United States District Court, D. Maryland
DEBORAH K. CHASANOW United States District Judge.
pending and ready for resolution in this embezzlement and
breach of contract action is a motion to dismiss filed by
Defendant Mike Pedersen ("Defendant"), the
President and Chief Executive Officer of TD Bank, N.A.
("TD Bank"). (ECF No. 7). Also pending is a motion
for summary judgement filed by Plaintiff Keith Roderick
Broadnax Bey ("Plaintiff"). (ECF No. 11). The court
now rules, no hearing being deemed necessary. Local Rule
105.6. For the following reasons, Defendant’s motion
will be granted, and Plaintiff’s motion will be denied
proceeding pro se, filed a complaint naming
"Mike Pedersen Dba. President and Chief Executive
Officer of [TD Bank]" as defendant. (ECF No. 1). The
clerk issued a summons for Mr. Pedersen, an individual. (ECF
No. 3). The return of service is ambiguous in that it recites
that Mr. Pedersen was served by serving the summons on Lydia
C. Boose, "who is designated to accept service of
process on behalf of [TD Bank]." (ECF No. 6, at 1). At
the bottom of the return, "[a]dditional information
regarding attempted service" refers to registered mail
sent to both Ms. Boose and Mr. Pedersen. There are return
receipts for both, but it is impossible to read the
signatures. (Id. at 1-2).
Pedersen filed a motion to dismiss, and included TD Bank to
the extent that it can be considered a defendant. (ECF No.
7-1, at 8-10). Plaintiff fails to distinguish consistently
between Mr. Pedersen and TD Bank in the complaint. At times,
Plaintiff refers to TD Bank as "Defendant" (ECF No.
1, at 3 ("Plaintiff established a new bank account with
Defendant . . . by depositing his funds with
Defendant.")) and asserts that he is suing TD Bank
through Defendant (ECF No. 9-1, at 9 ("Plaintiff is
suing the artificial person [TD Bank] by and through the
natural person Mike Pedersen who is liable for the actions of
all ‘officers, agents or servants’ of the
artificial person [TD Bank].")). Plaintiff also appears
to argue that both Mr. Pedersen and TD Bank are parties to
this case. (See Id. at 7). TD Bank, however, was not
named as a defendant in this action, and Plaintiff cannot add
a party by including factual allegations in the complaint or
opposition brief. See Jassie v. Mariner, No.
DKC-15-1682, 2016 WL 67257, at *7 (D.Md. Jan. 6, 2016).
Plaintiff has not amended the complaint to name TD Bank as a
defendant; accordingly, TD Bank is not a party to this
complaint alleges that on April 13, 2015, Plaintiff opened a
bank account and deposited funds at a branch of TD Bank
located in Hyattsville, Maryland. (ECF Nos. 1, at 3; 9-1, at
7). On or about April 23, Defendant "unlawfully
restricted and confiscated Plaintiff’s funds in the
amount of [$831, 587.00]." (ECF No. 1, at 3). Plaintiff
allegedly sent Defendant two documents, which he asserts
created a binding contract. (Id.). The first
document, a "Notice of Intent to Sue, " informed
Defendant that he had seven days within which to return the
funds to Plaintiff’s bank account. (ECF No. 1-3, at 3).
The second document, a "Notice and Demand for Trust
Funds and Agreement for Damages, " reiterated
Plaintiff’s request that the funds be returned within
seven days and demanded damages:
If you fail to comply with the terms of this DEMAND in the
timeframe allotted, you consent and agree to pay the Trust,
the amount of $5, 821, 109.00 (which is $831, 587.00
multiplied by 7) in damages, in addition to the $831, 587.00
of Trust funds you stole, purloined and embezzled, as agreed
in our contract titled NOTICE OF INTENT TO SUE dated April
27, 2015. This is a contract, where you consent and agree to
the facts stipulated herein. Upon Default, this contract is
law and you must pay the Trust, a total of $6, 652, 696.00
within seven (7) days from your receipt of the NOTICE OF
DEFAULT: NOTICE AND DEMAND FOR TRUST FUNDS AND AGREEMENT FOR
(ECF No. 1-4, at 2-3). Defendant did not respond to either
notice sent by Plaintiff. Subsequently, Plaintiff sent
Defendant a "Final Notice of Intent to Sue"
communicating his intent to seek legal action. (ECF No 1-4,
at 15). Again, Defendant did not respond.
September 16, the Internal Revenue Service ("IRS")
obtained a tax lien against Plaintiff in the Circuit Court
for Prince George’s County. (ECF No. 7-2). According to
Defendant, "[t]he IRS requested that the funds in the
account be returned" to it, and "TD Bank complied
with the IRS’s request." (ECF No. 7-1, at 1).
complaint asserts claims of embezzlement, unlawful
restriction of funds, and breach of contract. (Id.
at 3-4). Plaintiff seeks declaratory judgment, specific
performance, and compensatory damages of $6, 652, 696.00. Mr.
