Randy R. Pinner v. Mona H. Pinner, et al., No. 16, September Term, 2019

Randy R. Pinner v. Mona H. Pinner, et al., No. 16, September Term, 2019, Opinion by
Booth, J.
COURTS – PERSONAL JURISDICTION – SPECIFIC JURISDICTION –
CONSENT TO BE SUED – The filing and prosecution in Maryland of a single toxic tort
suit by a North Carolina resident and her late husband was not purposeful availment in the
forum state that amounted to consent to be sued there.
COURTS – PERSONAL JURISDICTION – SPECIFIC JURISDICTION –
CONSTITUTIONAL REASONABLENESS – It was not constitutionally reasonable for
a Maryland court to exercise personal jurisdiction over a North Carolina resident based
upon her prosecution of a prior Maryland lawsuit. The North Carolina resident did not
travel to Maryland to prosecute the lawsuit but relied upon her lawyers to take all necessary
actions there; the claims in the instant suit are not connected to the claims raised in the tort
suit; and the ultimate resolution of the claims in the instant suit involve the application of
North Carolina law.
APPLICATION OF “OTHER COURSE OF CONDUCT” PROVISION OF
MARYLAND LONG ARM STATUTE – The filing of a single lawsuit did not constitute
a “course of conduct” under subsection (b)(4) of Maryland’s long arm statute, Courts and
Judicial Proceedings Article (“CJ”) § 6-103; the lawsuit constituted a limited, discrete
quantum of activity.
Case No.: 24-C-16-000247
OF MARYLAND
No. 16
Barbera, C.J.
Specially Assigned),
Filed: March 3, 2020
sara.rabe
Draft
This case requires the determination of whether the Circuit Court for Baltimore City
erred in exercising in personam jurisdiction over the defendant, Mona Pinner, a North
Carolina resident. The case was filed by Randy Pinner, Mona’s1 stepson, who is also a
North Carolina resident. In the proceedings below, Randy obtained a default judgment
against Mona, in the amount of nearly $100,000.
Prior to the instant litigation, Edwin Pinner, Mona’s late husband and Randy’s
father, and Mona, filed suit in the Circuit Court for Baltimore City, seeking damages for
personal injuries caused by Edwin’s asbestos exposure (the “Asbestos Case”). After
Edwin’s death from mesothelioma, the Asbestos Case was converted to a wrongful death
and survival action on behalf of Mona, individually, and as personal representative of the
Estate of Edwin F. Pinner (“the Estate”). Mona and Edwin were represented by Mary H.
Keyes, Esq., and the Keyes Law Firms, LLC (collectively, “the Keyes Defendants”).
Approximately two years after the Asbestos Case was filed, by agreement with Ms. Keyes,
the law firm of Napoli Bern Ripka Shkolnick & Associates, LLP (“the Napoli Firm”)
assumed responsibility for the case.
After Mona added a wrongful death claim to the Asbestos Case, she failed to timely
serve notice on Randy, pursuant to Maryland Rule 15-1001, and she did not name him as
a use plaintiff. When Randy was subsequently notified of the suit, he moved to intervene,
but was barred from doing so by the statute of limitations. Mona settled the Asbestos Case
1 For ease of discussion, we shall refer to the Pinners by their first names.
2
with certain defendants, and she received settlement proceeds, but did not deposit those
funds into Edwin’s Estate in North Carolina.
Consequently, Randy filed the instant action in the Circuit Court for Baltimore City
asserting claims of negligence against Mona, the Keyes Defendants, and the Napoli
Defendants, as well as claims for aiding and abetting, negligent retention and supervision,
and respondeat superior against some of the Keyes Defendants and the Napoli Defendants.
The circuit court granted motions to dismiss for failure to state a claim upon which relief
could be granted against the Keyes Defendants and the Napoli Defendants.
Mona failed to respond and Randy’s request for an order of default was granted.
After Mona unsuccessfully moved to vacate the order of default, the court held a damages
inquisition hearing over two days, determined that it had personal jurisdiction over Mona,
and entered a default judgment in favor of Randy for $99,856.84.
In a reported opinion, the Court of Special Appeals reversed the circuit court’s
decision with respect to the finding of personal jurisdiction and remanded the case with
direction that the circuit court vacate the default judgment and enter an order dismissing
the claims against Mona for lack of jurisdiction. Pinner v. Pinner, 240 Md. App. 90, 98
(2019). The Court of Special Appeals affirmed the dismissal of the claims against the
Keyes Defendants and the Napoli Defendants. Id.
Randy petitioned for writ of certiorari, which we granted to consider the following
question, which we have rephrased:2
2 The question presented in the petition for writ of certiorari was:
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over Mona?
