Monster Investments, Inc. et al v. Avance Title LLC et al

Filing 78

MEMORANDUM OPINION. Signed by Judge Adam B Abelson on 3/6/2025. (bw5s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MONSTER INVESTMENTS, INC., et al.,
Plaintiffs,
v.

Action No. 24-CV-0767-ABA

AVANCE TITLE, LLC, et al,
Defendants

MEMORANDUM OPINION
Plaintiffs Monster Investments, Inc. (“Monster”), Klar Inc. (“Klar”), Lorressa
Robinson (“Robinson”), Donald Bernard (“Bernard”), Clinton Fence Company, Inc.
(“Clinton Fence”), L.D. Jay, Inc. (“L.D. Jay”), J. Adams Properties, LLC (“Adams
Properties”), the J. Adams Living Trust (“Adams Trust”), and the Estate of Wesley J.
Adams (“Adams Estate”) (together, “Plaintiffs”) filed a complaint alleging various causes
of action arising from a series of real estate investments. Before the Court are four
motions to dismiss all counts of the complaint filed by the remaining groups of
Defendants: (1) Stewart Title Guarantee Company, Inc. (“Stewart”), (2) Doma Title
Insurance, Inc. (“Doma”) and Doma Holdings, Inc. (“Doma Holdings”), (3) Scott Davis
(“Davis”), and (4) Avance Title, LLC (“Avance”), Arturo Vasquez (“Vasquez”), and
Soledad Herrra (“Herrera”) (the last three together, “the Avance Defendants”). Also
pending is Plaintiffs’ motion for leave to file an amended complaint. The Court will
grant the motions to dismiss and deny the motion for leave to file an amended
complaint. Because of the circumstances of this case described below, and evident
futility of additional amendments, the dismissal will be with prejudice.

FACTUAL HISTORY 1
Plaintiffs’ allegations arise from a series of real estate transactions that occurred
between 2018 and 2021 for which Plaintiffs utilized the services of the Avance
Defendants. In short, Plaintiffs allege that the Defendants, but primarily the Avance
Defendants, served as escrow agents and/or real estate brokers, and misappropriated
and misused funds used in these transactions.
Plaintiffs Monster and Klar are corporations that “owned many of the real
properties that are the subjects of [Plaintiffs’] claims.” ECF Nos. 1 ¶¶ 9-10; 63-1 ¶ 9-10.
Plaintiffs Robinson and Bernard were officers of Monster and Klar. ECF Nos. 1 ¶¶ 11-12;
63-1 ¶¶ 11-12. Plaintiffs Adams (who died in 2020 and is represented by the Adams
Estate) and the Adams Trust also “owned many of the real properties that are the
subjects of the claims alleged in this Complaint.” ECF Nos. 1 ¶¶ 16-17; 63-1 ¶¶ 16-17.
Plaintiff L.D. Jay was owned by Robinson and Adams while Adams Properties was
owned by Adams and is now owned by the Adams Estate. ECF Nos. 1 ¶¶ 14-15; 63-1 ¶¶
14-15. Both entities “owned many of the real properties that are the subjects of the
claims alleged in this Complaint.” Id. Adams owned and ran Clinton Fence until his
death. ECF Nos. 1 ¶ 13; 63-1 ¶ 13. Robinson is currently the President and CEO of
Clinton Fence. Id.
Defendant Avance was owned by Herrera and Vasquez and was in the business of
facilitating real estate transactions, including many for Plaintiffs. ECF Nos. 1 ¶¶ 18-20;

1 At the pleadings stage, the Court “must accept as true all of the factual allegations

contained in the complaint and draw all reasonable inferences in favor of the plaintiff.”
King v. Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016). Throughout this memorandum,
the Court cites to the original complaint (ECF No. 1) and the red-lined version of the
proposed amended complaint (ECF No. 63-1).
2

63-1 ¶¶ 18-20. Defendant Davis allegedly brokered real estate transactions for Monster
and the Avance Defendants in 2020 and 2021. ECF Nos. 1 ¶¶ 21; 63-1 ¶¶ 21. More
specifically, Plaintiffs allege that Davis was engaged to broker a loan “from Attorney
Angelo Russo of Fairview Park, Ohio, to Monster” for more than $4 million, but instead
of closing on that loan, Davis “exchanged it for a purported loan of $2.5 million
supposedly from NHN Properties, LLC . . . to Monster, Robinson and Bernard.” ECF No.
1 ¶ 21; see also ECF No. 63-1 ¶ 21. Monster, Robinson, and Bernard allege that they
“never knew about the supposed NHN Properties loan” and “never agreed to it or to its
terms.” ECF No. 1 ¶ 21.; see also ECF No. 63-1 ¶ 22. Plaintiffs allege that the Avance
Defendants took the loan money and did not use it for Monster’s benefit. ECF No. 1 ¶ 21;
see also ECF No. 63-1 ¶ 23. Plaintiffs also allege that Davis was paid a $500,000
commission (or as Plaintiffs call it elsewhere, a “kickback”) to broker the loan. ECF No. 1
¶ 21; see also ECF No. 63-1 ¶ 24.
Stewart and Doma allegedly provided title insurance in connection with some of
the transactions described in the complaint. ECF No. 1 ¶¶ 148-49, 159; see also ECF No.
63-1 ¶¶ 156-57, 170-71. Plaintiffs allege that while Stewart and Doma have paid claims
on behalf of the Avance Defendants “and other parties who have been damaged by the
fraudulent activities, errors and omissions of” the Avance Defendants, Stewart and
Doma “have not paid, reimbursed or covered the damages and losses suffered by
Plaintiffs as a result of the errors and omissions and fraudulent activities of” the Avance
Defendants. ECF No. 1 ¶¶ 151-52, 161-62; see also ECF No. 63-1 ¶¶ 163. Doma is alleged
to be “the wholly owned subsidiary of Doma Holdings.” ECF No. 1 ¶¶ 25-26; see also
ECF No. 63-1 ¶¶ 27-28.

