Fidelity National Title Insurance Company, Inc. v. M & R Title, Inc. et al

Filing 165

MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 5/12/2014. (rss, Deputy Clerk) Modified on 5/12/2014 (c/m 5/12/14 rs) (rss, Deputy Clerk).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
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FIDELITY NATIONAL TITLE
INSURANCE COMPANY, INC.,

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Plaintiff,
v.

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M & R TITLE, INC., et al.,

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Defendants.
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Case No.: PWG-12-148

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MEMORANDUM OPINION
Plaintiff, a title insurance company, has brought this action against fifty named
defendants over a series of alleged fraudulent real estate transactions. Two of the defendants
move for summary judgment on personal jurisdiction grounds, asserting that they are
domiciliaries of the Commonwealth of Virginia and that the basis for the suit is a Virginia-based
transaction in Virginia real property. Plaintiff responds by arguing that the defendants are
subject to jurisdiction under Maryland’s long-arm statute and that they have maintained
continuous and systematic ties with Maryland. Because I find that the Maryland long-arm
statute does not reach these Defendants, I grant summary judgment in their favor.
I.

BACKGROUND
Plaintiff Fidelity National Title Insurance Co., Inc. (“Fidelity”) filed this action in

January 2012 against fifty named defendants, seeking to recover damages arising out of a series
of allegedly fraudulent real estate transactions. See Compl. 1–10, ECF No. 1. According to
Plaintiff, between 2008 and 2010, Defendants M & R Title, Inc. (“M&R”) and its principal,

Marla Messenger, orchestrated a series of real estate transactions “in which they purchased, in
the names of fraudulent borrowers and fictitious lenders, properties at below market value and
re-sold them at grossly inflated prices to third parties who gave new mortgages to finance the
purchase.” Id. at 10. As part of these transactions, M&R and Messenger, along with “various
straw buyers and straw lenders,” are alleged to have taken the escrow funds from these
transactions and appropriated them for personal use. Id. Because Fidelity is the successor to the
issuer of title insurance commitments and policies in connection with those transactions, it has
brought this suit alleging that Defendants’ misconduct has exposed it to substantial liability. Id.
The Complaint’s allegations include a transaction (the “Danton Lane Transaction”)
involving a property located at 909 Danton Lane, Alexandria, Virginia (the “Danton Lane
Property”), in which Defendants Jeffrey D’Antonio and Anita D’Antonio (collectively, the
“D’Antonios”) were involved. Compl. 125. According to the Complaint, on or about February
12, 2008, M&R and Messenger conducted a sale of the Danton Lane Property to Jeffrey
D’Antonio for a purchase price of $676,000. Compl. ¶ 864. At that time, the D’Antonios
obtained a loan in the amount of $617,000, secured by a deed of trust dated February 12, 2008.
Id. ¶¶ 867–68. The trustee on the Deed of Trust was Messenger’s husband, and both the lender
and trustee’s addresses were listed as 5802 Broadmoor Street, Alexandria, Virginia—
Messenger’s former home address. Id. ¶¶ 869–70. Neither the deed nor the deed of trust was
recorded until May 21, 2008. Id. ¶ 865. On May 23, 2008, M&R conducted a closing on two
refinance loans to the D’Antonios. Id. ¶ 871. Subsequently, Anita D’Antonio, in connection
with the issuance of a title insurance policy by Plaintiff’s predecessor, executed a false affidavit
stating that she had owned the Danton Lane Property for at least 123 days prior to May 23, 2008.

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Id. ¶¶ 872–73. Fidelity later learned that M&R and Messenger did not disburse the escrow funds
held in connection with the Danton Lane Property transaction. Id. ¶ 875.
On January 17, 2013, the D’Antonios moved to dismiss pursuant to Fed. R. Civ. P.
12(b)(2) for lack of personal jurisdiction, as well as pursuant to Fed. R. Civ. P. 12(b)(6).
D’Antonio Mot. to Dismiss, ECF No. 58.

