Ford et al v. Rohr et al

Filing 18

MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 10/16/2015. (c/m 10/16/2015 nd2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CAROLYN W. FORD, et al.,
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Plaintiffs,
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v.

Civil Action No. RDB-14-3158

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JAMES F. ROHR, et al.,
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Defendants.
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MEMORANDUM OPINION

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Plaintiffs Carolyn W. Ford, Joseph Ford, Sr., and Randy C. Ford (“Plaintiffs”),
proceeding pro se, bring this Complaint for Damages (ECF No. 2) against Defendants James
F. Rohr and William S. Demchak, alleging fraud and violations of the Financial Institutions
Reform, Recovery, and Enforcement Act of 1989, 12 U.S.C. § 1821 (“FIRREA”). Currently
pending before this Court is Defendants Rohr and Demchak’s Motion to Dismiss (ECF No.
16). Plaintiffs’ Response to this Court’s Show Cause Order (ECF No. 13) implies that
Plaintiffs intended to file a claim against the corporate entity National City Mortgage.1 The
parties’ submissions have been reviewed and no hearing is necessary. See Local Rule 105.6
(D. Md. 2014). For the reasons that follow, Defendants James F. Rohr and William S.
Demchak’s Motion to Dismiss (ECF No. 16) is GRANTED.

Accordingly, Plaintiffs’

1 Plaintiffs’ Response to the Show Cause Order (ECF No. 13) names “Defendant, National City Mortgage”
as a party and repeatedly refers to alleged actions taken by the mortgage company; specifically, Plaintiffs assert
that “Defendant initiated foreclosure proceedings,” “this mortgage company has committed fraud,” and
“Defendants took all escrow monies and placed it in its own account.” Because The PNC Financial Services
Group (PNC) brought National City Mortgage in 2008 and PNC Mortgage is a division of PNC Bank., a
subsidiary of PNC, the Court construes all allegations against National City Mortgage as allegations against
PNC Mortgage for purposes of this opinion. As noted infra, the Plaintiffs have not named PNC Mortgage as
a Defendant, nor have they effected service of process upon that corporate entity.

Complaint for Damages against the individual Defendants Rohr and Demchak (ECF No. 2)
is DISMISSED WITH PREJUDICE.
BACKGROUND
This Court accepts as true the facts alleged in the plaintiff’s complaint. See Aziz v.
Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). Additionally, this Court recognizes that
Plaintiffs are pro se and has accorded the pleadings liberal construction. See Erickson v. Pardus,
551 U.S. 89, 94 (2007). Between 2003 and 2007, Plaintiffs made mortgage payments on
time, but “the bank”2 recorded and posted those payments as late. See Pls.’ Compl. 2, ECF
No. 2. When Plaintiffs’ property eventually went to auction, National City Mortgage
increased the auction price from $130,000, as advertised in the newspaper, to $137,670 when
there were no bidders. Id. During the auction, Plaintiffs bought their property back. Id.
Because Plaintiffs had made all of their mortgage payments between 2003 and 2007, it is
alleged that Plaintiffs effectively remade those payments to the bank when they purchased
their home for $137,670. Id.
Plaintiffs’ Response to the Show Cause Order (ECF No. 13) provides some
clarification to the factual background.3 In 1996, Plaintiffs took out a mortgage on their
property in Frederick, Maryland, and signed an Adjustable Rate Note obligating them to
make periodic payments. Resp. to Order ¶ 6, ECF No. 13. Originally, Plaintiffs made
mortgage payments to PCFS Mortgage Resources (“PCFS”). Id. ¶ 8. In 2004, PCFS sold the
mortgage to National City Mortgage, a company that was later bought by The PNC

2 As noted supra note 1, there are a number of financial institutions that have been involved with this matter
at one time or another. In their Complaint, Plaintiffs expressly identify M&T Bank as the bank where their
payments were cashed. Plaintiffs do not specifically identify which bank posted their payments as late.
3 These factual allegations cannot be considered an amendment to the complaint and are noted here for
purposes of clarity only.

