Kissi v. Panzer

• Decision Date: 23 October 2009
• Docket Number: Civil Action No. 08-1870 (RBW).
• Citation: 664 F.Supp.2d 120
• Parties: David KISSI, Plaintiff, v. David PANZER, et al., Defendants.
• Court: U.S. District Court — District of Columbia

664 F.Supp.2d 120

David KISSI, Plaintiff, v. David PANZER, et al., Defendants.

Civil Action No. 08-1870 (RBW).

United States District Court, District of Columbia.

October 23, 2009.

David Kissi, Washington, DC, pro se.

Sanford M. Saunders, Jr., Greenberg Traurig LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.

This matter is before the Court on the joint motion to dismiss filed on behalf of defendants EMC Mortgage Corporation and David Panzer, Esq.¹ For the reasons discussed below, the Court will grant the defendants' motion and will dismiss this action as against all the defendants.

I. BACKGROUND

In order to place the allegations of the plaintiff's complaint in context, the Court refers to a prior decision in a related case Plaintiff David Kissi ("Kissi") and his wife, Edith R. Truvillion ("Truvillion"), purchased real property at 4303 Ammendale Road in Beltsville, Maryland (the "Ammendale Road property") in December 1999 for $110,000 with funding from Ameriquest of California. In 2004, Kissi and Truvillion secured a mortgage on the property of $210,000 from Wells Fargo Bank, N.A., of which approximately $100,000 was a cash payment to the mortgagors. On August 16, 2004, Truvillion executed a Promissory Note, and both Kissi and Truvillion executed a Deed of Trust securing the Promissory Note. The Promissory Note provided for an adjustable interest rate. EMC Mortgage Corporation ("EMC") became the holder of the Promissory Note, and EMC appointed Joseph V. Buonassissi, II ("Buonassissi") and others as substitute trustees in July 2005.

Kissi v. EMC Mortgage Corp., 627 F.Supp.2d 27, 29-30 (D.D.C.2009) (internal citations to the record omitted), appeal docketed, No. 09-7077 (D.C.Cir. July 21, 2009). The plaintiff and his wife defaulted on the loan, and on July 27, 2005, Buonassissi and the other substitute trustees initiated foreclosure proceedings in the Circuit Court for Prince George's County, Maryland. Id. David Panzer, Esq. ("Panzer") represented EMC in the foreclosure case and in the appeal of the foreclosure case before the Maryland Court of Special Appeals.² Memorandum in Support of EMC Mortgage Corporation and David Panzer's Joint Motion to Dismiss ("Defs.' Mem."), Exhibit ("Ex.") 1 ("Panzer Decl.") ¶ 4.

In this action, the plaintiff alleges that EMC, Panzer, and the seven other defendants "conspired in bad faith to fraudulently acquire the [p]laintiff's property located at 4303 Ammendale Rd., Beltsville, MD" in violation of 18 U.S.C. §§ 1952 and 1957 (2006). Complaint ("Compl.") at 2. He further alleges that Elias and Cecilia Osefo purchased the Ammendale Road property at a foreclosure sale for $310,000 and, in turn, sold the property to Patrick Ogbiede for $421,000 in a transaction involving William Ampofo, Benedict Akanegbu and Avalar Smart Choice Realty. Id.

According to the plaintiff, "the [d]efendants have developed a pattern of taking various assets of mainly African American property owners through perjury and false pretenses." Id. at 3. The Osefos allegedly obtained "a subsidized interest rate loan because they had sworn falsely that 4303 Ammendale was going to be their principal residence," yet they "never lived there even though Federal/Maryland credit statutes require homeowners who are beneficiaries of government housing programs to stay put in such properties as their principal residence[s]." Id. at 2. "The new buyer, Patrick Ogbiede[,] subsequently lost the same property through foreclosure in 2008 after claiming it as his principal residence, but never living in it, thereby defrauding the lender." Id. at 3.

In this action, the plaintiff demands "82% of the net proceeds" of the Osefos' sale of the Ammendale Road property to Ogbiede, plus damages of $10 million. Id. at 3.

