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Carbone v. Deutsche Bank National Trust Co.

United States District Court, D. Maryland

August 5, 2016

MYRNA MARIE CARBONE, et al., Plaintiffs,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, et al., Defendants.

          Myrna Marie Carbone, Plaintiff, represented by Scott Daniel Forney, Bernstein & Feldman, P.A..

          John 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.

          Ocwen Loan Servicing, LLC, Defendant, represented by Katherine Carol Ondeck, Carr Maloney P.C. & Matthew D. Berkowitz, Carr Maloney PC.

          MEMORANDUM OPINION

          RICHARD D. BENNETT, District Judge.

         Plaintiffs Myrna Marie Carbone ("Ms. Carbone") and John Carbone ("Mr. Carbone") (collectively, "Plaintiffs") bring this action against Defendants Deutsche Bank National Trust Company [1] ("Deutsche Bank"); OCWEN Loan Servicing, LLC ("OCWEN"); Altisource Portfolio Solutions, S.A. ("Altisource Solutions");[2] and Altisource Holdings, LLC ("Altisource Holdings"), alleging various tort claims under Maryland law. [3] 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. § 1332.

         Presently pending are Defendant Deutsche Bank's Partial Motion to Dismiss for Failure to State a Claim (ECF No. 36);[4] 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 DISMISSED.

         BACKGROUND

         This 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.

         On 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.

         In the 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. Id.

         Plaintiffs' 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).[5] 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).

         STANDARDS OF REVIEW

         A. Rule 12(b)(2) of the Federal Rules of Civil Procedure

         A 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. 2003).

         B. Rule 12(b)(6) of the Federal Rules of Civil Procedure

         Under 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 ...


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