Opinion
CIVIL NO.: WDQ-14-1768
02-24-2015
BART GARRY, Plaintiff, v. RONALD FREDERICK, et al., Defendants.
MEMORANDUM OPINION
Bart Garry, pro se, sued Ronald Frederick, Esq., and Michael L. Berler, Esq. (together, the "Defendants"), for defamation and other tort claims in the Circuit Court for Baltimore City. ECF No. 2. The Defendants removed the suit to this Court. ECF No. 1. Pending are the Defendants' unopposed motions to dismiss the original and amended complaints, ECF Nos. 9, 13, and Garry's motion to remand, ECF No. 12. For the following reasons, Garry's motion to remand will be denied, and the Defendants' motion to dismiss the amended complaint will be granted. I. Background
The complaint alleges the following causes of action: Defamation (Count One); Intentional Misrepresentation (Count Two); Interference with Contractual Relations (Count Three); Unfair or Deceptive Trade Practices (Count Four); Violation of the Consumer Debt Collection Act (Count Five); Negligence (Count Six); Abuse of Process (Count Seven); and Negligent Misrepresentation (Count Eight). ECF No. 2.
"It is well settled that an amended pleading supersedes the original pleading, and that motions directed at superseded pleadings are to be denied as moot." Blount v. Carlson Hotels, 3:11CV452-MOC-DSC, 2011 WL 6098697, at *1 (W.D.N.C. Dec. 6, 2011) (citing Young v. City of Mount Ranier, 238 F.3d 567, 573 (4th Cir. 2001) ("The general rule ... is that an amended pleading supersedes the original pleading, rendering the original pleading of no effect.")). Accordingly, the Defendants' motion to dismiss the original complaint, ECF No. 9, will be denied as moot.
The facts are from the amended complaint, the Defendants' memorandum in support of its motion to dismiss, and related exhibits, ECF Nos. 9-1, 9-2, 9-3, 9-4, 11. For the motion to dismiss for lack of personal jurisdiction, "the [C]ourt must take all disputed facts and reasonable inferences in favor of the plaintiff[s]." Carefirst of Md., Inc. v. Carefirst Pregnancy Centers, Inc., 334 F.3d 390, 396 (4th Cir.2003). For the motion to dismiss for failure to state a claim, the well-pled allegations in the complaint are accepted as true. See Brockington v. Boykins, 637 F.3d 503, 505 (4th Cir. 2011). In reviewing the motion to dismiss, the Court may consider allegations in the complaint, matters of public record, and documents attached to the motion to dismiss that are integral to the complaint and authentic. See Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
The Defendants are Ohio-based attorneys. ECF Nos. 2 at 1; 9-1 at 1; 9-4 at 1, 3. Garry resides in Baltimore, Maryland. ECF Nos. 1 at 1; 11 at 1. This suit arose when the Defendants sued Garry for $500,000 in Ohio state court. ECF Nos. 11 ¶ 3; 9-1 at 1.
Each defendant swore he was not licensed to practice--and has never practiced--law in Maryland. ECF No. 9-4 at 1, 3. From 1997 to 1998, defendant Berler worked as a temporary computer consultant in Baltimore City. Id. at 3.
The underlying action is styled BSD Collections, Inc. v. Walker, Civil Case No. 1301853, filed in the Garfield Heights Municipal Court in Cuyahoga County, Ohio. ECF Nos. 9-1 at 1; 9-2. In that case, Garry, as the owner of BSD Collections, Inc. ("BSD Collections"), sued Shnea Walker, an Ohio resident, for $5,050.13 in connection with a 2007 promissory note with a 59.92% annual interest rate. ECF No. 9-1 at 1-2. Walker retained the Defendants as counsel. Id. at 2. The Defendants counterclaimed against BSD Collections, and brought a third-party claim against Garry. Id.; ECF No. 9-3. That case remains pending in Ohio state court. ECF No. 9-1 at 2.
Garry alleges that the "Defendants are in the business of defrauding the public by bringing and serving frivolous claims." ECF No. 11 ¶ 1. The Defendants "make up either phony laws and/or facts, or cite totally inapplicable laws[,] and then sue upon these laws . . . [in] the hope they will lead to settlements." Id. ¶ 2. The Defendants "claim[ed] that [Garry] had hundreds of times violated a law," when they "knew that the law was inapplicable and that [Garry] had not violated the cite[d] law." Id. ¶ 3. Garry "was a victim of the tort while in Baltimore City." Id. "To the best of [Garry's] knowledge and belief[, the] Defendants have done similar actions against other individuals and small businesses throughout the country." Id. ¶ 4.
B. Procedural History
On March 7, 2014, Garry sued the Defendants in the Circuit Court for Baltimore City, seeking $500,000 in compensatory damages, unspecified punitive damages, and attorney's fees and costs. ECF Nos. 1 at 1; 2 at 1, 7. On June 2, 2 014, the Defendants removed the suit to this Court. ECF No. 1. On July 1, 2014, the Defendants moved to dismiss the complaint. ECF No. 9.
