Tuesday, February 27, 2007
Upon consideration of a Joint Petition for Disbarment by Consent, the Court of Appeals ordered that the respondent be disbarred by consent from the further practice of law in Maryland, and that the Clerk of the Court of Appeals shall strike him from the register of attorneys and certify same to the Trustees of the Client Protection Fund and the Clerks of all judicial tribunals in the State.
The Order is available in PDF format.
In an appeal of the denial of Social Security Disability Insurance Benefits ("DIB"), the court held that the failure to consider plaintiff's obesity in combination with her other impairments (hypertension, diabetes, and peripheral neuropathy) violated Social Security Administration (the "Agency") regulations and rulings and Fourth Circuit precedent. In so doing, the court declined to accept the harmless error principle sometimes applied in other circuits when the Agency has failed to factor obesity into the determination of severity.
An Administrative Law Judge ("ALJ") must follow a five-step sequential evaluation in reviewing a claim for DIB. In this case, the ALJ stopped after the second step, explicitly considering only plaintiff's hypertension, diabetes and peripheral neuropathy and concluding that plaintiff did not have a "severe" impairment or combination of impairments. The court found, however, that the record contained evidence of other conditions, including difficulty walking unaided and obesity, that either individually or in combination with others could support a finding of a severe impairment.
Fourth Circuit precedent holds that an applicant for DIB need only make a "de minimis" showing to meet the severity standard. Applying that standard, the court held that the ALJ did not properly consider medical evidence of plaintiff's problems in walking. On the obesity issue, the court noted that some courts have found harmless error when an ALJ fails to discuss an applicant's obesity, even though Agency rules require the consideration of obesity. The court declined to apply the harmless error principle for three reasons: the principle has not been discussed or adopted by the Fourth Circuit; the facts in the harmless error cases could be distinguished from the case at bar; and the Fourth Circuit and Agency regulations are clear regarding the de minimis standard to be used in determining the severity of an impairment. The court remanded the case to the ALJ to re-evaluate the second step "severity" determination by looking at the combined effects of all of plaintiff's impairments. Furthermore, if plaintiff's impairments, either individually or in combination, are found to be severe, the court directed the ALJ to consider plaintiff's obesity at steps three, four and five of the evaluation process.
The Memorandum Opinion is available in PDF.
Tobacco Technology, Inc. v. Taiga International, N.V. (Maryland U.S.D.C.) (Not Approved for Publication)
The defendants moved to dismiss the complaint on grounds that the plaintiff's claims were time-barred and that Maryland does not recognize an omnibus cause of action for "Breach of Fiduciary Duty."
The court, sitting in diversity and applying Maryland law, resolved three questions: 1) Whether an agent's knowledge of its principal's cause of action can be imputed to the principal for the purpose of triggering the statute of limitation when the agent's interests are adverse to the principal on that matter; 2) whether a plaintiff's failure to discover a cause of action in the context of alleged active concealment of that cause of action can be decided as a matter of law upon a motion to dismiss; and 3) whether Maryland recognizes an omnibus cause of action for "Breach of Fiduciary Duty."
Held: In this case, the complaint alleged sufficient facts concerning the agent's adverse interests to preclude imputation of the agent's knowledge of the cause of action to the principal as a matter of law. In addition, the complaint alleged sufficient facts concerning the defendants' efforts to conceal the wrongdoing that the failure to discover the cause of action earlier could not be attributed to the plaintiff's lack of due diligence as a matter of law. Finally, Maryland case law supports the conclusion that while the State does not recognize a universal tort for the redress of breach of fiduciary duty, breach of an agent's duty to his principal does provide a claim for breach of fiduciary duty.
Accordingly, the court denied the motion to dismiss.
This case was the subject of a previous opinion concerning a motion to seal synopsized here.
The Court's opinion denying the motion to dismiss is available in PDF. The order is also available in PDF.
Upon motion by the defendants for summary judgment on the plaintiff's Title VII claims, the defendants' motion for summary judgment was GRANTED.
The plaintiff ("Elliott") is an African-American woman who was an assistant director in the Dorchester County Department of Social Services ("DCDSS") from 1997 through 2003. Beginning in 2000, her unit was subject to a number of personnel issues, including tension between Elliott and a number of her supervisees, some involving racially derogatory comments allegedly made outside of the workplace. Through a series of meetings and memoranda, the management at DCDSS attempted, with mixed success, to resolve these issues, including counseling Elliott on her management style and practices.
The DCDSS workplace experienced some significant racial tensions and incidents in 2003, leading ultimately to a series of visits from the Deputy Director of DHR's Office of Employment and Program Equity in order to conduct an investigation. He found in part that the employee morale was very low in Elliott's unit, in part due to Elliott's "heavy-handed" management style, and recommended that DCDSS management work with Elliott to improve her management skills. DCDSS management met with Elliott a number of times, and went through multiple drafts of a management action plan for Elliott to follow. Throughout the process, Elliott resisted the need for change, and late in 2003 her employment was terminated. Her responsibilities were reassigned to another member of DCDSS's management, who was also an African American woman.
After first unsuccessfully appealing her termination administratively, Elliott received a right to sue letter from the EEOC in 2005, and this suit followed, alleging discrimination on the basis of race in violation of Title VII and claiming DCDSS and DHR condoned a hostile work environment and discriminated and retaliated against her. DCDSS and DHR moved for summary judgment on all counts.
Summary judgment must be granted if there is no genuine issue as to any material fact, and the moving party is entitled to summary judgment as a matter of law. Under Title VII, when there is, as here, no direct evidence of employment discrimination, the claims are to be analyzed under the burden shifting test of McDonnell Douglass v. Green, first requiring the plaintiff to establish, by a preponderance of evidence, a prima facie case of discrimination. To do so here, the plaintiff must demonstrate she is a member of a protected class, she was performing her duties in a satisfactory manner, she was subjected to an adverse employment action, and circumstances surrounding the employment action support an inference of discriminatory intent. If this is done, the burden shifts to the employer to produce evidence of a nondiscriminatory reason for the employment action, whereupon the burden shifts back to the plaintiff to establish that the proferred nondiscriminatory reason is but a pretext for discrimination.