With respect to the claimed lack of personal

jurisdiction, the D’Antonios asserted that they are residents of the Commonwealth of Virginia
and that this suit arises out of a transaction in Virginia real property that took place entirely in
Virginia. Mem. of Law in Supp. of the D’Antonios’ Mot. to Dismiss (“D’Antonio Dismiss
Mem.”) 6, ECF No. 58-1. In response, Fidelity argued that additional discovery was necessary
before the Court could rule on whether it can exercise personal jurisdiction over the D’Antonios.
Pl.’s Opp’n to the D’Antonios’ Mot. to Dismiss and Mem. in Supp. Thereof (“Pl.’s Dismiss
Opp’n”) 1, ECF No. 63. On April 26, 2013, I issued a letter order denying the motion to dismiss
without prejudice to refiling after discovery on the issue of personal jurisdiction. Letter Order,
ECF No. 94.
Fidelity and the D’Antonios have conducted discovery on the issue of personal
jurisdiction, Status Report and Consent Mot. to Modify Scheduling Order ¶ 2, ECF No. 148, and
the D’Antonios filed a Motion for Summary Judgment for Lack of Personal Jurisdiction on
December 2, 2013 (the “D’Antonio Summ. J. Mot.”), ECF No. 150, accompanied by a
supporting Memorandum (“D’Antonio Summ. J. Mem.”), ECF No. 150-1. Fidelity has filed its
Opposition (“Pl.’s Summ. J. Opp’n”), ECF No. 151, and the D’Antonios have filed a Reply
(“D’Antonio Summ. J. Reply”), ECF No. 152. The motion now is before me and, having
reviewed the filings, I find a hearing is not necessary. Loc. R. 105.6.

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II.

LEGAL STANDARD
When a defendant challenges this Court’s personal jurisdiction under Fed. R. Civ. P.

12(b)(2), the jurisdictional question “‘is to be resolved by the judge, with the burden on the
plaintiff ultimately to prove grounds for jurisdiction by a preponderance of the evidence.’” Fyfe
Co., LLC v. Structural Grp., LLC, No. CCB-13-176, 2013 WL 2370497, at *2 (D. Md. May 30,
2012) (quoting Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th
Cir. 2003)).
Where the jurisdictional issue is in dispute, the plaintiff’s averment of
jurisdictional facts will normally be met in one of three ways: (1) by a Rule
12(b)(2) motion, which assumes the truth of plaintiff’s factual allegations for
purposes of the motion and challenges their sufficiency, (2) by a Rule 56 motion,
which asserts that there are undisputed facts demonstrating the absence of
jurisdiction, or (3) by a request for an adjudication of disputed jurisdictional facts,
either at a hearing on the issue of jurisdiction or in the course of trial on the
merits. . . . If the defendant asserts in a Rule 56 motion that undisputed facts show
the absence of jurisdiction, the court proceeds, as with any summary judgment
motion, to determine if undisputed facts exist that warrant the relief sought.
Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 85 (2d Cir. 2013).
Personal jurisdiction may be either general or specific. Tawney v. AC & R Insulation
Co., Inc., No. WDQ-13-1194, 2013 WL 5887625, at *2 (D. Md. Oct. 30, 2013); see Metro. Reg’l
Info. Sys., Inc. v. Am. Home Realty Network, Inc., 888 F. Supp. 2d 691, 699 (D. Md. 2012).
To exercise general jurisdiction over a defendant, the defendant’s activities in the
state must be “continuous and systematic.” See ALS Scan, Inc. v. Digital Serv.
Consultants, Inc., 293 F.3d 707, 712 (4th Cir. 2002). If the cause of action arises
out of the defendant’s minimum contacts with the forum, the court may exercise
specific jurisdiction. . . . In determining whether the exercise of specific
jurisdiction comports with due process, a court considers: “(1) the extent to which
the defendant has purposefully availed itself of the privilege of conducting
activities in the state; (2) whether the plaintiff[’s] claims arise out of those
activities directed at the state; and (3) whether the exercise of personal jurisdiction
would be constitutionally reasonable.” Carefirst of Md., Inc., 334 F.3d at 397.
Tawney, 2013 WL 5887625, at *2 (footnotes omitted).

