United States District Court, D. Maryland
L. RUSSELL, III United States District Judge.
before the Court is Defendant's, Federal Home Loan
Mortgage Corporation ("Freddie Mac"), Motion to
Dismiss. (ECF No. 9). The Motion is ripe for disposition. The
Court, having reviewed the Motion and supporting documents,
finds no hearing necessary pursuant to Local Rule 105.6
(D.Md. 2014). For the reasons stated below, the Court will
grant the Motion in part and deny it in part.
November 20, 2013, Freddie Mac purchased property located at
3009 Mardel Avenue, Baltimore, Maryland during a foreclosure
sale. On July 1, 2014, Freddie Mac filed a motion for
judgment awarding possession in the Circuit Court for
Baltimore City, Maryland. On August 12, 2014, the Circuit
Court denied the motion because Freddie Mac failed to conduct
a reasonable inquiry into the occupancy status of the
property to determine whether the occupant, Defendant
Frederico Don Broom, was entitled to rights under the federal
Protecting Tenants at Foreclosure Act of 2009
("PTFA"). Plaintiff Darlene Brown is a Maryland
resident and the mother of minor child S.T. On July 20, 2014,
S.T. entered onto the property and was bitten by a dog owned
or otherwise controlled by either Broom or Defendant Tanya
Louise Dunn. Neither Brown nor S.T. was warned about the
dog's propensity to bite people.
April 27, 2015, Brown filed a Complaint in the Circuit Court.
(ECF No. 15). On September 25, 2015, Brown filed a First
Amended Complaint, individually and as parent, guardian, and
next friend of S.T., alleging claims against Broom, Dunn, and
Freddie Mac for premises liability (Counts I, IV, XIV),
negligence (Counts II, V, XV), strict liability (Counts III,
VI, VII), strict liability for violation of Baltimore County
Code § 12-8-102 (Counts VIII, IX, X), negligence for
violation of § 12-8-102 (Counts XI, XII, XIII), and
economic and non-economic losses of parent (Counts XVI, XVII,
XVIII). (ECF No. 2). On December 10, 2015, Freddie Mac
removed the matter to this Court pursuant to 12 U.S.C. §
1452 (2012). (ECF No. 1). On December 16, 2015, Freddie Mac
filed a Motion to Dismiss. (ECF No. 9). On December 30, 2015,
Brown filed an Opposition to the Motion. (ECF No. 11). On
January 15, 2016, Freddie Mac filed a Reply to the
Opposition. (ECF No. 12).
complaint fails to state a claim if it does not contain
"a short and plain statement of the claim showing that
the pleader is entitled to relief, " Fed.R.Civ.P.
8(a)(2), or does not state "a plausible claim for
relief." Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 556 (2007)). 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. Id. at 678 (citing
Twombly, 550 U.S. at 556). "Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice." Id.
(citing Twombly, 550 U.S. at 555). Though the
plaintiff is not required to forecast evidence to prove the
elements of the claim, the complaint must allege sufficient
facts to establish each element. Goss v. Bank of Am.,
N.A., 917 F.Supp.2d 445, 449 (D.Md. 2013) (quoting
Walters v. McMahen, 684 F.3d 435, 439 (4th Cir.
2012)), aff'd sub nom., Goss v. Bank of Am.,
NA, 546 F.App'x 165 (4th Cir. 2013). In considering
a Federal Rule of Civil Procedure 12(b)(6) motion, the court
must construe the complaint in the light most favorable to
the plaintiff, read the complaint as a whole, and take the
facts asserted therein as true. See Harrison v.
Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th
Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir. 1993)).
Mac argues it cannot be held liable for the dog's actions
because it was not in possession or control of the property
at the time of incident. "A purchaser at a foreclosure
sale is ordinarily entitled to possession of the property
upon ratification of the sale, payment of the purchase price,
and conveyance of legal title." Curtis v. U.S. Bank
Nat. Ass'n, 50 A.3d 558, 564 (Md. 2012) (citing
Legacy Funding LLC v. Cohn, 914 A.2d 760 (Md.
2007)). When a bona fide tenant resides in the sold property, the
purchaser becomes the landlord as of the date of sale upon
ratification of the sale. Real Prop. § 7-105.6(a).
Generally, a bona fide tenant has a right of possession to
premises to the exclusion of the landlord. Kessler v.
Equity Mgmt., Inc., 572 A.2d 1144, 1149 (Md.Ct.Spec.App.