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Financial Services Group (“PNC”) in 2008. Id. PNC Mortgage, a subsidiary of PNC, has
therefore handled Plaintiffs’ mortgage since 2008. Defendant Rohr is the former Chairman
and Chief Executive Officer of PNC and Defendant Demchak is the current Chairman and
Chief Executive Officer of PNC. Notice of Removal ¶ 6.
On September 3, 2014, Plaintiffs filed the pending Complaint for Damages (ECF No.
2) in the Circuit Court for Frederick County, Maryland. Plaintiffs’ Complaint alleges that
Defendants engaged in fraud and other behaviors in violation of the Financial Institutions
Reform, Recovery and Enforcement Act of 1989, 12 U.S.C. § 1821 (“FIRREA”). See generally
Compl. The Complaint seeks refunds of all payments made between 2003 and 2007 due to
“over a dozen foreclosures over the years of 2003-2007, when all payments were made.”4 Id.
On October 7, 2014, Defendants Rohr and Demchak filed a Notice of Removal (ECF No.
1). In the Notice, they stated that as of that date Plaintiffs had not served them with process,
and that by filing for removal they were not waiving their right to assert any available
defenses as to Plaintiffs’ claims.5
Four months later on February 24, 2015, this Court ordered Plaintiffs to show good
cause as to why this Court should not dismiss their Complaint for failure to serve the
summons and complaint upon Defendants Rohr and Demchak (ECF No. 11). On March 3,

4 Plaintiffs further allege in their Response to the Show Cause Order that Defendants demanded over $47,000
for 2002-2005 payments that Plaintiffs had already made, and that Defendant’s “mishandling, misplacement,
and misrepresentation” for the years between 2000 and 2003 caused a breach of contract. Resp. to Order,
ECF No. 13. Further, Plaintiffs contend that National City Mortgage committed fraud by presenting to the
Bankruptcy Court of Maryland an Affidavit of Default, knowing Plaintiffs had made their payments. Id.
Plaintiffs’ conclude that alleged events between 1999 and 2005 caused the Plaintiffs to lose “10 years of peace
because of the [mortgage company’s] abuse.” Id.
5 Defendants also filed a Rule 103.3 Disclosure on October 7, 2014 disclosing that PNC Bank, N.A., the
federal-chartered national bank that is wholly owned by PNC may have a material financial interest in this
case’s outcome. ECF No. 4. The pro se Plaintiffs did not seek to name PNC Bank as Defendant in this action
despite this notice.  

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2015, Plaintiffs’ filed a Response to the Show Cause Order (ECF No. 13), and one week
later Defendants Rohr and Demchak filed a Motion to Dismiss Complaint (ECF No. 14).
The Motion to Dismiss asserts that: (1) Plaintiffs failed to effect service of process on the
Defendants pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure, (2) Plaintiffs
have not stated a viable claim upon which relief can be granted pursuant to Rule 12(b)(6)
against either Defendant, (3) this Court does not have personal jurisdiction over the
Defendants pursuant to Rule 12(b)(2), and (4) that Plaintiffs’ complaint contains no
allegations sufficient to confer standing.
STANDARD OF REVIEW
I.

Motion to Dismiss Pursuant to Rule 12(b)(5)
Under Rule 12(b)(5) of the Federal Rules of Civil Procedure, a defendant may move

to dismiss for insufficient service of process. Fed. R. Civ. P. 12(b)(5). If service is contested,
the plaintiff “bears the burden of establishing its validity” pursuant to Rule 4. O’Meara v.
Waters, 464 F. Supp. 2d 474, 476 (D. Md. 2006); Fed. R. Civ. P. 4. “Generally, when service
of process gives the defendant actual notice of the pending action, the courts may construe
Rule 4 liberally to effect service of process and uphold the jurisdiction of the court.” Id.
(citing Karlsson v. Rabinowitz, 318 F.2d 666, 668 (4th Cir. 1963)). Additionally, “[i]n cases
removed to federal court, state law determines whether service of process was effected prior
to removal.” Allen v. Shinseki, No. WDQ-12-0269, 2012 WL 6111835, at *3 (D. Md. Dec. 7,
2012) (citations omitted).

