Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Perkins v. Bennett

United States District Court, Sixth Circuit

November 12, 2013

CRAIG PERKINS, Plaintiff,
v.
LARRY BENNETT, et al., Defendants.

MEMORANDUM OPINION AND ORDER

THOMAS B. RUSSELL, Senior District Judge.

This matter is before the Court upon Defendants Larry Bennett, Dwight Bennett, and Advance Mortgage Source, Inc.'s Motion to Dismiss for Lack of Personal Jurisdiction. (Docket No. 5.) Plaintiff Craig Perkins has responded, (Docket No. 6), and Defendants have replied, (Docket No. 7). This matter is now ripe adjudication. For the reasons that follow, Defendants' Motion will be GRANTED.

BACKGROUND

Plaintiff Craig Perkins (Perkins) filed his original complaint in Jefferson Circuit Court on June 12, 2013, against Defendants Larry Bennett; Dwight Bennett; Advance Mortgage Source, Inc., d/b/a South Carolina Mortgage Associates (SCMA); William Marango (Marango); and Mojave Property Management, LLC (Mojave). (Docket No. 1-1.) Defendants[1] removed this action on July 9, 2013, on the basis of diversity jurisdiction. (Docket No. 1.) Much of the facts pertinent to Defendants' instant Motion do not appear disputed. Regardless, for purposes of this Opinion, the Court will presume that all of the factual allegations in Perkins' Complaint are true.

Perkins is a Kentucky resident, Larry Bennett and Dwight Bennett are South Carolina residents, and SCMA is a South Carolina corporation. Larry Bennett worked in SCMA's Beaufort, South Carolina, office as a loan officer. Dwight Bennett was the President of SCMA between 1999 and 2012, and worked in the company's offices in Spartanburg and Hilton Head, South Carolina. Marango is a California resident, and Mojave is a Nevada limited liability company. Marango and Mojave have not entered an appearance or otherwise responded to this litigation.

Perkins was contacted via telephone in early July 2010 by Larry Bennett, who stated that SCMA was seeking investors for an "ultra safe" investment in a ski resort. Perkins was again contacted by Larry Bennett in late July 2010 and advised that the investment would involve loaning $150, 000 to Marango and Mojave, who would then use those funds to secure financing as a down payment to purchase the Wolf Ridge Ski Resort in Mars Hill, North Carolina. In return, Perkins would receive a return on his investment after the closing on the ski resort. In a separate phone call, Larry Bennett advised Perkins that Marango and Mojave would secure the investment through an interest in an apartment complex Mojave owned in Limestone, Aroostook County, Maine, which would be used as collateral. Perkins inquired as to the value of the apartment complex collateral, and Larry Bennett represented that the complex was listed for sale for over $1, 200, 000, was worth more than $1, 000, 000, and was encumbered by one mortgage in the amount of $150, 000. Perkins avers that at this point, he had only dealt with Larry Bennett and had not spoken to either Marango or Mojave.

On July 29, 2010, Perkins received an email from Larry Bennett containing the listing for the apartment complex and stating, "We will have the paperwork over to you in the morning." Perkins responded via email the following day and requested copies of the proposed loan agreement and the title search for the apartment complex. Larry Bennett replied via email, advising Perkins that they were still waiting on the title search. On August 4, 2010, Larry Bennett emailed Perkins the Mortgage Note and Mortgage Deed for the apartment complex, as well as wiring instructions for Perkins to wire the $150, 000 to a bank in South Carolina. Pursuant to the Mortgage Note, which was executed by Marango on behalf of Mojave, Mojave agreed to pay Perkins $150, 000 plus $40, 000 in interest from the proceeds of the sale of the ski resort. (Docket No. 1-1, at 22-23.) Larry Bennett informed Perkins via telephone that after the funds were transferred and the Mortgage Note was executed, he would personally file the Mortgage Note and Mortgage Deed in the state and county where the apartment complex was located. Perkins then wired the $150, 000 as instructed.

On August 9 and August 13, 2010, Perkins emailed Larry Bennett asking if a closing date for the ski resort had been established, but Perkins did not receive a response. On September 24, 2010, Perkins was copied on an email from Larry Bennett to Marango in which Larry Bennett provided Marango with Perkins' address in Louisville, Kentucky, stating "below is the address to send the money to." Perkins emailed Larry Bennett on September 28, 2010, inquiring as to the status of the monthly payments under the Mortgage Note. On September 30, 2010, Larry Bennett emailed Perkins the Federal Express tracking number for payment under the Mortgage Note. On October 4, 2010, Perkins received a $500 check from Marango, individually, for late fees under the Mortgage Note. When Perkins attempted to negotiate the check, it was returned for insufficient funds (NSF). Perkins then contacted Larry Bennett to advise him of the NSF check and to request a copy of the recorded deed. Larry Bennett emailed Perkins on October 4, 2010, stating that he would speak to Marango and would send Perkins a copy of the Mortgage Note and Mortgage Deed. Perkins emailed Larry Bennett again on October 13, 2010, to request an update on the status of the recorded Mortgage Note and Mortgage Deed. Larry Bennett responded, stating that his attorney had not filed the Mortgage Note and Mortgage Deed and that he, Larry Bennett, would personally record the deed. Perkins again contacted Larry Bennett on October 19, 2010, regarding the status of the recorded Mortgage Note and Mortgage Deed, but received no response. Perkins then contacted the registry of deeds in Aroostook County, Maine, and was informed that no Mortgage Note or Mortgage Deed had been recorded. That same day, October 19, Perkins sent a copy of the Mortgage Note and Mortgage Deed via overnight service to the registry in Aroostook County, Maine. The Mortgage Note and Mortgage Deed were recorded the following day on October 20, 2010.

