United States District Court, D. Maryland
MARK A. GREEN and MARCIA GREEN, Plaintiffs,
JENKINS SERVICES, LLC, et al., Defendants
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge.
January 2014, a fire completely destroyed Plaintiffs Mark and
Marcia Green's (“the Greens”) house.
Fortunately, Marcia Green's USAA Casualty Insurance
Company (“USAA”) homeowners-insurance policy
covered the couple's losses, but disagreements over a
portion of the Greens' insurance payout resulted in this
litigation. At USAA's urging, the Greens entered an
agreement and a purported contract with Defendant Jenkins
Services, LLC (“Jenkins”) for their insurance
proceeds to fund restoration of the damaged property. USAA
issued a check for $127, 437.48, which named Jenkins, Marcia
Green, and her father, Mark Green's predecessor in
interest, as payees. According to Jenkins, the Greens
endorsed the check, which the LLC deposited in its bank
account. After Jenkins razed the damaged structures on the
property and performed other preparatory work, the Maryland
State Department of Health and Mental Hygiene and State
Department of Assessments and Taxation determined that the
property could not sustain an on-site sewage disposal system,
making reconstruction impossible. Nevertheless, Jenkins
retained the money it had already collected. The Greens seek
to recover that money from Jenkins, alleging that a Jenkins
employee forged their signatures on the check and, in any
event, that they are entitled to the money under either
breach-of-contract or unjust-enrichment theories. Jenkins
disputes the forgery allegations and argues that it is
entitled to the money to cover the cost of work it has
already performed. Pending now is Jenkins's Motion for
Judgment on the Pleadings. Def.'s Mot., ECF No. 31.
Jenkins filed a Memorandum in support of its Motion,
Def.'s Mem., ECF No. 31-2, and the Greens filed an
Opposition, Pls.' Opp'n, ECF No. 54, but Jenkins
never filed a Reply. No hearing is necessary. Loc. R. 105.6
(D. Md.). Because I find that the Greens have stated claims
against Jenkins, I will deny the Motion.
January 15, 2014, a fire destroyed the Greens' home at
16631 Gardner Road in Waldorf, Maryland, rendering the
dwelling uninhabitable. Am. Compl. ¶¶ 31-32, ECF
No. 29. Prior to the fire, the property had been co-owned by
Elijah Girven, Jr. and his daughter, Marcia Green. Am. Compl.
¶¶ 1-2, 4. After Girven's death, Marcia's
spouse, Mark Green, acquired his father-in-law's interest
in the property. Id. ¶ 5.
Green owned a homeowners-insurance policy through USAA. It
insured the property and the buildings and personal property
on it. Id. ¶¶ 28-30, 34; USAA Homeowners
Policy, Am. Compl. Ex. 5, ECF No. 29-7. The Greens filed a
claim with USAA, and the insurance company acknowledged that
their claim was covered by the policy. Id. ¶
35. USAA recommended that the Greens use Jenkins, one of its
preferred contractors, to restore or reconstruct the damaged
home. Id. ¶ 36. Wells Fargo Bank NA
(“Wells Fargo”), which holds a mortgage on the
Greens' property, agreed to hold the insurance proceeds
in a restricted escrow account to be used for restoration or
reconstruction or to reduce the couple's debt to the
bank. Id. ¶¶ 8, 40-43. Subsequently, USAA
made several insurance payments to the escrow account and to
the Greens. Id. ¶¶ 44-45. These payments
included a check for $127, 437.38, which named Jenkins,
Marcia Green, and Elijah Girven, but not Mark Green, as
payees. Id. ¶¶ 81-82; Check, Am. Compl.
Ex. 11, ECF No. 29-17. The Greens allege that an unknown
employee at Jenkins forged their signatures on the back of
the check, endorsing it over to Jenkins. Id. ¶
February 2, 2014, the Greens signed an agreement with
Jenkins, which authorized the contractor to make
“necessary repairs to [the] property” and USAA
“to name Jenkins Restorations along with [the insureds]
on all drafts issued in regard to the insurance claim.”
Id. ¶ 37, Authorization for Work: Repair
Agreement & Assignment of Insurance Benefits, Am. Compl.
Ex. 7, ECF No. 29-9 [hereinafter Authorization]. Although the
Authorization mentions only “repairs” to the
property, the Greens maintain that they intended all along
for Jenkins to raze the damaged structures and construct a
new house. Am. Compl. ¶ 129. They also allege that Mark
Green informed Jenkins that the company would have to perform
a percolation (“perc”) test on the property
before beginning construction work in order to determine
whether the property could continue to support a septic
system. Id. ¶ 130. A handwritten note appears
on the Authorization with the words “septic” and
“well” under the heading “P.G. County,
” a common shorthand for Prince George's County,
Maryland. Am. Compl. ¶ 133; Authorization, Am. Compl.
Ex. 7. The Greens allege that they signed the Authorization
after Jenkins's agent, Bob Hoffman, informed Mark Green
that a perc test was not necessary. Am. Compl. ¶ 131. On
March 12, 2014, the Greens signed a Construction Contract
with Jenkins that authorized the company to “perform .
. . the scope of the work . . . in accordance with
specifications set forth” in documents purportedly
attached to the document for a contract price of $581, 222.90
(subject to additions and deductions) and charging Jenkins
with responsibility for “comply[ing] with applicable
building codes and with all local requirements for building
permits, inspections and zoning.” Contract ¶¶
2, 5, Am. Compl. Ex. 8A, ECF No. 29-11; see also Am.
