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McMillan-McCartney v. McMillan

United States District Court, D. Maryland

June 19, 2019



          Stephanie A. Gallagher United States Magistrate Judge.

         Plaintiff 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.

         I. Factual Background[1]

         Plaintiff 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.

         The 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.

         In or 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.

         One of 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.

         Plaintiff 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.

         Between 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. ¶ 19.

         Since 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.

         Plaintiff wants to sell the Homestead Property, but Defendant does not. Id. ¶ 26. Plaintiff filed this suit on October 28, 2018. ECF 1.

         II. Diversity Jurisdiction

         A. Legal Standard

         Federal 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).

         A 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)).

         While 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).

         “When 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 jurisdiction.”)).

         B. Analysis

         In the Motion, [2] 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.

         1. Diversity Jurisdiction

         In her 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.

         For the 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)).

         Neither 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.

         While 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).

         Here, 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.

         Based 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.

         2. Standing

         Defendant 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 ...

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