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Plaintiffs allege that beginning in 2018, Adams engaged the Avance Defendants
“for title work and escrow services for real estate transactions into which he and his
business partner, Robinson, entered on behalf of themselves or their respective
investment companies and entities” and that the Plaintiffs “came to rely on” the Avance
Defendants for all such work. ECF No. 1 ¶ 27; see also ECF No. 63-1 ¶ 29. These
transactions included facilitating construction of a new building for Clinton Fence in
2018 that was to be financed by other properties owned by Plaintiffs. ECF No. 1 ¶ 28; see
also ECF No. 63-1 ¶ 30. Plaintiffs allege that the Avance Defendants also facilitated
many other property transfers between the Plaintiffs and others between 2019 and 2021.
ECF No. 1 ¶¶ 28-30; see also ECF No. 63-1 ¶¶ 30-32. Plaintiffs allege that instead of
properly handling these transactions, the Avance Defendants “misused, misapplied,
misappropriated, misaccounted for, diverted, converted, and comingled funds belonging
to all Plaintiffs that should have been held in escrow for their benefit or paid to third
parties to satisfy loans and mortgage liens on Plaintiffs’ properties involved in each
respective transaction” and that those loans and liens were not satisfied. ECF No. 1 ¶¶
32, 33-62; see also ECF No. 63-1 ¶¶ 34, 36-69.
Plaintiffs also contend that Stewart claims to be mortgagee of one property that
was involved in funding the new Clinton Fence building and has been “demanding and
collecting mortgage payments from Clinton Fence” improperly. ECF No. 1 ¶ 44; see also
ECF No. 63-1 ¶¶ 47-48. In the proposed amended complaint, Plaintiffs allege that
Stewart has “no legal right or authority to claim that it” is the mortgagee for that
property and that “any such entitlement is the direct and proximate result of the
fraudulent activities of” the Avance Defendants. ECF No. 63-1 ¶ 48.

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Plaintiffs allege they did not “discover the nature and scope of [the Avance
Defendants’] conduct or the fact that they had committed these wrongful acts and
omissions until in or about June and July 2021.” ECF No. 1 ¶ 64; see also ECF No. 63-1 ¶
72. But they recognize that for statute of limitations purposes, they could have
recognized the problems “as early as late April or May, 2021, when certain minor
discrepancies in the documentation for a couple of the real estate transactions came to
light.” ECF No. 1 ¶ 64; see also ECF No. 63-1 ¶ 72.
PROCEDURAL HISTORY
Plaintiffs filed their complaint on March 14, 2024, alleging nine counts against
the Avance Defendants for breach of contract (Count 1), breach of fiduciary duties
(Count 2), fraud (Count 3), fraudulent inducement (Count 4), conversion (Count 5),
negligence (Count 6), negligent misrepresentation (Count 7), promissory estoppel
(Count 8), violation of the Racketeer Influenced and Corrupt Organizations Act
(“RICO”) (Count 9) and RICO conspiracy (Count 10). The complaint includes three
counts against Stewart for breach of title insurance contract (Count 11), bad faith (Count
12), and “Rescission and Restitution” (Count 15), and two counts against Doma and
Doma Holdings for breach of title insurance contract (Count 13) and bad faith (Count
14).2 Finally, Plaintiffs included Davis in the two RICO claims along with the Avance
Defendants (Counts 9 and 10). ECF No. 1.
The Defendants filed motions to dismiss between July 26, 2024 and September
16, 2024. See ECF Nos. 27, 33, 48, and 49. On August 20, 2024, the Court granted

2 Plaintiffs also originally asserted claims against two entities related to Stewart: Stewart

Title Company and Stewart Information Services Corporation. Plaintiffs subsequently
dismissed their claims against these two Defendants. ECF Nos. 45 & 69.
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Plaintiffs’ requested extension to file responses to the then-pending motions to dismiss,
providing Plaintiffs with an August 30, 2024 response deadline. See ECF Nos. 42 & 43.
For the remaining motions filed after that date, Plaintiffs’ responses were due on
September 19, 2024 and October 1, 2024.
Plaintiffs failed to respond to any of the motions to dismiss. The Avance
Defendants, Doma, and Doma Holdings filed reply briefs on October 8 and 10, 2024,
noting the lack of responses from Plaintiffs. ECF Nos. 50 & 51. Then on October 23,
2024, Plaintiffs filed a motion for leave to file a surreply to the two replies briefs (despite
not having filed responses to the motions); that motion for leave remains pending. ECF
No. 52. The motion for leave, which does not include a separate proposed surreply, does
not provide any substantive responses to any of the motions to dismiss or good cause or
excusable neglect for Plaintiffs’ failure to respond to the motions. Instead, the motion
states that since August 16, 2024, Plaintiffs’ counsel had “been working on preparing a
more detailed and definite First Amended Complaint to respond to and, he believes,
satisfactorily address the issues raised in the above-referenced motions filed by” the
Defendants. Id. at 2. 3 The motion also alleges that during September 2024, Plaintiffs’
counsel was busy on other matters and claims he “did not have the time and opportunity
due to the press of the foregoing business to finish working on the proposed Amended
Complaint in this case and to get it filed then,” and that he “lost track of the response
dates for the motion to dismiss of Avance Title, Herrera and Vasquez (Doc. 48) and
Davis’ motion to dismiss (Doc. 49) until their respective replies were filed on October 8,

