Clarks v. Private Money Goldmine et al

Filing 35

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 1/7/2021. (dg3s, Deputy Clerk)

Case 8:19-cv-01014-GJH Document 35 Filed 01/07/21 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division

HENRY JAMES CLARKS,

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Plaintiff,

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v.

Case No.: GJH-19-1014
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PRIVATE MONEY GOLDMINE, et al.,
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Defendants.
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MEMORANDUM OPINION
Plaintiff Henry James Clarks brings this civil action against Defendants REI Network
L.P. (“REI”), FM 41, Inc. (“FM”), and John Douglas Smith (collectively, the “Website
Defendants”) and Defendants Guaranteed Bank Loans, Larry Scott Loan Company, West End
Finance Company, Streamline Loans, Kingdom Financial Services Nigeria, Glenn Group Loans,
and Lonmond Finance Company (collectively, the “Contract Defendants”). ECF No. 30-4; see
also ECF No. 15-3. Plaintiff alleges claims of fraud, breach of contract, and unjust enrichment
against all Defendants, and a claim of conversion against Contract Defendants, based on
allegedly fraudulent money lending transactions that occurred between Plaintiff and Contract
Defendants after the parties connected on a website operated by Website Defendants. ECF No.
30-4. Pending before the Court is Plaintiff’s Motion for Leave to File Second Amended
Complaint, ECF No. 30, and Plaintiff’s Amended Motion for Leave to File Second Amended
Complaint, ECF No. 32. The Website Defendants have opposed the motions. ECF No. 34. No
hearing is necessary. See Loc. R. 105.6 (D. Md. 2018). For the following reasons, both motions
are denied.

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I.

BACKGROUND1
Defendant REI Network, LP operates www.privatemoneygoldmine.com (the “Website”),

an online subscription service that connects prospective private money borrowers and lenders.
ECF No. 30-4 ¶¶ 5, 25, 29.2 Defendant FM 41, Inc. is a general partner of REI Network, LP, and
Defendant Smith is the President of FM 41, Inc. Id. ¶¶ 26, 27. The Website provides access to a
proprietary listing (“the Listing”) of private money lenders, real estate loan brokers, and real
estate loan investors who are interested in providing private money loans to prospective
borrowers for real estate investments. Id. ¶¶ 1, 5–7, 25–26. In exchange for a subscription fee,
individuals receive access to the Listing as well as a thirty-minute one-on-one phone consultation
with an alleged private money expert, a “credibility kit” intended for establishing instant
credibility for the purpose of obtaining monies, email and phone scripts that make contacting
lenders easy, and other resources containing advice on obtaining loans from prospective lenders
on the list. Id. ¶¶ 31, 33–34.
In 2013, Plaintiff paid Website Defendants—REI, FM, and Mr. Smith—a registration fee
in exchange for access to the Listing. Id. ¶ 36. Plaintiff indicated on the Website that he was
seeking a private money loan in the amount of roughly $20 million to $25 million for
multifamily real estate projects in the Accokeek, Maryland, area. Id. Through the Website,
Contract Defendants—Guaranteed Bank Loans, Larry Scott Loan Company, West End Finance
Company, Streamline Loans, Kingdom Financial Services Nigeria, Glenn Group Loans, and
Lonmond Finance Company—holding themselves out as private money lenders, reached out to
Plaintiff expressing their excitement about conducting business with him. Id. ¶¶ 40–41. First,

