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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
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`Civil Action No. GLR-20-3648
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`TEMESCAL WELLNESS OF
`MARYLAND, LLC T/A EVERMORE
`CANNABIS COMPANY,
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`v.
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`FACES HUMAN CAPITAL, LLC, et al.,
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`Plaintiff,
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`Defendants.
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`***
`MEMORANDUM OPINION
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`THIS MATTER is before the Court on Defendant Christopher Cassese’s Motion to
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`Dismiss (ECF No. 33); Defendant Gareth Heyman’s Motion to Dismiss (ECF No. 39); and
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`Defendant Francis Voegler s/h/a Frances Voegler’s Motion to Dismiss (ECF No. 40).1 The
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`Motions are ripe for disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md.
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`2021). For the reasons outlined below, the Court will grant the Defendant Voegler’s Motion
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`and deny Defendants Cassese and Heyman’s Motions as moot.
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`I. BACKGROUND2
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`Plaintiff Temescal Wellness of Maryland, LLC (“Temescal”) operates a cannabis
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`business in Baltimore City and Baltimore County, Maryland under the name Evermore
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`1 The Court will direct the Clerk to amend the docket to reflect the proper spelling
`of Defendant Francis Voegler’s name.
`2 Unless otherwise noted, the Court takes the following facts from the Complaint
`and accepts them as true. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations
`omitted).
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`Case 1:20-cv-03648-GLR Document 53 Filed 10/04/21 Page 2 of 21
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`Cannabis Company. (Compl. ¶¶ 6, 17, ECF No. 1). The factual allegations in Temescal’s
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`Complaint are brief. (Id. ¶¶ 18–23). According to Temescal, between March 1, 2018 and
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`September 2018, it engaged Defendant Faces Human Capital, LLC (“Faces”), a now-
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`bankrupt payroll business based in Denver, Colorado, “to process the payroll of
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`[Temescal], move approved funds from [Temescal] to the Faces account(s) and from the
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`Faces account(s), pay employees’ taxes to the State and Federal Governments, pay
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`employee benefits as directed and to initiate direct deposits to the bank accounts of
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`[Temescal’s] employees.” (Id. ¶¶ 2, 7). Temescal alleges that around the end of August
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`2019 or the beginning of September 2019, it “learned that Faces failed to make the requisite
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`deposits, including the State and Federal tax deposits,” in excess of $115,000. (Id. ¶ 3).
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`Temescal asserts that Faces used the money for its own benefit “and/or” for the benefit of
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`the other named Defendants, namely (1) Christopher Cassese, a Colorado resident and “the
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`CEO/Manager of Faces,” (2) Francis Voegler, a Colorado resident and “a manager” of
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`Faces, (3) Holly Leaf Sitienei, a Maryland resident and “an owner” of Faces, (4) Gareth
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`Heyman, a Colorado resident and “an owner” of Faces, (5) B44, LLC, a Colorado
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`corporation and “an owner” of Faces, (6) Wizard, LLC, a Colorado corporation and “an
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`owner” of Faces, and (7) Theresa Collins, who is not otherwise identified but who allegedly
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`resides in Colorado (collectively, “Defendants”). (Id. ¶¶ 3, 8–13).
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`Temescal alleges that between July and December 2019, “Defendants, collectively,
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`spoke with Temescal and, multiple times, Defendants promised to repay the stolen money.”
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`(Id. ¶ 21). Ultimately Faces “failed to repay all funds” it owed Temescal “despite repeated
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`demands and multiple promises to pay.” (Id. ¶ 22). Temescal does not, however, offer any
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`2
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`Case 1:20-cv-03648-GLR Document 53 Filed 10/04/21 Page 3 of 21
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`other information about these payment discussions; the above details represent all of
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`Temescal’s factual allegations.3
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`On December 17, 2020, Temescal filed suit against Defendants in this Court.
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`Temescal’s Complaint alleges claims for breach of contract against Faces and Cassese
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`(Count I); fraud against Faces and Cassese (Count II); conversion against all Defendants
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`(Count III); unjust enrichment against all Defendants (Count IV); and civil conspiracy
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`3 Below is the complete “Factual Allegations” section of Temescal’s Complaint:
`18. Faces is a national payroll and related services provider for
`the payroll industry. Faces contracts with multiple employers
`to process employee payrolls by handling the payroll funds to
`remit payment for Federal and State taxes, employee benefits
`and direct deposit by depositing those funds directly into the
`bank accounts of the clients’ employees.