3 All page citations to filings correspond to the ECF pagination, which may not be

identical to the pagination used by the parties.
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2024 (Doc. 50) and October 10, 2024 (Doc. 51).” Id. In the motion, Plaintiffs requested
until November 18, 2024 to file an amended complaint. Id. at 3.
On November 18, 2024, Plaintiffs filed the pending motion for leave to file an
amended complaint. ECF No. 58. The motion provides no additional explanation for
Plaintiffs’ failure to previously file responses to the motions to dismiss or any discussion
on why the Court should entertain the late-filed motion. Id. The motion also lacked a
red-lined version of the proposed amended complaint, in violation of Local Rule
103.6(c), and, at 53 pages, the proposed amended complaint exceeds the 40-page limit
in Local Rule 103.1(d). While Plaintiffs did move for an expanded page limit for their
initial complaint, see ECF No. 2, they did not so move regarding their proposed
amended complaint. The proposed amended complaint largely tracks the initial
complaint with just a few additional details. The counts alleged against each Defendant
are the same as in the original complaint with the exception that Davis has been added
to the conversion claim in Count 5, see ECF No. 63-1 ¶¶ 109-118, removed from the
RICO conspiracy claim in Count 10, see id. ¶¶ 149-54, and his role in the RICO claim at
Count 9 has been changed from being a member of the alleged “enterprise” to having
aided and abetted the alleged enterprise, which now consists only of the Avance
Defendants. See id. ¶¶ 135-47.
Of the currently remaining Defendants, Stewart and Davis filed opposition briefs
to the motion for leave to file an amended complaint. ECF Nos. 59 & 60. After
prompting by the Court, Plaintiffs did file a red-lined copy of the proposed amended
complaint on November 27, 2024. ECF No. 63-1. Also on November 27, 2024, and in
order to give Plaintiffs every benefit of the doubt and a final opportunity to advance
their claims, the Court ordered Plaintiffs to
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file a consolidated brief in response to all pending motions to
dismiss. Insofar as Plaintiffs contend that any argument(s)
made by Defendants in those motions has been cured by the
proposed amended complaint (ECF No. 58-2; see also ECF
No. 63-1 (redline)), Plaintiffs shall so specify and explain why
the amendment cures any deficiency and thus why
amendment would not be futile.
ECF No. 64 at 2. This order did not excuse Plaintiffs’ failure to previously file responses
to the motions to dismiss, their filing of the untimely motion for leave to file an
amended complaint, or the lack of adequate explanation for their deficiencies. Pursuant
to the order, Plaintiffs filed their “Consolidated Brief in Response to All Pending
Motions to Dismiss and Reply in Support of Their Motion for Leave to File Their
Amended Complaint” on December 13, 2024. ECF No. 66. Defendants then filed reply
briefs. ECF Nos. 70, 74, 75, & 77.
In addressing the pending motions, the Court will consider the arguments raised
in the motions to dismiss and whether, and to what extent, Plaintiffs have addressed
those arguments in their response and provided citations to the supportive paragraphs
in the proposed amended complaint.
STANDARDS OF REVIEW
A complaint must contain “a short and plain statement of the claim showing the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). When a defendant asserts that, even
assuming the truth of the alleged facts, the complaint fails “to state a claim upon which
relief can be granted,” the defendant may move to dismiss the complaint. Fed. R. Civ. P.
12(b)(6). To withstand a motion to dismiss, the complaint’s “[f]actual allegations must
be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). The pleadings must contain sufficient factual
8

allegations to state a facially plausible claim for relief. Id. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). As noted above, when considering such a motion, the
Court “must accept as true all of the factual allegations contained in the complaint and
draw all reasonable inferences in favor of the plaintiff.” King, 825 F.3d at 212.
Leave to amend a complaint should “be freely given when justice so requires,”
Fed. R. Civ. P. 15(a), but a court “may deny leave to amend for reasons ‘such as undue
delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing party
by virtue of the allowance of the amendment, futility of amendment, etc.’” Glaser v.
Enzo Biochem, Inc., 464 F.3d 474, 480 (4th Cir. 2006) (quoting Foman v. Davis, 371
U.S. 178, 182 (1962)).
DISCUSSION
A.

Stewart’s and Doma’s Motions to Dismiss
Plaintiffs have alleged claims of breach of title insurance contract and bad faith

against both Stewart and Doma, as well as a “Recission and Restitution” claim against
Stewart and a vicarious liability claim against Doma Holdings.
1.

Breach of Title Insurance Contract (Counts 11 & 13)

Plaintiffs allege that Stewart and Doma breached title insurance policies issued to
various Plaintiffs by failing to pay for the alleged damages caused by the Avance
Defendants’ actions. In their motions to dismiss, Stewart and Doma argue that
Plaintiffs’ claims are insufficient because, among other things, they fail to identify the
policies at issue, the insureds, the relevant properties, any provision of the policies, and
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the nature of the title defects or policy provisions allegedly breached, and whether the
insured told Stewart and Doma about the alleged title defects and whether Stewart and
Doma refused to cure the defects. ECF Nos. 27-1 at 6-8; 33-1 at 4-6.
In their response, Plaintiffs argue that the proposed amended complaint cures
any defects in the original complaint by identifying the addresses of the properties for
which they allege Stewart and Doma issued title insurance and the individual Plaintiffs
who owned those properties. ECF No. 66 at 2-4, 9; see ECF No. 63-1 ¶¶ 157, 171.
Plaintiffs also allege that Stewart and Doma knew about the Avance Defendants’ alleged
fraudulent actions. See ECF No. 63-1 ¶¶ 158-59, 172-73. Plaintiffs contend that they do
not have the actual title insurance policies, however, because they were never given
copies. ECF No. 66 at 5-6, 12.
“The predominant view today is that title insurance—at least as to its first-party
aspect—is a contract of indemnity, and not a contract of guaranty or warranty.” Stewart
Title Guar. Co. v. West, 110 Md. App. 114, 128 (1996). Thus, “a title insurer does not
‘guarantee’ the status of the grantor’s title” but instead “agrees to reimburse the insured
for loss or damage sustained as a result of title problems, as long as coverage for the
damages incurred is not excluded from the policy.” Id. at 129. As a result, under
Maryland law, a title insurance policy is not breached “simply because title is defective
on the day the policy is issued,” but instead, “is breached only after notice of an alleged
defect in title is tendered to the insurer and the insurer fails to cure the defect or obtain
title within a reasonable time thereafter.” Id. at 131-32 (quoting First Fed. Sav. & Loan
Ass’n of Fargo, N.D. v. Transamerica Title Ins. Co., 19 F.3d 528, 531 (10th Cir. 1994)).
Here, Plaintiffs have failed in their initial and proposed amended complaints to
allege any relevant terms of the policies, any title defects, that they tendered any issues
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to Stewart and Doma, or that Stewart and Doma refused to cure the defects. “Maryland
law requires that a plaintiff alleging a breach of contract ‘must of necessity allege with
certainty and definiteness facts showing a contractual obligation owed by the defendant
to the plaintiff and a breach of that obligation by defendant.’” Polek v. J.P. Morgan
Chase Bank, N.A., 424 Md. 333, 362 (2012) (quoting Cont’l Masonry Co. v. Verdel
Constr. Co., 279 Md. 476, 480 (1977)). Without relevant definite factual allegations, the
claims of breach of title insurance contracts against Stewart and Doma in Counts 11 and
13 must be dismissed.
2.

