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Waskey v. O'Neal

United States District Court, D. Maryland

June 17, 2019

PAUL WASKEY, et al., Plaintiffs,
ERIKA O'NEAL, et al., Defendants.



         Pending before the Court are Defendants Erika O'Neal and Dennis Alexander's Motion to Dismiss for Lack of Subject Matter Jurisdiction (ECF No. 8), Motion to Strike (ECF No. 16), and Motion to Dismiss for Lack of Personal Jurisdiction. ECF No. 17. The motions are fully briefed, and no hearing is necessary. See Loc. R. 105.6. For the following reasons, the Court denies each motion.

         I. Background[1]

         Paul, Ben, and Lois Waskey along with Linda Wootten (collectively “Plaintiffs”) agreed to sell their business, Regalmark Inc. (“Regalmark”) to Erika O'Neal and her fiancé, Dennis Alexander (“Defendants”). ECF No. 15 ¶ 10. The terms of the sale were memorialized in a Promissory Note and Entity Sales Agreement (“the Agreement”). ECF No. 15-1; 27-2. Defendants failed to make payments under the Promissory Note's terms. ECF No. 15 ¶ 9-15.

         After the deal went south, Plaintiffs, appearing pro se, filed this breach of contract action against Regalmark, O'Neal, and Alexander. ECF No. 1. Defendants subsequently moved to dismiss for lack of diversity jurisdiction because Plaintiffs and Defendant Regalmark are Maryland citizens. ECF No. 8. Plaintiffs amended the Complaint in response, suing only the Virginia Defendants, O'Neal and Alexander, thereby mooting the motion to dismiss. See ECF No. 15.

         In response to the Amended Complaint, Defendants now move to strike the pleading or alternatively dismiss the claims for lack of personal jurisdiction. ECF Nos. 16, 17. The Court considers each motion separately.

         II. Motion to Strike the Amended Complaint

         Defendants urge the Court to strike the Amended Complaint because not all of the pro se Plaintiffs signed the pleading. Although Defendants invoke Rule 12(f) of the Federal Rules of Civil Procedure, the matter is properly before the Court under Rule 11.

         Rule 11(a) requires pro se parties to sign every paper and “state the signer's address, e-mail address, and telephone number.” Fed.R.Civ.P. 11(a). The purpose of this signature requirement is to “prevent[] frivolous filings and increas[e] the efficiency of courts.” Pinpoint IT Services, L.L.C. v. Atlas IT Export Corp., 802 F.Supp.2d 691, 693 (E.D. Va. 2011). The Rule further provides that “[t]he court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention.” Fed.R.Civ.P. 11(a). Accordingly, a pleading will not be stricken unless the movant can show that a failure to sign “‘severely prejudiced the opposing party.'” Steamship Trade Ass'n of Balt., Inc. v. Peters, No. WDQ 09-109, 2009 WL 2924810, at *2 (D. Md. 2009) (quoting Kovilic Const. Co., Inc. v. Missbrenner, 106 F.3d 768, 772 (7th Cir. 1997)). This burden is even more exacting where, as here, the Plaintiffs proceed pro se. See Fireman's Ins. Co. of Newark, New Jersey v. Herbert, No. Civ.A. 4:04CV139, 2005 WL 3536091, at *2 (E.D. Va. Dec. 20, 2005) (Courts “do[] not expect a pro se litigant to perfectly comply with all procedural rules.”).

         The Defendants are incorrect that failure to sign the Amended Complaint renders it void ab initio. See Holley Coal Co. v. Globe Indem. Co., 186 F.2d 291, 295 (4th Cir. 1950) (“[A]n unsigned pleading is not invalid.”); U.S. v. Haynesworth, No. CRIM.A. 4:00-CR-52, 2004 WL 3091986, at *1 n.1 (E.D. Va. Feb. 11, 2004) (considering motion by pro se party even though it was unsigned). Rather, the Court retains discretion to accept the unsigned pleading or to grant leave to cure the defect instead of striking the complaint altogether. See, e.g., Dauphin v. Jennings, No. 1:15-cv-149, 2017 WL 1745040, at *4 (E.D. Va. May 3, 2017) (accepting the pleading because a refiling would be “duplicative”); Butler v. Johnson, No. 1:07cv1196 (GBL/TRJ), 2007 WL 4376135, at *4 (E.D. Va. Dec. 12, 2007) (directing plaintiff to resubmit a signed complaint). This Court will afford Plaintiffs the chance to cure the deficiency.

         Ben and Paul Waskey signed the Amended Complaint “[o]n behalf of all Plaintiffs' [sic]” and included addresses, emails, and telephone numbers only for the signatories. However, all four Plaintiffs signed a certificate of compliance with Rule 11, suggesting the omission was not intentional but more the product of Plaintiffs' pro se status. ECF No. 15 at 9. To cure the defect, Plaintiffs must supplement the record with the mailing addresses, emails and telephone numbers for Wooten and Lois Waskey no later than 21 days from the date of this Opinion and Order.

         Defendants next argue, without support, that the Court should strike the Amended Complaint because only one of the four plaintiffs signed the certificate of service. The purpose of a certificate of service is to affirm that service was effectuated properly. See U.S. v. Wright, No. 00-4030, 238 F.3d 418 (Table), 2000 WL 1846340, at *3 (4th Cir. Dec. 18, 2000). Thus, when “actual service is not contested, there is little point to invalidating an Amended Complaint for lack of a certificate.” Ives v. Guildford Mills, 3 F.Supp.2d 191, 195 (N.D.N.Y. 1998). Defendants do not dispute that they have been served and so no basis exists to strike the pleading. Cf. Conner v. Duncan, 1:12CV92, 2013 WL 12136592, at *6 (M.D. N.C. Mar. 27, 2013) (accepting a motion where the pro se party only signed the certificate of service and did not sign the motion). The motion is denied.[2]

         III. Motion to Dismiss for Lack of Personal Jurisdiction

         The Court next turns to whether it retains personal jurisdiction over Defendants. A court may not hear any claim against parties for whom personal jurisdiction is lacking. Lightfoot v. Cendant Mortg. Corp., 137 S.Ct. 553, 562 (2017). Pursuant to Federal Rule of Civil Procedure 12(b)(2), the plaintiff bears the burden of establishing personal jurisdiction by a preponderance of the evidence. Carefirst of Maryland, Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003). In deciding a Rule 12(b)(2) motion, the court is “permitted to consider ...

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