`19. In the Spring of 2019, through investigation, [Temescal]
`learned and Faces admitted that Faces had failed to make
`employee related Federal and State tax and related deposits
`during the period of March 2018-September 2018 in excess of
`$115,000.
`20. Faces, instead of paying Federal and State payroll and
`related tax payments, utilized Temescal’s money, and the
`money of Temescal employees, for its own benefit and use.
`21. From July 2019 through December 2019, Defendants,
`collectively, spoke with Temescal and, multiple times,
`Defendants promised to repay the stolen money.
`22. Faces has failed to repay all funds due and owing to
`Temescal, despite repeated demands and multiple promises to
`pay Temescal.
`23. Defendants’ unlawful conduct has caused more than
`$115,000 in damages to Temescal, in addition to attorneys’
`fees and expenses that Temescal has incurred and will incur as
`a result of the ripple effect of Defendants’ actions.
`(Compl. ¶¶ 18–23).
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`3
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`Case 1:20-cv-03648-GLR Document 53 Filed 10/04/21 Page 4 of 21
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`against all Defendants (Count V). (Id. ¶¶ 24–56). Temescal seeks compensatory damages,
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`punitive damages, interest, costs, and attorneys’ fees. (Id. ¶¶ 30, 38–39, 45–46, 50–52, 56).
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`Temescal also seeks a temporary restraining order, a preliminary injunction, a permanent
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`injunction, and restitution of at least $135,000. (Id. ¶ 51).
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`Defendant B44, LLC filed a Motion to Dismiss on January 26, 2021 (ECF No. 13)
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`and Temescal voluntarily dismissed all claims against it on February 11, 2021 (ECF No.
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`19). The Court approved the dismissal and denied B44, LLC’s motion as moot on February
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`12, 2021. (ECF No. 20). Defendant Theresa Enebo Collins filed a Motion to Dismiss on
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`February 4, 2021 (ECF No. 17) and Temescal dismissed all claims against her on February
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`22, 2021. (ECF No. 28). The Court approved the dismissal and denied Collins’s motion as
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`moot on February 22, 2021. (ECF No. 30). Temescal also voluntarily dismissed its claims
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`against Defendants Holly Sitienei and Wizard, LLC on February 22, 2021. (ECF Nos. 26,
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`29). Presently, Temescal has active claims against Defendants Faces, Casesse, Voegler,
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`and Heyman.
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`On March 4, 2021, Defendant Cassese filed a Motion to Dismiss (ECF No. 33) for
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`failure to state a claim on which relief may be granted4 and Temescal filed its Opposition
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`on March 15, 2021 (ECF No. 38). To date, Cassese has not filed a Reply. On March 19,
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`2021, Defendant Heyman moved to dismiss for lack of personal jurisdiction and for failure
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`to state a claim. (ECF No. 39). Temescal filed its Opposition on April 2, 2021 (ECF No.
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`4 Defendant Cassese also preserved his defense of improper venue under Rule
`12(b)(3). (Def. Cassese Mot. Dismiss at 2).
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`4
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`Case 1:20-cv-03648-GLR Document 53 Filed 10/04/21 Page 5 of 21
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`43) and Heyman filed his Reply on April 15, 2021 (ECF No. 47). Finally, on March 18,
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`2021, Defendant Voegler filed a Motion to Dismiss for lack of subject-matter jurisdiction,
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`lack of personal jurisdiction, and failure to state a claim. (ECF No. 40). On March 26, 2021,
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`Temescal filed its Opposition (ECF No. 41) and on April 9, 2021, Voegler filed his Reply
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`(ECF No. 44).
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`On July 16, 2021, Temescal filed a Suggestion of Bankruptcy of Defendant Faces,
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`(ECF No. 52), stating that Faces filed bankruptcy in May 2020. Temescal indicated that its
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`notice was “without effect on any of [its] claims against parties other than Faces Human
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`Capital, LLC,” (Suggestion Bankruptcy Defendant Faces at 1, ECF No. 52), namely,
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`Defendants Cassese, Voegler, and Heyman.