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II.

Motion to Dismiss Pursuant to Rule 12(b)(2)
A nonresident defendant may be entitled to dismissal through a challenge to a district

court’s power to exercise personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules
of Civil Procedure. CoStar Realy Info., Inc., v. Meissner, 604 F. Supp. 2d 757, 763–64 (D. Md.
2009). “[T]he jurisdictional question is one for the judge, with the burden on the plaintiff
ultimately to prove the existence of a ground for jurisdiction be a preponderance of the
evidence.” Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). If jurisdiction turns on
disputed facts, the court may hold an evidentiary hearing, or may defer ruling on the
jurisdictional question until receiving relevant evidence at trial. Id. However, if the court
relies solely on the basis of the complaint, affidavits, and discovery materials, “the plaintiff
need only make a prima facie showing of personal jurisdiction.” Carefirst of Md., Inc., v. Carefirst
Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003). In determining whether the plaintiff
has made a prima facie case of personal jurisdiction, the court “must draw all reasonable
inferences arising from the proof, and resolve all factual disputes, in the plaintiff's favor.”
Mylan Labs v. Akzo, N.V., 2 F.3d 56, 59–60 (4th Cir. 1993).
III.

Motion to Dismiss Pursuant to Rule 12(b)(6)
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain

a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P 8(a)(2). Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the
dismissal of a complaint if it fails to state a claim upon which relief can be granted. The
purpose of Rule 12(b)(6) is “to test the sufficiency of a complaint and not to resolve contests

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surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).
The Supreme Court’s recent opinions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), “require that complaints in civil actions be
alleged with greater specificity than previously was required.” Walters v. McMahen, 684 F.3d
435, 439 (4th Cir. 2012) (citation omitted). In Twombly, the Supreme Court articulated “[t]wo
working principles” that courts must employ when ruling on Rule 12(b)(6) motions to
dismiss. Iqbal, 556 U.S. at 678. First, while a court must accept as true all the factual
allegations contained in the complaint, legal conclusions drawn from those facts are not
afforded such deference. Id. (stating that “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice” to plead a claim). In the
context of pro se litigants, however, pleadings are “to be liberally construed,” and are “held to
less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (citation omitted); accord Brown v. N.C. Dept. of Corr., 612 F.3d 720, 724 (4th
Cir. 2010). Second, even a pro se complaint must be dismissed if it does not allege “a plausible
claim for relief.” Id. at 679; see also O’Neil v. Ponzi, 394 F. App’x. 795, 796 (2d Cir. 2010).
ANALYSIS
Plaintiffs claim that they are entitled to a refund of all payments made to Defendants
between 2003 and 2007.6 This Court first addresses whether Plaintiffs have properly served
Defendants Rohr and Demchak. Next, notwithstanding that Plaintiffs have not effected

6 In their Response to the Show Cause Order, Plaintiffs state that in addition to the refunded money, the
Court should grant them $120,000,000 for years of unfair practices. Plaintiffs did not, however, move to
amend their Complaint.

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proper service upon Defendants Rohr and Demchak, this Court addresses whether it has
personal jurisdiction over those defendants and whether Plaintiffs have failed to state a claim
against them individually upon which relief can be granted.7
I.