Pin cites to documents filed on the Court’s electronic filing system (CM/ECF) refer to the page numbers generated
by that system.
2
For purposes of this motion, the Court relies on the facts in the proposed Second Amended Complaint and
presumes they are true.
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though, they required certain preliminary fees, characterized as origination and administrative
fees. Id. ¶ 41. The Website’s terms of service strictly forbid preliminary payments to lenders and
dictate that any prospective borrower who receives such a request should notify the Website so
the lender can be removed from the Listing. Id. ¶ 43. Nevertheless, Plaintiff complied with
Contract Defendants’ request and paid the fees. Id. ¶ 45. The requests continued. On August 31,
2013, having now paid $9,185.00 in “loan insurance” and “international transfer fees,” Plaintiff
sent an email to Contract Defendant Guaranteed Bank Loans, blind carbon copying the
Website’s customer support. ECF No. 30-6 at 32. The email stated, “[i]t now appears clear that I
have been taken and scammed/fleeced by you and Marcus, et. al. . . . I think that we have a very
serious issue of theft and wire fraud that needs appropriate attention by investigative authorities,
in combination with legal action.” Id. Despite Plaintiff’s apparent suspicions, he continued
paying the requested fees. Between 2013 and 2016, Plaintiff paid Contract Defendants
approximately $900,000.00 without receiving any funds in return. ECF No. 30-4 ¶¶ 37–40, 49–
51.
On September 26, 2018, Plaintiff brought this action against Website Defendants in the
Circuit Court of Maryland for Prince George’s County. ECF No. 1-2. 3 On April 4, 2019,
Defendants removed the case from the Circuit Court of Maryland to this Court. ECF No. 1. On
June 7, 2019, Plaintiff filed a Motion for Leave to File Amended Complaint, removing the
Website as a separate defendant and adding Contract Defendants as defendants.4 ECF No. 15.
The Court accepted the Amended Complaint for filing on July 9, 2019. ECF No. 20. On

A more detailed summary of Plaintiff’s core allegations can be found in the Court’s earlier opinion addressing the
Motion to Dismiss. ECF No. 28 at 2–6.
4
It does not appear that the Contract Defendants have ever been served with the process in this case despite an order
for Plaintiff to do so issued by the Court on February 26, 2020. ECF No. 29. Therefore, Plaintiff will be ordered to
show cause why claims against the Contract Defendants should not dismissed for insufficient service of process. See
Fed. R. Civ. P. 4(m).
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September 3, 2019, Website Defendants filed a Motion to Dismiss Amended Complaint or, in
the Alternative, for Summary Judgment. ECF No. 23. The Court granted the Motion to Dismiss,
finding Plaintiff’s claims were time-barred, that Defendants were immune from suit under the
Communications Decency Act, and that Plaintiff had failed to meet the particularity requirement
for fraud claims. ECF No. 28. However, the Court dismissed the Amended Complaint’s fraud,
breach of contract, and unjust enrichment claims without prejudice, stating that if Plaintiff
believed he could file a Second Amended Complaint curing the defects in the Amended
Complaint, he could do so within twenty-one days. ECF No. 29 at 1. Prior to filing, Plaintiff was
required to meet and confer with Defendants to determine whether they consented to the filing of
the Second Amended Complaint. Id.
On March 18, 2020, Plaintiff filed a Motion for Leave to File Second Amended
Complaint. ECF No. 30. Plaintiff’s proposed Second Amended Complaint includes additional
facts concerning the timing and amount of payments made to Contract Defendants, ECF No. 304 ¶¶ 38, 40; additional facts concerning his efforts to “uncover the wrongdoing committed
against him,” including engaging Consumer Collections Associates in October 2013, engaging a
law firm in July 2014, filing a police report in September 2015, communicating with law
enforcement personnel and agencies between December 2015 and August 2016, id. ¶¶ 52–53,
and filing a complaint in Arizona state court in December 2014, ECF No. 31 at 13–27; and an
assertion that he “concluded in the Fall of 2016 that he was the victim of a serious and significant
fraud/scam at the hands of Defendants,” id. ¶ 74. The Second Amended Complaint also contains
additional exhibits—spreadsheets detailing the amount, date, recipient, recipient bank, and
location of each payment to Contract Defendants, ECF No. 30-6 at 7–23; a Prince George’s