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`II. DISCUSSION
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`A.
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`Standard of Review
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`1.
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`Subject-Matter Jurisdiction
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`Federal Rule of Civil Procedure 12(b)(1) governs motions to dismiss for lack of
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`subject-matter jurisdiction. A defendant challenging a complaint under Rule 12(b)(1) may
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`advance a “facial challenge, asserting that the allegations in the complaint are insufficient
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`to establish subject matter jurisdiction, or a factual challenge, asserting ‘that the
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`jurisdictional allegations of the complaint [are] not true.’” Hasley v. Ward Mfg., LLC, No.
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`RDB-13-1607, 2014 WL 3368050, at *1 (D.Md. July 8, 2014) (alteration in original)
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`(quoting Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009)).
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`When a defendant raises a facial challenge, the Court affords the plaintiff “the same
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`procedural protection as he would receive under a Rule 12(b)(6) consideration.” Kerns,
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`5
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`585 F.3d at 192 (quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). As such,
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`the Court takes the facts alleged in the complaint as true and denies the motion if the
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`complaint alleges sufficient facts to invoke subject-matter jurisdiction.
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`With a factual challenge, the plaintiff bears the burden of proving the facts
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`supporting subject-matter jurisdiction by a preponderance of the evidence. United States
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`ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009). In determining whether the
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`plaintiff has met this burden, the Court “is to regard the pleadings’ allegations as mere
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`evidence on the issue, and may consider evidence outside the pleadings without converting
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`the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.
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`Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) (citing Adams, 697 F.2d at 1219).
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`Nevertheless, the Court applies “the standard applicable to a motion for summary
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`judgment, under which the nonmoving party must set forth specific facts beyond the
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`pleadings to show that a genuine issue of material fact exists.” Id. (citing Trentacosta v.
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`Frontier Pac. Aircraft Indus., Inc., 813 F.2d 1553, 1559 (9th Cir. 1987)). The movant
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`“should prevail only if the material jurisdictional facts are not in dispute and the [movant]
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`is entitled to prevail as a matter of law.” Id. (citing Trentacosta, 813 F.2d at 1558). Unlike
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`under the summary judgment standard, however, the Court is permitted to decide disputed
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`issues of fact, Kerns, 585 F.3d at 192, and weigh the evidence, Adams, 697 F.2d at 1219.
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`2.
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`Personal Jurisdiction
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`Federal Rule of Civil Procedure 12(b)(2) governs motions to dismiss for lack of
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`personal jurisdiction. When a non-resident defendant challenges a court’s power to
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`exercise jurisdiction, “the jurisdictional question is to be resolved by the judge, with the
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`6
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`Case 1:20-cv-03648-GLR Document 53 Filed 10/04/21 Page 7 of 21
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`burden on the plaintiff ultimately to prove grounds for jurisdiction by a preponderance of
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`the evidence.” Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs. Inc., 334 F.3d 390, 396
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`(4th Cir. 2003) (citing Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 59–60 (4th Cir. 1993)).
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`“Yet when, as here, the district court decides a pretrial personal jurisdiction dismissal
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`motion without an evidentiary hearing, the plaintiff need prove only a prima facie case of
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`personal jurisdiction.” Mylan Labs., 2 F.3d at 60 (citing Combs v. Bakker, 886 F.2d 673,
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`676 (4th Cir. 1989)). In determining whether the plaintiff has proved a prima facie case of
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`personal jurisdiction, the Court “must draw all reasonable inferences arising from the
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`proof, and resolve all factual disputes, in the plaintiff’s favor.” Id. (citing Combs, 886 F.2d
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`at 676). Additionally, a court is permitted to consider evidence outside the pleadings when
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`resolving a Rule 12(b)(2) motion. Structural Pres. Sys., LLC v. Andrews, 931 F.Supp.2d
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`667, 671 (D.Md. 2013) (citing Silo Point II LLC v. Suffolk Const. Co., 578 F.Supp.2d 807,
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`809 (D.Md. 2008)). The court does not have to “credit conclusory allegations or draw
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`farfetched inferences” in deciding jurisdictional disputes. Rao v. Era Alaska Airlines, 22
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`F.Supp.3d 529, 534 (D.Md. 2014) (quoting Tharp v. Colao, No. WDQ-11-3202, 2012 WL
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`1999484, at *1 (D.Md. June 1, 2012)).