Bad Faith (Counts 12 & 14)

Plaintiffs allege that Stewart and Doma acted in bad faith by failing to pay
Plaintiffs for unspecified breaches of the alleged title insurance contracts while, at the
same time, paying other individuals’ damages. Stewart and Doma argue that the same
deficiencies in Plaintiffs’ allegations that doom the breach of contract claims also doom
these claims, including that Plaintiffs fail to allege that they made any claims to Stewart
and Doma that were denied. ECF Nos. 27-1 at 8; 33-1 at 7-8. The Court agrees with
Stewart and Doma that Plaintiffs’ vague assertions of bad faith cannot survive dismissal
given, among other things, their failure to allege that Stewart and Doma refused to
ameliorate any specific title defects.
Stewart and Doma also argue that an insured cannot bring a bad faith tort claim
based on a failure to pay on an insurance contract under Maryland law. ECF Nos. 27-1 at
8; 74 at 8. “It is well-settled under Maryland law that an insured claiming that an
insurer has failed to pay policy benefits may only pursue contract remedies.” Bierman
Fam. Farm, LLC v. United Farm Fam. Ins. Co., 265 F. Supp. 3d 633, 638 (D. Md. 2017)

11

(citing cases). “An insured, therefore, may not bring a tort claim for bad faith based
simply on an insurer’s failure to pay a claim.” Id. at 638-39.
Plaintiffs agree with this recitation of the law but suggest, without relevant
citation, that it should not apply because they have alleged that Stewart and Doma were
aware of the fraud perpetrated by the Avance Defendants. ECF No. 66 at 6-7. Plaintiffs
also argue without any real analysis that the claims against Stewart should proceed
under Texas law (which they assert recognizes such bad faith claims) because Stewart is
a Texas corporation, even though they have alleged that all relevant actions took place in
Maryland. Id. at 7-8.
To the extent Plaintiffs have a remedy against Stewart and Doma under Maryland
law, it would be contractual, not based in tort (such as a bad faith claim). Bierman Fam.
Farm, 265 F. Supp. 3d at 638. Moreover, there is no basis to apply Texas law to the
claims against Stewart. Choice of substantive law in a diversity jurisdiction case is
controlled by the choice of law rules of the state where the action was filed, here
Maryland. Adobe Sys. Inc. v. Gardiner, 300 F. Supp. 3d 718, 728 (D. Md. 2018). Given
that the alleged title insurance contracts were issued in Maryland and the alleged
injuries occurred in Maryland, Maryland law applies to both the breach of contract and
bad faith claims. See RaceRedi Motorsports, LLC v. Dart Mach., Ltd., 640 F. Supp. 2d
660, 665 (D. Md. 2009) (citing Commercial Union Ins. Co. v. Porter Hayden Co., 116
Md. App. 605 (1997) and Fluxo-Cane Overseas Ltd. v. E.D. & F. Man Sugar Inc., 599 F.
Supp. 2d 639, 642 (D.Md. 2009)). For these reasons, Counts 12 and 14, alleging bad
faith by Stewart and Doma, must be dismissed.

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3.

“Rescission and Restitution” (Count 15)

In Count 15, Plaintiff Clinton Fence sues Stewart for “Rescission and Restitution.”
ECF No. 1 ¶¶ 168-173; see also ECF No. 63-1 ¶¶ 184-89. This claim arises out of
Plaintiffs’ allegations that Stewart “purports to be the holder of a promissory note and
mortgage supposedly executed in or about August 2016 by Clinton Fence and
supposedly secured by two properties allegedly owned by the [Adams] Trust in or about
August 2016.” ECF No. 1 ¶ 169; see also ECF No. 63-1 ¶ 185. Clinton Fence asserts that
“it had nothing whatever to do with the underlying loan from Community Bank” (that
was secured with the property at issue) and it “challenges the legitimacy of [Stewart’s]
assertion that it has properly and lawfully assumed the position of Community Bank”
and became the mortgagee. ECF No. 1 ¶ 170; see also ECF No. 63-1 ¶ 186. Clinton Fence
asserts that Stewart knew the Avance Defendants “were supposed to pay Community
Bank the entire amount due” on the mortgaged property, and they failed to do so, so
Clinton Fence asserts that Stewart should not be attempting to collect mortgage
payments from it on that loan. ECF No. 1 ¶ 171; see also ECF No. 63-1 ¶ 187.
Stewart contends that Count 15 does not state a claim on which relief can be
granted because, among other things, the allegations regarding the relevant loan are
inconsistent and therefore, even drawing all reasonable inferences in Clinton Fence’s
favor, the allegations are insufficient to state a claim. ECF No. 27-1 at 8-11. For example,
Stewart notes that the complaint (and proposed amended complaint) assert both that
Clinton Fence had nothing to do with the loan but yet, for some reason, made payments
on the loan and then later blamed the Avance Defendants for failing to pay off the
remainder of the loan in 2018. Id.; compare ECF No. 1 ¶ 169; ECF No. 63-1 ¶ 186
(“Clinton Fence states that it had nothing whatever to do with the underlying loan . . . .”)
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with ECF No. 1 ¶ 173, ECF No. 63-1 ¶ 189 (asking the Court to “order restitution to
Clinton Fence of all amounts of money it has paid to [Stewart] to date on its illegitimate
claim of entitlement to such payments”) and ECF No. 1 ¶ 41, ECF No. 63-1 ¶ 44 (alleging
that the Avance Defendants “failed to pay off a mortgage lien” on the relevant property).
Stewart also argues that because Plaintiffs allege that the loan does not belong to
Clinton Fence, there are no allegations establishing a contract between them that can be
rescinded. See Wiseman v. First Mariner Bank, 2013 WL 5375248, *19 (D. Md. Sept.
23, 2013) (“To be sure, a complete stranger to the transaction would lack standing to
seek rescission.”). Additionally, Stewart argues that Plaintiffs have not alleged facts that
would support recission of a contract because they have also failed to allege that they
returned any loan proceeds or attempted to rescind the loan promptly (and instead
Plaintiffs allege that Clinton Fence paid the loan between 2016 and 2018). See id. at *16
(listing the elements of a claim for recission, including that the plaintiff was induced
into the contract due to fraud or mistake, returned the consideration, and exercised the
right to rescind promptly). Finally, Stewart contends that restitution is not a cognizable,
standalone cause of action.
Plaintiffs acknowledge in their response that “Stewart Title alleged that the
rescission claim was contradictory and nonsensical,” but Plaintiffs do not otherwise
attempt to refute or even respond to Stewart’s arguments. ECF No. 66 at 2. The Court
can only view the acknowledgment of the arguments but refusal to address them as a
concession. See Parker, 179 F. Supp. 3d at 515 (“Because Plaintiff failed to oppose either
of the pending motions to dismiss, he has effectively conceded the dispositive arguments
presented in those motions, and for that reason alone his Complaint is susceptible to
dismissal.”); see also Pueschel v. United States, 369 F.3d 345, 354 (4th Cir. 2004)
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(concluding that the district court “was entitled . . . to rule on the [defendant’s] motion
and dismiss [plaintiff’s] suit on the uncontroverted bases asserted therein” after Plaintiff
failed to file a response). Additionally, however, the Court holds that to the extent this
claim can be considered a cause of action, it fails because Plaintiffs’ confusing
allegations do not allege the necessary elements for recission of a contract. Thus, Count
15 will be dismissed.
4.