Defendants allege that Elliott cannot make out a prima facie case of discrimination because her responsibilities were filled by another African American woman. Elliott countered that her position was in fact not filled, but her duties were just passed on to another employee, and thus did not fall under the 4th Circuit rule enunciated in Brown v. McLean. The judge agreed that it is not always necessary to show the position was filled by someone not in the protected class, but disagreed that the failure to fill the position necessarily demonstrated the necessary prima facie case of discrimination. Even assuming such a case had been made out, the judge found that Elliott had failed to provide evidence that the defendants' reasons for her firing were merely pretextual, and granted summary judgment on the discriminatory discharge count.
Elliott also claimed her termination was in retaliation for her complaints about discrimination suffered by her and other African American employees. To succeed, she must show see had engaged in protected activity, her employer had taken adverse employment action against her, and a causal connection existed between the protected activity and the employment action. Assuming Elliott had made out a prima facie case, she again had provided no evidence that the defendants' claimed nondiscriminatory reasons were merely pretextual, but rather that the adverse employment action was in direct response to Elliott's failure to cooperate in addressing the concerns with her management style.
Under the hostile work environment count, Elliott must show that the alleged harassment was unwelcome, based on race, sufficiently severe or pervasive to alter the conditions of employment, and there was some basis for imposing liability on the employer. The harassment must be both objectively and subjectively severe and pervasive, looking to the totality of circumstances, including the frequency and severity of the discriminatory conduct, whether to conduct was phyically threatening, humiliating or a mere offensive utterance, and whether it unreasonably interferes with an employee's work perfomance. Here, the judge found the alleged incidents to be few in number, largely outside the workplace and none in her presence, and found Elliott had provided no support for the "subjective" component, that the harassment had interfered with her ability to perform her work or significantly affected her psychological well-being, and little support for holding her employer responsible, since DCDSS was not alleged to have conducted the harassment, but instead took measures to address the alleged harassment by others.
The Memorandum Opinion and Order are available in PDF.
Monday, February 26, 2007
For further information, contact Alexander L. Cummings, Clerk.
A copy of the State Action Plan and Report is available here. Copies of the appendices to the report are available here.
Sunday, February 25, 2007
In April 2003, 17-year-old Mallory Heffernan was seriously injured when the driver of the car she was in lost control and hit a truck while driving in Delaware. She survived the crash but died shortly afterwards. Ms. Heffernan's father appears to have had the use of one of the cars belonging to his employer in connection with his employment as a sales director stationed in New Jersey, but this car was not involved in the accident.
The Heffernans sued Lumbermens, claiming that the policy Lumbermens had issued to the Mr. Heffernan's employer applied to them and/or their daughter, and specifically provided uninsured or underinsured motorist coverage (collectively "UIM") applicable to the accident which killed Ms. Heffernan because Mr. McMahon was an uninsured or underinsured driver. Lumbermens moved for summary judgment, arguing that the policy was unambiguously limited to cars owned by the employer, thus no coverage exists because the car involved in the accident did not belong to the employer. The Heffernans have responded to the summary judgment motion by seeking time for discovery, and they have supported this request with an affidavit identifying specific questions they would ask a Lumbermens' representative in a deposition.
Held: The Heffernans' affidavit identifies policy ambiguities which not only support the need for discovery but preclude the court from deciding the terms of the insurance contract as a matter of the law of any state at this time. Thus, the Heffernans were permitted to conduct limited discovery as requested in their affidavit.
The Court's opinion is available in PDF. The order is also available in PDF.
Saturday, February 24, 2007
The plaintiff ("McGrath-Malott") was formerly a deputy sheriff for Washington County, and had brought an employment discrimination suit against the State of Maryland ("the State"), the Washington County Board of County Commissioners ("the County"), the Washington County Sheriff's Office ("the Sheriff's Office") and the Washington County Sheriff ("the Sheriff") in his individual and official capacities, alleging violation of Title VII, 42 U.S.C. Section 1983, and the Maryland Declaration of Rights, and claiming wrongful discharge, based upon alleged sexual advances and comments made by the Sheriff and subsequent adverse employment actions.
After being transferred against her wishes in April, 2003, McGrath-Malott was placed on sick leave due to a temporary mental health condition and remained on leave through that summer. In July, 2003, she filed a charge of discrimination with the EEOC, alleging gender discrimination, and in August 2003 the EEOC issued a right to sue letter, having been unable to determine whether discrimination had taken place.
In September 2003, having exhausted all sick leave, McGrath-Malott requested a temporary modified work assignment or leave without pay, and in October 2003 she was first placed on leave without pay, then her employment was terminated after she had exhausted all available vacation, sick and FMLA leave and had not indicated when, if ever, she would be able to return to work. In January 2005, McGrath-Malott filed an amended charge with the EEOC, which found reasonable cause to believe the Sheriff's Office had violated Title VII but was unable to reach a resolution with the Sheriff's Office. This suit followed in April 2006. The County, the State and the Sheriff each filed motions to dismiss and for summary judgment.
McGrath-Malott first argued that, because the defendants had attached documents to their briefs, the motions to dismiss must be treated as ones for summary judgment instead, as noted in Talbot v. U.S. Foodservice, Inc. The judge noted that, in the Fourth Circuit per Am. Chiropractic v. Trigon Healthcare, there is an exception if the documents were integral to and explicitly relied on in the complaint and the plaintiff does not challenge its authenticity. Here, though some of the documents submitted met the Am. Chiropractic test, others did not, so defendants' motions to dismiss would be treated instead as motions for summary judgment.