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`3.
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`Failure to State a Claim
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`The purpose of a Rule 12(b)(6) motion is to “test[] the sufficiency of a complaint,”
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`not to “resolve contests surrounding the facts, the merits of a claim, or the applicability of
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`defenses.” King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (quoting Edwards v.
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`City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). A complaint fails to state a claim if
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`it does not contain “a short and plain statement of the claim showing that the pleader is
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`7
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`Case 1:20-cv-03648-GLR Document 53 Filed 10/04/21 Page 8 of 21
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`entitled to relief,” Fed.R.Civ.P. 8(a)(2), or does not “state a claim to relief that is plausible
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`on its face,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
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`v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff
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`pleads factual content that allows the court to draw the reasonable inference that the
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`defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
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`“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
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`statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Though the plaintiff is
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`not required to forecast evidence to prove the elements of the claim, the complaint must
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`allege sufficient facts to establish each element. Goss v. Bank of Am., N.A., 917 F.Supp.2d
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`445, 449 (D.Md. 2013) (quoting Walters v. McMahen, 684 F.3d 435, 439 (4th Cir.
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`2012)), aff’d, 546 F.App’x 165 (4th Cir. 2013).
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`In considering a Rule 12(b)(6) motion, a court must examine the complaint as a
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`whole, consider the factual allegations in the complaint as true, and construe the factual
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`allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266, 268
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`(1994); Lambeth v. Bd. of Comm’rs, 407 F.3d 266, 268 (4th Cir. 2005) (citing Scheuer
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`v. Rhodes, 416 U.S. 232, 236 (1974)). But the court need not accept unsupported or
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`conclusory factual allegations devoid of any reference to actual events, United
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`Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979), or legal conclusions couched
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`as factual allegations, Iqbal, 556 U.S. at 678.
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`8
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`Case 1:20-cv-03648-GLR Document 53 Filed 10/04/21 Page 9 of 21
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`B.
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`Analysis
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`1.
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`Subject-Matter Jurisdiction
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`Defendant Voegler argues that Temescal does not plead facts sufficient to establish
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`diversity jurisdiction in its Complaint, leaving this Court without subject-matter
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`jurisdiction to hear this matter. (Voegler Mot. Dismiss at 6). Voegler contends that “where
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`a plaintiff is an ‘unincorporated association,’ such as an LLC, and alleges diversity
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`jurisdiction, it bears the burden of alleging the citizenship of all of its members.” (Id.).
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`Voegler adds that Temescal did not “allege the citizenship of all of its members” for
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`purposes of determining diversity and therefore the Court should dismiss Temescal’s
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`Complaint for lack of subject-matter jurisdiction. (Id. at 7). Temescal does not
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`substantively respond to Voegler’s 12(b)(1) argument but instead counters that the Court
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`entered default with respect to Defendant Voegler and therefore we should not rule on
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`Voegler’s Motion to Dismiss until Voegler files a Motion to Set Aside the Judgment of
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`Default under Rule 55(c). (Temescal Resp. Opp’n Def. Voegler Mot. Dismiss [“Temescal’s
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`Opp’n Voegler Mot.”] at 1, ECF No. 41). Temescal’s argument has since been rendered
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`moot; Voegler filed a Motion to Vacate Default on April 9, 2021 (ECF No. 45), which the
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`Court granted on April 12, 2021. (ECF No. 46).
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`Although only Defendant Voegler has raised the question of subject-matter
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`jurisdiction, “a federal court has an independent obligation to assess” its power to hear a
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`case. Constantine v. Rectors & Visitors George Mason Univ., 411 F.3d 474, 480 (4th Cir.
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`2005). If a court determines that it does not have subject-matter jurisdiction over a dispute,
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`“the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3). The statute providing for
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`9
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`Case 1:20-cv-03648-GLR Document 53 Filed 10/04/21 Page 10 of 21
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`federal diversity jurisdiction states that district courts have “original jurisdiction of all civil
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`actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of
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`interest and costs, and is between . . . citizens of different states.” 28 U.S.C. § 1332(a)(1).