Garry, however, is proceeding pro se. ECF Nos. 2 at 1; 11 at 1.
On July 14, 2014, Garry amended his complaint, reducing to $74,000 his claim for compensatory damages, while still seeking unspecified punitive damages, and attorney's fees and costs. ECF No. 11 at 7. On July 14, 2014, Garry moved to remand the suit to state court. ECF No. 12. On July 16, 2014, the Defendants opposed that motion. ECF No. 14. That same day, the Defendants moved to dismiss the amended complaint. ECF No. 13. On August 4, 2014, Garry's response to the motion to dismiss was due. To date, Garry has not filed a response. II. Analysis
Garry failed to include the required redlined version showing changes from the original to the amended complaint. See Local Rule 103.6.
The Defendants incorporated by reference the memorandum of points and authorities and exhibits attached to their motion to dismiss the original complaint. See ECF Nos. 13 at 1; 9-1; 9-2; 9-3; 9-4.
A. Motion to Remand
1. Legal Standard
"[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant ... to the district court of the United States for the district and division embracing where such action is pending." 28 U.S.C. § 1441(a)(2012). Under 28 U.S.C. § 1332(a)(1)(2012), "[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different States."
It is well settled that federal jurisdiction is "fixed at the time the . . . notice of removal is filed." Dennison v. Carolina Payday Loans, Inc., 549 F.3d 941, 943 (4th Cir.2008). If, at that time, the parties are citizens of different states and the amount in controversy exceeds $75,000, the Court has jurisdiction on the basis of diversity--"regardless of later changes in . . . the amount in controversy." Porsche Cars N. Am., Inc. v. Porsche.net, 302 F.3d 248, 255-56 (4th Cir. 2002); see also Pinney v. Nokia, Inc., 402 F.3d 430, 443 (4th Cir. 2005); Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1166 (4th Cir. 1988).
2. Garry's Motion
Garry asserts that remand is proper because the amended complaint, which seeks $74,000 in compensatory damages, eliminated the Court's diversity jurisdiction. ECF No. 12 at 1. The Defendants assert that remand is inappropriate because removal is determined by the complaint filed at the time of removal. ECF No. 14 at 1.
The Defendants are correct. The original complaint named diverse parties and sought $500,000 in damages. ECF No. 2. The Court's subject matter jurisdiction was fixed at that time; Garry's motion will be denied. See Dennison, 549 F.3d at 943; 28 U.S.C. § 1332.
B. Motion to Dismiss for Lack of Personal Jurisdiction
1. Legal Standard
Under Federal Rule of Civil Procedure 12(b)(2), the Court may dismiss a complaint unless the plaintiffs can prove personal jurisdiction by a preponderance of the evidence. Mylan Labs, Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir. 1993); Fed. R. Civ. P. 12(b)(2). Personal jurisdiction may be general or specific. General jurisdiction requires the Defendants' "continuous and systematic" contacts with the forum state. Diamond Healthcare of Ohio, Inc. v. Humility of Mary Health Partners, 229 F.3d 448, 450 (4th Cir. 2000). Specific jurisdiction requires that the Defendants' "contacts relate to the cause of action and create a substantial connection with the forum state." Id.
If the court determines the issue of personal jurisdiction without an evidentiary hearing, and relies only on the complaint, affidavits, and discovery materials, "the plaintiff need only make a prima facie showing of personal jurisdiction." Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003). In determining whether the prima facie showing has been made, the court "must draw all reasonable inferences arising from the proof, and resolve all factual disputes, in the plaintiff's favor." Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir. 1993). However, the Court need not "credit conclusory allegations or draw farfetched inferences."
Masselli & Lane, PC v. Miller & Schuh, PA, No. 99-2440, 2000 WL 691100, *1 (4th Cir. May 30, 2000) (citing Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 203 (1st Cir. 1994)).
2. The Defendants' Motion
A federal district court may assert personal jurisdiction over a non-resident when the exercise of jurisdiction is (1) authorized by the forum state's long-arm statute, and (2) consistent with due process. Carefirst of Md., Inc., 334 F.3d at 396. Maryland has construed the state's long-arm statute as coextensive with the scope of jurisdiction allowable by due process. See Mackey v. Compass Mktg., Inc., 892 A.2d 479, 486 (Md. 2006) . "Although the statutory and constitutional inquiries merge, the Court must address both elements in the personal jurisdiction analysis." Metropolitan Reg'l Info. Sys., Inc. v. American Home Realty Network, Inc., 888 F.Supp.2d 691, 698 (D. Md. 2012).