Between October 2010 and May 2011, Perkins and Larry Bennett exchanged approximately ten emails and, according to Perkins, "hundreds of telephone calls" in which Larry Bennett promised Perkins that the closing of the ski resort would occur in the near future and assured Perkins that his investment was secure. In June 2011, Perkins contacted Dwight Bennett, President of SCMA, regarding the events surrounding the loan and Perkins' dealings with Larry Bennett. On June 28, 2011, Dwight Bennett, on behalf of SCMA, sent a letter signed by himself and Larry Bennett to Perkins, advising Perkins that the closing on the ski resort was "imminent." Dwight Bennett also advised Perkins that he, Larry Bennett, and another SCMA employee would receive $180, 000 in commission upon the closing. Dwight Bennett offered Perkins half of that commission ($90, 000) in exchange for not filing a lawsuit against Defendants. Perkins refused that offer, and he and Dwight Bennett continued to negotiate the terms of settlement via email and telephone over the next several days. Ultimately, no agreement was reached. Then in November 2011, Dwight Bennett contacted Perkins to inquire whether Perkins wanted to invest up to $1, 500, 000 in the ski resort in exchange for a "relatively fast bonus" of $500, 000 plus 10% of Dwight Bennett's company. Perkins refused that offer.

According to Perkins, between July 2010 and November 2011, he exchanged a total of approximately 40 emails and over 300 phone calls with Larry Bennett and Dwight Bennett. During that time, Perkins states that he spoke to Marango on only two occasions, both of which were after Marango had tendered an NSF check to Perkins.

Defendants now move to dismiss Perkins' Complaint for lack of personal jurisdiction over them. In support of their Motion, Larry Bennett and Dwight Bennett each have submitted signed Declarations.[2] In his Declaration, Larry Bennett states: (1) that he has never traveled to or spent time in Kentucky, and has only entered Kentucky on occasions where he had connecting flights through the Cincinnati/Northern Kentucky International Airport; (2) that neither he nor SCMA has conducted any business in Kentucky at any time; (3) that SCMA did not maintain offices in or have employees or agents in Kentucky; (4) that SCMA did not solicit business or advertise in Kentucky; (5) that SCMA conducted business solely in South Carolina, Georgia, and North Carolina, and did not seek to conduct business outside those states; (6) that neither he nor SCMA has ever owned real property in Kentucky; (7) that he never transacted business in Kentucky either prior to, during, or after his employment with SCMA; (8) that his only in-person meeting with Perkins occurred in South Carolina in early 2012; and (9) that he was located in South Carolina at all times when he communicated with Perkins. (Docket No. 5-2.) Dwight Bennett, in his Declaration, states: (1) that he has never traveled to or spent any time in Kentucky; (2) that neither he nor SCMA have every conducted any business in Kentucky; (3) that SCMA did not maintain offices in or have employees or agents in Kentucky; (4) that SCMA did not solicit business or advertise in Kentucky; (5) that SCMA conducted business solely in South Carolina, Georgia, and North Carolina, and did not seek to conduct business outside those states; (6) that neither he nor SCMA has ever owned real property in Kentucky; (7) that he never transacted business in Kentucky either prior to, during, or after his employment with SCMA; (8) that he has never met Perkins in person; (9) that he was unaware of the Mortgage Note and Mortgage Deed and related events until approximately June 2011; and (10) that he was located in South Carolina at all times when he communicated with Perkins via email or telephone. (Docket No. 5-3.)

STANDARD

In considering a motion to dismiss under Fed.R.Civ.P. 12(b)(2), the plaintiff, as the party asserting personal jurisdiction, bears the burden of establishing that such jurisdiction exists. E.g., Air Prods. & Controls, Inc. v. Safetech Int'l, Inc., 503 F.3d 544, 549 (6th Cir. 2007). When a district court resolves a motion to dismiss for lack of personal jurisdiction by relying on written submissions and affidavits rather than holding an evidentiary hearing, the plaintiff is only required to make a prima facie showing that personal jurisdiction exists to defeat the motion. Id. ; Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir. 2002). To meet that burden, the plaintiff must "establish[] with reasonable particularity sufficient contacts between [the defendant] and the forum state to support jurisdiction." Neogen, 282 F.3d at 887 (quoting Provident Nat'l Bank v. Cal. Fed. Savings Loan Ass'n, 819 F.2d 434, 437 (3d Cir. 1987)). Without a hearing, the court must construe the pleadings and affidavits in the light most favorable to the plaintiff, CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir. 1996), and cannot "consider facts proffered by the defendant that conflict with those offered by the plaintiff, " Neogen, 282 F.3d at 887. However, a plaintiff may not rely on his pleadings to answer the movant's affidavits, "but must set forth, by affidavit or otherwise... specific facts showing that the court has jurisdiction." Serras v. First Tenn. Bank Nat'l Ass'n, 875 F.2d 1212, 1214 (6th Cir. 1989) (citing Weller v. Cromwell Oil Co., 504 F.2d 927, 929 (6th Cir. 1974)).

DISCUSSION

The Sixth Circuit recognizes that personal jurisdiction may be either "specific" or "general, " depending on the nature of the defendant's contacts with the forum state. E.g., Gerber v. Riordan, 649 F.3d 514, 517 (6th Cir. 2011). In his Complaint, Perkins asserts that "[j]urisdiction is proper pursuant to Section 112 of the Constitution of the Commonwealth of Kentucky and Kentucky Revised Statute 454.210." (Docket No. 1-1, at 6.) Thus, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.