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`Diversity jurisdiction typically “requires complete diversity among the parties, meaning
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`that the citizenship of every plaintiff must be different from the citizenship of every
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`defendant.” Cent. W. Va. Energy Co. v. Mountain State Carbon, LLC, 636 F.3d 101, 103
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`(4th Cir. 2011).
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`The United States Supreme Court has held that a limited partnership is a citizen of
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`the state or states in which its partners are citizens. Carden v. Arkoma Assocs., 494 U.S.
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`185, 195 (1990); JBG/JER Shady Grove, LLC v. Eastman Kodak Co., 127 F.Supp.2d 700,
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`701 (D.Md. 2001) (applying Carden, 494 U.S. at 195–96). “[D]iversity jurisdiction in a
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`suit by or against [an artificial entity] depends on the citizenship of ‘all the members.’”
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`Carden, 494 U.S. at 195 (quoting Chapman v. Barney, 129 U.S. 677, 682 (1889)).
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`Moreover, “when jurisdiction depends on citizenship, citizenship should be ‘distinctly and
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`affirmatively alleged.’” U.S. Agrisoil, LLC v. Kreloff, No. JKB-20-2454, 2021 WL
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`409789, at *2 (D.Md. Feb. 5, 2021) (quoting Toms v. Country Quality Meats, Inc., 610
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`F.2d 313, 316 (5th Cir. 1980)).
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`Here, Temescal fails to distinctly and affirmatively allege the citizenship of its own
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`members. Further, Temescal fails to allege the citizenship of the members of Defendant
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`Faces. In its Complaint, Temescal baldly asserts that this Court has jurisdiction to hear this
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`matter, stating:
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`Case 1:20-cv-03648-GLR Document 53 Filed 10/04/21 Page 11 of 21
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`16. This Court has jurisdiction of this action pursuant to 28
`USC § 1332(a)(1) in that this is an action between citizens of
`different states and the amount in controversy exceeds
`$75,000, exclusive of interest and costs.
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`17. Venue is proper in the Northern District of Maryland as
`Temescal operates and maintains an ongoing business in
`Maryland, Faces conducted business in Maryland as a payroll
`company, and Sitienei is a resident of Maryland. Moreover,
`many of the acts or omissions that give rise to this claim
`occurred in Maryland.
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`(Compl. ¶¶ 16–17). But these statements are insufficient to adequately allege diversity
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`jurisdiction in a case that involves two LLCs as named parties. Also, instead of attempting
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`to remedy its failure, Temescal entirely ignores Defendant Voegler’s jurisdictional
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`argument in its Opposition. Accordingly, because Temescal has failed to provide the Court
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`with necessary information regarding the members of the LLCs for diversity purposes, this
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`action must be dismissed as to all Defendants for Temescal’s failure to plead subject-matter
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`jurisdiction.
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`Even if Temescal had adequately pleaded a basis for this Court’s jurisdiction,
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`however, its Complaint would fail for the reasons set forth below.
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`2.
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`Personal Jurisdiction
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`Both Voegler and Heyman allege that Temescal’s Complaint must be dismissed
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`because the Court lacks personal jurisdiction over them. (See Voegler Mot. Dismiss at 8;
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`Heyman Mot. Dismiss at 3). At bottom, the Court agrees. In reviewing whether it has
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`personal jurisdiction over a non-resident defendant, the Court looks to the state’s long arm
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`statute and tenets of due process:
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`11
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`Case 1:20-cv-03648-GLR Document 53 Filed 10/04/21 Page 12 of 21
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`Before a court can exercise personal jurisdiction over a non-
`resident defendant, a court must determine that (1) the exercise
`of jurisdiction is authorized under the state’s long-arm statute
`pursuant to Federal Rule of Civil Procedure 4(k)(1)(A), and (2)
`the exercise of jurisdiction conforms to the Fourteenth
`Amendment’s due process requirements.
`
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`Under Armour, Inc. v. Battle Fashions, Inc., 294 F.Supp.3d 428, 432 (D.Md. 2018) (citing
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`Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003)).
