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Jerome Grant Ii v. Bac Home Loans Servicing

September 30, 2011


The opinion of the court was delivered by: Robert L. Wilkins United States District Judge



Pro se Plaintiff Jerome Grant II ("Grant") has filed his "Amended Complaint for Damages for Fraudulent Foreclosure and Other Equitable Relief" against Defendants BAC Home Loans Servicing LP ("BAC"), Howard Bierman ("Bierman")*fn2 , and Mark Johnson ("Johnson"). Plaintiff's claims are somewhat incomprehensible, but appear to arise from events surrounding the origination and eventual foreclosure of the mortgage secured by Plaintiff's home. Plaintiff's Amended Complaint alleges what appear to be three theories of liability. First, Plaintiff alleges that neither BAC nor Bierman were entitled to sell his property because they lacked standing to institute foreclosure proceedings. Second, Plaintiff claims that his obligation under the mortgage had been discharged due to the fraudulent conduct of the lender.*fn3 Third, Plaintiff alleges that, because Bierman lacked standing to foreclose on Plaintiff's property, Bierman violated the Fair Debt Collections Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., when it instituted foreclosure proceedings.

Defendants have moved to dismiss the complaint under Rules 12(b)(2), 12(b)(6) and 12(c). For the reasons set forth below, Defendants' Motions to Dismiss (Docket Nos. 6, 10, & 23) are granted. Accordingly, Plaintiff's Amended Complaint is dismissed with prejudice.*fn4

A.Claims against Mark Johnson

Mark Johnson has moved to dismiss the Amended Complaint pursuant to Rule 12(b)(2) for lack of personal jurisdiction.

When personal jurisdiction is challenged under Rule 12(b)(2), the plaintiff bears the burden of establishing a factual basis for the Court's exercise of personal jurisdiction over each defendant. Crane v. N.Y. Zoological Soc'y, 894 F.2d 454, 456 (D.C. Cir. 1990). To establish that personal jurisdiction exists, the plaintiff must allege specific facts that connect the defendant with the forum. Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001). In determining whether a plaintiff has demonstrated that personal jurisdiction exists, the Court is not bound to treat all of the plaintiff's allegations as true, but instead "may receive and weigh affidavits and other relevant matter to assist in determining the jurisdictional facts." United States v. Philip Morris Inc., 116 F. Supp. 2d 116, 120 n. 4 (D.D.C. 2000).

This court may assert personal jurisdiction over a non-resident defendant only if the District of Columbia's long-arm statute authorizes it and to the extent permitted by due process. Plaintiff's opposition brief asserts that the Court has personal jurisdiction over Johnson under D.C Code § 13-423(a)(1) because, in his role as CEO of Florida Capital's Mortgage division, Johnson transacts business in the District of Columbia.*fn5

Specifically, Plaintiff alleges that "Mark Johnson as CEO, by his agents, engaged in multiple transactions in the District of Columbia regarding the alleged loan." (Plt.'s Mot. to Strike at 4). However, Plaintiff has alleged no facts to establish that Johnson had personal contacts with the District of Columbia. Plaintiff attempts to create jurisdiction by attributing the actions of Florida Capital to Johnson. For example, Plaintiff asserts that "Florida Capital, under management, direction and supervision of its CEO, directly or by his agents, transacted business in the District of Columbia when it paid property taxes to the Office of Tax and Revenue for the District of Columbia." Id. (emphasis in original). Plaintiff goes on to assert that Mark Johnson's involvement in the generation of mortgage records, which involves mortgage loans for the Mortgage Division of Florida Capital, belies the claim for which he is not involved in Plaintiff's mortgage. Plaintiff's alleged mortgage has originated with Florida Capital under the CEO's authority[ ].

Id. at 5. Clearly, Plaintiff's allegations oregarding Johnsons' contacts with the District are related solely to Johnson's employment with Florida Capital.

In arguing that sufficient contacts do not exist for personal jurisdiction to attach in the District of Columbia, Johnson asserts that he works and resides in the state of Florida. (Johnson's Mot. Dismiss, Johnson Aff. ¶ 9). Johnson also states that he had "no personal contact, involvement, or communication with, in, or on any of the alleged facts an [sic] circumstances in [Plaintiff's] pleadings." Id. ¶ 7. Johnson further states:

[n]one of my duties have pertained to anything having to do with the District of Columbia or the plaintiff, his residence, or his Loan. And had any of my duties pertained to the plaintiff, his residence, or his Loan, those duties would have seen me acting in my official employment capacity and not under any circumstances in my personal capacity. Id. ¶ 16.

"Personal jurisdiction over the employees or officers of a corporation in their individual capacities must be based on their personal contacts with the forum and not their acts and contacts carried out solely in a corporate capacity." Wiggins v. Equifax, 853 F. Supp. 500, 503 (D.D.C. 1994); see Nat'l Cmty. Reinvestment Coal. v. NovaStar Financial, Inc., 631 F. Supp. 2d 1, 5 (D.D.C. 2009) ("An individual's role as a corporate officer, without more, is not a sufficient basis for exercising personal jurisdiction over the officer in his individual capacity.").

Plaintiff has alleged no facts to rebut Johnson's assertions that he has not transacted business in the District of Columbia. The fact that Johnson may have acted in a supervisory or managerial capacity with respect to Florida Capitol's contacts with the District-which has not been established here-also fails to create personal jurisdiction because these acts would have been carried out within the scope of Johnson's employment. Thus, Plaintiff has failed to meet its burden of ...

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