In Maryland, the "statutory inquiry merges with [the] constitutional inquiry," because "Maryland courts have consistently held that the state's long-arm statute is coextensive with the limits of personal jurisdiction set by the due process clause of the Constitution." Carefirst of Md., Inc., 334 F.3d at 396-97. A plaintiff must still specify which provisions of the long-arm statute provide for personal jurisdiction over the defendant. See Cleaning Auth., Inc. v. Neubert, 739 F. Supp. 2d 807, 811-12 & n.7 (D. Md. 2010); Mackey, Inc., 8 92 A.2d at 4 93 n.6.
The Defendants assert that Garry has not shown that the Court has specific or general jurisdiction over them. ECF No. 9-1 at 5-14. Garry's amended complaint does not state the basis for the Court's personal jurisdiction, see ECF No. 11, and he has not responded to the Defendants' motion.
i. Statutory Authority
Maryland's long-arm statute limits jurisdiction to claims "arising from any act enumerated [in the statute]." Md. Code, Cts. & Jud. Proc. § 6-103(a). Under subsection (b)(4), a defendant who "causes tortious injury in [Maryland] . . . by an act or omission outside [Maryland]" is subject to jurisdiction here if the defendant "derives substantial revenue from goods, food, services, or manufactured products used or consumed in [Maryland]." Id. § 6-103(b)(4).
Garry alleges that he was "a victim of the tort while in Baltimore City." ECF No. 11 ¶ 3. The factual basis of the alleged torts is the civil suit pending in Ohio state court. See id.; ECF Nos. 9-1 at 3; 9-2. Drawing reasonable inferences in Garry's favor, see Mylan Labs., Inc., 2 F.3d at 60, § 6-103(b)(4) represents the only possible statutory basis for personal jurisdiction.
However, Garry has not shown that the Defendants "derive[] substantial revenue" from services--presumably, legal services---consumed in Maryland. Garry merely alleges that the Defendants "hope" their lawsuits "will lead to settlements." See ECF No. 11 ¶ 2. The Ohio suit remains pending, see ECF No. 9-1 at 2; even had that suit settled, the Defendants--Ohio-based lawyers, representing an Ohio resident, in Ohio court--would have derived their revenue from services consumed in Ohio, not Maryland. Thus, Garry has not shown that Maryland's long-arm statute reaches the Defendants.
ii. Due Process
Due process requires that the defendant have "minimum contacts" with the State such that maintaining the suit "does not offend 'traditional notions of fair play and substantial justice.'" Garry has not alleged that the Defendants have "continuous and systematic" contacts with the forum state justifying general personal jurisdiction, nor can the Court find such contacts in the record.
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-92 (1980) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
In determining whether the exercise of specific personal jurisdiction comports with due process, a court traditionally considers, inter alia, "the extent to which the defendant has purposefully availed itself of the privilege of conducting activities in the state." Carefirst of Md., Inc., 334 F.3d at 397 .
Under the "effects" test, a court may also assert jurisdiction over a non-resident defendant who has "expressly aimed" his tortious conduct at the forum state, knowing that the injury would be felt there. Calder v. Jones, 465 U.S. 783, 789 (1984). However, "'foreseeability' alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 296 (1980).
Here, the Defendants have not "purposely availed" themselves of the privilege of conducting activities in Maryland. Garry, as BSD Collections owner, sued Walker in Ohio; the Defendants, as Walker's counsel, responded to that action by counterclaiming against BSD Collections, and bringing a third-party claim against Garry, in Ohio. See supra note 5. The Defendants have not expressly aimed tortious conduct at Maryland. See Calder, 465 U.S. at 789. That Garry lives in Maryland does not change the outcome; the propriety of jurisdiction over an out-of-state defendant depends on "the defendant's own contacts with the state," not where the plaintiff feels the alleged injury. ESAB Grp., Inc. v. Centricut, Inc., 126 F.3d 617, 626 (4th Cir. 1997) (citing Calder, 465 U.S. at 789); Young v. New Haven Advocate, 315 F.3d 256, 263 (4th Cir. 2002). Accordingly, due process does not permit the Court's exercise of personal jurisdiction over the Defendants; their motion to dismiss will be granted. III. Conclusion
Cf. Cape v. von Maur, 932 F. Supp. 124, 128 (D. Md. 1996)("[C]ase law overflows on the point that providing out-of-state legal representation is not enough to subject an out-of-state lawyer or law firm to the personal jurisdiction of the state in which a client resides."). The Defendants' contacts are more attenuated than those in Cape because the Defendants did not represent a Maryland resident, but an Ohio resident in connection with litigation initiated by a Maryland resident.
Accordingly, the Court need not address whether the amended complaint should also be dismissed for insufficient service of process, or failure to state a claim.
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For the reasons stated above, Garry's motion to remand will be denied, the Defendants' motion to dismiss the original complaint will be denied as moot, and the Defendants' motion to dismiss the amended complaint will be granted. 2/24/15
Date
/s/_________
William D. Quarles, Jr.
United States District Judge