Compl. ¶¶ 146, 148. The Greens contend that Jenkins
never prepared a description of the scope of the work that it
was to perform. Am. Compl. ¶ 154. The Contract stated
that work would commence approximately on June 1, 2014, and
would be substantially completed by January 15, 2015.
Id. ¶ 149; Contract ¶ 4. It also set forth
a progress payment schedule with an initial payment of $131,
8762.19 due upon execution of the Contract. Contract ¶
6. In addition, the Contract assigned the Greens'
insurance proceeds to Jenkins, authorizing “direct
payment of any such proceeds to Jenkins Restorations”
and obligating the Greens to endorse any payments made to
them by USAA over to Jenkins. Id. ¶ 7. Both
Jenkins and the Greens contractually agreed to waive their
right to recover “consequential damages arising out of
the Contract.” Id. ¶ 9.
did not apply for a perc test with the Prince George's
County Health Department until March 19, 2015, Am. Compl.
¶ 150; Percolation Test Application, Am. Compl. Ex. 15,
ECF No. 29-21, and the Department administered the test on
May 7, 2015, Am. Comp. ¶150; Percolation Test Report,
Am. Compl. Ex. 16A, ECF No. 29-22. Based on the perc test,
the Maryland State Department of Health and Mental Hygiene
and State Department of Assessments and Taxation determined
that the Greens' property was “unsuitable to
support an on-site sewage disposal system, ” rendering
the property off limits to development “until public
sewerage facilities are made available.” Letter from
Manfred Reichwein, Chief, Envtl. Eng'g/Policy Program,
Prince George's Cty., to Daniel Puma, Supervisor, Md.
State Dep't of Assessments & Taxation (June 9, 2015),
Am. Compl. Ex. 17, ECF No. 29-24; see also Am.
Compl. ¶¶ 150, 163-64. Despite being unable to go
forward with the construction, Jenkins kept the $127, 437.38
to cover its costs associated with razing the damaged house
and conducting preparatory work for the new construction. Am.
Compl. ¶¶ 172, 182-83.
Greens filed a Complaint in the Circuit Court for Prince
George's County against Jenkins, its unknown employee who
allegedly forged the couple's signatures, and the
company's bank, TD Bank, as well as Wells Fargo and USAA.
Compl., ECF No. 2. With the other Defendants' consent,
Wells Fargo removed the case to this Court, Notice of
Removal, ECF No. 1. The Greens voluntarily dismissed TD Bank
from the case, ECF No. 72, and reached a settlement with
Wells Fargo and USAA, ECF No. 74. The remaining claims
against Jenkins include fraud (Count I); conversion and
misappropriation; (Count II), conversion of a negotiable
instrument (Count IX), breach of contract (Count XI), and
money had and received (Count XII). Am. Compl. ¶¶
216-33, 265-69, 281-303. Jenkins filed an Answer to the
Amended Complaint, ECF No. 30, along with the pending Motion.
apply “the same standard for Rule 12(c) motions [for
judgment on the pleadings] as for motions made pursuant to
Rule 12(b)(6), ” alleging failure to state a claim.
Burbach Broadcasting Co. of Del. v. Elkins Radio
Corp., 278 F.3d 401, 406 (4th Cir. 2002). That
rule's purpose “is to test the sufficiency of a
complaint and not to resolve contests surrounding the facts,
the merits of a claim, or the applicability of
defenses.” Id. (quoting Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)). To
that end, the Court bears in mind the requirements of
Fed.R.Civ.P. 8, Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662
(2009), when considering a motion to dismiss pursuant to Rule
12(b)(6). Specifically, 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),
and must state “a plausible claim for relief, ”
as “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice, ” Iqbal, 556 U.S. at 678-79. See
Velencia, 2012 WL 6562764, at *4 (discussing standard
from Iqbal and Twombly). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678.
9(b) states that “in alleging a fraud or mistake, a
party must state with particularity the circumstances
constituting the fraud or mistake.” Fed.R.Civ.P. 9(b).
Such allegations [of fraud] typically “include the
‘time, place and contents of the false representation,
as well as the identity of the person making the
misrepresentation and what [was] obtained thereby.'
” Piotrowski v. Wells Fargo Bank, N.A., No.
DKC-11-3758, 2013 WL 247549, at *5 (D. Md. Jan. 22, 2013)
(quoting Superior Bank, F.S.B. v. Tandem Nat'l
Mortg., Inc., 197 F.Supp.2d 298, 313-14 (D. Md. 2000)).
reviewing a motion for judgment on the pleadings, I
“may consider documents attached to the complaint, as
well as documents attached to the motion . . ., if they are
integral to the complaint and their authenticity is not
disputed.” Sposato v. First Mariner Bank, No.
CCB-12-1569, 2013 WL 1308582, at *2 (D. Md. Mar. 28, 2013);
see also CACI Int'l v. St. Paul Fire & Marine
Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009);
Fed.R.Civ.P. 10(c) (“A copy of a written instrument
that is an exhibit to a pleading is a part of the pleading
for all purposes.”). Consideration of documents that
the plaintiff references and relies upon does not convert a
motion to dismiss into a motion for summary judgment. See
Sec'y of State for Defence v. Trimble Navigation
Ltd., 484 F.3d 700, 705 (4th Cir. 2007). The Greens
attached and make reference to numerous documents in their
Amended Complaint. Accordingly, I will consider those
documents in ruling on Jenkins's Motion.
“In an action based upon diversity of citizenship, the
relevant state law controls. The district court must apply
the law of the forum state, including its choice of law
rules.” Limbach Co. LLC v. Zurich Am. Ins.
Co., 396 F.3d 358, 361 (4th Cir. 2005) (citing Erie
R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). The
Greens' claims against Jenkins are common-law claims that
sound in ...