For the reasons set forth within, we hold that the circuit court erred in exercising
personal jurisdiction over Mona and we affirm the decision of the Court of Special Appeals.
I. BACKGROUND
The Court of Special Appeals succinctly summarized the relevant facts in its
reported opinion in the present case, Pinner, 240 Md. App. at 98–103, which we paraphrase
as follows.
In 1952 and 1953, Edwin Pinner was exposed to asbestos while working at an
insulating plant in Baltimore, Maryland. In August 2009, Edwin was diagnosed with
mesothelioma. He lived with his wife, Mona, in North Carolina. Edwin had one biological
son, Randy, from a prior marriage who also lives in North Carolina.
On February 23, 2010, Edwin and Mona, through counsel3, filed suit in the Circuit
Court for Baltimore City against numerous defendants, including two of Edwin’s former
Did the Circuit Court for Baltimore City abuse its discretion in
holding that an out-of-state defendant had sufficient contact
through her attorneys for specific personal jurisdiction under
the Maryland long arm statute for failing to name a use plaintiff
and give the notice required by Md. Rule 15-1001 in a
protracted, still continuing wrongful death case that the out-of-
state resident initiated in the same Maryland court and from
which she received hundreds of thousands of dollars in
settlements?
3 At all times during the pendency of the Asbestos Case, Edwin and Mona were
represented by counsel. In September 2009, Edwin and Mona retained the services of Mary
H. Keyes, Esq. and the Keyes Law Firms, LLC. In March 2012, Ms. Keyes entered into
an agreement with Napoli Bern Ripka Shkolnik, LLP (“the Napoli Firm”) whereby they
agreed to assume responsibility for all aspects of the Asbestos Case.
4
employers headquartered in Baltimore City—Continental Wire and Inland Steel—alleging
that he had been directly exposed to asbestos while working for those companies. During
discovery, Edwin and Mona identified Randy as Edwin’s only biological son in answers to
interrogatories.
In October 2010, eight months after suit was filed, Edwin died from mesothelioma.
In December 2010, Mona was appointed personal representative of Edwin’s Estate in the
General Court of Justice, Superior Court Division, Buncombe County, North Carolina. She
listed the Asbestos Case as property of the Estate.
Two and one-half years after Edwin died, on April 24, 2013, Mona, through counsel,
amended her complaint to add a claim for wrongful death. In Maryland, “[o]nly one
action” shall lie for the wrongful death of a person and it “shall be for the benefit of the
wife, husband, parent and child of the deceased person.” Md. Code (1974, 2013 Repl.
Vol., 2019 Cum. Supp.), Courts and Judicial Proceedings Article (“CJ”), § 3-904(a)(1); (f).
Pursuant to Maryland Rule 15-1001(b), “[a]ll persons who are or may be entitled by law
to claim damages by reason of the wrongful death shall be named as plaintiffs whether or
not they join in the action.” If a potential wrongful death beneficiary is not joined in the
action, the words “to the use of” should precede their name. Md. Rule 15-1001(b). The
party bringing the wrongful death action is required to serve a copy of the complaint on
each use plaintiff, along with a notice explaining their right to join the action. Md. Rule
15-1001(d). Randy was not named as a use plaintiff in the amended complaint nor was he
5
served with a copy of the amended complaint or the notice required by Maryland Rule 15-
1001(d).4
Over a year later, in June 2014, two of the defendants in the Asbestos Case moved
to dismiss the wrongful death count of the amended complaint on the ground that Mona
had failed to name Randy as a use plaintiff. In response to that motion, in July 2014, Mona,
through counsel, filed by consent a second amended complaint. The second amended
complaint substituted Mona, individually and as personal representative of the Estate, as
the only plaintiff, and added Randy as a use plaintiff in the wrongful death count. In July
2014, three years and eight months after Edwin’s death, Mona, through counsel, served
Randy with a copy of the complaint and the Rule 15-1001(d) notice. Within 60 days,
4 The notice required by Maryland Rule 15-1001(d) provides as follows:
You may have a right under Maryland law to claim an award
of damages in this action. You should consult Maryland Code,
§ 3-904 of the Courts Article for eligibility requirements. Only
one action on behalf of all individuals entitled to make a claim
is permitted. If you decide to make a claim, you must file with
the clerk of the court in which this action is pending a motion
to intervene in the action in accordance with the Maryland
Rules no later [than] the earlier of (1) the applicable deadline
stated in § 3-904(g) and § 5-201(a) of the Courts Article [“the
statutory deadline”] or (2) 30 days after being served with the
complaint and this Notice if you reside in Maryland, 60 days
after being served if you reside elsewhere in the United States,
or 90 days after being served if you reside outside of the United
States [the “served notice deadline”]. You may represent
yourself, or you may obtain an attorney to represent you. If the
court does not receive your written motion to intervene by the
earlier of the applicable deadlines, the court may find that you
have lost your right to participate in the action and claim any
recovery.