The County moved to dismiss based on its allegation that both the Sheriff and McGrath-Malott were employees of the State, and not the County. After reviewing settled law on the matter, the judge agreed, and granted summary judgment in favor of the County on all counts.
The Sheriff's Office had not filed a motion to dismiss, but the State had noted in its brief that the Sheriff's Office was in fact not a legal entity, and thus could not be sued. The judge agreed, and dismissed all counts against the Sheriff's Office.
The State moved to dismiss all counts, while the Sheriff had moved to dismiss only the Title VII sex discrimination and retaliation counts and the abusive discharge count. The judge granted summary judgment on the Title VII counts in favor of the Sheriff in his individual capacity, but allowed the case to proceed against the Sheriff in his official capacity.
Since McGrath-Malott had not presented any direct evidence of employment discrimination, the judge noted that she must satisfy the three-step burden-shifting test by first establishing a prima facie case of discrimination, then the defendants must produce evidence of a legitimate, non-discriminatory reason for the adverse employment actions, whereupon the plaintiff must prove that the proffered reasons were but a pretext. McGraff-Malot claimed she was not promoted, not given the same leave as her male colleagues, and was eventually fired. Although the motivation for these actions was not clear from the record, there were clearly genuine issues of material fact, and the judge denied the State's and the Sheriff's motions on the disparate treatment claims.
The judge then found that, even though McGrath-Malott had not specifically used the terms "hostile environment" or "sexual harassment" in her EEOC filings, she had included sufficient factual references to the harassment and retaliation, and thus she had exhausted her administrative remedies before filing suit on both the hostile work environment and retaliation claims.
The State moved to dismiss the Section 1983 claim against it, since it was not a "person" under the meaning of the statute. The judge agreed, and granted summary judgment to the State on that count.
On the Maryland Declaration of Rights and wrongful discharge counts, the judge found that the State and the Sheriff had immunity under the Eleventh Amendment, making McGrath-Malott's failure to follow the requirements of the Maryland Tort Claims Act moot, and granted summary judgment in favor of the State and the Sheriff on those counts.
The opinion is available in PDF format.
Sec. & Exch. Comm'n v. SBM Investment Securities, Inc. (Maryland U.S.D.C.) (Not Approved for Publication)
There are four Defendants in this action. Two Defendants, SBMCC and SBMIC, are face amount certificate companies registered with the SEC pursuant to section 8(a) of the Investment Company Act, 15 U.S.C. §80a-8(a). The two other Defendants are a corporate parent of the face amount certificate companies, Geneva, and an individual, Westbury, who controls each of the entity-Defendants. SBMCC is a Maryland corporation that is wholly owned by SBM Financial, LLC. SBM Financial, LLC is, in turn, wholly owned by Geneva. Geneva is wholly owned by Geneva Financial Holdings, LLC, which is wholly owned by Westbury. Westbury is also the Chairman of the Board of Directors, Chief Executive Officer, and President of SBMIC.
Andrea Dittert, a Supervisory Staff Accountant for the SEC who worked on the investigation in this case, explains that:
[f]ace-amount certificate companies issue fixed-income debt securities; these companies agree to pay the principal amount of the instruments (the "face amount") plus accrued interest on maturity. Their profitability is dependent upon the difference between the return they generate on their investment portfolio and the expenses incurred from selling and satisfying certificate obligations.In 2002, the SEC began investigating fraud by John Lawbaugh, a former executive of SBMCC and SBMIC, involving misappropriation of millions of dollars from these companies and from investors. The SEC ultimately filed a civil enforcement action based on that fraud that resulted in disgorgement against Lawbaugh and final injunctive relief against Lawbaugh and the face amount certificate companies. Sec. & Exch. Comm’n v. Lawbaugh. Lawbaugh, formerly the majority shareholder in both SBMCC and SBMIC, filed bankruptcy and his estate was liquidated. The SEC supported Westbury and Geneva in their effort to take control of SBMCC and SBMIC, which succeeded when the bankruptcy court approved their purchase of the stock of both companies from Lawbaugh's bankruptcy estate in December 2003.
The SEC conducted a follow-up examination of SBMCC and SBMIC, which was concluded in September 2005, and as a result of that examination opened a formal investigation of these companies. The SEC filed its complaint in this case on April 4, 2006. The complaint asserts three claims for relief. First, it alleges that SBMCC and SBMIC violated the qualified reserve requirements for face amount certificate companies required by section 28 of the Investment Company Act of 1940, 15 U.S.C. §80a-28. Second, the SEC alleges securities fraud, in violation of section 17a of the Securities Act of 1933, 15 U.S.C. §77q(a); section 10b of the Securities Exchange Act of 1934, 15 U.S.C. §78j(b); and rule 10b-5 under the Securities Exchange Act, 17 C.F.R. §240.10b-5. The SEC alleges that SBMCC, SBMIC, and Westbury committed fraud against investors who hold SBMCC and SBMIC face amount certificates. The SEC also alleges that Geneva and Westbury committed fraud against the District of Columbia. Finally, the SEC alleges that Westbury and Geneva violated fiduciary duties imposed by section 206(1)&(2) of the Investment Advisors Act of 1940, 15 U.S.C. §80b-6(1)&(2), through the alleged fraud upon the District of Columbia.
The same day that the SEC filed its complaint, it also moved for preliminary relief. (Paper 2). In this motion, the SEC seeks a temporary restraining order and a preliminary injunction against future violations of the securities laws, a preliminary injunction freezing Defendants’ assets, appointment of a receiver for the entity-Defendants, an order requiring a full accounting, a preliminary injunction against destruction of evidence, and orders providing for expedited discovery and alternative means of service.
