Gold v. Gold et al
MEMORANDUM. Signed by Judge James K. Bredar on 5/12/2017. (jnls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SCOTT GOLD, et al.,
CIVIL NO. JKB-17-483
Plaintiff Joel Gold brings this action for fraud and civil conspiracy against Scott Gold,
Plaintiff’s son, and Doris Gold, Plaintiff’s ex-wife. (Compl. ECF No. 2.) Defendant Doris Gold
has moved to dismiss for lack of personal jurisdiction. (ECF No. 10.) That motion has been
fully briefed (ECF Nos. 12, 15), and no hearing is necessary, see Local Rule 105.6 (D. Md.
2016). For the reasons stated below, Defendant’s motion will be granted.
STANDARD TO DISMISS FOR LACK OF PERSONAL JURISDICTION
When a party challenges the district court’s personal jurisdiction under Rule 12(b)(2), the
burden is on the plaintiff to prove the existence of jurisdiction by a preponderance of the
evidence, and if there is a dispute as to the pertinent facts, the court may resolve that dispute at a
separate evidentiary hearing or during trial. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989).
However, where the court decides jurisdiction on the motion papers alone, ―the plaintiff need
only make a prima facie showing of a sufficient jurisdictional basis to prevail.‖ Perdue Foods
LLC v. BRF S.A., 814 F.3d 185, 188 (4th Cir. 2016). ―In considering a challenge on such a
record, the court must construe all relevant pleading allegations in the light most favorable to the
plaintiff, assume credibility, and draw the most favorable inferences for the existence of
jurisdiction.‖ Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989).
ALLEGATIONS OF THE COMPLAINT
The Complaint alleges that on June 6, 2014, Scott Gold purchased a boat, ―the Rehoboth
Star,‖ and at an unspecified time, caused the boat to be docked in West Ocean City, Maryland.
(Compl. ¶ 6.) On December 4, 2015, Plaintiff obtained a judgment against Scott Gold in in the
Superior Court of New Jersey in the amount of $248,777.54. (Id. at ¶ 4.) Allegedly knowing
that Plaintiff would seek to attach the boat, Scott Gold proceeded to sell it for $170,000 to Don
Hetherington, Phil Houck, and/or a business entity they controlled.1 (Id. at ¶¶ 6, 8, 11.) He
allegedly arranged for the sale to be structured such that the buyers paid a total of $90,000 to the
parties holding security interests in the boat, $10,000 to Scott Gold himself, and a total of
$70,000 in eight different checks made out to Scott Gold’s mother, Doris. (Id. at ¶ 11.)
According to the Complaint, these payments did not satisfy any legal right held by Doris
Gold, but rather represented an agreement between her and her son that she would help him to
conceal the assets and protect them from being attached by Plaintiff. (Id. at ¶ 13.) Plaintiff
alleges that Doris Gold knew of the judgment, knew of the sale, and understood that by accepting
the proceeds on Scott Gold’s behalf, she would help him to keep that money beyond Plaintiff’s
The record does not allege a precise date of the transaction, but the checks which Plaintiff alleges are
payments that relate to the purchase were all dated between January 5, 2016 and March 9, 2016. (Cancelled Checks,
ECF Nos. 16-1–16-4.) In deciding a motion to dismiss pursuant to Rule 12(b)(2), the Court may consider such
documents, despite the fact that they constitute evidence outside the pleadings. See Structural Pres. Sys., LLC v.
Andrews, 931 F. Supp. 2d 667, 671 (D. Md. 2013).
Plaintiff has alleged that in the instant case, the Court has specific jurisdiction over Doris
Gold through the conspiracy theory of personal jurisdiction. (Pl’s Mem. in Opp’n 4, ECF
No. 16.) However, in the face of his opponent’s challenge, Plaintiff has failed to make a prima
facie showing that at the time Doris Gold formed her alleged agreement with her son to defraud
Plaintiff she should reasonably have known that Scott would take some actions in furtherance of
that agreement within the state of Maryland. Such a showing is required before one may proceed
under the conspiracy theory of personal jurisdiction. Accordingly, Defendant Doris Gold’s
motion to dismiss will be granted.
A federal court, sitting in diversity, has personal jurisdiction over a non-resident
defendant if ―(1) an applicable state long-arm statute confers jurisdiction and (2) the assertion of
that jurisdiction is consistent with constitutional due process.‖ Perdue Foods LLC v. BRF S.A.,
814 F.3d 185, 188 (4th Cir. 2016). The reach of Maryland’s long-arm statute is coextensive with
the reach of the Due Process Clause of the United States Constitution, so the ―statutory inquiry
merges with [the] constitutional examination.‖ Id. However, courts may not ―simply dispense
with analysis under the [Maryland] long-arm statute,‖ but rather, must interpret it ―to the limits
permitted by the Due Process Clause when they can do so consistently with the canons of
statutory construction.‖ Mackey v. Compass Mktg., Inc., 892 A.2d 479, 493 n.6 (Md. 2006).
