United States District Court, D. Maryland
CONVERGENCE MANAGEMENT ASSOCIATES, INC. and CONVERGEX CARIBBEAN LTD., Plaintiffs,
ERICA CALLENDER, Defendant.
THEODORE D. CHUANG United States District Judge
Convergence Management Associates, Inc. ("CMA") and
Convergex Caribbean Ltd. ("CCL") (collectively,
"Plaintiffs") have brought this civil action
against Defendant Erica Callender ("Defendant")
alleging conversion and fraud. Presently pending before the
Court is Defendant's Motion to Dismiss Amended Complaint
or Alternatively to Transfer, ECF No. 45. The Motion is fully
briefed and ripe for disposition, and no hearing is necessary
to resolve the issues. See D. Md. Local R. 105.6.
For the reasons set forth below, the Motion is DENIED.
following facts relevant to the pending Motion are presented
in the light most favorable to Plaintiffs, the non-moving
parties. CMA is a Maryland corporation with its
principal place of business in Prince Frederick, Maryland.
CMA is the parent corporation of CCL, a Bahamian corporation
with its principal place of business in Nassau, Bahamas. CCL
is registered to do business in Maryland and maintains an
office at the same Prince Frederick, Maryland address used by
CMA. The owner of both Plaintiff companies is Donald
Callender, a Maryland resident. CMA, CCL, and Donald
Callender are engaged in the business of providing financial
consulting services to individuals and companies in Maryland
and elsewhere. Defendant, who is the daughter-in-law of
Donald Callender, was previously employed as an office
manager and administrative assistant at CMA in Maryland.
claim that, on two separate occasions, Defendant transferred
money out of CCL's account at Bank of the Bahamas without
their knowledge or consent. First, on or about May 27, 2010,
while employed at CMA, Defendant contacted Bank of the
Bahamas and instructed it to wire $29, 000 from CCL's
account to an account at the City National Bank of Florida in
Miami, Florida (the "First Transfer"). The account
at the City National Bank of Florida was maintained in the
name of Island Hotel Company, Ltd., a company to which
Defendant owed money. Bank of the Bahamas transferred the
funds to Island Hotel Company's bank account per
Defendant's instructions. Neither CCL nor Donald
Callender had knowledge of or consented to the transfer.
2011, Defendant moved from Maryland to Texas, where she
presently resides. On April 17, 2012, she contacted Bank of
the Bahamas and instructed it to wire $125, 000 from
CCL's account to a bank account maintained in her own
name at a Bank of America branch in Annapolis, Maryland (the
"Second Transfer"). Again, Bank of the Bahamas
transferred the funds per Defendant's instructions.
According to Plaintiffs, at the time of the Second Transfer,
Donald Callender had been hospitalized for congestive heart
failure, and neither he nor CCL had knowledge of, or
consented to, the transfer.
Callender filed a Complaint against Defendant and Bank of the
Bahamas on December 31, 2015, alleging fraud and conversion.
On May 16, 2016, after Donald Callender and Bank of the
Bahamas had reached a settlement, all claims against Bank of
the Bahamas were dismissed with prejudice. On June 30, 2016,
after the Court granted a motion to dismiss on the grounds
that Donald Callender did not have standing to pursue the
case, it granted leave for CCL, as the real party in
interest, to be substituted as a plaintiff. On July 13, 2016,
Plaintiffs filed an Amended Complaint against Defendant,
alleging that Defendant engaged in conversion and civil theft
of the money transferred from Bank of the Bahamas to the
accounts in Florida and Maryland and fraud arising from the
use of "false and fraudulent pretenses" and
"fraudulent representations or promises" in order
to gain control over the funds. Am. Compl. ¶ 27, ECF No.
42. On July 27, 2016, Defendant filed the instant Motion to
Dismiss Amended Complaint or Alternatively to Transfer.