1. The SEC has offered sufficient evidence to conclude at this stage that SBMCC and SBMIC have likely violated the qualified reserve requirements and will likely continue to be in violation during the pendency of this action. Although it is not clear that a showing of irreparable harm is required, the low levels of qualified reserve assets at SBMCC and SBMIC indicate a risk of irreparable harm. If Defendants are not enjoined from further depleting reserve levels, the remaining reserve assets may be insufficient to satisfy the demands of all investors, causing irreparable harm to investors who otherwise could have been more fully compensated. Nevertheless, an injunction requiring Defendants to come into compliance with the reserve requirements is not appropriate relief at this time, because it is not clear that Defendants would have the ability to comply with such an order. The asset freeze restrictions that have been and will be imposed as ancillary injunctive relief are adequate to address this risk of irreparable harm.
2. The SEC's request for a preliminary injunction was denied because the Court concluded that there was an an insufficient showing of fact to support the issuance of a preliminary injunction. and the SEC has not shown that Westbury or Geneva are likely to commit future securities fraud.
3. Geneva and Westbury moved for summary judgment on the securities fraud issue under section 10(b), section 17(a), and rule 10b-5. The Court concluded that various statements in their private offering memoranda were sufficiently explicit, despite qualifying statements contained in the private offering memoranda, that a jury could conclude that a reasonable investor would rely on them and it denied the motions for summary judgment.
4. The the SEC has not made a sufficient showing on the merits as to past and likely future violations by Geneva and Westbury to justify a preliminary injunction based on the alleged violations of the Investment Advisers Act. However, Geneva's and Westbury's motions to dismiss and for summary judgment were denied because the Court concluded that the SEC has pled and produced adequate evidence of material misstatements and omissions with the requisite mental state, which is negligence under the Investment Advisers Act to create material questions of fact for trial.
5. The Court maintained in place a freeze on the assets of SBMIC and SBMCC, but denied a request for a freeze on the assets of Geneva.
6. The Court denied the request of the SEC for the appointment of a receiver for the Defendants because under the circumstances of this case, appointment of a receiver to provide an accounting of Defendants' affairs is not necessary to preserve the status quo.
7. Various other requests by the SEC for preliminary relief were denied as being unnecessary to maintain the status quo.
8. The Court agreed to amend the scheduling order. This portion of the opinion contained a lengthy discussion of the requirements necessary to be shown to allow a court to amend a scheduling order.
9. The Court granted the SEC's motion for a protective order and blocked a request for deposition notice by Westbury, holding that Westbury has other means of discovery available to procure much of the information he seeks through the disputed deposition, and the burden on the court and the SEC in considering the work product issue as to an inevitable array of issues raised at the deposition are not warranted.
A copy of the Memorandum Opinion is available in PDF.
Friday, February 23, 2007
The plaintiff ("Firemen's") brought suit in the Circuit Court for Baltimore City for its own use and for the use of two employees who were seriously injured while working for a company insured by Firemen's, against various corporations and firms alleged to have been responsible for the accident. Defendants had removed the case to the federal district court on the basis of alleged diversity of citizenship of the parties.
The judge noted that Firemen's and two of the defendants are Delaware corporations and two of the other defendants were Delaware limited liability companies, and thus there was no apparent diversity. Defendants argued that the citizenship of a "partial subrogee" such as Firemen's should not be considered, but the judge distinguished the 4th Circuit's Virginia Elec. & Power Co. case, in which, unlike the instant case, the insured rather than the insurer/subrogee had initiated the case, and granted Firemen's motion to remand.
Acknowledging that it was "a close one," the judge declined to award Firemen's the costs and expenses it had incurred because of the removal, since Firemen's was in a financial position to pay its own costs and expenses, and resolving the issue of attorney fees might result in a delay in the remand to the Circuit Court of Baltimore City.
The opinion and order are available in PDF.
The defendant ("Liberty Mutual") had issued an insurance policy to a homeowner ("Proctor"). After the end of the policy period, Proctor was sued by an individual ("Robinson") who claimed Proctor's daughter had shot him in the eye with a BB pistol during the policy period. Proctor failed to notify Liberty Mutual as required by the terms of the policy, and a default judgment was subsequently entered against Proctor. Almost nine months after the default judgment, Proctor finally notified Liberty Mutual, who disclaimed coverage based on the untimely notice.
Proctor then filed for Chapter 7 protection, and this action was brought by Proctor's trustee in bankruptcy ("Guttman") against Liberty Mutual, asserting "insurance bad faith," based upon Liberty Mutual's failure to defend Proctor and to settle the claim in the Robinson suit, and seeking compensatory and punitive damages on the bad faith claim and the policy limit in a breach of contract claim.
Liberty Mutual filed a motion for partial judgment on the bad faith claim. The judge found Maryland law to be clear that a bad faith claim does not lie when an insurer erroneously takes the position it has no contractual liability as to a particular claim, but only when it has proceeded on the basis that the contractual obligation exists, and has undertaken the obligation in violation of the appropriate standard of care, citing Mesmer v. MAIF.
In this case, notwithstanding Guttman's claim that Liberty Mutual had in fact assumed the responsibility for providing a defense, Guttman's pleadings included a statement that this was not in fact so, and the several contacts between Liberty Mutual and counsel for Robinson were evidently initiated by counsel for Robinson in order to extend an offer to vacate the default judgment if Liberty Mutual would appoint counsel, which Liberty Mutual declined to do. Consequently, the judge granted judgment on the pleadings to Liberty Mutual on Guttman's "insurance bad faith" claim, and struck Guttman's request for punitive damages.
The opinion and order are available in PDF.
Thursday, February 22, 2007
Henderson brought this pro se employment discrimination action against Defendants Anne Arundel County Board of Education ("the Board"); John Gilbert, the foreman of operations for Anne Arundel County Schools; Walter George, the supervisor of operations for the Anne Arundel County Schools; and Sue Torr, who served as principal of Solley Elementary School ("Solley"). Other claims in the case had previously been dismissed. Here, the Court granted the Defendants' Motion for Summary Judgment as to the remaining three claims: Aalleged violation of Article 24 of the Maryland Declaration of Rights by all defendants; alleged violations of Title VII by the Board; and alleged federal constitutional violations by the individual defendants asserted under 42 U.S.C. 1983 and 1985(3).
