United States District Court, D. Maryland
Marie Carbone, Plaintiff, represented by Scott Daniel Forney,
Bernstein & Feldman, P.A..
Carbone, Plaintiff, represented by Scott Daniel Forney,
Bernstein & Feldman, P.A..
Deutsch Bank National Trust Company, Defendant, represented
by Katherine Carol Ondeck, Carr Maloney P.C. & Matthew D.
Berkowitz, Carr Maloney PC.
Loan Servicing, LLC, Defendant, represented by Katherine
Carol Ondeck, Carr Maloney P.C. & Matthew D. Berkowitz, Carr
RICHARD D. BENNETT, District Judge.
Myrna Marie Carbone ("Ms. Carbone") and John
Carbone ("Mr. Carbone") (collectively,
"Plaintiffs") bring this action against Defendants
Deutsche Bank National Trust Company  ("Deutsche
Bank"); OCWEN Loan Servicing, LLC ("OCWEN");
Altisource Portfolio Solutions, S.A. ("Altisource
Solutions"); and Altisource Holdings, LLC
("Altisource Holdings"), alleging various tort
claims under Maryland law.  Specifically,
Plaintiffs' claims stem from an alleged mold infestation
on their property after pipes burst on a property owned by
Defendant Deutsche Bank. The jurisdiction of this Court is
predicated on diversity of citizenship under 28 U.S.C. §
pending are Defendant Deutsche Bank's Partial Motion to
Dismiss for Failure to State a Claim (ECF No.
36); and Defendant Altisource
Holdings's Motion to Dismiss for Lack of Jurisdiction
(ECF No. 45). The parties' submissions have been reviewed
and no hearing is necessary. See Local Rule 105.6
(D. Md. 2014). For the reasons that follow, Defendant
Deutsche Bank's Partial Motion to Dismiss for Failure to
State a Claim (ECF No. 36) is GRANTED; and Defendant
Altisource Holdings's Motion to Dismiss for Lack of
Jurisdiction (ECF No. 45) is GRANTED. Accordingly, the gross
negligence claim asserted against Deutsche Bank in Count II
is DISMISSED, as is the request for preliminary and permanent
injunction. All claims against Altisource Holdings are
Court accepts as true the facts alleged in a plaintiff's
complaint. See Aziz v. Alcolac, Inc., 658
F.3d 388, 390 (4th Cir. 2011). This action arises from water
damage to Plaintiffs' property located at 377 Volley
Court, Arnold, Maryland, 21012 ("Carbone
Property"). Amended Compl. ¶¶ 1-2, 17, ECF No. 22. The
Carbone Property is a duplex, and thus shares a wall with the
property located at 375 Volley Court, Arnold, Maryland, 21012
("REO Property"). Id. ¶ 19. Defendant
Deutsche Bank, as trustee for Bravo Mortgage Asset Trust
2006-1, Bravo Mortgage Asset Backed Pass-Through
Certificates, Series 2006-1 (collectively, BMAT 2006-1), owns
the REO Property. Id. ¶ 20. Defendant OCWEN
allegedly acted as loan servicer for Deutsche Bank,
id. ¶ 6, while Defendants Altisource Holdings and
Altisource Solutions allegedly provided property management
services for the REO Property, id. ¶ 39.
February 18, 2015, the Carbones allege that a pipe burst on
the REO Property, causing water to flood both the REO
Property and the Carbone Property. Id. ¶¶ 42, 46.
The pipe burst because, according to the Carbones, Deutsche
Bank "negligently turned the power off (or allowed the
power to be turned off), while negligently leaving the water
on (or allowed the water to remain turned on) at the REO
Property during the winter[.]" Id. ¶ 75. The
resulting flood of water allegedly caused moisture damage and
mold infiltration to both properties. Id. Plaintiffs
allegedly reported the incident to "Altisource
Solutions' Property Preservation and Inspection
division" on the same day." Id. ¶ 43.