Vicarious Liability

Finally, Plaintiffs’ only allegation against Doma Holdings is that it “is vicariously
liable to Plaintiffs . . . as the parent corporation of Doma Title for its legal obligations
and liabilities.” ECF No 1 ¶ 164; see also ECF No. 63-1 ¶ 180, 182. Plaintiffs have not
attempted to allege facts in either version of the complaint that would make Doma
Holdings vicariously liable for the actions of its subsidiary by establishing, for example,
any of the factors necessary to pierce the corporate veil. “It is a general principle of
corporate law deeply ‘ingrained in our economic and legal systems’ that a parent
corporation . . . is not liable for the acts of its subsidiaries.” United States v. Bestfoods,
524 U.S. 51, 61 (1998) (quoting William O. Douglas & Carrol M. Shanks, Insulation from
Liability Through Subsidiary Corporations, 39 Yale L.J. 193 (1929)). Thus, the claims
against Doma Holdings must be dismissed.
B.

Davis’s Motion to Dismiss
In the initial complaint, Plaintiffs included Davis in Counts 9 and 10 for RICO

violations and conspiracy to commit RICO violations. In the proposed amended
complaint, Plaintiffs have removed Davis from Count 10, and changed his role in Count
9 from an alleged member of the criminal enterprise to an alleged aider and abetter.
ECF No. 63-1 at ¶¶ 134-154. Plaintiffs also added Davis to the conversion claim in Count
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5. Id. at ¶¶ 107-118. The Court will analyze the claims asserted in the proposed amended
complaint with the understanding that Plaintiffs have abandoned any other claims
against Davis and contend that these new allegations are their best case against Davis.
As stated, Plaintiffs allege that Davis was engaged to broker a multi-milliondollar loan from an investor named Angelo Russo to Monster that was to be used to
purchase a property and pay off an existing lien on that property. ECF No. 1 ¶¶ 21, 56;
see also ECF No. 63-1 ¶¶ 21-23, 60-61. Plaintiffs allege that the first loan funds were
transferred to the Avance Defendants through Davis to pay off the lien, but that the
Avance Defendants failed to use the money for that purpose. ECF No. 1 ¶¶ 21, 56; see
also ECF No. 63-1 ¶¶ 21-23, 60-61. Plaintiffs further allege that “somehow” Davis and
the Avance Defendants substituted in a new loan from NHN Properties to Monster
instead of the loan from Russo without Plaintiffs’ knowledge or permission. ECF No. 1
¶¶ 21, 56; see also ECF No. 63-1 ¶¶ 21-22, 60-61. Specifically, in the proposed amended
complaint, Plaintiffs allege that “NHN Properties was an existing or former client of
Attorney Russo, and Davis somehow switched his role and acted as the ‘broker’ for the
NHN Properties loan instead.” ECF No. 63-1 ¶ 21. Plaintiffs also allege that Davis was
paid a $500,000 commission (which Plaintiffs characterize as a “kickback”) to broker
the loan. ECF No. 1 ¶ 21; see also ECF No. 63-1 ¶ 24.
Plaintiffs’ response to Davis’s twenty-one-page brief in support of his motion to
dismiss and eight-page opposition to the motion for leave to file an amended complaint
amounts to four sentences:
Plaintiffs have significantly amended the allegations against
Davis in the Ninth Claim for Relief from alleging that he was
a co-conspirator in the alleged RICO conspiracy with Avance
Title, Herrera and Vasquez to alleging that he aided and
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abetted Avance Title’s, Herrera’s and Vasquez’s conduct of the
affairs of the RICO enterprise through a pattern of
racketeering activity. (Doc. 58-2, ¶ 135-147.) Plaintiffs’
amended allegations against Davis satisfy all legal
requirements for stating a claim for aiding and abetting
liability under the RICO statutes.
ECF No. 66 at 17. This response is entirely conclusory and fails to respond to Davis’s
arguments or the Court’s direction to “specify and explain why the amendment cures
any deficiency and thus why amendment would not be futile.” ECF No. 64 at 2.
Moreover, and regarding Plaintiffs’ aiding and abetting claim against Davis in
Count 9, 18 U.S.C. § 1962 does not provide a cause of action for aiding and abetting in
connection with a RICO claim. In re Am. Honda Motor Co., Inc. Dealerships Rels.
Litig., 958 F. Supp. 1045, 1058 (D. Md. 1997) (“[I]t is becoming conventional wisdom
that aiding and abetting liability under § 1962(c) does not survive the Supreme Court’s
ruling in Central Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164
(1994).”); see also Pennsylvania Ass’n of Edwards Heirs v. Rightenour, 235 F.3d 839,
840 (3d Cir. 2000) (“[B]ecause RICO’s statutory text does not provide for a private
cause of action for aiding and abetting and 18 U.S.C. § 2 cannot be used to imply this
private right, no such cause of action exists under RICO.”). Thus, Plaintiffs’ aiding and
abetting RICO claim in Count 9 against Davis fails.
Even if that were not the case, the allegations against Davis in Count 9 lack the
requisite specificity to support his participation in a RICO scheme. See, e.g. Bailey v.
Atl. Auto. Corp., 992 F. Supp. 2d 560, 584 (D. Md. 2014) (providing that a “plaintiff
must plead ‘circumstances of the fraudulent acts that form the alleged pattern of
racketeering activity with sufficient specificity pursuant to Fed. R. Civ. P. 9(b).’”)
(quoting Menasco, Inc. v. Wasserman, 886 F.2d 681, 684 (4th Cir. 1989)). Plaintiffs
17