The instant action arises from the denial of the promotion and from suspensions imposed on Henderson while he was employed as the Chief Custodian at Solley on three separate occasions. He alleged discrimination based upon his race and he also claimed that he was retaliated against after he filed his EEOC complaint.
The Title VII Claims Against the Board. Held: Henderson has not been able to establish a prima facie case for race discrimination because he has not been able to identify any employee of Solley--or the Board more broadly--who had similar work performance issues but received less severe discipline.
The Maryland Constitutional Claim Against All Defendants. Held: This claim fails for the same reasons as does Henderson's Title VII claims. Furthermore, the individual defendants are protected by a qualified privilege since the "facts establish that the individual defendants did not act with malice or gross negligence." Here, the term "malice" was defined as the "[intentional performance of] an act without legal justification or excuse, but with an evil or rancorous motive influenced by hate, the purpose being to deliberately and willfully injure the plaintiff."
The Federal Constitutional Claims Against Individual Defendants. Held: This claim fails for the same reasons as does Henderson's Title VII claims. Furthermore, the Court held that the individual defendants did not play a role in the decision-making process leading to Henderson's failure to be promoted.
A copy of the opinion and order is available in PDF.
This opinion addresses a Counterclaim and Third-Party Complaint ("Natanzon's Claim") filed by Defendant Roni Natanzon ("Natanzon") against Baron Financial Corporation ("Baron") and Samuel Buchbinder ("Buchbinder"), in the above-captioned case, in which a Co-Defendant ERN, LLC ("ERN"), an LLC in which Natanzon held a membership interest, had already declared bankruptcy. A synopsis of another ruling in this case involving different procedural and substantive issues in dispute is available here.
Baron and Buchbinder moved to dismiss the two remaining counts in Natanzon's Claim: Intentional Interference with Economic Advantage ("Count I") and Unfair Competition ("Count IV.")
Regarding Count I, the Court noted that Natanzon claimed damages under three subtheories:
1. Baron and Buchbinder allegedly damaged ERN’s and Natanzon’s economic relationships with independent sales organizations (ISOs) and merchants by making statements to ISOs about their lawsuits against ERN and Natanzon and about Natanzon personally.The Court held that since Natanzon personally lacked either a contract with the ISOs or an existing business relationship with them, he lacked standing to bring suit for any claim of tortious interference on the basis of his mere membership in ERN, and failed to allege facts sufficient to allow a defamation claim to proceed under a more liberal reading of the claim.
2. Baron interfered with Natanzon’s business interests by "frustrating ERN's and Natanzon's ability to devote" their full time to the operation of their business.The Court held that Natanzon had failed to allege sufficient facts to establish either a contract with ISOs or a likelihood of a prospective business relationship with any identified ISOs, and dismissed the claim for failure to state a claim on which relief might be granted.
3. Baron and Buchbinder allegedly filed lawsuits and otherwise interfered in Natanzon’s attempt to rehabilitate ERN and meet his obligations under the Memorandum of Understanding between the parties.The Court held that since Baron and Buchbinder were themselves parties to the Memorandum of Understanding, they could not commit tortious interference with their own contract against Natanzon as a matter of law. Accordingly, the Court dismissed Count I with prejudice.
Count IV of Natanson's Claim alleged the following as acts constituting "unfair competition":
(1) Buchbinder's and Baron's institution and prosecution of numerous lawsuits against Natanzon, ERN, and ERN Israel; (2) their failure to make residual payments to ISOs with respect to their Assigned Portfolios, pursuant to the terms of the MOU and the Rider; (3) their improper demands for documentation; (4) their claim that ERN failed to process the patent application even though Buchbinder is aggressively his own 'all-in-one' POS machine (which has diminishes the value of any patent ERN might obtain); and (5) [other additional matters]The Court held that all of Natanzon's alleged damages arose out of his ownership interest in ERN, and that since Natanzon had not pled any distinct injury to himself specifically as an owner, as opposed to financial damages to ERN itself, he lacked standing to sue for Baron and Buchbinder for unfair competition under Maryland law. Accordingly, the Court dismissed Count IV.
Natanzon had previous conceded his lack of standing to bring Counts II and III of his Claim, and the Court summarily dismissed those two conceded counts. All counts having been dismissed, the Court dismissed Natanzon's Claim in its entirety.
The full memorandum opinion is available in PDF.
Saturday, February 17, 2007
In a pro se petition to vacate, set aside, or correct his 2000 conviction for conspiracy to distribute cocaine and 'crack', Jackson sought relief on due process and effective assistance of counsel grounds, after earlier appeals to the Fourth Circuit (decided in 2002) and Supreme Court (in 2002) were unavailing.
Jackson claimed he was denied due process because "false" or "perjured" testimony was used by the grand jury to indict him. Since he had failed to raise those claims on appeal to the Fourth Circuit, the judge found that he is now barred from raising the issue, but went on to note that the claim would have fallen short in any event, since he did not present any "new evidence" that would demonstrate a jury would not be likely to convict him, under the "actual innocence" doctrine, but only a transcript of the grand jury testimony, which had in fact been used at trial.
Under the Strickland standard, ineffective assistance of counsel claims must establish both the deficiency of counsel's performance, and that the deficient performance prejudiced the claimant, in order to succeed, and failure to establish either would cause the claim to fail.
Here, Jackson's claims of error, and the judge's disposition, were as follows:
Counsel failed to move to dismiss the superseding indictment. Based on the alleged false grand jury testimony raised in the due process claim, the judge rejected Jackson's claim, noting further that a facially valid indictment cannot be challenged for evidentiary incompetence, and thus counsel was not incompetent for failing to raise the issue.In sum, the judge denied Jackson's motions, and closed the case.
