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Bey v. Pedersen

United States District Court, D. Maryland

June 8, 2016



          DEBORAH K. CHASANOW United States District Judge.

         Presently 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 as moot.

         I. Background

         Plaintiff, 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).

         Mr. 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 action.

         The 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 DAMAGES.

(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.

         On 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).

         The 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).

         II. Standard of Review

         When a 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) (citations omitted).

         "The 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.

         When, 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 ...

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