Service of Process
“Absent effective service of process, a court is without jurisdiction to render a

personal judgment against a defendant.” Federal Deposit Insurance Corp. v. Schaffer, 731 F.2d
1134, 1135–1136 (4th Cir. 1984). Under Rule 4(e), an individual may be served in a judicial
district of the United States by: (1) following state law for serving a summons in an action
brought in courts of general jurisdiction in the state where the district court is located or
where service is made; or (2) doing any of the following: (A) delivering a copy of the
summons and of the complaint to the individual personally; (B) leaving a copy of each at the
individual’s dwelling or usual place of abode with someone of suitable age and discretion
who resides there; or (C) delivering a copy of each to an agent authorized by appointment or
by law to receive service of process. Fed. R. Civ. P. 4(e). In Maryland, a plaintiff may serve
process on an individual by certified mail with restricted delivery and return receipt stating to
whom process is delivered and the date and address of delivery. Md. Rule 2–121(a). “Pro se
status . . . is insufficient to establish good cause, even where the pro se plaintiff mistakenly
believes that service was made properly.” Tann v. Fisher, 276 F.R.D. 190, 193 (D. Md. 2011)
(citing McNeil v. United States, 508 U.S. 106, 113 (1993)).

7 This Court recognizes that Plaintiffs are pro se and has accorded their pleadings liberal construction. See
Erickson, 551 U.S. at 94. However, Plaintiffs have not named PNC Mortgage as a defendant, regardless of
any action brought against current and past chief executives of that corporate entity.

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Defendants argue that the service was “neither personal service, nor service to a
registered agent, nor service to either Defendant’s dwelling or usual place of abode.” ECF
No. 16. While Defendants are correct in that Plaintiffs failed to properly serve Defendants
by one of the methods of service expressly stipulated in Rule 4(e)(2),8 Plaintiffs were
presumably choosing to follow Maryland Rule 2—121 by attempting to effect service by
certified mail. In Plaintiffs’ Response to the Show Cause Order, Plaintiffs present a copy of
Defendant Rohr’s writ of summons,9 copies of United States Postal Service Certified Mail
Receipts addressed to both Defendants dated September 9, a receipt from the Circuit Court
for Frederick County also dated September 9, and another copy of a United States Postal
Service Certified Mail Receipt addressed to Defendants’ attorney. Plaintiffs’ documents,
however, show that Plaintiffs’ attempt to effect service under Maryland Rule 2—121 failed.
Under Rule 2—121(a), Plaintiffs were required to mail the documents by certified
mail requesting: “Restricted Delivery—show to whom, date, address of delivery.” Md. Rule
2—121(a). Plaintiffs’ Domestic Return Receipt shows that they failed to request Restricted
Delivery; service of process was therefore deficient.

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See ECF No. 15; see also Felder v.

Buonassissi, Henning & Lash, PC, Case No. PJM 13—1741, 2013 WL 5550947, at *4 (D. Md.
2013). Indeed, the documents show that someone other than the Defendants signed for the

8 See Tann v. Fisher, 276 F.R.D. 190, 192 (D. Md. 2011) (“Service of process at a defendant’s place of business
does not satisfy the requirements of Rule 4(d)(1) [now Rule 4(e)(2)].” (citing Quann v. Whitegate—Edgewater,
112 F.R.D. 649, 655 (D. Md. 1986))).
9 As to date, Plaintiffs have only presented a copy of Defendant Rohr’s Writ of Summons and not a copy of
Defendant Demchak’s Writ.
10 Maryland Rule 2—121 also provides that service outside of the state can be made in the manner prescribed
by the foreign jurisdiction if reasonably calculated to give actual notice. In addition to Plaintiffs’ failure to give
actual notice, Ohio only permits service by United States certified mail if the clerk of the court delivers the
copy of the summons and complaint to the postal service. Ohio Civ. R. 4.1(A)(1)(a). Therefore, Plaintiffs also
failed to effect proper service under Ohio law.