Counsel failed to argue forcefully for a continuance. During the trial, the original indictment had been superseded by an amended version that had added specific quantities of drugs involved, as required by the concurrent Supreme Court decision in Apprendi, and deleted the indictments against Jackson's co-conspirators who had pleaded guilty before trial. The judge found this claim to be without merit, since no new crime was added, the facts added to the indictment were known to Jackson and his counsel, and no claim was made that they were ill-prepared for trial.
Counsel failed to argue that the indictment was insufficiently informative. Jackson claimed that the indictment was defective because co-conspirators were unnamed, there was no "statement of facts", and was "too open-ended." The judge found the claims to be without merit, since the Fourth Circuit does not require unindicted co-conspirators to be named, no statement of facts is required, and the indictment stated the period of the conspiracy.
Counsel erred in moving the original indictment into evidence. At trial, Jackson's counsel argued that, rather than the one unitary conspiracy alleged in the superseding indictment, multiple conspiracies were involved, and that the government had failed to establish those multiple conspiracies. To establish the basis for this, Jackson's counsel introduced the original indictment, which included the names of conspirators not named in the superseding indictment. Since the counsel's strategy was reasoned in that it attacked a possible weak point of the government case, it could not be used under Strickland to prove ineffective assistance of counsel merely because it did not prevail.
Counsel failed to object to the admission of facts relating to Jackson's 1995 drug arrest. Rather than being introduced to establish Jackson's "bad character," evidence of Jackson's arrest, including the type and quantity of drugs and drug-related materials, went directly to Jackson's involvement in the alleged conspiracy during the time period the conspiracy was alleged to have been in operation, and was properly admitted.
Counsel failed to raise on appeal Jackson's arraignment at trial. Jackson was arraigned on the superseding indictment during trial. Since he and his counsel had received a copy of the indictment prior to trial, and had in any event plead not guilty, no prejudice under Strickland was shown.
Counsel failed to raise a "speedy trial" claim on appeal. Since Jackson did not explain how his rights under the Speedy Trial Act had been violated, his claim failed.
The Memorandum and Order are available in PDF.
Friday, February 16, 2007
In a follow up to an earlier Memorandum Opinion in the same case, discussed here, the debtor ("Halkas") challenged the motion by the bankruptcy trustee ("Grigsby") to dismiss the appeal of the debtor from the bankruptcy court. The earlier opinion had required Grigsby to file an affidavit or other evidence of the disbursement of funds to creditors from the estate on or about September 30, 2006, in order to establish that the matters at issue were now moot. Grigsby filed an affidavit and accompanying financial records as proof of those transactions.
Halkas challenged the submissions as inadequate to demonstrate the appeal was moot in that they were not admissible as evidence, and further argued that the appeal was not moot because the debtor might file a claim against the trustee, and that even if the appeal is dismissed, the bankruptcy court's order below should be vacated.
On the first point, Halkas argued that Grigsby's affidavit did not state that it was based upon Grigsby's personal knowledge, and that the checks and financial records submitted were hearsay statements which had not been properly authenticated. The judge had little difficulty in finding that the records qualified as "business records" exempt from exclusion as hearsay, or in finding that Grigsby in fact had personal knowledge of the submitted materials and thus had established a sufficient foundation for admission of the records, notwithstanding some minor technical and format issues with the submission.
The judge also found Halkas' claim that she might have a cause of action against Grigsby for fees retained by the trustee or arising from improper disbursements made to nonparty creditors to be speculative and counter to the fact that no such claims had been made to date, and in fact no basis for such claims had been submitted by Halkas.
The judge also found that dismissal of the appeal was the proper remedy rather than vacating the order below, given both the mootness of the matters raised on appeal and the inability of the court below to effect a remedy even if Halkas could prevail on the merits, given the prior disbursal of all available funds to nonparty creditors.
This memorandum opinion is available in PDF.
Valderrama, a pro se litigant, sued Honeywell Technology Solutions, Inc. ("HTSI"), claiming violations of Title VII of the Civil Rights Act of 1964 (retaliation, national origin discrimination and sex discrimination) and state law tort claims arising out of an alleged violation of her privacy. After extensive discovery, HTSI moved for summary judgment. The Court granted the motion and dismissed all counts of the complaint.
In order to maintain a Title VII action, a Maryland plaintiff must file a charge of discrimination with the EEOC or with the Maryland Commission on Human Relations within 300 days of the discriminatory act. Typically, complainants use an EEOC form document to file a charge. Valderrama, however, did not use the EEOC form. Instead, she offered a copy of an EEOC Intake Questionnaire as evidence that she timely filed the necessary charge of discrimination.
The Court, noting that the 4th Circuit has never precisely ruled on whether such a questionnaire is sufficient to satisfy the timeliness requirement, compared the contents of Valderrama's questionnaire with the definition of a charge. Quoting EEOC regulations, the Court stated: "a charge should contain 'a clear and concise statement of facts, including pertinent dates, constituting the alleged unlawful employment practices.' [Citation omitted.] At a minimum, the charge must be 'sufficiently precise to identify the parties, and to describe generally the action or practices complained of.'" If a document other than a charge meets this standard and is intended to trigger the machinery of Title VII enforcement, it will suffice to meet the timeliness requirement. Valderrama's allegations in the questionnaire that unidentified persons had made comments about her, however, were insufficient to constitute a timely charge.
The Court considered Valderrama's other claims, found them all lacking in factual support, and dismissed all of them, including the state law claims. The Court retained jurisdiction of the state law claims for the express purpose of dismissing them, noting that allowing the claims to be refiled in state court would be wasteful, "... because they would inevitably be dismissed as unfounded."
The full opinion is available in PDF.
Tuesday, February 13, 2007
Baby was convicted of first-degree rape, first-degree sexual offense and two counts of third-degree sexual offense, and sentenced to a term of fifteen years imprisonment with all but five years suspended and five years probation upon his release.
