Zander et al v. Bennett et al

Filing 26

MEMORANDUM AND ORDER denying Defendants Andrea Bennett and Bennett & Associates' 9 Motion to Dismiss for Lack of Jurisdiction; directing Plaintiffs shall arrange a telephone conference to discuss the Scheduling Order. Signed by Judge Marvin J. Garbis on 2/7/14. (dass, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MICHELE ZANDER, et al.

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Plaintiffs
vs.

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ANDREA BENNETT, et al.

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CIVIL ACTION NO. MJG-13-2484

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Defendants
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MEMORANDUM AND ORDER
The Court has before it Defendants' Andrea Bennett and
Bennett & Associates' Motion to Dismiss for Lack of Personal
Jurisdiction [Document 9] and the materials submitted relating
thereto.

The Court has held a hearing and had the benefit of

the arguments of counsel.

I.

BACKGROUND
In this case,1 Plaintiffs Michele and Steven Zander ("the

Zanders") sued their former counsel, Andrea Bennett and the law
firms of Bennett & Associates and Gilliland, Ratz & Browning,
P.C. ("Defendants)2 for legal malpractice, i.e., negligently

1

This case was filed in the Circuit Court for Baltimore City
and timely removed to federal court.
2
Defendant Bennett was employed by Gilliland, Ratz and
Browning, P.C. during some part of the period between 2004 and
2009. In their Response to the Motion to Dismiss [Document 11],
the Zanders state that "[s]ince Ms. Bennett left . . .
Gilliland, Ratz & Browning, P.C., th[at] firm[] ha[s]

failing to file timely a lawsuit presenting a Federal Tort Claim
against the United States.
By the instant motion, Defendants seek dismissal, asserting
that they are not subject to personal jurisdiction in the State
of Maryland.

II.

PERSONAL JURISDICTION
For a federal district court to exercise personal

jurisdiction over a nonresident defendant, two requirements must
be satisfied:
1.

The exercise of personal jurisdiction must be
authorized under the long-arm statute of the
state in which the court is located; and

2.

The exercise of jurisdiction must comport with
the due process requirements of the Fourteenth
Amendment.

ASCO Healthcare, Inc. v. Heart of Tx. HealthCare and Rehab.,
Inc., 540 F. Supp. 2d 634, 640 (D. Md. 2008).
Maryland’s long-arm statute limits jurisdiction to cases
where the cause of action “aris[es] from any act enumerated” in
the statute itself.
103(a).3

Md. Code Ann., Cts. & Jud. Proc. § 6–

Thus, a plaintiff must identify the statutory provision

discontinued operations." [Document 11] at 4 n.5. On October
16, 2013, this Court approved Plaintiffs' notice of voluntary
dismissal of Gilliland, Ratz and & Browning, P.C. without
prejudice. [Document 16]. Accordingly, as used herein,
"Defendants" refers to Andrea Bennett and Bennett & Associates.
3
All statutory references herein are to Md. Code Ann., Cts.
& Jud. Proc. unless otherwise indicated.
2

that authorizes jurisdiction.

Ottenheimer Publishers, Inc. v.

Playmore, Inc., 158 F. Supp. 2d 649, 652–53 (D. Md. 2001).
Plaintiffs in the instant case rely upon the Maryland long-arm
statute, § 6-103(b).

Compl. ¶ 5.

"The Maryland courts have consistently held that the
state's long-arm statute is coextensive with the limits of
personal jurisdiction set by the due process clause of the
Constitution."

Carefirst of Maryland, Inc. v. Carefirst

Pregnancy Centers, Inc., 334 F.3d 390, 396 (4th Cir. 2003).
Accordingly, the statutory and constitutional inquiries
essentially merge into a single inquiry – "the defendant [must]
ha[ve] 'minimum contacts' with the forum, such that to require
the defendant to defend its interests in that state 'does not
offend traditional notions of fair play and substantial
justice.'"

Id. at 397 (quoting Int’l Shoe Co. v. Washington,

326 U.S. 310, 316 (1945)).

III. DISCUSSION
A.

Pertinent Facts

The pertinent facts can be stated succinctly:


Between August 1997 and December 2002, health care
providers at the Naval National Medical Center in
Maryland and the Maxwell Air Force Base in Alabama
provided medical services to Mrs. Zander that the
Zanders allege were performed negligently.

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

In 2004, when the Zanders were Georgia residents, the
Defendants, also Georgia residents, agreed to represent
Mrs. Zander4 in a medical malpractice lawsuit against
the United States.



Defendant Bennett5 represented Mrs. Zander in the
administrative proceedings required as a prerequisite to
filing a lawsuit in federal court pursuant to the
Federal Tort Claims Act.



In July 2009, Mrs. Zander informed Defendant Bennett
that the Zanders were relocating to Maryland. At a
meeting later that month, Defendant Bennett advised Mrs.
Zander that the "administrative claims had been formally
denied and that the next step was to file a lawsuit in
Maryland." [Document 11] at 7.



On July 29, 2009, Defendant Bennett emailed a Maryland
lawyer, stating:
I'm putting together a case under the
Federal Tort Claims Act and will likely need
to file it in District Court in Maryland.
It arose in Bethesda, and my clients are
relocating to that area as well.
Do y'all have any recommendations as to who
might be good to associate with me on this?
. . . .
. . . The case needs to be filed by the end
of September so I'm pulling things together
now.

[Document 11-1] at 2.


On August 19, 2009, the Maryland lawyer responded,
stating:

4

The Defendants allegedly failed to pursue a loss of
consortium claim on behalf of Mr. Zander.
5
At some point before March 2009, Defendant Bennett started
her own law firm, Bennett & Associates. See [Document 11] at 45.
4

Andrea: Sorry for the delay in responding.
I would be happy to serve as your local
counsel in this matter. Dale
Id. at 1.


