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Callender v. Callender

United States District Court, D. Maryland

June 30, 2016

DONALD J. CALLENDER, Plaintiff,
v.
ERICA CALLENDER, Defendant.

          Donald J. Callender, Plaintiff, represented by John E. Carpenter, Law Office of John E Carpenter.

          Erica Callender, Defendant, represented by Brian D. Lyman, Hillman Brown and Darrow PA.

          Diane Callender, Movant, represented by Samuel J. Brown, Hillman Brown and Darrow PA.

          MEMORANDUM OPINION

          THEODORE D. CHUANG, District Judge.

         Plaintiff Donald J. Callender has filed suit against Defendant Erica Callender, alleging conversion and fraud. Pending before the Court are Defendant's Motion to Dismiss, Defendant's Motion for Summary Judgment, a Motion to Dismiss filed by now-dismissed defendant Bank of the Bahamas, and a "Motion to Interplead as a Necessary Party" filed by Plaintiff's wife, Diane Callender. The Motions are fully briefed and ripe for disposition. No hearing is necessary to resolve the issues. See D. Md. Local R. 105.6. For the reasons set forth below, Defendant's Motion to Dismiss and Motion for Summary Judgment are DENIED, Bank of the Bahamas' Motion to Dismiss is GRANTED IN PART and DENIED IN PART, and Diane Callender's Motion to Interplead is DENIED.

         BACKGROUND

         The following facts are presented in the light most favorable to Plaintiff, the nonmoving party:

         I. Alleged Conversion and Fraud

         Plaintiff is the sole owner of Convergence Management Associates LLC ("CMA") and its affiliate, Convergex Caribbean Limited ("Convergex"), companies through which Plaintiff provides financial consulting services. At one time, CMA employed Defendant, Plaintiff's daughter-in-law, as an office manager and administrative assistant. Since at least 2010, Convergex, a Bahamian corporation, has maintained a business banking account at Bank of the Bahamas. Plaintiff claims that, on two separate occasions, Defendant transferred money out of Convergex's account without Plaintiff's authorization or knowledge. First, on May 27, 2010, Defendant instructed Bank of the Bahamas to wire $29, 000 from Convergex's account to an account belonging to the Island Hotel Company at the City National Bank of Florida. Defendant allegedly owed money to the Island Hotel Company. Then on April 17, 2012, while Plaintiff was in the hospital, Defendant directed Bank of the Bahamas to wire $125, 000 from the Convergex account to her personal account with Bank of America. In response to an inquiry from a Bank of the Bahamas employee, Defendant falsely stated that Plaintiff had authorized her to make the transfer. She also said that Plaintiff could not provide his consent to the transfer because he was ill. Bank of the Bahamas executed the transfer. Plaintiff claims that he did not realize that Defendant had removed the $154, 000 from the account until January 31, 2015, when he was conducting an audit of his financial and tax records.

         II. Procedural History

         On December 31, 2015, Plaintiff filed a three-count Complaint initiating this action. Counts I and II allege that Defendant is liable for conversion and fraud, respectively. Count III asserts that Bank of the Bahamas was negligent in allowing the transfers to take place. On January 27, 2016, Defendant filed a Motion to Dismiss, arguing that the action is time-barred. On February 16, 2016, Plaintiff submitted an Opposition to the Motion. On March 4, 2016, Defendant filed a Reply memorandum.

         On March 30, 2016, Bank of the Bahamas filed a Motion to Dismiss, alleging a lack of personal jurisdiction and arguing that Plaintiff lacked standing to assert the claims in the Complaint. That same day, Defendant filed an "Incorporation and Joinder of Bank of Bahamas Limited's Motion to Dismiss, " indicating that Defendant joined in Bank of the Bahamas' argument that Plaintiff does not have standing. On May 5, 2016, Plaintiff submitted an Opposition to Bank of the Bahamas' Motion to Dismiss in which he stated that because the claim against Bank of the Bahamas had been settled, he was responding only to the portion of the Motion joined by Defendant. On May 13, 2016, Plaintiff filed Notice of Dismissal of his claim against Bank of the Bahamas pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). On May 16, 2016, the Court issued an Order dismissing Bank of the Bahamas from the action.

         On April 20, 2016, Defendant filed a Motion for Summary Judgment, which, like Defendant's Motion to Dismiss, argues that the claims are time-barred. On May 23, 2016, Plaintiff filed an Opposition to Defendant's Motion for Summary Judgment.

         On April 29, 2016, Diane Callender, Plaintiff's wife and Defendant's mother-in-law, filed a "Motion to Interplead as a Necessary Party, " requesting that the Court add her to this case as a party. On May 6, 2016, Plaintiff submitted an Opposition to Diane Callender's Motion to Interplead. On May 24, 2016, Diane Callender filed a Reply to Plaintiff's Opposition to the Motion to Interplead.

         DISCUSSION

         I. Legal Standards

         A. Motion to Dismiss

         To defeat a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the complaint must allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal,556 U.S. 662, 678 (2009). A claim is plausible when the facts pleaded allow "the Court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Legal conclusions or conclusory statements do not suffice. Id. The Court must examine the complaint as a whole, consider the factual allegations in the complaint as true, and construe the factual allegations in the light most favorable ...


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