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Although less contact is required with the forum state for specific jurisdiction than for
general jurisdiction, see ESAB Grp., Inc. v. Centricut, Inc., 126 F.3d 617, 623–24 (4th Cir.
1997), both forms of jurisdiction “require[] that the defendant purposefully avail itself of the
privilege of conducting activities within the forum state,” Tawney, 2013 WL 5887625, at *2
(footnote omitted). Thus, whether a federal court may exercise personal jurisdiction is a two-part
analysis: “[A] district court must determine that (1) the exercise of jurisdiction is authorized
under the state’s long-arm statute, and (2) the exercise of jurisdiction comports with the due
process requirements of the Fourteenth Amendment.” Id. (citing Carefirst of Md., Inc., 334 F.3d
at 396). The Maryland long-arm statue is “coextensive with the scope of jurisdiction allowable
by due process.” Id. (citing Mackey v. Compass Mktg., Inc., 892 A.2d 479, 486 (Md. 2006)).
Nonetheless, “‘the Court must address both elements in the personal jurisdiction analysis.’” Id.
(quoting Metro. Reg’l Info. Sys., 888 F. Supp. 2d at 698.
Summary judgment is proper when the moving party demonstrates, through “particular
parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or
other materials,” that “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a), (c)(1)(A); see Baldwin v. City of
Greensboro, 714 F.3d 828, 833 (4th Cir. 2013).

If the party seeking summary judgment

demonstrates that there is no evidence to support the nonmoving party’s case, the burden shifts to
the nonmoving party to identify evidence that shows that a genuine dispute exists as to material
facts. See Celotex v. Catrett, 477 U.S. 317, 325 (1986). The existence of only a “scintilla of
evidence” is not enough to defeat a motion for summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251 (1986). Instead, the evidentiary materials submitted must show facts

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from which the finder of fact reasonably could find for the party opposing summary judgment.
Id. “[U]nder Fed. R. Civ. P. 56, as amended in 2010, facts in support of or opposition to a
motion for summary judgment need not be in admissible form; the requirement is that the party
identify facts that could be put in admissible form.” Mallik v. Sebelius, 964 F. Supp. 2d 531, 546
(D. Md. Aug. 28, 2013) (citing Niagara Transformer Corp. v. Baldwin Techs., Inc., No. DKC11-3415, 2013 WL 2919705, at *1 n.1 (D. Md. June 12, 2013)).
III.

DISCUSSION
“[F]or a district court to assert personal jurisdiction over a nonresident defendant, two

conditions must be satisfied: (1) the exercise of jurisdiction must be authorized under the state’s
long-arm statute; and (2) the exercise of jurisdiction must comport with the due process
requirements of the Fourteenth Amendment.” Carefirst of Md., Inc. v. Carefirst Pregnancy
Ctrs., Inc., 334 F.3d 390 (4th Cir. 2003).
To fall under Maryland’s long-arm statute, Fidelity’s claim against the D’Antonios must
“aris[e] from an[] act enumerated in” the statute. Md. Code Ann., Cts. & Jud. Proc. § 6-103(a).
The long-arm statute provides:
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;
(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;
(4) Causes tortious injury in the State or outside of the State by an act or
omission 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;
(5) Has an interest in, uses, or possesses real property in the State; or
(6) Contracts to insure or act as surety for, or on, any person, property,
risk, contract, obligation, or agreement located, executed, or to be performed
within the State at the time the contract is made, unless the parties otherwise
provide in writing.
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Cts. & Jud. Proc. § 6-103(b).

“A plaintiff must identify a Maryland statutory provision

authorizing jurisdiction.” Tawney, 2013 WL 5887625, at *2 (citing Metro. Reg’1 Info. Sys., 888
F. Supp. 2d at 698).
The crux of the D’Antonios’ argument is that they “do not currently reside in Maryland,”
that they have not done so “for well over a decade (over two decades for Jeffrey D’Antonio),”
and that “it is undisputed that the D’Antonios are residents of the Commonwealth of Virginia.”
D’Antonio Summ. J. Mem. 10.