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County Police Incident report, id. at 24–26; and email correspondence between Plaintiff and
government agencies, id. at 27–30.
Plaintiff’s Motion for Leave to File Second Amended Complaint stated that Defendants
had consented to the filing. ECF No. 30 at 2. That same day, Plaintiff filed an Amended Motion
for Leave, stating that, in fact, Defendants had not consented. ECF No. 32 at 2. In Defendants’
Response to Plaintiff’s Motion, filed April 1, 2020, Defendants stated that Plaintiff did not
provide them a copy of the Second Amended Complaint until it was filed with the Court, and
Plaintiff did not comply with the “meet and confer” obligation set out in the Court’s Order. ECF
No. 34 at 1–2.
II.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 15(a)(2) provides that courts “should freely give leave”

to parties to amend pleadings “when justice so requires.” Fed. R. Civ. P. 15(a)(2). “This liberal
rule gives effect to the federal policy in favor of resolving cases on their merits instead of
disposing of them on technicalities.” Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006). The
Fourth Circuit has “interpreted Rule 15(a) to provide that ‘leave to amend a pleading should be
denied only when the amendment would be prejudicial to the opposing party, there has been bad
faith on the part of the moving party, or the amendment would have been futile.’” Id. (quoting
Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)); see also Mayfield v. Nat’l
Ass’n for Stock Car Auto Racing, Inc., 674 F.3d 369, 379 (4th Cir. 2012). Of relevance here, an
amendment is futile “when the proposed amendment is clearly insufficient or frivolous on its
face.” Johnson, 785 F.2d at 510.
An amendment is also futile if it would fail to withstand a motion to dismiss for failure to
state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Perkins v. United States, 55 F.3d 910, 917 (4th

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Cir. 1995). To overcome a Rule 12(b)(6) motion, a complaint must allege enough facts to state a
plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible when
“the plaintiff pleads factual content that allows the Court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. In evaluating the sufficiency of the
plaintiff’s claims, the Court accepts factual allegations in the complaint as true and construes
them in the light most favorable to the plaintiff. See Albright v. Oliver, 510 U.S. 266, 268 (1994);
Lambeth v. Bd. of Comm’rs of Davidson Cty., 407 F.3d 266, 268 (4th Cir. 2005). The Court
should not grant a motion to dismiss for failure to state a claim unless “it is clear that no relief
could be granted under any set of facts that could be proved consistent with the allegations.” GE
Inv. Private Placement Partners II v. Parker, 247 F.3d 543, 548 (4th Cir. 2001) (citing H.J. Inc.
v. Northwestern Bell Tel. Co., 492 U.S. 229, 249–50 (1989)).
If the plaintiff states a claim sounding in fraud, the plaintiff must meet a heightened
pleading standard to survive a 12(b)(6) motion, stating “with particularity the circumstances
constituting fraud or mistake.” Fed. R. Civ. P. 9(b). Rule 9(b) requires “that a plaintiff alleging
fraud must make particular allegations of the time, place, speaker, and contents of the allegedly
false acts or statements.” Adams v. NVR Homes, Inc., 193 F.R.D. 243, 249–50 (D. Md. 2000);
U.S. ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 379 (4th Cir. 2008) (describing
the “who, what, when, where, and how” of the fraud claim). Despite these heightened
requirements, “a court should hesitate to dismiss if it finds (1) that the defendant[s] [have] been
made aware of the particular circumstances for which [they] will have to prepare a defense at
trial, and (2) that plaintiff has substantial prediscovery evidence of those facts.” Nat’l Mortg.
Warehouse, LLC v. Trikeriotis, 201 F. Supp. 2d 499, 505 (D. Md. 2002) (internal citations
omitted).

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III.

DISCUSSION
This Court previously dismissed Plaintiff’s First Amended Complaint because its claims