Maryland’s long-arm statute provides personal jurisdiction over any person who, among
other things, ―transacts any business or performs any character of work or service in [Maryland]‖
or ―causes tortious injury in [Maryland] by an act or omission in [Maryland].‖ Md. Code Ann.,
Courts & Jud. Proc. § 6-103(b) (LexisNexis 2013). The statute provides jurisdiction over
someone who performs such acts directly or through an agent. Id. Maryland’s Court of Appeals
has concluded that a co-conspirator is an ―agent‖ within the meaning of the statutory text and
therefore that Court has adopted the conspiracy theory of personal jurisdiction. Mackey, 892
A.2d at 495. Under this theory, an out-of-state party who would independently lack sufficient
minimum contacts with a forum state may nonetheless be subject to suit in the forum if she
engages in a conspiracy with another who has such contacts. Id. at 484. In other words, certain
actions done in furtherance of a conspiracy by one co-conspirator may be attributed to another
co-conspirator for jurisdictional purposes. Id. To establish personal jurisdiction under this
theory, a plaintiff must make a threshold showing that
(1) two or more individuals conspire to do something
(2) that they could reasonably expect to lead to consequences in a particular
(3) one co-conspirator commits [an] overt act in furtherance of the conspiracy,
(4) those acts are of a type which, if committed by a non-resident, would subject
the non-resident to personal jurisdiction under the long-arm statute of the
Id. at 486.
The conspiracy theory of personal jurisdiction comports with the requirements of
constitutional due process. Id. at 487; see also Cleaning Auth., Inc. v. Neubert, 739 F. Supp. 2d
807, 816 (D. Md. 2010). The Due Process Clause protects an individual’s liberty interest in not
being subject to judgment in a forum state to which she has not purposely directed her activities
and therefore lacks fair warning that she could be subject to a judgment. Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472 (1985). In keeping with that constitutional requirement, a court
may not exercise personal jurisdiction over anyone who has not established such ―minimum
contacts‖ that she ―should reasonably anticipate being haled into court there.‖ Id. at 474 (citing
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 567 (1980)).
according to the conspiracy theory of personal jurisdiction, when all four of the elements
enumerated above are present, a party may fairly be said to have purposely established minimum
contacts in a forum such that exercise of jurisdiction over her would not be ―random, fortuitous,
or attenuated,‖ thus satisfying constitutional demands. Mackey, 892 A.2d at 491 (quoting Burger
King, 471 U.S. at 475).
Plaintiff has alleged that Doris and Scott Gold conspired to block Plaintiff from attaching
the proceeds of the sale of the boat. (Compl. ¶ 13.) He has also alleged that Scott committed an
act in furtherance of that agreement when he structured the sale of the boat as he did. (Id. at ¶
12.) Accordingly, Plaintiff has met his burden of presenting a prima facie showing that elements
one and three of the conspiracy theory of personal jurisdiction are satisfied with respect to this
Court’s jurisdiction over Doris Gold.
To satisfy element two of the conspiracy theory of personal jurisdiction, the required
showing is that a reasonable person in the defendant’s position would have anticipated a coconspirator committing an act in furtherance of the conspiracy within the forum jurisdiction.
Mackey, 892 A.2d at 486. Notably, it invokes a reasonable person standard and no proof of
actual knowledge is necessary. Id. at 495–96. However, the hypothetical ―reasonable person‖
must form the pertinent expectation at the time the agreement with the co-conspirator was
formed. Id. at 489. Satisfaction of this requirement is necessary to ensure that the out-of-forum
co-conspirator has ―purposely availed‖ herself of the privilege of conducting activities in the
forum and therefore has fair warning that she could be subject to suit there—the motivating
concern behind the Supreme Court’s decisions in Burger King and Worldwide Volkswagen. Id.
at 495; see also Neubert, 739 F. Supp. 2d at 816 (―Although all four elements are required, it is
this second element that is crucial to making the conspiracy theory of jurisdiction
Plaintiff has failed to meet his burden of presenting a prima facie showing on this second
element of the test to establish the Court’s jurisdiction over Doris Gold. To be sure, the
Complaint alleges that she (i) received $70,000 from the sale of the boat in the form of eight
checks, each for less than $10,000; (ii) was a ―willful, knowing, and active participant‖ in the
scheme to keep the proceeds from Plaintiff; and (iii) had no rightful interest in the money at
issue. (Compl. ¶ 13.) The cancelled checks from the boat’s buyers, which provide Maryland
addresses for the buyers and for their bank, also imply that (iv) Doris Gold knew that the
proceeds from the boat’s sale originated in Maryland. (See Cancelled Checks.) Furthermore, the
Complaint alleges that (v) the boat was kept in, used and operated from West Ocean City,
Maryland, and (vi) Scott Gold was aware of its location. (Compl. ¶ 6.) However, at no point
does Plaintiff allege that Doris Gold should reasonably have known at the time of her agreement
with her son that any portion of the conspiracy was likely to occur in Maryland. Plaintiff does
not allege at what time his ex-wife became aware of the locations of the boat, the buyers, or the
sale, nor does he allege when the Defendants formed their alleged agreement to defraud him. By
failing to allege such facts, Plaintiff has not met his burden in response to Doris Gold’s challenge
to the Court’s jurisdiction. If Doris Gold did not reasonably understand, when she entered the
agreement with her son, that events had occurred or were occurring under the umbrella of the
conspiracy that established minimum ties to Maryland, and, more importantly, if Plaintiff cannot
plausibly allege the same, then the case against Doris Gold cannot go forward here. The
complaint, certainly as it is drawn currently, is deficient as to her. Accordingly, her motion to
dismiss will be granted without prejudice.
Because the Court will grant Doris Gold’s motion based on element two, it need not
decide whether Plaintiff has met his burden under element four of the conspiracy theory of
personal jurisdiction (i.e., whether Plaintiff has alleged that Scott Gold’s conduct met either the
in-state tort or the in-state business transaction prong of Maryland’s long-arm statute).
For the foregoing reasons, Defendant Doris Gold’s motion to dismiss will be granted
without prejudice. A separate order shall issue.
DATED this 12th day of May, 2017.
BY THE COURT:
James K. Bredar
United States District Judge
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