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Blank v. Ness

United States District Court, D. Maryland

March 19, 2018

DAVID A. BLANK et al., Plaintiffs
ROBERT W. NESS et al., Defendants



         I. Background

         Plaintiffs David A. Blank and Sandra W. Blank, acting pro se, filed this lawsuit against Defendants Robert W. Ness, Elaine S. Ness, and RWN Holdings, LLC, alleging fraud and breach of contract. (Compl., ECF No. 1.) Following Defendants' motion to dismiss for failure to state a claim and improper venue (ECF No. 5), Plaintiffs filed an amended complaint (ECF No. 10) as a matter of course pursuant to Federal Rule of Civil Procedure 15(a)(1)(B). The amended complaint, which rendered moot Defendants' motion to dismiss, prompted another motion to dismiss raising grounds of failure to state a claim, improper venue, and lack of personal jurisdiction. (ECF No. 13.) Roughly a month and a half later, the Blanks filed a second amended complaint (ECF No. 29) without Defendants' consent and without leave of court, contrary to Rule 15(a)(2). Now pending before the Court are Defendants' motion (ECF No. 31) to dismiss the second amended complaint and the Blanks' motion (ECF No. 35) for leave to file a third amended complaint. The motions are briefed (ECF Nos. 37, 38) and ready for decision. No. hearing is necessary. Local Rule 105.6 (D. Md. 2016).

         The second amended complaint will be stricken due to its improper filing. As a result, the amended complaint is the operative complaint.[1] However, Defendants' argument contained in the pending motion to dismiss will be considered as to the proposed third amended complaint, in addition to their opposition thereto. The Blanks' motion will be granted and Defendants' motion will be granted in part and denied in part.

         II. Applicable Legal Standards

         A. Standard for Motion to Amend

         Since no scheduling order has been entered, the Court has not yet set a deadline for filing motions for amendment of pleadings. Consequently, the Blanks' motion for permission to amend the complaint is governed by Rule 15(a), which directs the Court to “freely give leave when justice so requires.” The Fourth Circuit has stated that leave to amend under Rule 15(a) should be denied only in three situations: when the opposing party would be prejudiced, when the amendment is sought in bad faith, or when the proposed amendment would be futile. Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006). A proposed amendment is considered futile if it cannot withstand a motion to dismiss. Perkins v. United States, 55 F.3d 910, 917 (4th Cir. 1995).

         B. Standard for Motion to Dismiss for Lack of Personal Jurisdiction

         A motion to dismiss under Rule 12(b)(2) is a test of the Court's personal jurisdiction over the defendant. “[W]hen, as here, the court addresses the question [of personal jurisdiction] on the basis only of motion papers, supporting legal memoranda and the relevant allegations of a complaint, the burden on the plaintiff is simply to make a prima facie showing of a sufficient jurisdictional basis to survive the jurisdictional challenge.” New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290, 294 (4th Cir. 2005) (quoting Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989)). Objections to personal jurisdiction can be waived if they were available to the defendant and not raised in the defendant's first motion to dismiss under Rule 12(b). See Fed. R. Civ. P. 12(h).

         C. Standard for Motion to Dismiss for Improper Venue

         A motion to dismiss under Rule 12(b)(3) “requires a similar inquiry to that of Rule 12(b)(2).” Trimgen Corp. v. Iverson Genetic Diagnostics, Inc., Civ. No. RDB-14-2850, 2015 WL 2165118, at *2 (D. Md. May 7, 2015). The burden of establishing proper venue is on the plaintiff, id., and “all inferences must be drawn in favor of the plaintiff.” Silo Point II LLC v. Suffolk Const. Co., Inc., 578 F.Supp.2d 807, 809 (D. Md. 2008) (quoting Sun Dun, Inc. of Washington v. Coca-Cola Co., 740 F.Supp. 381, 385 (D. Md. 1990)).

         D. Standard of Motion to Dismiss for Failure to State a Claim

         A complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility exists “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. An inference of a mere possibility of misconduct is not sufficient to support a plausible claim. Id. at 679. As the Twombly opinion stated, “Factual allegations must be enough to raise a right to relief above the speculative level.” 550 U.S. at 555. “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' . . . Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557). Although when considering a motion to dismiss a court must accept as true all factual allegations in the complaint, this principle does not apply to legal conclusions couched as factual allegations. Twombly, 550 U.S. at 555.

         III. ...

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