United States District Court, D. Maryland
DAVID A. BLANK et al., Plaintiffs
ROBERT W. NESS et al., Defendants
K. BREDAR CHIEF JUDGE
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).
second amended complaint will be stricken due to its improper
filing. As a result, the amended complaint is the operative
complaint. 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.
Applicable Legal Standards
Standard for Motion to Amend
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.
Standard for Motion to Dismiss for Lack of Personal
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.
Standard for Motion to Dismiss for Improper
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)).
Standard of Motion to Dismiss for Failure to State 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.