6
Randy moved to intervene in the Asbestos Case. The defendants opposed his intervention
on the ground that his claim was barred by the applicable statute of limitations. In October
2014, the circuit court entered an order permitting Randy to intervene for the limited
purpose of conducting discovery related to the statute of limitations issue. In July 2015,
the circuit court entered an order denying his motion to intervene as being barred by the
applicable statute of limitations.
II. PROCEEDINGS BELOW
In January 2016, Randy filed the instant case against Mona and her attorneys in the
Circuit Court for Baltimore City. Randy alleged sixteen counts against Mona and her
attorneys5 based on their failure to name him as a use plaintiff and provide him with notice
of the wrongful death action under Maryland Rule 15-1001. Although both Randy and
Mona resided in North Carolina and the law firms were organized in New York and
Delaware, Randy filed the suit in Maryland. Randy alleged personal jurisdiction over the
parties under Maryland’s long arm statute, CJ § 6-103.
5 The various law firms and attorneys who were named as defendants in the
proceedings below were Mary H. Keyes and the Keyes Law Firm, LLC (“Keyes
Defendants”) and Napoli Bern Ripka Shkolnik, LLP, Napoli Bern Ripka Shkolnik &
Associates, LLP, Napoli Bern, LLP, Napoli Bern & Associates, LLP, Napoli Bern Ripka,
LLP, Napoli Bern Ripka & Associates, LLP, Law Offices of Napoli Bern Ripka, Shkolnik,
LLP, Law Offices of Napoli Bern Ripka & Associates, LLP, Law Offices of Napoli Bern,
LLP, Paul J. Napoli, Marc J. Bern, Alan S. Ripka, Hunter J. Shkolnik, Ethan Horn, Napoli
Shkolnik, PLLC, Napoli Shkolnik & Associates, PLLC, Napoli Shkolnik, LLP, Bern
Ripka, LLP, Paul Napoli Law, PLLC, Marc Bern Law, PLLC, Marie Kaiser, PLLC, Napoli
Law, PLLC, Napoli & Partners, PLLC, Hunter J. Shkolnik Attorney at Law, PLLC, and
Jason M. Weiner (“Napoli Defendants”).
7
Counts I, II, and IV pertained to Mona, individually and as personal representative
of the Estate. Count I asserted that Mona negligently failed to name Randy as a use plaintiff
in violation of Maryland Rule 15-1001. Count II alleged that she breached her fiduciary
duties as personal representative of the Estate under North Carolina law by failing to
provide notice under Maryland Rule 15-1001 and failing to distribute a share of the
settlement monies from the Asbestos Case to Randy, a statutory beneficiary of the Estate.
Count IV alleged that Mona was vicariously liable for the tortious acts and omissions of
her attorneys.
Counts II, V, VI, VII, VIII, IX, X, XI, and XII all pertained to the law firms
representing Mona. The claims against the law firms and individual attorneys included
negligence for failure to name Randy as a use plaintiff, negligent retention and supervision,
aiding and abetting Mona’s breach of Maryland Rule 15-1001 and her breach of fiduciary
duty, and vicarious liability for the tortious conduct and omissions of individual attorneys.
The law firms moved to dismiss the counts filed against them. After a hearing, the
circuit court granted the law firms’ motions to dismiss with prejudice. The court found
that there was no attorney-client relationship to provide Randy with standing to sue as a
third-party beneficiary between Mona and her attorneys. Further, the court found that
Randy failed to state a claim for the remaining counts because Maryland law did not
recognize the claims as independent causes of action or cognizable under Maryland law.
Randy served Mona with private process in North Carolina on March 14, 2016.
Mona failed to file a responsive pleading. On November 28, 2016, Randy filed a request
for an order of default, which the circuit court granted. The court sent Mona a notice of
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the order and advised her that she could move to vacate the order within 30 days. Through
her attorney, Mona moved to vacate the order on February 22, 2017. The circuit court
denied her motion and set a damages inquisition hearing.
In March 2017, Randy filed an inquisition hearing memorandum that focused on the
applicability of the law of North Carolina. The memorandum summarized North Carolina
statutes concerning the authority of a personal representative to bring a wrongful death
action and the beneficiaries to such an action, the fiduciary duties applicable under North
Carolina law, and argued that the law governing fiduciary duties in North Carolina must
govern because Edwin was domiciled in North Carolina at the time of his death, and the
events giving rise to the tort action against Mona occurred in North Carolina. Randy further
stated that North Carolina law provides for a cause of action in tort against a personal
representative or trustee for breaches of fiduciary duty and recognizes a claim for damages
as a result. He cited to North Carolina statutes for the amount of recovery to which he
believed that he was entitled under the North Carolina Intestate Succession Act and
submitted damages calculation worksheets outlining the amount to which he contended he
was entitled.