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`Maryland courts “have consistently held that a state’s long-arm statute is coextensive with
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`the limits of personal jurisdiction set out by the Due Process Clause of the Constitution.”
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`Carefirst of Md., 334 F.3d at 396. To satisfy the first prong, the “plaintiff must specifically
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`identify a provision in the Maryland long-arm statute that authorizes jurisdiction.” Under
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`Armour, 294 F.Supp.3d at 432 (citing Ottenheimer Publishers, Inc. v. Playmore, Inc., 158
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`F.Supp.2d 649, 652 (D.Md. 2001)). “[T]o the extent that a defendant’s activities are
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`covered by the statutory language, the reach of the statute extends to the outermost
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`boundaries of the due process clause.” Ottenheimer, 158 F.Supp.2d at 652 (quoting Joseph
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`M. Coleman & Assoc., Ltd. v. Colonial Metals, 887 F.Supp. 116, 119 n.2 (D.Md. 1995)).
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`Temescal does not identify Maryland’s long-arm statute in its Complaint, let alone
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`the particular provision upon which it relies to provide the basis of its claim that this Court
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`has personal jurisdiction over Defendants Voegler and Heyman. Moreover, as was the case
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`with Defendant Voegler’s 12(b)(1) argument, Temescal entirely ignores the Defendants’
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`personal jurisdiction arguments in its oppositions to the Defendants’ respective motions.
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`This Court has consistently held that by failing to respond to an argument made in a motion
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`to dismiss, a plaintiff abandons his or her claim. See O’Reilly v. Tsottles, No. GLR-18-
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`12
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`Case 1:20-cv-03648-GLR Document 53 Filed 10/04/21 Page 13 of 21
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`3622, 2021 WL 424415, at *7 (D.Md. Feb. 8, 2021) (citing cases). Accordingly, Temescal
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`has failed to allege that this Court has personal jurisdiction over Defendants Voegler and
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`Heyman.
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`3.
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`Failure to State a Claim
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`Even if Temescal had properly plead jurisdiction, Temescal’s claims against
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`Defendants Cassese, Heyman, and Voegler are subject to dismissal for failure to state a
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`claim. The Court addresses each cause of action in turn.
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`a.
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`Breach of Contract
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`In its Complaint, Temescal asserts a claim for breach of contract against Defendants
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`Faces and Cassese (Count I). “To state a claim for breach of contract, the plaintiff must
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`show that the defendant owed him a contractual obligation and that the defendant breached
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`that obligation.” All Weather, Inc. v. Optical Sci., Inc., 443 F.Supp.3d 656, 666 (D.Md.
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`2020) (citing Thaler v. Donald J. Trump for President, Inc., 304 F.Supp.3d 473, 477 (D.Md.
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`2018)). Further, “[t]he claim must ‘allege with certainty and definiteness facts showing a
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`contractual obligation.’” Yarn v. Hamburger L. Firm, LLC, No. RDB-12-3096, 2014 WL
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`2964986, at *3 (D.Md. June 30, 2014) (quoting RRC Ne., LLC v. BAA Md., Inc., 994
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`A.2d 430, 442 (Md. 2010)).
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`Cassese argues in his Motion to Dismiss that Temescal does not allege in its
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`Complaint that he was a party to an agreement with Temescal or that he materially breached
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`any agreement. (Def. Cassese Mot. Dismiss at 4). Further, Cassese argues that Temescal
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`does not raise a theory of personal liability as to any agreement between Faces and
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`Temescal. (Id.). Temescal responds that Cassese was a party to the contract with Faces and
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`Case 1:20-cv-03648-GLR Document 53 Filed 10/04/21 Page 14 of 21
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`that Cassese breached that agreement by failing to properly process payroll, among other
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`things. (Resp. Opp’n Def. Cassese’s Mot. Dismiss [“Temescal’s Opp’n Cassese Mot.”] at
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`3). Temescal further alleges that Cassese “orchestrated and approved” the breach for his
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`personal benefit. (Id.). Temescal does not address Cassese’s argument regarding personal
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`liability in its Opposition. (See id. at 3–4).
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`Temescal’s claim for breach of contract against Cassese is insufficient. In its
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`Opposition, Temescal cites to its Complaint and argues that it properly alleges that Cassese
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`was a party to the contract. But the Complaint does not say what Temescal now asserts.