Further, the D’Antonios argue that “[w]ith respect to the

[Danton Lane] Property, the D’Antonios, Virginia residents, purchased and then refinanced a
Virginia property, with financing arranged by a Virginia mortgage broker,” and that the
“settlements were performed by Virginia companies and the closings occurred in Virginia.” Id.
at 13.
In response, Fidelity argues that this Court has personal jurisdiction over the D’Antonios
pursuant to Maryland’s long-arm statute “as the D’Antonios have transacted business in
Maryland.” Pl.’s Summ. J. Opp’n 2. According to Fidelity, jurisdiction would be proper under
Cts. & Jud. Proc. § 6-103(b)(1) because the D’Antonios lived in Maryland in the past and
regularly travel to Maryland, id. at 3–5, and because they engage in some business transactions
in Maryland, id. at 3–6.
“The Maryland long-arm statute, however, limits specific jurisdiction to cases where the
cause of action ‘aris[es] from any act enumerated’ in the statute itself.” A Love of Food I, LLC v.
Maoz Vegetarian USA, Inc., 870 F. Supp. 2d 415, 421 (D. Md. 2012) (quoting Cts. & Jud. Proc.
§ 6-103(b)(1) (alteration in original)) (emphasis added). It is apparent that the Danton Lane
transaction, which is the basis for this suit, was conducted in its entirety in Virginia. See
D’Antonio Summ. J. Mem. 6–8. In trying to show the D’Antonios’ ties to Maryland, Fidelity
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has failed to contradict this key fact as it is required to do by Fed. R. Civ. P. 56(c). See Pl.’s
Summ. J. Opp’n. Accordingly, this case does not “aris[e] from any act” that is covered by the
long-arm statute, and Maryland’s statute cannot give rise to specific personal jurisdiction over
the D’Antonios.
Though Fidelity is imprecise in its use of terminology, it also appears to argue that
“general personal jurisdiction [in Maryland] attaches to the D’Antonios,” Pl.’s Summ. J. Opp’n
6, based on the notion 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, 334 F.3d at 396. But
“[a]lthough Maryland’s long-arm statute authorizes the exercise of personal jurisdiction to the
limits allowed by the Constitution, it also limits the exercise of specific jurisdiction to causes of
action that fall within one of its enumerated provisions.” Murray v. Bierman, Geesing, Ward &
Wood, LLC, No. RWT-11-1623, 2012 WL 4480679, at *2 (D. Md. Sept. 27, 2012); cf. Cappel v.
Riaso, LLC, 13 A.3d 823, 828–29 (Md. Ct. Spec. App. 2011) (finding that § 6-103(b)(5),
providing for jurisdiction based on the defendant’s relationship with Maryland real property,
does not create jurisdiction unless the claim at issue arises from that real property). “The view
that § 6-103(b)(1) could be employed to support jurisdiction on a general jurisdiction theory is a
novel one, entirely inconsistent with the requirement set forth in § 6-103(a) that jurisdiction
could be sustained under the section only if the cause of action arose out of the specific contacts
enumerated in § 6-103(b).” 1-3 Modern Maryland Civil Procedure § 3.3(c)(3)(b) n.266.
In any event, it also does not appear that general jurisdiction exists here.
Maryland law provides for general personal jurisdiction under . . . Cts. & Jud.
Proc., § 6-102(a), which states in relevant part: “(a) A court may exercise personal
jurisdiction as to any cause of action over a person domiciled in, served with
process in, organized under the laws of, or who maintains his princip[al] place of
business in the State.”

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Provident Bank v. May, No. GLR-11-2458, 2012 WL 3595140, at *1 (D. Md. Aug. 17, 2012).
There is no dispute that the D’Antonios are not domiciled in Maryland, and Plaintiff has not
alleged that they were served here.
Further, even assuming that “continuous and systematic” contacts can render a
nonresident natural person subject to general jurisdiction in Maryland under Maryland law,1 such
jurisdiction requires Fidelity to satisfy “a more demanding standard than is necessary for
establishing specific jurisdiction,” ALS Scan Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707,
712 (4th Cir. 2002).

The ties must be “so ‘continuous and systematic’ as to render [the

defendants] essentially at home in the forum State,” Goodyear Dunlop Tires Operations, S.A. v.
Brown, 131 S. Ct. 2846, 2851 (2011), and Fidelity has made no such showing with respect to
either of the D’Antonios.