Baby's appeal presented the following three issues:
I. Whether the circuit court erred by refusing appellant's request to instruct the jury that it should return a verdict of not guilty of rape if it was persuaded by the evidence that the complaining witness consented to sexual intercourse but withdrew her consent after penetration;
II. Whether the circuit court erred by denying appellant's request to remove a juror who indicated that he had read a newspaper article about the case; and
III. Whether the circuit court erred in denying appellant's motion in limine to exclude expert testimony in reference to "rape trauma syndrome."
At the conclusion of the evidence, the trial judge instructed the jury as follows regarding evidence of "consent" to negate a charge of sexual assault and the force required to sustain a conviction of rape:
The amount of force necessary depends upon the circumstances, and no particular amount of force is required but it must be sufficient to overcome the resistance of the victim. You must be satisfied that the victim either resisted and that this resistance was overcome by force or treat of force or that the victim was prevented from resisting by force or threat of force. The victim must have resisted to the extent of her ability at the time unless her resistence or will to resist was overcome by force or fear that was reasonable under the circumstances. Finally, "consent" means actually agreeing to the sexual act rather than merely submitting as a result of force or threat of force.
After the jury began its deliberations, it submitted several notes, one of which read, "If a female consents to sex initially and, during the course of the sex act to which she consented, for whatever reason, she changes her mind . . . and the man continues until climax, does the result constitute rape?" The trial judge responded to that note as a factual question as opposed to a legal question and responded that "[he] was unable to answer this question as posed. Please reread the instructions as to each element and apply the law to the facts as you find them." The next morning, another note was submitted by the jury which read, "If at any time the woman says stop, is that rape?" The judge responded, "This is a question that you as a jury must decide. I have given you the legal definition of rape which includes the definition of consent."
This Court reasoned that the plain meaning of the jury’s words, "during the sex act," leads one to conclude that the reference was to the act of intercourse. By contrast, a much broader connotation is conveyed by "during the course of the action." Any initial confusion by the trial court as to whether the question was legal or factual should have been cleared up when the jury submitted the second note the following morning. Stripped of any hypertechnical interpretation, the jury simply wanted to know if consent could be withdrawn after commencement of the sex act, i.e., penetration. The fact that there was testimony that appellant had ceased his attempt to penetrate the prosecutrix within seconds after she told him to stop leaves little doubt that the jury sought to determine when, in point in time, a withdrawal of consent would sustain a conviction for rape. The jury, in the discharge of its responsibilities to apply the law to the facts as it found them to be, was entitled to a proper response to its inquiries.
Secondly, appellant contends the circuit court erred by refusing to remove a juror at the point when the juror admitted that he had read a newspaper article about appellant’s case. The article in question appeared on the third day of appellant’s trial and was found in the Weekly Gazette, a copy of which was in the courthouse lobby. In addition to the facts that appellant had previously been tried on the same charges and was facing life imprisonment, the article disclosed that his co-defendant had entered a plea of guilty. Upon inquisition by the trial court, and outside the presence of the jury, juror No. 100 indicated his reading the article would not affect his ability to be fair and impartial and that, although he had mentioned the article to two fellow members of the jury, he did not tell them what was in the article and, to his knowledge, they did not read it. The court then ruled that it would grant the appellant’s motion to strike the juror. In consideration of the State’s assurances that it had not decided whether to call appellant’s co-defendant, the trial judge reversed herself and decided not to excuse the juror but, rather, wait until the end of the trial to see whether the co-defendant testified and how many jurors were left, indicating that juror No. 100 may end up as an alternate that would be excused.
The decision to remove a juror is discretionary and will not be reversed on appeal absent a clear abuse of discretion or a showing of prejudice to the defendant. The burden is on the party alleging prejudice to prove (1) that the publicity is prejudicial, (2) that a juror has been exposed to the prejudicial material, and (3) that the juror’s decision was influenced by the prejudicial material. The injured party’s remedy is a mistrial or a reversal on appeal. In the instant case, only one juror was found to have read the article. Except where prejudice is manifest, a trial court is entitled to rely on the assurances of jurors that they would be able to reach a verdict based only on the evidence at trial even in cases where jurors possessed knowledge of extraneous extrajudicial information about the case being tried. It logically follows that a trial judge may rely on assurances where, as here, such assurances relate to whether juror No. 100 told the other jurors about the contents of the article and his assurance that the other jurors did not read the article. The Court held that appellant’s claim of prejudice failed because there was no evidence that information contained in the article was ever imparted to the members of the jury who ultimately deliberated and found appellant guilty, and in light of the fact that the court did ultimately excuse juror No. 100.
Finally, the appellant argues that testimony offered by a professor of psychiatric nursing as an expert witness to explain how aberrant behavior of victims of sexual assault can be attributed to the "rape trauma syndrome" - asserted to be a subset of post-traumatic stress disorder - was reversible error because she had not interviewed or examined the prosecutrix and that a "general explanation of PTSD, and how the psychological symptoms are manifested in their reactions, were not specific to the case." The State’s expert testified prior to trial that she had reviewed the police statement, the indictment, the forensic nurse examiner report and an audio cassette. When presented with a hypothetical based on testimony in this case, she attributed the victim’s failure to resist, her failure to immediately report the incident and her voluntarily giving her home telephone number to the assailant to the rape trauma syndrome. This Court held that the facts presented are quintessentially the circumstances contemplated by Maryland authorities which have considered the rape trauma syndrome. The evidence [expert testimony] was neither employed to establish the happening of the criminal event or the victim’s credibility, nor did it invade the province of the jury. The expert properly relied on material supplied by the court and statements as part of the hypothetical foundation upon which she based her opinion. As such, the court properly denied appellant’s motion in limine to exclude the testimony of the State’s expert.
The full opinion is available in PDF.
