United States District Court, D. Maryland
Stephanie A. Gallagher United States Magistrate Judge.
Elizabeth McMillan-McCartney (“Plaintiff”) filed
suit against pro se Defendant Caldwell McMillan, Jr.
(“Defendant”), alleging eleven counts regarding a
residential property owned by Plaintiff and Defendant as
tenants in common. ECF 1. Specifically, Plaintiff alleges
Sale in Lieu of Partition, pursuant to Md. Code Ann., Real
Prop. § 14-107 (Count I); Accounting/Sharing of Profits,
pursuant to Md. Code Ann., Real Prop. § 14-106 (Count
II); Common Law Sharing of Profits Generated by the Homestead
Property (Count III); Common Law Contribution (Count IV);
Common Law Equitable Lien (Count V); Liability for Waste
(Count VI); Breach of Written Contract (Count VII); Breach of
Oral Contract (Count VIII); Unjust Enrichment (Count IX);
Quantum Meruit (Count X); and Ouster (Count XI). Id.
Presently pending is Defendant's Motion to Dismiss
(“the Motion”). ECF 22. Plaintiff filed an
Opposition, ECF 23, and Defendant filed a Reply, ECF 24. For
the reasons stated below, I shall grant in part and deny in
part the Motion, ECF 22.
and Defendant are siblings who currently own, as tenants in
common, property at 1886 Crownsville Road in Annapolis,
Maryland (the “Homestead Property”). ECF 1 at 2.
The parties' parents, who were divorced, passed away in
1989. Id. ¶¶ 1-3. Plaintiff is the
personal representative of their mother's estate, while
Defendant is the personal representative of their
father's estate. Id. Both estates remain open in
the Orphans' Court for Anne Arundel County, Maryland.
Id. ¶ 4.
parties' parents had created a corporation, Sylmac, Inc.
(“Sylmac”), to develop a tract of land they owned
in Anne Arundel County, Maryland, into a residential
subdivision, and to market and sell the individual lots.
Id. ¶ 5. The development began after the
parties' parents died, and the parties assumed control of
Sylmac to continue the development project. Id. The
parties agreed that they would each be responsible for an
equal share of Sylmac's debts incurred during
development, and would pay those debts from the proceeds of
any inheritance they received from their parents'
respective estates. Id. Plaintiff alleges that,
starting in 1990 and continuing to the present, Defendant
failed to pay his share of Sylmac's debts, totaling $18,
316.52. Id. ¶¶ 7, 8.
around 1990, Plaintiff alleges that Defendant agreed to pay
Plaintiff $40.00 per hour, plus expenses, for any work she
performed on behalf of Sylmac, or on behalf of Defendant in
his administration of their father's estate. Id.
¶ 9. Plaintiff alleges that Defendant has never paid her
the promised compensation for the reasonable value of her
services, and that Defendant has repudiated the agreement to
pay her. Id.
the lots on the developed land was the Homestead Property,
improved with a single-family home and a two-bedroom
apartment located above a tractor shed. Id. ¶
10. Upon the deaths of the parties' parents, the
Homestead Property was transferred to the respective estates,
with each estate owning a 50 percent interest. Id.
On or about April 25, 1990, the parties conveyed the
Homestead Property to themselves individually as tenants in
common, with each party owning a 50 percent fee simple
interest. Id. ¶ 11. In or around May of 1990,
Plaintiff agreed to temporarily transfer her interest in the
Homestead Property to Defendant, to allow him to obtain a
$136, 500.00 mortgage secured by the Homestead Property.
Id. ¶ 12. In return, Defendant conveyed
Plaintiff's one-half interest back to her when the
mortgage was approved, on or about May 23, 1990. Id.
Defendant also agreed to make the mortgage payments as
required, and to pay off the mortgage in full when he
received his inheritance from their father's estate.
Id. This agreement was memorialized in a writing
signed by both parties on May 23, 1990. Id.; ECF
23-2 at 1-2.
alleges that Defendant failed to make the mortgage payments,
and the mortgage went into default. ECF 1 ¶ 14. To
prevent foreclosure on the Homestead Property, Plaintiff made
mortgage payments on Defendant's behalf. Id. On
or about July 23, 1993, the parties executed a written
agreement, under which Defendant “acknowledged his
indebtedness to Plaintiff for the mortgage payments she made
on his behalf and again agreed to repay Plaintiff for the
monies loaned to him for the mortgage payments out of his
inheritance from their parents' estate and to pay off the
remaining balance of the mortgage if any, ” and
Defendant agreed “that any future payments loaned to
him by Plaintiff to pay the mortgage would similarly be
repaid to her when the father's estate is closed.”