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This proposition is far from clear. First, it strains logic to imagine that a defendant over
whom the State cannot exercise special personal jurisdiction nevertheless would satisfy the more
stringent requirements for the exercise of general personal jurisdiction. But moreover, the
Supreme Court has said only that “[a] court may assert general jurisdiction over foreign (sisterstate or foreign-country) corporations to hear any and all claims against them when their
affiliations with the State are so ‘continuous and systematic’ as to render them essentially at
home in the forum State.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846,
2851 (2011); Helicopteros Nacionalies de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984).
This test originally derived from the need to create a workable fiction in order to determine the
physical presence of corporate entities for jurisdictional purposes, in light of the reality that those
entities cannot be physically “present” anywhere in the traditional sense. See Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316–17 (1945). This logic does not seem to apply to natural persons,
who physically are present only in one place at a time; I have not found any case in this Circuit
or in Maryland in which a natural person has been subjected to general personal jurisdiction on
the basis of continuous and systematic contacts alone (rather than shielded from jurisdiction
based on a lack of such contacts), and counsel have pointed to none. But cf., e.g., Glynn v. EDO
Corp., 641 F, Supp. 2d 476, 488 (D. Md. 2009) (analyzing whether natural person had
“continuous and systematic” contacts sufficient to give rise to general personal jurisdiction and
finding that he did not); McGann v. Wilson, 701 A.2d 873, 877 (Md. Ct. Spec. App. 1997)
(considering whether general jurisdiction over a natural person existed under Cts. & Jud. Proc.
§ 6-103 and finding that it did not).
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With respect to Jeffrey D’Antonio, Fidelity relies on the fact that he lived in Maryland
over thirty years ago and, over twenty years ago, attended the University of Maryland while
living in Hyattsville, during which time he “performed various odd jobs in Maryland.” Pl.’s
Summ. J. Opp’n 3. Fidelity also claims that he “has regularly travelled to Maryland . . . once or
twice a year,” that since 2002, Jeffrey’s home improvement business has performed work in
Maryland for approximately twenty-one total weeks, and that he has traveled to Maryland for
vacations and has, at various times, purchased products and services here. Id. at 3–4.
With respect to Anita D’Antonio, Fidelity relies on the fact that she lived and worked in
Maryland in the late 1990s and “comes to Maryland to see Jeffrey’s family at least once or twice
a year,” and has taken “approximately 4 vacations in Ocean City” since 2005. Id. at 4–5.
Fidelity also argues that Anita markets herself as “‘a realtor in the Washington DC metropolitan
area,’ which includes Maryland,” id. at 5, although Fidelity does not allege that she engages in
any business in Maryland and her website states that she is licensed only in Virginia and the
District of Columbia, Anita D’Antoni Website 1, Pl.’s Summ. J. Opp’n Ex. E, ECF No. 151-4;
see also D’Antonio Summ. J. Reply 5 (“Anita D’Antonio has never held a Maryland-issued real
estate salesperson license”).
Far from “continuous and systematic,” it appears that the links between the D’Antonios
and Maryland are better viewed as occasional and sporadic—perhaps even unusually so in light
of their proximity to Maryland. Viewed most charitably to Fidelity, even regular vacations and
travel and occasional work in Maryland do not suffice to “render [the D’Antonios] essentially at
home” here. Goodyear Dunlop Tires, 131 S. Ct. at 2851. Further, courts in Maryland have
rejected the proposition that general jurisdiction can be based upon occasional travel to
Maryland, see Glynn v. EDO Corp., 641 F, Supp. 2d 476, 488 (D. Md. 2009), conducting a small

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portion of a defendant’s business in the State, Robbins v. Yutopian Enters., Inc., 202 F. Supp. 2d
426, 429 (D. Md. 2002) (finding that forty-six business transactions in Maryland in less than one
year was insufficient to give rise to general personal jurisdiction); Rossetti v. Esselte-Pendeflex
Corp., 683 F. Supp. 532, 535 (D. Md. 1998) (finding several million dollars’ worth of business
insufficient where it was only a small minority of the defendant’s total business), or even
possession of a license to do business in the State, Congressional Bank v. Potomac Educ.
Found., Inc., No. PWG-13-889, 2014 WL 347632 (D. Md. Jan. 30, 2014) (finding that a
Maryland CPA license was not sufficient to give rise to general personal jurisdiction in
Maryland).

Thus it is apparent that the D’Antonios’ “contacts with Maryland are not so

continuous and systematic that [they] ‘should reasonably anticipate being haled into court
there.’” CapitalSource v. B & B Contractors, Inc., No. DKC-04-3739, 2005 WL 1025953, at *4
(D. Md. Apr. 28, 2005) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297
(1980)).
IV.

CONCLUSION
For the aforementioned reasons, Defendants Anita and Jeffrey D’Antonio’s Motion for

Summary Judgment will be GRANTED. A separate order shall issue.

Dated: May 12, 2014

/S/
Paul W. Grimm
United States District Judge

dsy

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