On September 16, 2009, the time for filing the lawsuit,
six months after the Government's final denial of the
administrative claim, expired.



On October 2, 2009, Defendant Bennett – unaware that the
suit was then time barred – sent an email to a person in
the Maryland lawyer's office, advising that she was then
putting the final touches on the Complaint.



On October 8, 2009, Defendant Bennett sent the complaint
and supporting documentation to the Maryland lawyer, and
the lawsuit was filed in this Court the same day as
Zander v. United States, AW-09-2649.



On February 13, 2012, Judge Williams of this Court
granted the Government's Motion to Dismiss, holding that
the Complaint had not been filed timely. See Zander v.
United States, 843 F. Supp. 2d 598 (D. Md. 2012) aff'd,
494 F. App'x 386 (4th Cir. 2012).

B.

General Jurisdiction

"Under due process analysis, there are two types of
personal jurisdiction: specific and general."

Estate of Bank v.

Swiss Valley Farms Co., 286 F. Supp. 2d 514, 517 (D. Md. 2003).
The Maryland long-arm statute provides as to general
jurisdiction, in pertinent part:
(b)
A
court
may
exercise
personal
jurisdiction over a person, who directly or
by an agent:
. . . .
(4) Causes tortious injury in the State or
outside of the State by an act or omission
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outside the State if he regularly does or
solicits business, engages in any other
persistent course of conduct in the State or
derives substantial revenue from goods,
food, services, or manufactured products
used or consumed in the State;
§ 6-103(b)(4).

"[W]ith regard to non-residents, general

jurisdiction is ordinarily reserved for those defendants who
have such substantial contacts with the forum state that they
may be considered 'essentially domiciled' within that state."
Estate of Bank, 286 F. Supp. at 517-18 (citing Atlantech
Distrib., Inc. v. Credit Gen. Ins. Co., 30 F. Supp. 2d 534 (D.
Md. 1998)).
Defendants are not Maryland residents.

They have no

property, assets, employees, or registered agents in Maryland.
Further, they are not registered to do business in Maryland.

C.

Specific Jurisdiction

"Specific jurisdiction is available when the plaintiff's
claim arises out of the defendant's contacts with the forum
state."

Id. at 517.

The Maryland long-arm statute provides as

to specific jurisdiction, in pertinent part:
(b)
A
court
may
exercise
personal
jurisdiction over a person, who directly or
by an agent:
(1) Transacts any business or performs any
character of work or service in the State;

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(2)
Contracts
to
supply
goods,
food,
services, or manufactured products in the
State;
(3) Causes tortious injury in the State by
an act or omission in the State . . . .
§ 6-103(b)(1)-(3).
The conduct of Defendants Bennett, and Bennett &
Associates, providing the basis for the instant law suit is the
alleged failure to perform competently her agreement to file the
underlying lawsuit for Mrs. Zander.

The Court finds the

reasoning of Stratagene v. Parsons Behle & Latimer, 315 F. Supp.
2d 765 (D. Md. 2004), instructive, even though Stratagene dealt
with a legal malpractice claim that arose in the court of
litigation and not as a result of a failure to file a timely
lawsuit.

Holding that a non-resident defendant law firm was

subject to personal jurisdiction for alleged malpractice
relating to ongoing litigation in Maryland, Judge Chasanow
emphasized that "[i]n deciding initially to represent
[Plaintiff's opponent], then headquartered in Maryland,
Defendants [who had previously provided legal representation to
Plaintiff] transacted business and contracted to provide
services to [Plaintiff's opponent] here."

Id. at 770.

Judge

Chasanow went on to note that one of the defendants had appeared
pro hac vice in the underlying litigation, while other

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defendants had signed declarations in support of their client's
legal position.

Id.

In this case, Defendants contracted to supply services in
the State of Maryland by agreeing to file the underlying medical
malpractice lawsuit in Maryland and to function as counsel in
that case.

In fact, Defendants did file the lawsuit, albeit

roughly three weeks late, and participated as counsel in the
case.

The connection with Maryland was an integral part of the

service to be provided.

Defendant Bennett provided local

Maryland counsel with a copy of the underlying complaint, a
civil cover sheet, four summons, and her completed pro hac vice
motion.

Moreover, Defendants caused tortious injury in Maryland

to the Zanders, who were residents of Maryland at the time the
case became time barred, by failing to file the underlying
lawsuit in Maryland prior to September 17, 2009.
As the U.S. Court of Appeals for the Eleventh Circuit
observed in Robinson v. Giarmarco & Bill, P.C., a legal
malpractice case, "[t]he nature of the professional services
rendered in this case was such that the defendants were fully
aware that their actions or omissions would have a substantial
effect in Florida.

They should have reasonably anticipated the

possibility of a suit arising from conduct directed towards the
Florida Decedent."

74 F.3d 253, 259 (11th Cir. 1996).

Here, it

would hardly be unexpected that Defendants, representing
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Maryland residents in regard to a suit to be filed in Maryland,
would be haled into court in Maryland to answer claims based
upon an alleged failure competently to perform their obligations
to the Maryland residents.
The Court concludes that it does have specific jurisdiction
over Defendants in the instant case.

IV.

CONCLUSION
For the foregoing reasons:
1.

Defendants Andrea Bennett and Bennett & Associates'
Motion to dismiss for Lack of Personal Jurisdiction
[Document 9] is DENIED.

2.

Plaintiffs shall arrange a telephone conference to be
held by February 21, 2014 to discuss the Scheduling
Order to be issued.

SO ORDERED, on Friday, February 07, 2014.

/s/__________
Marvin J. Garbis
United States District Judge

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