United States District Court, D. Maryland
Xinis United States District Judge
in this contractual dispute is Third Party Defendants'
motion to dismiss (ECF No. 46). The issues are fully briefed
and a hearing was held on Thursday, November 10, 2016, with
supplemental briefing to follow. ECF Nos. 56, 57, & 58.
For the reasons stated below, Third Party Defendants'
motion is granted.
Farhad Dastranj (“Dastranj”) is an Iranian
citizen and resident seeking to immigrate to the United
States. He attempted to obtain an Employment Based Fifth
Preference Immigrant Investor Visa (“EB-5 Visa”)
under the Immigrant Investor Program (the “EB-5
Program”). ECF No. 1 at 2. To be eligible for an EB-5
Visa, an immigrant investor must invest, or be actively in
the process of investing, at least $500, 000 in an enterprise
that will benefit the United States economy by creating full
time employment for not fewer than ten (10) qualified
individuals. Id. USA InvestCo
(“InvestCo”), Northern Riverfront Marina and
Hotel LLP (“Northern Riverfront”), and Wilmington
Riverfront Development LLC (“Wilmington
Riverfront”) (collectively, “Third Party
Defendants”) are North Carolina-based companies that
facilitate prospective EB-5 investors' visa requirements
by allowing the investors to invest in the Third Party
Defendants' qualifying projects (“EB-5
projects”). See ECF No. 36.
and Third Party Plaintiff, Mehdi Dehghan
(“Dehghan”) alleges that he is an employee of
InvestCo, responsible for helping to acquire investor capital
for Northern Riverfront and Wilmington Riverfront.
Id. at 3-4. On or about August 8, 2010, Dehghan
obtained a commitment from Dastranj to invest in Northern
Riverfront so that Dastranj could satisfy his EB-5 Visa
requirements. Id. at 4. Dehghan told Dastranj that
Dastranj would be required to invest a minimum capital amount
of $500, 000.00 in securities, which Dehghan agreed to accept
on InvestCo's behalf in the form of Iranian currency.
Id. at 5-6. Dehghan promised that he would transfer
the money to the appropriate individual company and in
compliance with the EB-5 Program. In the meantime,
Dastranj's investment capital would stay in Dehghan's
bank account at the Bank of Pasargad in Iran. ECF No. 26 at
9. From November 2010 through December 2011, Dastranj gave
Dehghan a total of $445, 000.00 to invest in an EB-5 Project
in North Carolina on behalf of Dastranj. Dehghan also
received additional funds throughout 2012. ECF No. 1 at 3.
about October 2012, the U.S. Embassy denied Dastranj's
visitor visa application. ECF No. 1 at 4. Dastranj alleges
that while his visitor visa application was pending and after
it was denied, Dehghan refused Dastranj's requests to
transfer his investment capital to Dastranj's U.S.-based
attorney so that the attorney could complete the visa
process. Id. at 4-5. As a result of Dehghan's
refusal to transfer the funds, Dastranj alleges that he
demanded Dehghan return the money to him. ECF No. 1 at 4-5.
Dehghan admits that the funds have not been returned to
Dastranj. ECF No. 10 at 5. However, he “is ready and
willing to return [Dastranj's] funds in the form in which
such funds were provided (i.e. Iranian currency).”
August 17, 2015, Dastranj filed a Complaint in this Court
against Dehghan asserting six counts: (1) breach of contract;
(2) unjust enrichment (in the alternative); (3) fraud; (4)
“Consumer Protection Violation- N.C. Gen. Stat. §
75-1.1;” (5) “Fraudulent and Other Prohibited
Practices- N.C. Gen. Stat. § 78A-8;” and (6)
“Fraudulent Interstate Transactions-15 U.S.C. §
77q.” ECF No. 1. All of Dastranj's claims center on
Dehghan's alleged refusal to transfer Dastranj's
investment capital to an EB-5 Project in North Carolina or to
return the money back to Dastranj. See generally id.
2, 2016, Dehghan filed a third party complaint against the
Third Party Defendants for indemnification and contribution.
ECF No. 36. The crux of Dehghan's claims is that he was
an employee or agent acting on behalf of, and for the benefit
of, the Third Party Defendants when he entered into his
agreement with Dastranj. Because Dehghan was acting in his
capacity as an employee or agent of the Third Party
Defendants when he executed the agreement with Dastranj, the
Third Party Defendants are liable for Dastranj's injury.
On July 1, 2016, the Third Party Defendants filed a motion to
dismiss Dehghan's Third Party Complaint under Rules 14
and 12(b)(6) of the Federal Rules of Civil Procedure. ECF No.
STANDARD OF REVIEW
ruling on a motion under Rule 12(b)(6), the court must
“accept the well-pled allegations of the complaint as
true, ” and “construe the facts and reasonable
inferences derived therefrom in the light most favorable to
the plaintiff.” Ibarra v. United States, 120
F.3d 472, 474 (4th Cir. 1997). “The mere recital of
elements of a cause of action, supported only by conclusory
statements, is not sufficient to survive a motion made
pursuant to Rule 12(b)(6).” Walters v.
McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
survive a motion to dismiss, a complaint's factual
allegations “must be enough to raise a right to relief
above the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal citations omitted). “To
satisfy this standard, a plaintiff need not
‘forecast' evidence sufficient to prove the
elements of the claim. However, the complaint must allege
sufficient facts to establish those elements.”
Walters, 684 F.3d at 439 (citation omitted).
“Thus, while a plaintiff does not need to demonstrate
in a complaint that the right to relief is ‘probable,
' the complaint must advance the plaintiff's claim
‘across the line from conceivable to
plausible.'” Id. (quoting
Twombly, 550 U.S. at 570).
Choice of Law
Court is presiding over a diversity action in Maryland, and
thus applies Maryland choice of law rules. See Wells v.
Liddy, 186 F.3d 505, 521 (4th Cir. 1999) (“A
federal court sitting in diversity must apply the
choice-of-law rules from the forum state.”). For causes
of action sounding in tort, Maryland adheres to the lex
loci delicti rule, applying the substantive law of the
state in which the alleged tort took place. Philip Morris
Inc. v. Angeletti, 358 Md. 689, 744-45 (2000). For
causes of action sounding in contract, Maryland follows the
doctrine of lex loci contractus, applying the
substantive law of the place where the contract was formed.
Allstate Ins. Co. v. Hart, 327 Md. 526, 529 (1992).
Finally, where a case involves causes of action sounding in
tort and contract, Maryland embraces the concept of