essentially argue that, for payment, Davis brokered a loan and the Avance Defendants
misused the loan money, and that Davis helped switch the source of at least some of the
financing. But Plaintiffs do not allege whether or how that led to an injury or what Davis
did to allegedly aid and abet in the context of the RICO claim. See Holmes v. Sec. Inv.
Prot. Corp., 503 U.S. 258, 268 (1992) (providing that to state a RICO claim, a plaintiff
must show that the defendant’s alleged conduct was the proximate cause of the
plaintiff’s injuries). For these reasons, Count 9 against Davis must be dismissed.
Regarding conversion, Davis opposed his addition to this claim in his response to
the motion for leave to file an amended complaint. ECF No. 60 at 3-5. Plaintiffs in their
response to the motions to dismiss and reply in support of their motion for leave to file
an amended complaint did not address Davis’s arguments. ECF No. 66 at 17. Having
been given the opportunity to address these arguments, but having failed to do so, the
Court concludes Plaintiffs have waived this claim. See Pueschel, 369 F.3d at 354;
Parker, 179 F. Supp. 3d at 515. Regardless, there are no facts in either version of the
complaint alleging that Davis took property belonging to Plaintiffs that could support
this claim. The only funds Plaintiffs allege Davis obtained was from the Avance
Defendants for brokering the loan. There are no allegations that that money belonged to
Plaintiffs. See Lasater v. Guttmann, 194 Md. App. 431, 446 (2010) (“[Conversion] is
defined as ‘any distinct act of ownership or dominion exerted by one person over the
personal property of another in denial of his right or inconsistent with it.’”) (quoting The
Redemptorists v. Coulthard Servs., Inc., 145 Md. App. 116, 155 (2002)). Thus, Count 5
as it pertains to Davis also fails.

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C.

The Avance Defendants’ Motion to Dismiss
In both versions of the complaint, Plaintiffs assert against the Avance Defendants

claims for breach of contract (Count 1), breach of fiduciary duties (Count 2), fraud
(Count 3), fraudulent inducement (Count 4), conversion (Count 5), negligence (Count
6), negligent misrepresentation (Count 7), promissory estoppel (Count 8), RICO
violations (Count 9), and RICO conspiracy (Count 10). The Avance Defendants have
moved to dismiss all counts against them based on a number of theories in their twentyfive-page motion. For example, the Avance Defendants assert a statute of limitations
defense and argue that Plaintiffs’ fraud-based claims do not meet the heightened
pleading standard of Rule 9(b), that the intra-corporate immunity doctrine bars
Plaintiffs’ RICO conspiracy claim, and that Plaintiffs’ claims fail because of their own
unclean hands. ECF No. 48-1 at 7-13. The Avance Defendants also argue as to each
count why Plaintiffs have failed to allege sufficient facts to state a plausible claim against
them. Id. at 13-25. These arguments are reiterated and updated in light of the proposed
amended complaint in the Avance Defendants’ reply brief. ECF No. 77 at 4-5, 6-7.
In the three-and-a-half pages Plaintiffs devote to the Avance Defendants’
arguments, they primarily address the timeliness of their complaint and intra-corporate
immunity. ECF No. 66 at 13-17. Plaintiffs address only in a very cursory fashion the
Avance Defendants’ arguments regarding fraud pleading standards and the sufficiency
of the pleadings as to each count. Id. at 15. Plaintiffs do not address the Avance
Defendants’ unclean hands arguments at all.
The Court will address these arguments below, with the exception of timeliness
and unclean hands. Determining when Plaintiffs should have known of the allegations
in the complaint cannot be resolved on these pleadings. And the defense of unclean
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hands is only appropriate when equitable relief is sought and generally cannot be
decided at the motion to dismiss stage. See Republican Party of N. Carolina v. Martin,
980 F.2d 943, 952 (4th Cir. 1992) (providing that “[a] motion to dismiss under Rule
12(b)(6) . . . does not resolve contests surrounding . . . the applicability of defenses”);
Marsh v. Curran, 362 F. Supp. 3d 320, 326 (E.D. Va. 2019) (providing that “[u]nclean
hands is an equitable defense and “[m]otions to dismiss under Rule 12(b)(6) do not
resolve the applicability of defenses”) (citing Burlington Indus. v. Milliken & Co., 690
F.2d 380, 388 (4th Cir. 1982) and Martin, 980 F.2d at 952); Food Lion, Inc. v. Cap.
Cities/ABC, Inc., 951 F. Supp. 1233, 1234-35 (M.D.N.C. 1996) (“The defense of unclean
hands is applicable only when the plaintiff seeks an equitable remedy.”).
As discussed above, Plaintiffs essentially concede that their original compliant
was inadequate: instead of addressing Defendants’ arguments as to that complaint, they
rely solely on their proposed amended complaint, arguing that the amended complaint
cures any deficiencies. As discussed below, however, Plaintiffs have failed to show how
the proposed amended complaint cures the deficiencies in the original complaint or why
the amendments would not be futile, as ordered by this Court. ECF No. 64 at 2.
Regarding the breach of contract claims, all parties agree that any contracts
between Plaintiffs and Advance were oral rather than in writing. ECF No. 1 ¶ 67 (“Each
Plaintiff entered into an oral contract with Herrera, Avance and Vasquez in
consideration of their handling all of Plaintiffs’ real estate transactions”), ¶ 68
(“Herrera, Avance and/or Vasquez have breached their oral contract with each
Plaintiff”); see also ECF No. 63-1 ¶¶ 75, 77. In their motion to dismiss, the Avance
Defendants first contend that any contracts that existed were between various Plaintiffs
and Avance, not Herrera and Vasquez, who Plaintiffs allege are each “an owner,
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member, principal, officer, and/or employee of Avance” rather than parties independent
from Avance. ECF No. 1 ¶¶ 19-20; see also ECF No. 63-1 ¶¶ 19-20. The Avance
Defendants also contend that “Plaintiffs fail to allege facts with certainty and
definiteness [showing] specific contractual obligations Avance owed and to whom they
ran.” ECF No. 48-1 at 15. The Avance Defendants argue that instead, Plaintiffs merely
list all possible general obligations of title and escrow agents and assert that the Avance
Defendants breached all of them. See ECF No. 1 ¶ 68; see also ECF No. 63-1 ¶ 77. The
Avance Defendants continue that this lack of “certainty and definiteness leaves Avance
Title guessing which contractual obligations it allegedly breached, if any, in performing
its work.” ECF No. 48-1 at 15. The Avance Defendants also allege that Plaintiffs have
failed to identify any specific terms of the contracts, including consideration.
Regarding the breach of fiduciary duty claim, the Avance Defendants argue that
Plaintiffs have failed to identify an independent basis for the claims separate from an
escrow agent’s contractual duties. See Roman v. Sage Title Grp., LLC, 229 Md. App.
601, 613 (2016), aff’d, 455 Md. 188 (2017) (“[E]scrow agents owe their depositors a
fiduciary duty to disburse the deposits according to the terms of the escrow
agreement.”) (quoting Addie v. Kjaer, No. CIVIL 2004-135, 2009 WL 482497, at *4
(D.V.I. Feb. 23, 2009)).
Regarding fraud and fraudulent inducement, the Avance Defendants argue that
the allegations lack the particularity required by Rule 9(b) and fail to identify the
specific misrepresentations that were made or that those misrepresentations caused
Plaintiffs’ alleged losses. See Fed. R. Civ. P. 9(b) (“In alleging fraud or mistake, a party
must state with particularity the circumstances constituting fraud or mistake.”);
Edmonson v. Eagle Nat’l Bank, 922 F.3d 535, 553 (4th Cir. 2019) (“To satisfy Rule 9(b),
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a plaintiff must plead ‘the time, place, and contents of the false representations, as well
as the identity of the person making the misrepresentation and what he obtained
thereby.’”) (quoting Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784
(4th Cir. 1999)). More specifically, the Avance Defendants argue that while Plaintiffs
allege that the Avance Defendants made misrepresentations about the funds associated
with the real estate transactions and misrepresented material facts to induce a
continued relationship, Plaintiffs fail to “identify what those misrepresentations were or
that they induced Plaintiffs to transact business with Avance Title.” ECF No. 48-1 at 17
(citing ECF No. 1 ¶¶ 82, 84, 90); see also ECF 63-1 ¶¶ 91, 93. Likewise, the Advance
Defendants argue that Plaintiffs have failed to adequately allege that any alleged
misrepresentations proximately caused their losses. For example, the Avance
Defendants argue that “Plaintiffs make conclusory allegations about their losses and the
Avance Defendants’ conduct. Plaintiffs do not allege specific misrepresentations that
they relied on that caused the losses.” ECF No. 48-1 at 18.
Regarding conversion, the Avance Defendants allege that “Plaintiffs fail to allege
sufficient facts establishing the Avance Defendants’ intent to permanently deprive
Plaintiffs of funds associated with the real estate transactions” or that they “redirected
funds for their own personal use and benefit.” ECF No. 48-1 at 19. The Avance
Defendants argue that “Plaintiffs, in conclusory fashion, allege that the Avance
Defendants converted funds that were part of the real estate transactions without
providing further detail about where exactly Avance Title should have directed the
funds.” Id. (citing ECF No. 1 ¶¶ 61–63); see also ECF No. 63-1 ¶¶ 68-70.
Regarding negligence and negligent misrepresentation, the Avance Defendants
argue that Plaintiffs have failed to “show an identifiable duty of care that the defendant
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owed independent of contract.” ECF No. 48-1 at 20 (citing Balfour Beatty
Infrastructure, Inc. v. Rummel Klepper & Kahl, LLP, 451 Md. 600, 610 (2017)).
Regarding the misrepresentation claim specifically, the Avance Defendants argue that
“[a] court will not recognize a negligent misrepresentation claim premised on a breach
of contractual obligation ‘when the contract does not provide for the bringing of such a
claim and the parties are equally sophisticated.’” Id. at 21. (quoting Mowbray v. Zumot,
533 F. Supp. 2d 554, 561 (D. Md. 2008)). The Advance Defendants assert that the
allegations in the complaints clearly show all parties were sophisticated in real estate
matters. Id.
Finally, the Avance Defendants assert that the promissory estoppel claim should
be dismissed because (1) a “contractual relationship only, if anything, existed between
Plaintiff Monster Investments and Defendant Avance Title” (foreclosing promissory
estoppel between those parties) and (2) Plaintiffs “fail to show what promises the
Avance Defendants made to” the other Plaintiffs. ECF No. 48-1 at 23; see ECF No. 1 ¶¶
27-31; ECF No. 63-1 ¶¶ 29-33.
Plaintiffs’ entire argument regarding the adequacy of the allegations for each
claim discussed above is as follows:
[T]he proposed Amended Complaint alleges sufficient facts to
state cognizable claims for breach of contract, negligence,
fraud, fraud in the inducement, breach of fiduciary duty, and
conversion. These allegations surpass the particularity
required by Civ. R. 9(b) for fraud-based claims. There are no
further particulars Plaintiffs can allege at this point beyond
what is set forth in the proposed Amended Complaint without
obtaining discovery from Avance, Herrera and Vasquez
regarding these matters.

