Judith Sams v. Entrust Arizona, LLC , 591 F. App'x 229 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1722
JUDITH SAMS, individually and on behalf of a class of
similarly situated persons,
Plaintiff – Appellant,
v.
ENTRUST ARIZONA, LLC, now known as Vantage Retirement
Plans, LLC; THE ENTRUST GROUP, INC.; ENTRUST
ADMINISTRATION, INC.; HUGH BROMMA; FIRST TRUST COMPANY OF
ONAGA; MECHANICS BANK; JUAN PABLO DAHDAH,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:13-cv-01311-JFM)
Submitted: January 15, 2015 Decided: February 4, 2015
Before GREGORY, AGEE, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis M. Leibowitz, LAW OFFICES OF LOUIS M. LEIBOWITZ,
Rockville, Maryland; David K. Dorenfeld, Michael Brown, SNYDER
DORENFELD, LLP, Agoura Hills, California; Cathy J. Lerman, CATHY
JACKSON LERMAN, PA, Coral Springs, Florida, for Appellant.
Mark E. Terman, Joseph C. Faucher, DRINKER BIDDLE & REATH LLP,
Los Angeles, California; Brian A. Coleman, DRINKER BIDDLE &
REATH LLP, Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Judith Sams, on behalf of a class of similarly
situated persons, appeals the district court’s order dismissing
her complaint for failure to state a claim. Sams’ suit alleged
conversion and breach of contract/rescission claims against The
Entrust Group, Inc., Entrust Administration, Inc., Entrust
Arizona, Inc. (now known as Vantage Retirement Plans, Inc.),
Mechanics Bank, and First Trust Company of Onaga; and fraudulent
concealment, civil RICO, breach of fiduciary duty, and
constructive fraud claims against the aforementioned parties, as
well as Hugh Bromma and Juan Pablo Dahdah. The district court
held that Sams could not state a claim for (1) conversion,
because the Defendants did not exercise dominion or control over
Sams’ investments, and money is not the proper subject of a
conversion action under Maryland law; (2) civil RICO violations,
because there was no causal connection between the Defendants’
allegedly improper conduct and Sams’ damages; (3) breach of
contract, because the Defendants actually complied with the
contract terms; or (4) breach of fiduciary duty or
(5) fraudulent concealment, because the Defendants owed no duty
to Sams. We affirm the district court’s judgment.
In 2007, Sams opened a self-directed individual
retirement account (SDIRA), through which she invested with Mike
Watson, the manager of an alleged Ponzi scheme. The Defendants
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either are, or are associated with, the custodians and/or
administrators of Sams’ SDIRA.
We review “de novo the grant of a Rule 12(b)(6) motion
to dismiss for failure to state a claim.” Epps v. JP Morgan
Chase Bank, N.A., 675 F.3d 315, 320 (4th Cir. 2012). “To
survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
First, Sams challenges the district court’s basis for
dismissing her breach of contract/rescission claims. Our review
of the record confirms that Sams identified neither a provision
of the contract that Appellees breached nor grounds for
rescinding the contract. Accordingly, we conclude that the
district court did not err in dismissing these claims.
Second, Sams argues that the district court wrongly
dismissed her conversion claims. Initially, we note that Sams
has failed to challenge the district court’s holding that money
is not the proper subject of a conversion action under Maryland
law. Therefore, she has waived review of this issue on appeal.
See Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th
Cir. 1999) (holding that failure to raise issue in opening brief
forfeits appellate review).
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In any event, our review of the record shows no
evidence that Appellees physically exercised ownership or
dominion over Sams’ property. See Darcar Motors of Silver
Spring, Inc. v. Borzym, 841 A.2d 828, 835-36 (Md. 2004) (noting
that such showing is required to state claim for conversion in
Maryland). We therefore hold that the district court properly
dismissed Sams’ conversion claims.
Finally, Sams contends that the district court should
not have dismissed her fraudulent concealment, constructive
fraud, or breach of fiduciary duty claims. But we have reviewed
the evidence and agree that Sams presents no basis on which to
find that Appellees owed a duty to Sams. See Patton v. United
States of Am. Rugby Football, 851 A.2d 566, 574 (Md. 2004)
(explaining that, under Maryland law, “[t]he element of
dependence and ceding of self-control by the injured party” must
usually be present for one to owe duty to prevent harm by third
party). We thus conclude that the district court properly
dismissed Sams’ fraudulent concealment, constructive fraud, and
breach of fiduciary duty claims.
For the foregoing reasons, the judgment of the
district court is affirmed. We dispense with oral argument
because the facts and legal contentions are adequately presented
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in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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