On May 3, 2017, the court held a damages inquisition hearing. Randy appeared
with counsel (as did representatives of the defendant law firms), but Mona did not appear.
The circuit court sua sponte raised the issue of personal jurisdiction, and then granted a
continuance to allow Randy’s counsel to brief the issue of personal jurisdiction. Prior to
the continuance, the court heard arguments from Randy’s counsel and received evidence
of the damages allegedly incurred by Randy. On the damages issue, Randy’s counsel noted
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that the part of the case alleging Mona’s negligence arising out of the Maryland rule
violation had “fallen by the wayside in a sense[]” and that the damages portion of the case
focused on Mona’s breach of her fiduciary duties under North Carolina law. The evidence
presented to the trial court on the issue of damages consisted of: Randy’s testimony; an
affidavit signed by Randy; a certified copy of portions of the North Carolina probate file;
and two affidavits of Mona’s counsel reflecting the amounts of the payments that Mona
received from the settlement.6 The only testimony was from Randy. In response to
questions by counsel, Randy testified that Edwin passed away on October 30, 2010, that
he was his father’s only child, and that he had not received any payments from Mona since
his father passed away.
The hearing resumed on July 26, 2017. Randy’s counsel attended. Mona again did
not appear. At the outset, the court determined that it had jurisdiction over Mona and heard
arguments on damages.7 After the court concluded that it had jurisdiction, Randy’s counsel
summarized North Carolina probate law and Mona’s fiduciary duties as the personal
representative of the North Carolina Estate. Randy’s counsel provided damages
calculation worksheets based upon North Carolina statutes. At the end of the hearing, the
court ordered Mona to pay Randy $99,856.84, representing one-half of the settlement
6 The affidavits of counsel were filed under seal due to the confidentiality provisions
of the settlement.
7 The trial court did not make any findings on the record concerning the
jurisdictional issue. Rather, the court simply stated that it would accept Randy’s counsel’s
memorandum on jurisdiction and that “the Court accepts jurisdiction and I no longer have
a question concerning it.”
10
proceeds on the wrongful death claim, less a $60,000 spousal deduction under North
Carolina law. The parties filed a timely appeal and cross-appeal.
On the issue of personal jurisdiction, the Court of Special Appeals considered
whether Mona’s sole contact with Maryland—the filing and prosecution of the Asbestos
Case—was sufficient to establish specific jurisdiction under the Maryland long arm statute,
CJ § 6-103(b)(4), and comported with due process. Pinner v. Pinner, 240 Md. App. 90,
107 (2019). Consistent with our jurisprudence on matters concerning specific jurisdiction
and due process considerations, the Court of Special Appeals analyzed Mona’s contact
within the three-prong framework outlined in Beyond Systems, Inc. v. Realtime Gaming
Holding Co., 388 Md. 1, 22 (2005). Pinner, 240 Md. App. at 107. The Court of Special
Appeals held that Mona had insufficient contacts with Maryland to justify the exercise of
specific jurisdiction. Id. at 113. The Court of Special Appeals remanded the case with
directions for the court to vacate the judgment and enter an order dismissing the claims
against Mona.8 Id.
Randy petitioned for writ of certiorari, which we granted. For the reasons set forth
herein, we affirm the judgment of the Court of Special Appeals.
8 The Court of Special Appeals also considered a cross-appeal by Randy, who
contended that the circuit court erred in dismissing his claims against Mona’s former
attorneys—the Keyes Defendants and the Napoli Defendants. The intermediate appellate
court affirmed the circuit court’s dismissal of all claims against these defendants. Pinner
v. Pinner, 240 Md. App. 90, 115 (2019). The dismissal of the claims against the Keyes
Defendants and the Napoli Defendants are not part of this appeal.
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A. Standard of Review
The defense of lack of personal jurisdiction is a question of law. See CSR, Ltd. v.
Taylor, 411 Md. 457, 472 (2009) (noting that the issue of personal jurisdiction is typically
collateral to the merits). Accordingly, we review de novo a trial court’s legal conclusion
as to whether the trial court may exercise personal jurisdiction over a defendant. Dynacorp
Ltd. v. Aramtel Ltd., 208 Md. App. 403, 477 (2012). Randy, as the plaintiff, bears the
burden of establishing personal jurisdiction. See CSR, Ltd., 411 Md. at 467 n.2; see also
Beyond Sys., 388 Md. at 11 (noting that the plaintiff must make a prima facie showing of
personal jurisdiction by a preponderance of the evidence).
B. Parties’ Contentions
Randy alleges that Mona’s…