`
`Temescal cites to paragraphs two, eight, and fourteen, which state as follows:
`
`2. Faces is a payroll company which processed the payroll of
`the Plaintiff between March 1, 2018 and September 2018,
`having served numerous clients around the United States.
`Pursuant to Faces[’] contractual relationship with Plaintiff,
`Faces was to process the payroll of the Plaintiff, move
`approved funds from the Plaintiff to the Faces account(s) and
`from the Faces account(s) pay employees’ taxes to the State
`and Federal Governments, pay employee benefits as directed
`and to initiate direct deposits to the bank accounts of Plaintiff’s
`employees.
`
` .
`
` . . .
`
`8. Cassese is a citizen and resident of Englewood, Colorado
`and is the CEO/Manager of Faces.
`
` .
`
` . . .
`
`14. Each individual defendant was the agent, servant and/or
`employee of each other defendant, and in connection with the
`conduct herein alleged, was acting within the course and scope
`of such agency, and that each defendant ratified each and every
`act or omission and by each and every defendant.
`
`14
`
`
`
`
`
`Case 1:20-cv-03648-GLR Document 53 Filed 10/04/21 Page 15 of 21
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`(Compl. ¶¶ 2, 8, 14). Temescal then cites to paragraphs in its Complaint indicating that
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`“Temescal and Faces entered into an agreement (“Agreement”) to process payroll,” that
`
`Faces agreed to process its payroll, and that Faces breached the contract by, among other
`
`things, “[f]ailing to pay the State and Federal employee taxes.” (Id. ¶¶ 25, 27–28)
`
`(emphasis added). Nonetheless, Temescal argues in its Opposition that it “detailed the
`
`agreement between [Temescal] and Cassese.” (Temescal’s Opp’n Cassese Mot. at 3).
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`Even construing the factual allegations in the light most favorable to the plaintiff,
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`the Court cannot find support for Temescal’s allegations. At best, Temescal may be
`
`implicitly relying on paragraph fourteen of its Complaint, which alleges that Cassese was
`
`an agent of Faces. (Id.; Compl. ¶ 14). But paragraph fourteen is a sweeping, generalized
`
`legal conclusion that asserts equal responsibility among each individually named
`
`Defendant for the contract between Temescal and Faces. “A court considering a motion to
`
`dismiss may begin by identifying allegations that, because they are mere conclusions, are
`
`not entitled to the assumption of truth.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S.
`
`at 555). Legal conclusions in a complaint are permissible when they are supported by
`
`“well-pleaded factual allegations.” Id. The Court is not, however, “bound to accept as true
`
`a legal conclusion couched as a factual allegation.” Id. (quoting Twombly, 550 U.S. at
`
`555). Here, paragraph fourteen is a legal conclusion unsupported by factual allegations and,
`
`as such, is not entitled to the assumption of truth.
`
`Additionally, Temescal’s allegation in its Complaint that Cassese “orchestrated and
`
`approved of this theft, for the benefit of Faces, and for his own personal benefit” is similarly
`
`insufficient. (Compl. ¶ 29). Temescal does not offer any facts suggesting that Cassese
`
`15
`
`
`
`Case 1:20-cv-03648-GLR Document 53 Filed 10/04/21 Page 16 of 21
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`participated in or benefitted from Faces’ failure to pay State and Federal taxes on behalf of
`
`Temescal’s employees. Moreover, because Faces is a limited liability company, Cassese
`
`can only be responsible for Faces’ contractual obligations if he was personally liable to the
`
`contract. See Balt. Line Handling Co. v. Brophy, 771 F.Supp.2d 531, 544 (D.Md. 2011).
`
`Temescal offers only a bare assertion that Cassese is liable under the contract, a
`
`“conclusion[] masquerading as [a] factual allegation[].” Id. (holding that a plaintiff who
`
`provided “bare assertions” to support an allegation of personal liability failed to meet the
`
`pleading requirements under Iqbal and Twombly). Temescal fails to include a factual basis
`
`for Cassese’s personal liability for breach of contract in its Complaint and moreover
`
`neglects to address personal liability in its Opposition. Temescal’s claim for breach of
`
`contract is subject to dismissal as to Defendant Cassese.