Id. ¶ 15; ECF 23-2 at 3-4.
May of 1990 and January of 2008, Plaintiff alleges that she
made monthly mortgage payments of approximately $1, 500.00.
ECF 1 ¶¶ 16, 17, 18. She made a final payment of
$105, 067.73 on or about January 22, 2008. Id.
Plaintiff alleges that the total amount she paid in
connection with Defendant's mortgage was $411, 000.00.
Id. ¶ 17. After the mortgage was paid off,
Plaintiff continued to pay the full property taxes and hazard
insurance on the Homestead Property, although the
Orphans' Court ordered Defendant to pay those expenses in
2017. Id. ¶ 18. Plaintiff contends that
“Defendant made sporadic payments to Plaintiff between
1999 and 2017 as partial reimbursement for either: 1) Sylmac,
Inc.'s expenses paid by Plaintiff; 2) services rendered
by Plaintiff to Sylmac, Inc. or their father's estate;
and 3) mortgage payments and carrying charges paid by
Plaintiff on Defendant's behalf, ” including a $34,
607.72 receivable due to Defendant that he assigned to
Plaintiff as partial repayment. Id. ¶¶ 20,
21. Plaintiff maintains that Defendant still owes her $376,
185.00 for her payment of the mortgage, insurance, and
property taxes on the Homestead Property. Id. ¶
1990, Defendant and his family have lived in the
single-family home on the Homestead Property. Id.
¶ 22. Plaintiff originally kept personal property and
effects in the separate apartment that she furnished for her
private use when she and her family travel to Maryland.
Id. In or around January of 1999, Defendant removed
all of Plaintiff's personal belongings from the separate
apartment and rented out the apartment, without
Plaintiff's approval or consent. Id. ¶ 23.
Plaintiff alleges that she learned of the rental in May of
1999, when she and her family planned to visit Maryland, but
were unable to stay in the apartment because it had been
rented. Id. Defendant has not provided Plaintiff
with an accounting of the rental income he received from the
Homestead Property, and Plaintiff alleges that he has denied
her access to the apartment on the Homestead Property for the
last 234 months. Id. ¶ 24. Plaintiff also
alleges that Defendant has damaged the apartment so that it
is no longer habitable, with missing kitchen appliances,
severe structural damage, and a hole in the roof.
Id. ¶ 25.
wants to sell the Homestead Property, but Defendant does not.
Id. ¶ 26. Plaintiff filed this suit on October
28, 2018. ECF 1.
Rule of Civil Procedure 12(b)(1) governs motions to dismiss
for lack of subject matter jurisdiction. Fed.R.Civ.P.
12(b)(1). A motion to dismiss under Rule 12(b)(1) challenges
the court's authority to hear the matter brought by a
complaint. See Davis v. Thompson, 367 F.Supp.2d 792,
799 (D. Md. 2005). To survive a Rule 12(b)(1) motion to
dismiss, a complaint must either present a federal question
pursuant to 28 U.S.C. § 1331, or establish diversity
jurisdiction pursuant to 28 U.S.C. § 1332. See
Choice Hotels Intern., Inc. v. Shiv Hospitality, L.L.C.,
491 F.3d 171, 175-76 (4th Cir. 2007).
defendant challenging a complaint under Rule 12(b)(1) may
advance a “facial challenge, asserting that the
allegations in the complaint are insufficient to establish
subject matter jurisdiction, or a factual challenge,
asserting ‘that the jurisdictional allegations of the
complaint [are] not true.'” Hasley v. Ward
Mfg., LLC, No. RDB-13-1607, 2014 WL 3368050, at *1 (D.
Md. July 8, 2014) (alteration in original) (quoting Kerns
v. United States, 585 F.3d 187, 192 (4th Cir. 2009)).