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ECF No. 66 at 15. These three sentences do not even attempt to address the Avance
Defendants’ arguments on the merits of these claims or explain how specific paragraphs
in the proposed amended complaint “cure[] any deficiency and thus [explain] why
amendment would not be futile.” ECF No. 64 at 2.
Regarding the merits of the RICO claims, the Avance Defendants contend that
Plaintiffs’ allegations are conclusory and they have failed “to allege sufficient facts
establishing that the Avance Defendants engaged in predicate offenses” such as mail and
wire fraud or to “identify a specific scheme among the Avance Defendants to defraud
them.” ECF No. 48-1 at 23-24. Because Plaintiffs’ RICO claims are based on fraud, the
allegations must meet the heightened pleading standard of Rule 9(b). Chambers v. King
Buick GMC, LLC, 43 F. Supp. 3d 575, 586 (D. Md. 2014) (citing Harrison, 176 F.3d at
783). Moreover, the Fourth Circuit has instructed that courts not “lightly permit
ordinary business contract or fraud disputes to be transformed into federal RICO
claims.” Flip Mortg. Corp. v. McElhone, 841 F.2d 531, 538 (4th Cir. 1988).
Plaintiffs’ response regarding the merits of the RICO claims is also conclusory,
stating only as follows:
[T]he detailed allegations set forth throughout the proposed
Amended Complaint are more than sufficient to establish all
of the elements of a civil RICO claim pursuant to 18 U.S.C.
1962(c) as well as the predicate offenses of mail fraud and wire
fraud in violation of 18 U.S.C. 1341 and 1343. See, e.g., Doc.
58-2, ¶ 135-144, and the detailed descriptions of the
fraudulent acts and omissions that Avance Title, Herrera
and/or Vasquez engaged in through the U.S. mails and by
telephone, fax transmissions, and other electronic means
throughout the Amended Complaint.
ECF No. 66 at 15. A comparison of paragraphs 135 to 144 of the proposed amended
complaint shows no substantial changes from the original complaint except for one
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additional section of boilerplate at paragraph 144. Compare ECF No. 1 ¶¶ 125-37 with
ECF No. 63-1 ¶¶ 135-44. The Court agrees that neither version of the complaint
adequately alleges a RICO or RICO conspiracy claim, especially given the heightened
pleading standard.
Plaintiffs also have failed to allege facts stating a claim for RICO conspiracy under
18 U.S.C. § 1962(d) (count 10) because the alleged conspiracy as stated in the proposed
amended complaint involves only Avance and two of its principals, Herrara and
Vasquez. Under the intra-corporate conspiracy doctrine, a conspiracy cannot exist
between an entity and its employees. Marmott v. Md. Lumber Co., 807 F.2d 1180, 1184
(4th Cir. 1986) (“[A] conspiracy between a corporation and its agents, acting within the
scope of employment, is a legal impossibility.”); Walters v. McMahen, 795 F. Supp. 2d
350, 358 (D. Md. 2011), aff’d, 684 F.3d 435 (4th Cir. 2012) (“[T]he Fourth Circuit has
consistently found that the intracorporate conspiracy doctrine can be broadly applied to
conspiracy cases, including civil RICO claims.”). Plaintiffs are incorrect that Avance
being an LLC rather than a corporation excludes the application of this doctrine. See
Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 352-53 (4th Cir. 2013) (applying the
intra-corporate doctrine in the section 1985 context to an LLC). Likewise, insofar as
Plaintiffs invoke exceptions to the intra-corporate immunity doctrine—“where a coconspirator possesses a personal stake independent of his relationship to the
corporation” or “the agent’s acts were not authorized by the corporation,” see ECF No.
66 at 16-17—neither applies here. Painter’s Mill Grille, 716 F.3d at 353 (quoting ePlus
Technology Inc. v. Aboud, 313 F.3d 166, 179 (4th Cir. 2002) and citing Buschi v. Kirven,
775 F.2d 1240, 1252-53 (4th Cir. 1985)). Here, the thrust of the complaint and proposed
amended complaint are that Avance, Hererra, and Vasquez worked in concert to defraud
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Plaintiffs. There are no non-conclusory allegations that Hererra or Vasquez had a
personal stake independent of Avance’s interests or that their actions were unauthorized
by Avance.
Given Plaintiffs’ prior failures to respond to Defendants’ motions to dismiss, this
Court granted Plaintiffs extra time, and opportunities, both to address Defendants’
arguments for why the original complaint failed to state cognizable claims, and/or to
explain why the proposed amended complaint “cures any deficiency and thus why
amendment would not be futile.” ECF No. 64 at 2. Plaintiffs have failed at both tasks
and instead offer mostly conclusory arguments. Plaintiffs have failed to timely or
adequately respond to the motions to dismiss and have failed to follow the Court’s
orders. Moreover, and especially as to the Avance Defendants, the proposed amended
complaint still makes the materially same allegations as the original complaint. For
these reasons, the Court concludes that dismissal of the claims against the Avance
Defendants is warranted.
C.