`
`b.
`
`Fraud
`
`Temescal asserts a claim for fraud against Defendants Faces and Cassese (Count II).
`
`“In alleging fraud or mistake, a party must state with particularity the circumstances
`
`constituting fraud or mistake.” Fed.R.Civ.P. 9(b). In order to meet this heightened pleading
`
`standard, a plaintiff “must, at a minimum, describe 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.” My Nat’l Tax & Ins. Servs., Inc. v. H&R Block Tax Servs., Inc., 839
`
`F.Supp.2d 816, 818 (D.Md. 2012) (quoting United States ex rel. Wilson v. Kellogg Brown
`
`& Root, Inc., 525 F.3d 370, 379 (4th Cir. 2008)). “These facts are often referred to as the
`
`‘who, what, when, where, and how’ of the alleged fraud.” Id.
`
`16
`
`
`
`Case 1:20-cv-03648-GLR Document 53 Filed 10/04/21 Page 17 of 21
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`Temescal alleges in its Complaint that Cassese’s “continued theft of Temescal’s
`
`money without making the requisite Federal and State tax deposits included the conversion
`
`of Temescal’s employee payroll to [his] own benefit[] and use.” (Compl. ¶ 32). It then
`
`alleges that “[a]fter [his] unlawful and improper acts were discovered, . . . Cassese
`
`represented that the stolen money would be reimbursed,” and that Temescal has never been
`
`reimbursed for the “stolen” money. (Id. ¶ 34). Temescal refers to Cassese’s “false
`
`representations and multiple concealments,” “multiple communications,” and “intentional
`
`misrepresentations” and asserts that those representations caused it to suffer damages. (Id.
`
`¶¶ 35–39). Like Temescal’s breach of contract claim, Temescal fails to provide any factual
`
`basis for these assertions. At best, Temescal indicates that “[f]rom July 2019 through
`
`December 2019, Defendants, collectively, spoke with Temescal and, multiple times,
`
`Defendants promised to repay the stolen money.” (Id. ¶ 21). Temescal provides no
`
`additional information to shed light on the communications that took place within that six-
`
`month window—it offers no dates or specific parties, nor does it provide the substance or
`
`methods of the communications. Its contention that Cassese engaged in “concealments”
`
`and “misrepresentations” is therefore unsupported, leaving the Court unable to discern the
`
`basic “who, what, when, where, and how” of the alleged fraud. Temescal fails to meet the
`
`pleading requirements under Federal Rule of Civil Procedure 9(b) and accordingly,
`
`Temescal’s fraud claim is subject to dismissal.
`
`c.
`
`Conversion
`
`Temescal asserts a claim for conversion against all Defendants (Count III). Under
`
`Maryland law, conversion consists of two elements, “a physical act combined with a certain
`
`17
`
`
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`Case 1:20-cv-03648-GLR Document 53 Filed 10/04/21 Page 18 of 21
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`state of mind.” Ark. Nursing Home Acquisition, LLC v. CFG Cmty. Bank, 460 F.Supp.3d
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`621, 646 (D.Md. 2020) (quoting Neal v. Pentagon Fed. Credit Union, No. ELH-18-451,
`
`2018 WL 5786119, at *19 (D.Md. Nov. 5, 2018)). The physical component requires “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.” Id. The intent element involves “an
`
`intent to exercise a dominion or control over the goods which is in fact inconsistent with
`
`the plaintiff’s rights.” Id. Therefore, for a plaintiff to successfully state a claim for
`
`conversion, he must allege that “he . . . had a property interest in property that was allegedly
`
`converted.” Id. (quoting Brass Metal Prods., Inc. v. E-J Enters., 984 A.2d 361, 378
`
`(Md.Ct.Spec.App. 2009)).
`
`Money “is generally not subject to conversion claims.” Id. An exception exists,
`
`however, for “specific segregated or identifiable funds.” Allied Inv. Corp. v. Jasen, 731
`
`A.2d 957, 966 (Md. 1999). Here, Temescal seeks repayment of the $115,000 it alleges
`
`Faces was bound to pay the State and Federal government for taxes under the agreement.
`
`However, Temescal does not allege that the money is in the form of “specific funds that
`
`ar