were time-barred, Defendants were covered by the immunity conferred by the Communications
Decency Act (“CDA”), 47 U.S.C. § 230, and Plaintiff had failed to allege the fraud-based claims
with sufficient particularity. ECF No. 28. Plaintiff has now moved for leave to file a Second
Amended Complaint, arguing it cures the defects of the dismissed Amended Complaint. ECF
Nos. 30, 32.
A. Statute of Limitations
The Court first considers whether Plaintiff’s Second Amended Complaint cures the
statute of limitations defect such that Plaintiff’s claims are not time-barred on the face of the
Complaint. As articulated in the Memorandum Opinion issued on February 26, 2020, ECF No.
28 at 9, Maryland law provides that “[a] civil action at law shall be filed within three years from
the date it accrues,” MD. CODE ANN., CTS. & JUD. PROC. § 5-101. “Generally, a claim accrues
when the plaintiff suffers the actionable harm. The ‘discovery rule’ is an exception to this
general rule, and operates to ‘toll[] the accrual date of the action until such time as the potential
plaintiff either discovers his or her injury, or should have discovered it through the exercise of
due diligence.’” Rounds v. Maryland-Nat’l Capital Park and Planning Comm’n, 441 Md. 621,
654 (2015) (quoting Poole v. Coakley & Williams Const., Inc., 423 Md. 91, 131 (2011)).
The Court previously found Plaintiff’s fraud, breach of contract, and unjust enrichment
claims accrued on August 31, 2013, at the latest, ECF No. 28 at 10, as on that date, Plaintiff sent
an email to a number of recipients, including Defendant Guaranteed Bank Loans, stating that he
had been “scammed/fleeced” and that there was “a very serious issue of theft and wire fraud that

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needs appropriate attention by investigative authorities, in combination with legal action,” ECF
No. 30-6 at 32. The email continued:
If neither of the return of funds or agreed upon loan deposit of $2.5M happen on
Tuesday, September 3, 2013, I would say that I must follow-through at your
recommendation and dialogue with investigative U.S. Agencies. If you are for real, and I
do not factually know, but I seriously doubt it at this point, you will work with me on
resolution of this without pulling everyone else into this matter. If you are not, the answer
is clear and I pursue measures otherwise. I must exhaust whatever means at my disposal
to either collect, pursue law enforcement, or initiate suit.
Id.
In the Second Amended Complaint, Plaintiff includes facts indicating that he continued
to pay origination and administrative fees in hopes of acquiring monetary loans, even after this
email was sent. ECF No. 30-4 ¶ 38. Plaintiff therefore argues that “to the extent that Plaintiff’s
claims involve transactions occurring on and after September 1, 2013,” the August 31, 2013
email does not demonstrate that he discovered or should have discovered that those subsequent
transactions were fraudulent. ECF No. 30-2 at 5. Further, Plaintiff argues that, to the extent his
claims involve transactions occurring after September 26, 2015 (less than three years prior to
filing suit on September 26, 2018), those claims are not barred. Id.
Plaintiff’s reference to transactions that occurred within the statute of limitations period
does not save his claims.5 It is certainly unclear why Plaintiff continued to make payments after
the August 31, 2013 email, but it appears from the Second Amended Complaint that those
payments were made in relation to the same alleged fraud scheme referenced in that email.
Under Maryland law, the “continuing harm doctrine” tolls the statute of limitations in cases