Under a facial challenge, the Court affords the plaintiff
“the same procedural protection as he would receive
under a Rule 12(b)(6) consideration, ” and will take
the facts alleged in the complaint as true and deny the
motion if the complaint alleges sufficient facts to invoke
subject matter jurisdiction. Kerns, 585 F.3d at 192
(quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th
Cir. 1982)); see Erickson v. Pardus, 551 U.S. 89, 94
(2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). Under a factual challenge, the plaintiff
bears the burden of proving the facts supporting subject
matter jurisdiction by a preponderance of the evidence.
U.S. ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347
(4th Cir. 2009). In that case, the pleadings should be
regarded as “mere evidence on the issue, ” and
courts “may consider evidence outside the pleadings
without converting the proceeding to one for summary
judgment.” Id. (citing Adams, 697
F.2d at 1219; Trentacosta v. Frontier Pac. Aircraft
Indus., 813 F.2d 1553, 1558 (9th Cir. 1987)).
the plaintiff bears the burden of proving that a court has
jurisdiction over the claim or controversy at issue, a Rule
12(b)(1) motion should be granted “only if the material
jurisdictional facts are not in dispute and the moving party
is entitled to prevail as a matter of law.”
Richmond, Fredericksburg & Potomac R.R. v. United
States, 945 F.2d 765, 768 (4th Cir. 1991) (citing
Trentacosta, 813 F.2d at 1558).
a defendant moves to dismiss a plaintiff's claim for lack
of standing, courts commonly address the motion under Rule
12(b)(1) of the Federal Rules of Civil Procedure.”
Richardson v. Mayor and City Council of Balt., Civil
Action No. RDB-13-1924, 2014 WL 60211, at *1 (D. Md. Jan. 7,
2014) (citing Payne v. Chapel Hill North Properties,
LLC, 947 F.Supp.2d 567 (M.D. N.C. 2013)
(“Generally, challenges to standing are addressed under
Rule 12(b)(1) for lack of subject matter
Motion,  Defendant argues that there is not
diversity of citizenship between the parties, and that
Plaintiff lacks standing to bring her breach of contract
claims. ECF 22 at 2-7.
Complaint, Plaintiff asserts that this Court has diversity
jurisdiction under 28 U.S.C. § 1332. ECF 1 at 2.
Plaintiff alleges that she is a resident of Kentucky, and
that Defendant is a resident of Maryland. Id.
Defendant maintains that Plaintiff is a legal resident of
Maryland because she “owns residential real estate in
the State of Maryland, … pay[s] taxes to Anne Arundel
County, Maryland, and the State of Maryland for her
property.” ECF 22 at 3.
purposes of diversity jurisdiction, state citizenship
“depends not on residence, but on national citizenship
and domicile.” Axel Johnson, Inc. v. Carroll
Carolina Oil Co., 145 F.3d 660, 663 (4th Cir. 1998)
(citation omitted). A United States citizen is a citizen of
the state in which he or she is domiciled, which
“requires physical presence, coupled with an intent to
make the State a home.” Johnson v. Advance Am.,
Cash Advance Ctrs. of S.C., Inc., 549 F.3d 932, 937 n.2
(4th Cir. 2008) (citing Mississippi Band of Choctaw
Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597,
104 L.E.2d 29 (1989); Jahed v. Acri, 468 F.3d 230,
236 (4th Cir. 2006); Webb v. Nolan, 484 F.2d 1049,
1051 (4th Cir. 1973)).
party disputes that Defendant is domiciled in Maryland. ECF 1
at 2; ECF 22 at 2-3. While Defendant argues that Plaintiff is
a legal resident of Maryland, Plaintiff's ownership of
real property and payment of property taxes in Maryland does
not automatically make Maryland her domicile for purposes of
diversity jurisdiction. Rather, Plaintiff's domicile is
determined by her physical presence in a state, and her
intent to make that state her home. See Johnson, 549
F.3d at 937 n.2. Plaintiff has established by a preponderance
of the evidence that she is domiciled in Kentucky. See
U.S. ex rel. Vuyyuru v. Jadhav, 555 F.3d at 347 (under a
factual challenge, “the plaintiff bears the burden of
proving the truth of such facts by a preponderance of the
evidence”). Courts consider various factors to
determine whether a party has the requisite presence and
intent for a state to be his or her domicile, including the
party's “current residence; voting registration and
voting practices; location of personal and real property;
location of brokerage and bank accounts … place of
employment or business; driver's license and other
automobile registration; [and] payment of taxes.”