Pedersen moved to dismiss for lack of personal jurisdiction
and failure to state a claim. (ECF No. 7). Plaintiff was
provided with a Roseboro notice, which advised him
of the pendency of the motion to dismiss and his entitlement
to respond within 17 days. (ECF No. 8); see Roseboro v.
Garrison, 528 F.2d 309, 310 (4th Cir. 1975)
(holding that pro se plaintiffs should be advised of
their right to file responsive material to a motion for
summary judgment). Plaintiff responded in opposition (ECF No.
9), and Mr. Pedersen replied (ECF No. 10). On January 13,
2016, Plaintiff filed a motion for summary judgment, which is
fully briefed. (ECF Nos. 11; 13; 14).
Standard of Review
court’s power to exercise personal jurisdiction is
challenged by a Rule 12(b)(2) motion, "the
jurisdictional question is to be resolved by the judge, with
the burden on the plaintiff ultimately to prove grounds for
jurisdiction by a preponderance of the evidence."
Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs.,
Inc., 334 F.3d 390, 396 (4th Cir. 2003)
(citation omitted). If jurisdiction turns on disputed facts,
the court may resolve the challenge after a separate
evidentiary hearing, or may defer ruling pending receipt of
evidence relevant to the jurisdictional question. Combs
v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989).
If the court chooses to rule without conducting an
evidentiary hearing, relying solely on the basis of the
complaint, affidavits, and discovery materials, "the
plaintiff need only make a prima facie showing of
personal jurisdiction." Carefirst, 334 F.3d at
396. In determining whether the plaintiff has met its burden,
all jurisdictional allegations must be construed in the light
most favorable to the plaintiff, and the most favorable
inferences must be drawn for the existence of jurisdiction.
New Wellington Fin. Corp. v. Flagship Resort
Dev. Corp., 416 F.3d 290, 294 (4thCir. 2005)
nature of the claim and the defendant’s contacts with
the forum state determine whether a court may assert specific
or general personal jurisdiction." Johansson Corp.
v. Bowness Constr. Co., 304 F.Supp.2d 701, 703 (D.Md.
2004). Specific personal jurisdiction applies "[i]f the
defendant’s contacts with the State are also the basis
for the suit." Tire Eng’g & Distribution, LLC
v. Shandong Linglong Rubber Co., 682 F.3d 292, 301
(4th Cir. 2012) (quoting ALS Scan, Inc. v.
Digital Serv. Consultants, Inc., 293 F.3d 707, 712
(4th Cir. 2002)); see Helicopteros Nacionales
de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984). The
court may exercise general jurisdiction, by contrast, when
the defendant maintains "continuous and systematic"
contact with the forum state. Tire Eng’g &
Distribution, 682 F.3d at 301 (quoting ALS
Scan, 293 F.3d at 712); see Helicopteros, 466
U.S. at 415.
as here, the defendant is a nonresident, a federal district
court may exercise personal jurisdiction only if (1) the
long-arm statute of the forum state confers jurisdiction and
(2) the exercise of personal jurisdiction is consistent with
constitutional due process. Christian Sci. Bd. of Dirs.
of First Church of Christ, Scientist v. Nolan, 259 F.3d
209, 215 (4th Cir. 2001) (citation omitted).
Maryland’s long-arm statute, Md. Code Ann., Cts. & Jud.
Proc. § 6-103, authorizes the exercise of personal
jurisdiction to the limits permitted by the Due Process
Clause of the Fourteenth Amendment. See ALS Scan,
293 F.3d at 710 (citing Androutsos v. Fairfax Hosp.,
323 Md. 634, 637 (1991)). This broad reach does not suggest
that analysis under the long-arm statute is irrelevant;
rather, it reflects that, "to the extent that a
defendant’s activities are covered by the statutory
language, the reach of the statute extends to the outermost
boundaries of the [D]ue [P]rocess [C]lause." Dring
v. Sullivan, 423 F.Supp.2d 540, 545 (D.Md. 2006)
(quoting Joseph M. Coleman & Assocs., Ltd. v. Colonial
Metals, 887 F.Supp. 116, 118 n.2 (D.Md. 1995)); see
also Mackey v. Compass Mktg., Inc., 391 Md. 117, 141 n.6
(2006) (noting that although the "long-arm statute is
coextensive with the limits of personal jurisdiction set by
the due process clause, " it is not "permissible to
dispense with analysis under the long-arm statute"). To
satisfy the long-arm prong of the ...