Moreover, although Plaintiff states in the Second Amended Complaint that the Contract Defendants “intentionally
induced monies from Plaintiff Mr. Clarks throughout the time period of January 2013 through September 2016,”
ECF No. 30-4 ¶ 40, the only transactions identified that occurred after September 26, 2015 were certain payments to
Defendant Organization 6, id. ¶ 38. Plaintiff alleges that he “paid monies unto Defendant Organization 6 in the total
amount of $182,849.51 as purported origination and administrative fees in several installments from January 2015
through December 2015.” Id.
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where there are continuing violations regardless of the plaintiff’s knowledge of the harm. See
Litz v. Md. Dep’t of Env’t, 434 Md. 623, 646, 647 n.9 (2013). Assuming without deciding that
the doctrine could apply to the category of claims asserted here, the Court must determine
whether the additional payments constitute “new affirmative act[s]” or whether they are merely
“continuing ill effect[s]” of an earlier tort. Muffoletto v. Towers, No. 1850, Sept. Term, 2017,
2019 WL 6840591, at *7 (Md. Ct. Spec. App. Dec. 16, 2019) (citing Litz, 434 Md. at 647). As
one court noted in the context of a breach of contract claim:
To apply the continuing harm doctrine, the breach itself -- rather than the damages -must be continuing in nature. If the allegation “is more properly understood as the
‘continuing effects of a single earlier act’” then the limitations period is not tolled.
Mills v. Galyn Manor Homeowner’s Ass’n, Inc., 239 Md. App. 663, 681 (2018), aff’d sub nom.
Andrews & Lawrence Prof’l Servs., LLC v. Mills, 467 Md. 126 (2020) (quoting Bacon v. Arey,
203 Md. App. 606, 662 (2012)). Mills further cited with approval Bey v. Shapiro Brown & Alt,
LLP, in which the court declined to apply the continuing harm doctrine in a federal debt
collection case, holding that the “the limitations period for FDCPA claims commences from the
date of the first violation, and subsequent violations of the same type do not restart the
limitations period.” 997 F. Supp. 2d 310, 316–17 (D. Md. 2014) (quoting McGhee v. JP Morgan
Chase Bank, N.A., No. DKC–12–3072, 2013 WL 4495797, at *7 n.10 (D. Md. Aug. 20, 2013)).
Although Plaintiff alleges certain payments or transactions occurred after September 26,
2015, Website Defendants’ alleged wrongdoing—identified in the Court’s prior Memorandum
Opinion as their alleged provision of a list of “conmen” rather than legitimate lenders, their
alleged misrepresentations regarding the lenders’ legitimacy and receipt of a benefit from those
misrepresentations at Plaintiff’s expense in the form of the subscription fee, and their alleged
involvement in the fraudulent preliminary payment scheme, ECF No. 28 at 10–11—occurred and

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was discovered beforehand. The transactions that took place after September 26, 2015, certain
payments to Defendant Organization 6, id. ¶ 38, do not reflect affirmative acts by Website
Defendants constituting “discrete and separate violations,” Bey, 997 F. Supp. 2d at 316, but
instead “damages continu[ing] to flow from a single breach,” Mills, 239 Md. App. at 683. Thus,
even assuming it could apply to the claims asserted by Plaintiff, the continuing harm doctrine
does not apply to the set of facts alleged in the Second Amended Complaint. The statute of
limitations began to run on the date of discovery, August 31, 2013, at the latest, and subsequent
injuries or “ill effects” of the alleged fraudulent scheme will not stop or restart the clock.
To the extent Plaintiff asserts that investigative measures he took after August 31, 2013,
prove he did not uncover the fraud scheme itself until after September 26, 2015, see ECF No. 302 at 5; ECF No. 30-4 ¶ 74, those arguments are also unpersuasive. The additional efforts
discussed in the Second Amended Complaint, which include engaging law enforcement and
filing suit in Arizona, see ECF No. 30-4 ¶¶ 52–53; ECF No. 31 at 13–27, only confirm that
Plaintiff was aware of the fraud in 2013 and 2014 and was using means other than litigation in
this Court to investigate it further, not that he remained unaware. Indeed, he was sufficiently
aware of the contours of the fraud scheme and the wrongdoing at issue to file the complaint in
Arizona state court as well as a criminal complaint in Prince George’s County more than three
years prior to filing the Complaint in this case. ECF No. 31 at 13–27; ECF No. 30-6 at 25.
Finally, Plaintiff has not shown the statute of limitations was tolled due to Defendants’
fraudulent concealment. As outlined in the Court’s prior opinion, ECF No. 28 at 12, under
Maryland law, “[i]f the knowledge of a cause of action is kept from a party by the fraud of an
adverse party, the cause of action shall be deemed to accrue at the time when the party
discovered, or by the exercise of ordinary diligence should have discovered the fraud.” MD.

