶ 120. Plaintiff contends
that Defendants’ actions “have the potential for repetition and affect the public as a whole” because
Defendants “regularly transact business of the kind at issue by entering into finance and debt

30
service agreements with dealerships throughout the United States ….” Id. ¶ 122. Plaintiff alleges
that Defendants’ actions were willful and knowing violations. Id. ¶ 123.
Again, Plaintiff’s allegations are conclusory and lack sufficient factual detail to state a
claim. See Robinson, 551 F.3d at 222 (“[T]he facts alleged ‘must be enough to raise a right to

relief above the speculative level’ and must provide ‘enough facts to state a claim to relief that is
plausible on its face.’”) (quoting Twombly, 550 U.S. at 555, 570). Moreover, Plaintiff has failed
to allege that Agora Data or Walt engaged in an unfair or deceptive act in the conduct of trade or
commerce. SCUTPA defines “trade” and “commerce” as “the advertising, offering for sale, sale
or distribution of any services and any property, tangible or intangible, real, personal or mixed,
and any other article, commodity or thing of value wherever situate ….” S.C. Code Ann. § 39-5-
10(b). Plaintiff alleges that Agora Data and Walt purchased her RIC through a MRA from Atlantic
Acceptance Corp. There are no allegations that Agora Data or Walt advertised, offered for sale,
sole, or distributed any services or property related to this matter. Accordingly, Plaintiff’s claim
against Agora Data and Walt for violation of the SCUTPA should be dismissed.

10. Conversion
Plaintiff alleges that Agora Data and Walt are liable for conversion. ECF No. 64 ¶¶ 126-
129. Specifically, Plaintiff asserts that Walt was not legally entitled to assign or sell her account
to Agora Data and Agora Data was not entitled to assign or sell her account to Westlake. Id. ¶¶
126-27. Plaintiff alleges that Defendants did not apply her payments toward any debt, her
payments and the vehicle belonged to her, and Defendants are not entitled to retain the vehicle and
payments. Id. ¶ 128.
“Conversion is defined as the unauthorized assumption in the exercise of the right of
ownership over goods or personal chattels belonging to another to the exclusion of the owner’s
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rights.” Moseley v. Oswald, 656 S.E.2d 380, 382 (S.C. 2008). Plaintiff groups Defendants together
and sets forth conclusory, rather than specific, allegations. See Twombly, 550 U.S. at 555, 570.
Moreover, although Plaintiff alleges that Agora Data and Walt are liable for conversion of the
vehicle, she does not allege that Agora Data or Walt played any role in the repossession or retained

the vehicle. As noted, Plaintiff attributes those actions to A&K Auto and Roy Owens Towing.
ECF No. 64 ¶¶ 23-24. While Plaintiff alleges that Agora Data and Walt converted her loan, a loan
does not fall under the “goods or personal chattels” encompassed by a cause of action for
conversion, and Plaintiff has not alleged that Agora Data and Walt could not legally buy or sell the
RIC.
Regarding Plaintiff’s allegations of her payments towards the vehicle, “[t]here can be no
conversion of money unless there is an obligation on the defendant to deliver a specific, identifiable
fund to the plaintiff.” Mullis v. Trident Emergency Physicians, 570 S.E.2d 549, 551 (S.C. Ct. App.
2002) (citation and internal quotation marks omitted). “Money, however, may be the subject of
conversion if it is capable of being identified and there may be conversion of determinate sums

even though the specific coins and bills are not identified.” Id. (citation and internal quotation
marks omitted). The Court finds that the funds at issue are not subject to a conversion claim
because the funds are not identifiable. See Austin v. Indep. Life & Acc. Ins. Co., 370 S.E.2d 918,
921-22 (S.C. Ct. App. 1988) (distinguishing cases in which specific checks were converted and
holding that a plaintiff’s payment of insurance premiums did “not constitute the type of ‘money’
which is subject to conversion” because the premiums were “not an identifiable or separate item”);
See Owens v. Andrews Bank & Tr. Co., 220 S.E.2d 116, 119 (S.C. 1975) (“[T]here can be no
conversion where there is a mere obligation to pay a debt.”); Johnson v. Barner, C/A No. 3:19-cv-
01129-JMC, 2020 WL 4499989, at *9 (D.S.C. Aug. 5, 2020) (“To determine whether the money
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was converted, courts look to see if it was in a segregated fund of some sort.”); Senn Freight Lines
Inc. v. Am. Inter-Fidelity Corp., C/A No. 8:17-cv-02186-JDA, 2020 WL 9894191, at *8-9 (D.S.C.
July 31, 2020) (dismissing a conversion claim when a plaintiff alleged that he paid more in
premiums than the defendant was entitled to and that the defendant did not refund him because the

defendant had not committed any wrong in accepting the payments and did not have any obligation
to not commingle the payments with its other funds); Ray v. Pilgrim Health & Life Ins. Co., 34
S.E.2d 218, 218-19 (S.C. 1945) (dismissing a conversion claim when the appellant did not refund
money to the appellee because the appellant had “rightfully received this money and committed
no wrongful act in commingling it with its own funds.”). Therefore, the Court recommends that
Plaintiff’s conversion claim against Agora Data and Walt be dismissed.
Plaintiff’s Motion for Service
Plaintiff filed a Motion for Service on April 4, 2025, requesting that the Court direct the
United States Marshal to effectuate service on all Defendants represented by “the Law Office of
Smith Robinson.” ECF No. 92. Attorneys from Smith Robinson Holler Dubose and Morgan, LLC

represent Westlake and the Agora entities. As noted above, the undersigned recommends that the
district court decline to grant Westlake and the Agora entities’ Motions to Dismiss under Federal
Rule of Civil Procedure 12(b)(5) for insufficient service of process and uphold jurisdiction.
Accordingly, should the district court adopt this recommendation and dismiss Westlake and the
Agora entities from this matter, Plaintiff’s Motion for Service should be found moot.

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CONCLUSION AND RECOMMENDATION
Based on the foregoing, it is recommended that the district court GRANT Westlake’s
Motion to Dismiss (ECF No. 71), GRANT the Agora entities’ Motion to Dismiss (ECF No. 72),
and GRANT the Walt entities’ Motion to Dismiss (ECF No. 78). Should the district court adopt

this recommendation, Plaintiff’s Motion for Service (ECF No. 92) should be found MOOT. It is
further recommended that the district court DISMISS the Atlantic entities without prejudice
pursuant to Rule 4(m).
IT IS SO ORDERED.
s/William S. Brown
United States Magistrate Judge

June 23, 2025
Greenville, South Carolina

The attention of the parties is directed to the important notice on the following page

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Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and
Recommendation with the District Judge. Objections must specifically identify the portions of
the Report and Recommendation to which objections are made and the basis for such objections.
“[I]n the absence of a timely filed objection, a district court need not conduct a de novo review,
but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to
accept the recommendation.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir.
2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).

Specific written objections must be filed within fourteen (14) days of the date of service
of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R.
Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be
accomplished by mailing objections to:

Robin L. Blume, Clerk
United States District Court
250 East North Street, Suite 2300
Greenville, South Carolina 29601

Failure to timely file specific written objections to this Report and Recommendation
will result in waiver of the right to appeal from a judgment of the District Court based
upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985);
Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir.
1984).