Niell v. Salisbury School, Inc., Civil Action No.
ELH-11-3627, 2012 WL 43021, at *4 (D. Md. Jan. 5, 2012)
(quoting Garcia Perez v. Santaella, 264 F.3d 348,
351 (1st Cir. 2004) (internal quotation marks omitted));
see also Wright et al., Fed. Prac. &
Proc. § 3612.
not conclusive, “declarations of intent by the person
whose domicile is in question are given heavy …
weight.” Thomas v. Farmer, 148 F.Supp.2d 593,
596 (D. Md. 2001) (quoting Hamilton v. Accu-Trek, 13
F.Supp.2d 366, 370 (E.D.N.Y. 1998) (internal quotation marks
omitted). When statements of intention are “in conflict
with the facts, ” however, they are “entitled to
little weight.” Webb v. Nolan, 361 F.Supp.
418, 421 (M.D. N.C. 1972), aff'd per curiam, 484
F.2d 1049 (4th Cir. 1973), cert. denied, 415 U.S.
903, 94 S.Ct. 1397, 39 L.Ed.2d 461 (1974).
Plaintiff has substantiated her claim with an affidavit
reflecting her physical residence and intent to reside in
Kentucky. See ECF 23-1. Plaintiff states that she
has lived in Kentucky since 1979, in a home that she owns
with her husband as tenants by the entirety with right of
survivorship. ECF 23-1 ¶ 1. She has been registered to
vote in local, state, and federal elections in Kentucky since
1978. Id. ¶ 3. She represents that she has a
valid Kentucky drivers' license that she renewed on April
3, 2018, effective through May, 2022. Id. ¶ 4.
Her automobile is also registered and titled in Kentucky.
Id. ¶ 5. She has been employed as a full-time
faculty member at Northern Kentucky University since August
of 1980. Id. ¶ 6. Plaintiff's personal bank
account is titled in Kentucky, and she has filed her personal
state income tax returns with the Kentucky Department of
Revenue since 1978. Id. ¶¶ 7, 8.
Importantly, Defendant does not offer any factual basis,
beyond Plaintiff's property ownership and payment of
property taxes, to show that Plaintiff has ever physically
resided in or intended to make Maryland her home.
on her affidavit and its consistency with other facts in the
record, Plaintiff has met her burden to show that she
physically resides in Kentucky, and intends for Kentucky to
be her home. See, e.g., Ward v. Walker, 725
F.Supp.2d 506, 510 (D. Md. 2010) (determining that a party
was domiciled in Florida because the record showed he
maintained a residence in the state, obtained a Florida's
driver license, paid taxes there, and spent more than six
months of the year there); see also Goode v. STS Loan
& Management, Inc., No. Civ.A. DKC 2004-0999, 2005
WL 106492, at *7 (D. Md. 2005) (finding plaintiff was
domiciled in the District of Columbia based on
plaintiff's “affidavits and the reasonable
inferences that can be drawn therefrom, ” reflecting
plaintiff's stated intent to reside there when the
complaint was filed and that she was registered to vote
there). Therefore, the Court finds that the Plaintiff's
domicile is Kentucky, establishing diversity of citizenship
between the parties. Accordingly, because the Plaintiff has
also alleged damages in excess of $75, 000, this Court has
subject matter jurisdiction over Plaintiff's claims.
See 28 U.S.C. § 1332(a); ECF 1 at 2.
argues that Plaintiff lacks standing to bring her breach of
contract claims, but does not challenge Plaintiff's
standing as to her other claims. ECF 22 at 4-7. Article III
of the United States Constitution limits federal jurisdiction
to “actual cases or controversies, ” and the
“‘irreducible constitutional minimum' of
standing consists of three elements.” Spokeo, Inc.
v. Robinson, 136 S.Ct. 1540, 1547 (2016) (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992)). To establish standing, a plaintiff must show (1) an
injury in fact, (2) that is fairly traceable to the
challenged action of the defendant, and (3) that is likely to
be redressed by a favorable judicial decision.
Lujan, 504 U.S. at 560-61. Constitutional standing
is governed by Rule 12(b)(1), because it underlies the
Court's jurisdiction. White Tail Park, Inc. v.
Stroube, 413 ...