Plaintiffs claim that they continued to communicate with
"Altisource" regarding the incident and
amelioration plans. Id. ¶ 47; see also
Amended Compl. Ex. E, Marie Carbone Aff. ¶¶ 8-10, ECF No.
22-5. Although the standing water issue was resolved on March
4, 2015, mold and other moisture damage allegedly
materialized in Plaintiffs' laundry room and bathroom.
Amended Compl. ¶¶ 49-50, 59, 76-77. On some date in early
April, a cleanup crew arrived at the REO Property to inspect
the water damage. Marie Carbone Aff. ¶ 12. Ms. Carbone
alleges that the cleanup crew represented that it was
employed by "Altisource." Id.
meantime, Plaintiffs engaged counsel on March 27, 2015, who
notified Deutsche Bank of the alleged water damage and mold.
Amended Compl. Ex. H, ECF No. 22-8. They subsequently filed
suit in the Circuit Court for Anne Arundel County, Maryland
on May 15, 2015. Compl., ECF No. 2. Defendants Deutsche Bank
and OCWEN timely removed the action to this Court pursuant to
28 U.S.C. §§ 1441 and 1446. In an effort to avoid
"preservation of evidence or spoliation issues, "
counsel for Deutsche Bank contacted Plaintiffs' counsel
on August 24, 2015, to schedule a date on which a Deutsche
Bank representative could inspect the REO Property to
determine appropriate remedial measures. Def. Deutsche
Bank's Partial Mot. to Dismiss, 3, ECF No. 36. Plaintiffs
then inspected the REO Property on September 10, 2015.
Amended Complaint asserts five counts arising under Maryland
law against the Defendants: Negligence (Count I); Gross
Negligence (Count II); Negligent Supervision (Count III);
Negligent Hiring (Count IV); and Private Nuisance (Count
V). Amended Compl. ¶¶ 61-102. Plaintiffs
also seek a preliminary injunction against Deutsche Bank to
compel Deutsche Bank to remediate the remaining mold and
water damage. Id. ¶¶ 104-109. Of relevance to the
present Motions, Plaintiffs request punitive damages from
Defendants Altisource Solutions, Altisource Holdings, and
Deutsche Bank. Id. ¶ 110(c).
12(b)(2) of the Federal Rules of Civil Procedure
motion to dismiss under Rule 12(b)(2) of the Federal Rules of
Civil Procedure for lack of personal jurisdiction challenges
a court's authority to exercise its jurisdiction over the
moving party. Combs v. Bakker, 886 F.2d 673, 676
(4th Cir. 1989). The jurisdictional question is "one for
the judge, with the burden on the plaintiff ultimately to
prove the existence of a ground for jurisdiction by a
preponderance of the evidence." Id. A court may
hold an evidentiary hearing or permit discovery as to the
jurisdictional issue, but it also may resolve the issue on
the basis of the complaint, motion papers, affidavits, and
other supporting legal memoranda. Consulting Eng'rs
Corp. v. Geometric Ltd., 561 F.3d 273, 276 (4th Cir.
2009); see also Armstrong v. Nat'l Shipping Co.
of Saudi Arabia, Civ. A. No. ELH-13-03702, 2015 WL 751344, *3
(D. Md. Feb. 20, 2015). In the latter situation, a plaintiff
need only make "a prima facie showing of a sufficient
jurisdictional basis to survive the jurisdictional
challenge." Consulting Eng'rs Corp., 561
F.3d at 276. When considering whether the plaintiff has made
the requisite showing, "the court must take all disputed
facts and reasonable inferences in favor of the
plaintiff." Carefirst of Maryland, Inc. v. Carefirst
Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir.
12(b)(6) of the Federal Rules of Civil Procedure
Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
complaint must contain a "short and plain statement of
the claim showing that the pleader is entitled to
relief." Fed. R. Civ. P 8(a)(2). Rule 12(b)(6) of the
Federal Rules of Civil Procedure authorizes the dismissal of
a complaint if it fails to state a claim upon which relief
can be granted. The purpose of Rule 12(b)(6) is "to test
the sufficiency of a complaint and not to resolve contests
surrounding the facts, the merits ...