II. DISCUSSION³

On November 5, 2008, EMC and Panzer filed a joint motion to dismiss on three grounds: (1) that the Court lacks personal jurisdiction over them, (2) that venue in this district is improper, and (3) that the complaint fails to state a claim upon which relief can be granted.⁴ Defs.' Mem. at 7-13, 19-22. On December 1, 2008, the plaintiff filed a document entitled, "A 28 U.S.C. § 1746 Affidavit (# 1901) Supplement to Opposition to Dismiss Request for Transfer to Maryland" [Dkt. #6], with exhibits, which the Court construes collectively as his opposition to the defendants' motion to dismiss ("Pl.'s Opp'n"). However, this opposition offers no meaningful response to the arguments the defendants set forth in their motion. Instead, the plaintiff's submission pertains almost entirely to the criminal and bankruptcy proceedings in the United States District Court and the United States Bankruptcy Court for the District of Maryland, and refers to parties who are not named defendants to this action. See generally Pl.'s Opp'n at 1-5. The Maryland proceedings have concluded, and this Court has no authority to review them or to relieve the plaintiff of their consequences.

Because the plaintiff's opposition fails to address the defendants' arguments, the Court may treat the defendants' motion as conceded. See Palmer v. GMAC Commercial Mortgage, 628 F.Supp.2d 186, 193 (D.D.C.2009) (citing Fox v. Am. Airlines, Inc., 295 F.Supp.2d 56, 58 (D.D.C.2003), aff'd, 389 F.3d 1291 (D.C.Cir.2004)) ("Where a party addresses some but not all arguments raised in a motion to dismiss, courts in this district treat such arguments as conceded."); Delaney v. District of Columbia, 612 F.Supp.2d 38, 41 n. 3 (D.D.C.2009) (granting as conceded two motions to dismiss because the plaintiff failed to file a response to them); Buggs v. Powell, 293 F.Supp.2d 135, 141 (D.D.C. 2003) (holding that "when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded"); Stephenson v. Cox, 223 F.Supp.2d 119, 122 (D.D.C.2002) (dismissing various counts of complaint as conceded, noting that "[t]he court's role is not to act as an advocate for the plaintiff and construct legal arguments on his behalf in order to counter those in the motion to dismiss."). Nevertheless, because the plaintiff is proceeding pro se, the Court will address each argument briefly.

A. The Court Lacks Personal Jurisdiction Over the Defendants

"A District of Columbia court may exercise personal jurisdiction over a person domiciled in, organized under the laws of, or maintaining his or its principal place of business in, the District of Columbia as to any claim for relief." D.C.Code § 13-422(2001). It is the plaintiff's burden to make a prima facie showing that the Court has personal jurisdiction over the defendants. See First Chicago Int'l v. United Exch. Co., 836 F.2d 1375, 1378-79 (D.C.Cir.1988); Walton v. Bureau of Prisons, 533 F.Supp.2d 107, 112 (D.D.C.2008). Moreover, the "[p]laintiff must allege specific facts on which personal jurisdiction can be based; [he] cannot rely on conclusory allegations." Moore v. Motz, 437 F.Supp.2d 88, 91 (D.D.C.2006) (citations omitted).

The complaint makes no allegations as to defendants' domicile in, organization under the laws of, or the maintenance of a principal place of business in the District of Columbia. Panzer is "an attorney employed by the law firm Greenberg Traurig, LLP[,]" Defs.' Mem., Panzer Decl. ¶ 1, and "is a resident of the Commonwealth of Virginia," id. ¶ 3. EMC "is a Texas corporation, incorporated in Texas, with its principal place of business in Texas." Defs.' Mem., Ex. 2 (Campbell Decl.) ¶ 3. Although EMC has a registered agent in Maryland, id. ¶ 4, it has no record of having been served process, id. ¶ 5. The plaintiff lists a Maryland address for each of the remaining defendants. See Compl. at 1 (caption).

In this situation, the Court must engage in a two-part inquiry to determine whether it may exercise personal jurisdiction over non-resident defendants. First, the Court must determine whether jurisdiction may be exercised under the District of Columbia's long-arm statute. See GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C.Cir.2000). Second, the Court must determine whether the exercise of personal jurisdiction satisfies the requirements of due process. Id. (citing United States v. Ferrara, 54 F.3d 825, 828 (D.C.Cir.1995)). This second component of the analysis turns on whether a defendant's "minimum contacts" with the District of Columbia establish that "the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (internal quotation marks and citations omitted). These minimum contacts must arise from "some act by which the defendant purposefully avails [himself] of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Asahi Metal Indus. Co., Ltd. v. Super. Ct. of Cal., Solano Cty., 480 U.S. 102, 109, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). In other words, "the defendant's conduct and connection with the forum State are such that [he] should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

The District of Columbia long-arm statute allows the Court to exercise personal jurisdiction over a non-resident defendant with regard to a claim arising from the defendant's conduct in:

(1) transacting business in the District of Columbia;

(2) contracting to supply services in the District of Columbia;

(3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia;

(4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or...