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packages.11 See ECF No. 15. As the Fourth Circuit has noted, when a plaintiff has not
properly served a defendant, “the rules . . . and plain requirements for the means of effecting
service of process may not be ignored.” Armco, Inc., v. Penrod-Stauffer Bldg. Systems, Inc., 733
F.2d 1087, 1089 (4th Cir. 1984). While it is clear by the filing of this Motion that Defendants
had actual notice of the pending action, Plaintiffs failed to meet their burden of establishing
that Defendants were properly served or that there was good cause for the lack of service.
Accordingly, Defendants Rohr and Demchak’s Motion to Dismiss for Insufficient Service of
Process is GRANTED. However, even according the pro se Plaintiffs every consideration,
this Court will address the alternative bases for dismissal of this action.
II.

Personal Jurisdiction
While this Court does not have personal jurisdiction over a defendant who is

improperly served,12 this Court nevertheless alternatively addresses Defendants Rohr and
Demchak’s Motion to Dismiss for lack of personal jurisdiction. In their Motion, Defendants
assert that they are both citizens of Pennsylvania and not subject to either general or specific
jurisdiction in this Court.
Pursuant to Rule 4(k)(1)(A) of the Federal Rules of Civil Procedure, a federal district
court may assert personal jurisdiction over a nonresident in accordance with the law of the
state in which the court is located. Synergics Energy Servs., LLC v. Algonquin Power Fund (Am.),
Inc., No. ELH–13–2257, 2014 WL 2812230, at *7 (D.Md. June 20, 2014). Personal
jurisdiction may either be general or specific. Rao v. Era Alaska Airlines, ––– F. Supp. 2d –––,

11 The receiving signature appears to be “A.J. Woodward.” See ECF No. 15.
12 Walker v. SGB Corp., No. 3:12-CV-145-FDW-DCK, 2012 WL 4753303 at *3 (W.D.N.C.) (citing Armco, Inc.
v. Penrod-Stauffer Bldg. Systems Inc., 733 F.2d 1087, 1089 (4th Cir. 1984)).

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2014 WL 2215862, at *3–4 (D. Md. 2014). Therefore, as this Court has previously noted, its
exercise of jurisdiction must (1) be authorized by the forum state’s long-arm statute and (2)
be consistent with due process. Haley Paint Co. v. E.I. DuPont de Nemours & Co. (In re Titanium
Dioxide Antitrust Litig.), 775 F. Supp. 2d 790, 796 (D. Md. 2011) (citing Carefirst of Md., Inc.,
334 F.3d at 396).13
A.

General Jurisdiction

Defendants Rohr and Demchak assert that they are residents of Pennsylvania. ECF
No. 14. Plaintiffs never address Defendants’ residency or connections to Maryland in either
the Complaint or Response to the Motion to Dismiss. It is only in Plaintiffs’ Response to the
Show Cause Order (ECF No. 13) that they assert “venue is proper in this Court because all
of the parties are located in the State of Maryland and the acts described took place in
Frederick County, Maryland.” Plaintiffs then continue to state that the parties are “Plaintiff,
Joseph Ford,” “Plaintiff, Carolyn Ford,” and “Defendant, National City Mortgage.” Id.
Plaintiffs do not assert that Defendants Rohr and Demchak are residents of Maryland,
continually visit or work in Maryland, or any “facts to satisfy the steep requirement of
continuous and systematic contacts . . . to impose general jurisdiction.” D’Onofrio v. SFX
Sports Group, Inc., 534 F. Supp. 2d 86, 90 (D.D.C. 2008). Accordingly, this Court must focus
on whether it has specific jurisdiction over Defendants.

13 A plaintiff must specifically identify a provision in the Maryland statute that authorizes jurisdiction.
Ottenheimer Publishers, Inc. v. Playmore, Inc., 158 F.Supp.2d 649, 652 (D.Md.2001). Once a provision is specified,
a court then determines whether the exercise of personal jurisdiction would comport with the due process
requirements of the Fourteenth Amendment.

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B.