Plaintiffs filed an Opposition to the Motion on August 29,
2016. Defendant filed her Reply memorandum of law on
September 12, 2016.
Motion, Defendant asserts that venue is improper and seeks
either dismissal of the case or its transfer to the United
States District Court for the Eastern District of Texas
pursuant to 28 U.S.C. § 1406. In the alternative,
Defendant seeks transfer to the Eastern District of Texas
"in the interest of justice" under 28 U.S.C. §
1404. Defendant claims that the Amended Complaint is
"devoid of any compelling, bona fide link to
Maryland" because "the only asset allegedly
impacted were funds in a Bahamian account owned by 'CCL,
' a Bahamian company." Mot. Dismiss at 2, ECF No.
45. According to Defendant, the case should be transferred to
the Eastern District of Texas because "key
witnesses" reside there, specifically Defendant and
Diane Callender, a co-trustee of the Plaintiff companies and
the former wife of Donald Callender. Id. at 1.
Defendant argues that maintaining the case in Maryland would
work an "extreme hardship" upon her. Id.
Plaintiffs argue that venue is proper in Maryland and that
transfer is not warranted because both allegedly fraudulent
transfers have a link to Maryland, Donald Callender resides
in Maryland, and a plaintiffs choice of forum generally
should not be disturbed.
evidentiary hearing is held, to prevail on a motion to
dismiss for improper venue under Federal Rule of Civil
Procedure 12(b)(3), a plaintiff need make only a, prima
facie showing of venue. Mitrano v. Howes, 377
F.3d 402, 405 (4th Cir. 2004). All well-pleaded allegations
in the complaint bearing on the question of venue are taken
as true, and the Court views the facts in the light most
favorable to the plaintiff. Aggarao v. MOL Ship Mgmt.
Co., 675 F.3d 355, 365-66 (4th Cir. 2012). The court is
permitted to consider evidence outside the pleadings.
action founded on diversity of citizenship may be brought in
"a judicial district in which a substantial part of the
events or omissions giving rise to the claims occurred."
28 U.S.C. § 1391(b)(2) (2012); CIENA Corporation v.
Jarrard, 203 F.3d 312, 318 (4th Cir. 2000). In
determining whether events or omissions are sufficiently
substantial to support venue under § 1391, a court
should review "the entire sequence of events underlying
the claim." Mitrano, 377 F.3dat405. It is
possible for venue to be proper in more than one judicial
district. Id. If venue is not proper in the forum
district, the court must dismiss the case or, if in the
interest of justice, transfer the case to a district in which
the case could have been brought. 28 U.S.C. § 1406(a).
case, the Court is satisfied that venue is proper in the
District of Maryland. Both of the allegedly fraudulent
transfers have a substantial connection to Maryland. At the
time of the First Transfer in May 2010, Defendant was
employed by CMA, a Maryland company, at its office in Prince
Frederick, Maryland. According to moving records provided by
Defendant, she did not move to Texas until May 2011. The
Court therefore reasonably infers that she was present in
Maryland at the time that she contacted CCL to request the
wire transfer. As for the Second Transfer in April 2012, even
if Defendant had moved to Texas by then and contacted CCL
from Texas, the Amended Complaint asserts that the funds were
transferred to Defendant's bank account located in
Annapolis, Maryland. Neither Defendant's briefs nor her
exhibits offer any basis to doubt that Defendant was working
for CMA in Maryland at the time of the First Transfer or that
the funds from the Second Transfer were sent to Maryland.
Thus, Plaintiffs' have made & prima facie
showing that a "substantial part of the events"
giving rise to Plaintiffs' claims took place in Maryland.
See 28 U.S.C. § 1391; see also
Mitrano, 377 F.3d at 405-06 (concluding that legal work
performed under a contract constituted a "substantial
part of the events" giving rise to the breach of
contract claim, even though other events and omissions
related to the claim occurred in a different district).
Accordingly, the Motion to Dismiss under Rule 12(b)(3) is