1990) ("During the term of the tenancy, unless permitted
by the terms of the lease, a landlord has no more right to
enter premises possessed by the tenant than a stranger would
have . . . ." (quoting Miller v. Maryland, 198
A. 710, 714 (Md. 1938))). "It follows that a landlord-or
a person who has succeeded to the position of a landlord-
would have no right of ‘immediate possession' as
against a tenant legally in possession of the property under
the PTFA (and [Real Prop.] § 7-105.6)."
Curtis, 50 A.3d at 564 Freddie Mac purchased the
property during a foreclosure sale on November 20, 2013 and
became the landlord of the subject property as of that date.
Because the Circuit Court did not grant Freddie Mac's
motion for immediate possession of the premises, presumably
due to Broom's tenancy, Freddie Mac can be considered a
landlord out of possession. The Court must determine whether
a landlord out of possession can be held liable for a dog
Maryland law, a person injured by a dog may bring an action
against either the owner or a person other than the owner of
the dog. Md.Code Ann., Cts. & Jud. Proc. § 3-1901 (West
2016). "In an action against a person other than an
owner of a dog [such as a landlord] for damages for personal
injury or death caused by the dog, the common law of
liability relating to attacks by dogs against humans that
existed on April 1, 2012, is retained as to the person
without regard to the breed or heritage of the dog."
Id. § 3-1901(b). The common law on April 1,
2012 can be found in Shields v. Wagman, 14 A.2d 881
(Md. 1998), Matthews v. Amberwood Assocs. Ltd.
P'ship, Inc., 719 A.2d 119 (Md. 1998), and
Solesky v. Tracey, 17 A.3d 718 (Md.Ct.Spec.App.
state a claim against a landlord for injuries caused by a
tenant's dog, the plaintiff must allege: "(1) that
the defendant was under a duty to protect the plaintiff from
injury, (2) that the defendant breached the duty, (3) that
the plaintiff suffered actual injury or loss, and (4) that
the loss or injury proximately resulted from the
defendant's breach of the duty." Shields,
714 A.2d at 884 (quoting BG & E v. Flippo, 705 A.2d
1144, 1153-54 (Md. 1998)). "[W]hether a landlord owes a
duty to his or her tenants and their guests with respect to
dangerous or defective conditions on the property, of which
the landlord has notice, depends upon the circumstances
presented." Matthews, 719 A.2d at 123.
Generally, a landlord is not liable to a tenant or guest of a
tenant for injuries from a dangerous condition within the
leased premises that comes into existence after the tenant
has taken possession because the landlord "has parted
with control." Id. at 125 (quoting Marshall
v. Price, 161 A. 172 (Md. 1932)).
the landlord has parted with much control over the leased
premises, the presence of a dangerous dog on the premises can
be controlled through the terms and conditions of the lease
and the landlord's decision to permit the dog owner's
continued tenancy upon notice of the vicious animal. See
Matthews, 719 A.2d at 126-27 ("By the terms of the
lease, the landlord had retained a large measure of control
over the presence of such an animal in the leased premises. .
. . [I]t is not unreasonable to impose upon the landlord a
duty owed to guests who are either on the leased premises or
the common areas."); Shields, 714 A.2d at
889-90 (concluding landlord's ability to control
dog's presence on premises by refusing to renew lease
unless owner removed dog or taking other remedial measures
provided sufficient basis for liability). To impose a duty on
the landlord regarding an occupant's dog, the landlord
must have been aware of the dog that has exhibited
viciousness, and there must have been some opportunity for
the landlord to exert control over the presence of the dog.
Solesky, 17 A.3d at 733 (citing Matthews,
719 A.2d at 131-32).
Brown alleges Freddie Mac knew Broom and Dunn's dog was
on the premises, knew the dog exhibited viciousness in the
past, and had control over the presence of the dog on the
premises through a lease with Broom. Because "knowledge
and other conditions of a person's mind may be alleged
generally, " Fed.R.Civ.P. 9(b), and Brown is not
required to forecast evidence to prove the elements of the
her claims, the Court finds that Brown has alleged sufficient
facts to support claims against Freddie Mac for the injuries
suffered by S.T. at this stage of the litigation. As such,
the Court will deny the Motion as to Counts VII, XIV, XV, and
foregoing reasons, Freddie Mac's Motion to Dismiss (ECF
No. 9) is GRANTED in part and DENIED in part. Counts VIII,
IX, X, XI, XII, and XIII of the First Amended Complaint will
be DISMISSED as to all Defendants. Despite the informal
nature of this memorandum, it shall constitute an Order of
this Court and the Clerk is directed to docket it