Specific Jurisdiction

Defendants also assert that Plaintiffs cannot establish specific personal jurisdiction.
Although Plaintiffs have not cited to a provision of the Maryland long-arm statute, they
would presumably be relying on the first or second provisions, which state:
A court may exercise personal jurisdiction over a person, who directly or by an agent:
(1) Transacts any business or performs and character of work or service in the State;
(2) Contracts to supply goods, food, services, or manufactured products in the State;
Md. Code Ann., Cts & Jud. Proc., § 6—103(b)(1-2).
While subsection (b)(1) has been interpreted to not require that a defendant be
physically present in Maryland, there must still be specific contacts between a defendant and
the state. Personal jurisdiction cannot be based simply on someone’s status as a company’s
chief executive officer. See Metro. Reg’l Info. Sys., Inc. v. Am. Home Realty Network, Inc., 888 F.
Supp. 2d 691, 699–700 (D. Md. 2012) (holding that the court did not have personal
jurisdiction over the CEO of a company when plaintiff’s allegations were based almost
exclusively on the company’s activities with the state and did not allege any personal contacts
between the CEO and the state or residents). Plaintiffs fail to allege any contact between the
named individual Defendants and Maryland. In fact, the Complaint and Response to the
Show Cause Order do not allege any specific actions taken by Defendants Rohr or
Demchak, let alone any purposeful acts performed or directed towards Maryland. Thus,
Plaintiffs have failed to make a prima facie showing that the named Defendants have sufficient
minimum contacts with Maryland “such that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S.
310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61
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S.Ct. 339, 85 L.Ed. 278 (1940)). Accordingly, this Court does not have personal jurisdiction
over Defendants Rohr and Demchak and their Motion to Dismiss for lack of personal
jurisdiction is GRANTED.
III.

Failure to State a Claim
Furthermore, Plaintiffs also fail to state either a claim for fraud or a claim under the

Financial Institutions Reform, Recovery, and Enforcement Act of 1989, 12 U.S.C. § 1821, 
against the individual defendants named in this case. Plaintiffs make no factual allegations
against Defendants Rohr or Demchak that create a right to relief.14 See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555–56 (2007) (explaining that to survive a Rule 12(b)(6) motion,
“[f]actual allegations must be enough to raise a right to relief above the speculative level . . .
on the assumption that all the allegations in the complaint are true”). In fact, Plaintiffs make
no allegations whatsoever concerning Defendants Rohr or Demchak. Accordingly, because
Plaintiffs have failed to make factual allegations sufficient to support a claim for fraud or a
violation of the Financial Institutions Reform, Recovery and Enforcement Act of 1989,
Defendants Rohr and Demchak’s Motion to Dismiss for Failure to State a Claim is
GRANTED.

14 As stated supra, PNC Mortgage was not named in the Complaint. Even if PNC Mortgage was named,
Plaintiffs have not effected service of process on that corporate entity. Plaintiffs attempted to serve process
through certified, but not restricted, mail addressed to Defendants Rohr and Demchak. The receiving
signature appears to be “A.J. Woodward.” ECF No. 15. Had Plaintiffs meant to name and serve PNC
Mortgage as a defendant, Plaintiffs do not assert nor can this Court verify that the recipient was authorized to
accept service on behalf of PNC Mortgage. Nor can Plaintiffs claim that they properly served Defendants
Rohr or Demchak as agents of PNC Mortgage; as discussed above, Plaintiffs’ methods were insufficient to
properly serve either Defendant. Further, there is no indication that PNC Mortgage has actual notice of the
Complaint, as it has not filed any responsive pleadings.

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CONCLUSION
For the reasons stated above, Defendants James F. Rohr and William S. Demchak’s
Motion to Dismiss (ECF No. 16) is GRANTED. Accordingly, Plaintiffs’ Complaint for
Damages against Rohr and Denchaclk (ECF No. 2) is DISMISSED WITH PREJUDICE.
A separate Order follows.
Dated:

October 16, 2015

_______/s/_______________________
Richard D. Bennett
United States District Judge

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