Plaintiffs’ Motion for Leave to File an Amended Complaint and
Dismissal with Prejudice
Stewart and Davis filed briefs in opposition to Plaintiffs’ motion for leave to file

an amended complaint. ECF Nos. 59 & 60. Therein, Stewart argues that leave should be
denied due to undue delay, bad faith and dilatory motive. ECF No. 59 at 3-4. Similarly,
Davis argues in his opposition brief that Plaintiffs’ actions were in bad faith and unduly
prejudicial to him. ECF No. 60 at 2-4. Despite Plaintiffs’ assertion that their response to
the motions to dismiss is also a reply to Stewart’s and Davis’s opposition briefs,
Plaintiffs fail to address Stewart’s and Davis’s arguments. ECF No. 66. Davis in
particular, who allotted nearly half of his opposition brief to his bad faith and prejudice
26

arguments, contends that Plaintiffs therefore “should be deemed to have waived
arguments against these positions.” ECF No. 75 at 3 (citing Mentch v. Eastern Sav.
Bank, FSB, 949 F. Supp. 1236, 1246-1247 (D. Md. 1997)).
Additionally, in their motions to dismiss and reply briefs, all Defendants argue
that amendment would be futile. Plaintiffs’ only response to those arguments, as
discussed above, is their conclusory contention that the proposed amended complaint
fixes any deficiencies in the original complaint. The Court has found, however, that
Plaintiffs have failed to adequately show how the proposed amended complaint
addresses Defendants’ arguments.
Although leave to amend should “be freely given when justice so requires,” Fed.
R. Civ. P. 15(a), a court “may deny leave to amend for reasons ‘such as undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the opposing party by virtue of
the allowance of the amendment, futility of amendment, etc.’” Glaser, 464 F.3d at 480
(quoting Foman, 371 U.S. at 182). In this context, “[f]utility is apparent if the proposed
amended complaint fails to state a claim under” Rule 12(b)(6). Davison v. Randall, 912
F.3d 666, 690 (4th Cir. 2019) (quoting Katyle v. Penn Nat. Gaming, Inc., 637 F.3d 462,
471 (4th Cir. 2011)). Similarly, “where a plaintiff has had the opportunity to amend her
complaint to cure any deficiencies, or where amendment would otherwise be futile,
dismissal with prejudice is appropriate.” Harden v. Budget Rent A Car Sys., Inc., 726 F.
Supp. 3d 415, 440 (D. Md. 2024).
Plaintiffs have shown a pattern of dilatoriness and undue delay by failing to
timely file responses to the motions to dismiss and instead filing an untimely motion to
file a surreply and then an untimely motion for leave to file an amended complaint,
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neither of which addressed Defendants’ arguments and both of which lacked any
reasonable explanation for their dilatory behavior or any attempt to show excusable
neglect other than to state that counsel forgot to file responses and was busy. See ECF
No. 52 at 2-3.
Plaintiffs only filed a response to the motions to dismiss after the Court ordered
them to do so. And as discussed above, that response was inadequate and did not, as the
Court had ordered, “specify and explain why the amendment cures any deficiency and
thus why amendment would not be futile.” ECF No. 64 at 2. Plaintiffs’ failures to rebut
Defendants’ arguments (and in many instances to address them at all) or show that their
proposed amended complaint asserts adequate allegations shows the futility of further
amendment. Finally, at a minimum, Plaintiffs have also failed to rebut the assertions
that their actions were in bad faith and unduly prejudicial. As a result, the Court will
deny the motion to amend the complaint and will dismiss the original complaint with
prejudice having reviewed Plaintiffs’ amendments and found them inadequate.
CONCLUSION
For the reasons stated above, the Court will grant Defendants’ motions to dismiss
and will deny Plaintiffs’ motion for leave to file an amended complaint. The dismissal
will be with prejudice based primarily on the apparent futility of further amendment.

V
_______________________
Adam B. Abelson
United States District Judge

Date: March 6, 2025

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