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CODE ANN., CTS. & JUD. PROC. § 5- 203. “The aggrieved party asserting such fraud or
concealment must plead affirmatively and with specificity the supporting facts in its complaint.”
Dual Inc. v. Lockheed Martin Corp., 383 Md. 151, 170 (2004) (citing Doe v. Archdiocese of
Washington, 114 Md. App. 169, 186 (Md. Ct. Spec. App. 1997)). “The ‘complaint relying on the
fraudulent concealment doctrine must also contain specific allegations of how the fraud kept the
plaintiff in ignorance of a cause of action, how the fraud was discovered, and why there was a
delay in discovering the fraud, despite the plaintiff’s diligence.’” Id. (quoting Doe, 114 Md. App.
at 186).
In Plaintiff’s Motion for Leave, he cites to several paragraphs in the Second Amended
Complaint as “particularized allegations regarding such fraudulent concealment.” ECF No. 30-2
at 5 (citing ECF No. 30-4 ¶¶ 8–14, 40–48, 75, 88, 94). However, with one exception, those
allegations are unchanged from the First Amended Complaint, which the Court found did not
show fraudulent concealment tolling the statute of limitations, ECF No. 28 at 12–13. The only
new paragraph states: “The fact that Defendants employed multiple fictitious entities and
misrepresented their coordination and complicity in the above-described scheme prevented
Plaintiff Mr. Clarks from learning of the fraud/scam sooner, despite his efforts to uncover same.”
ECF No. 30-4 ¶ 75. This conclusory assertion does not cure the defects of the earlier version of
the Complaint. Therefore, Plaintiff’s claims remain time-barred, and the Motion for Leave to file
the Second Amended Complaint will be denied as futile.
B. CDA Immunity
The Court nevertheless proceeds to consider whether the Second Amended Complaint
cures the defects related to the CDA and the failure to plead fraud with sufficient particularity.
First, the Second Amended Complaint does not include any additional or amended facts relevant

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to Website Defendants’ immunity under the CDA. Indeed, the paragraphs to which Plaintiff cites
in his Motion for Leave to Amend as support for his arguments that the CDA does not render
Defendants immune remain virtually unchanged from the First Amended Complaint. ECF No.
30-2 at 7–8 (citing ECF No. 30-4 ¶¶ 26–28, 29–34, 37, 72–73, 87; ECF No. 30-6 at 1–6).
Plaintiff’s additional arguments in the Motion for Leave concerning Defendants’ immunity under
the CDA are thus unavailing, as—without any additional or altered support in the Complaint
itself—they amount only to a request for the Court to reconsider its earlier decision.
C. Failure to State a Claim
The paragraphs in the Second Amended Complaint to which Plaintiff cites in his
argument that he pleaded fraud with sufficient particularity are also largely unaltered. ECF No.
30-2 at 9–10 (citing ECF No. 30-4 ¶¶ 26–51, 62–68, 72–73, 88). While Plaintiff has provided
additional facts concerning the dates and amounts of the payments he made to Contract
Defendants, ECF No. 30-4 ¶ 38, and has attached spreadsheets detailing this information as
exhibits to the Second Amended Complaint, ECF No. 30-6 at 7–23, these additional facts about
the payments do not resolve the central problem identified in the Court’s prior Memorandum
Opinion: “the [Second] Amended Complaint includes only conclusory statements that Website
Defendants were involved in the scheme and provides no factual enhancements actually
connecting Website Defendants to the scheme.” ECF No. 28 at 17. The additional facts do not
relate to Website Defendants’ involvement and thus do not provide Website Defendants ample
notice “of the particular circumstances for which [they] will have to prepare a defense at trial,”
as required to state a claim of fraud. Nat’l Mortg. Warehouse, LLC v. Trikeriotis, 201 F. Supp. 2d
499, 505 (D. Md. 2002). Therefore, Plaintiff’s failure to meet the pleading standard for fraud and

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unjust enrichment claims outlined in Rule 9(b) provides an additional ground for denying
Plaintiff’s motion for leave.
Because Plaintiff did not allege new or amended facts correcting the defects identified in
the Court’s prior Memorandum Opinion, Plaintiff’s Motion for Leave to File Second Amended
Complaint is denied.
IV.

CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Leave to File Second Amended

Complaint, ECF No. 30, and Amended Plaintiff’s Motion for Leave to File Second Amended
Complaint, ECF No. 32, are denied. A separate Order shall issue.

Date: January 7, 2021

__/s/________________________
GEORGE J. HAZEL
United States District Judge

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