EEOC brought a complaint against EMS Innovations, Inc. ("EMS"), alleging that EMS engaged in sexual harassment against at least six employees in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§2000e, et seq.). EMS moved to dismiss, arguing that the Complaint failed to state a claim because EMS was not an "employer" covered by Title VII and that the EEOC failed to plead its claim with sufficient specificity. Because EMS relied upon material outside the record to support its motion, the court treated the motion as one for summary judgment under Rule 56.
Liability under Title VII only attaches to an "employer," being "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year . . . ." 42 U.S.C. § 2000e(b). EMS submitted unauthenticated personnel records with its motion to support the assertion that it employed fewer than 15 persons. It later filed affidavits with its reply to EEOC's opposition to the motion. Noting that so far there had been no opportunity for discovery in the case and that EEOC had requested an opportunity to conduct discovery, the court declined to grant summary judgment on this basis. The court also pointed out that unauthenticated records are not sufficient to support a motion for summary judgment and that EEOC had not had an opportunity to respond to the affidavits filed by EMS because they were filed with the reply and not with the original motion.
On the specificity issue, the court found that the Complaint "contain[ed] almost no facts." EEOC, however, had requested leave to file an amended complaint. Rather than dismissing the case, the court granted leave to amend with instructions to organize the amended complaint "by counts and to allege the relevant facts with sufficient particularity."
The full opinion is available in PDF.
This site, for free, allows users to search Federal District Court dockets. Searches can be performed using the name of the parties involved, the types of lawsuits, and the district court involved. Additionally, the site provides RSS syndication of new filings. The RSS syndication can be applied to the complete site, that is all new filings in all Federal district courts, or it can be limited to filings in particular district courts.
Links to the main site and to the Maryland site have now been posted in the "Links" box on the right side of the page.
In her complaint, the plaintiff ("Takacs") alleged sexual harassment by one of the owners of the winery (the "Winery") where she had been employed as salesroom manager, claiming intentional infliction of emotional distress ("IIED") and violation of Title VII, and seeking damages against the owners ("Fiore"), the Winery, and the professional employer organization ("PEO") handling the Winery's human resources responsibilities. Fiore sought summary judgment on the IIED count, and the Winery and PEO sought summary judgment on the Title VII claims.
To prevail on the IIED claim, the judge noted that Takacs must be able to establish 1) conduct that is intentional or reckless, 2) conduct that is extreme and outrageous, 3) a causal connection between the wrongful conduct and the emotional distress, and 4) that the emotional distress must be severe. The judge assumed without deciding that the first three elements could be met, but was unconvinced that the fourth element was satisfied, in light of the fact that Takacs was able to continue to work, and did not allege she was unable to function on a daily basis, and consequently granted dismissal of the IIED count.
On the Title VII count against the Winery, the judge noted that it appeared that Takacs had not established that the Winery was subject to Title VII, in light of the Winery's claim that it had too few employees to meet the EEOC's numerosity requirement, but the judge provided Takacs an opportunity to clarify whether her position was that certain individuals were in fact to be counted as employees, thereby bringing the Winery under EEOC jurisdiction.
On the Title VII count against PEO, PEO challenged its alleged status as the "employer" of Takacs. The judge noted that PEO might be held liable under either "joint employer" or "integrated employer" theories, discounting the former and viewing the latter as more likely, but finding it unnecessary to determine the question, since Takacs had failed to satisfy the imputability prong of the four-part test for a hostile workplace, in that the harasser was not an employee of or controlled by PEO, and PEO was unaware of the harassment. Further, Takacs did not allege that PEO's policies regarding sexual harassment complaints were unreasonable or dispute that she had been advised of those policies, and the judge therefore granted summary judgment in favor of PEO on the Title VII count.
This opinion and order are available in PDF.
Monday, February 12, 2007
Interested persons are asked to consider the Committee’s Report and proposed rules changes and to forward on or before March 5, 2007 any written comments they may wish to make to:
Sandra F. Haines, Esq.The Court's open meeting on the rule change is scheduled for March 12 at 2 P.M.
Reporter, Rules Committee
2011-D Commerce Park Drive
Annapolis, Maryland 21401
From the opinion's headnote:
ELECTIONS - ABSENTEE VOTING - DEADLINESIn an interlocutory appeal from the decision of the Circuit Court for Anne Arundel County, the petitioner asked the Court to overturn the decision below, which had denied a temporary restraining order against election officials stemming from the alleged late delivery of some absentee ballots.
The mere occurrence and/or experiencing of processing problems with absentee ballots does not justify an extension of time for the filing of such ballots, absent proof that those problems were the direct cause for voters not voting.
The petitioner is a Maryland resident and student living in New York who had, in mid-August 2006, requested an absentee ballot from the County Board of Elections in Catonsville. The absentee ballot sent to her was postmarked on November 1, 2006 but did not arrive in New York until November 6, 2006, the day before the election. The returned ballot was postmarked November 7, 2006, and was not counted in the final tally since it was not "completed and mailed before election day," as required by the relevant section of COMAR.
The petitioner filed suit, asserting a violation of the "right to vote" provisions of Article I, Sections 1 and 3 of the Maryland Constitution and Article 7 of the Declaration of Rights, the "equal protection" guarantees of Article 24 of the Declaration of Rights and the 14th Amendment of the federal Constitution, and the provisions of Section 9-304 of the Election Law Article of the Maryland Code, and asking that all absentee ballots postmarked on Election Day be accepted. The petitioner noted the extraordinary number of absentee ballots requested in this election, prompted in part by concerns over use of the new electronic voting machines, as expressed by Governor Ehrlich and others, and a number of examples of very late mailing of many of those ballots.
The respondents noted that there is no constitutional right to an absentee ballot, and argued that the regulations were reasonable restraints designed to protect the integrity of the voting process. Moreover, the petitioner had not sufficiently demonstrated harm, in that the ballot could have been hand-delivered to the polling place and counted on election day. The judge agreed, and denied the petitioner's request for a TRO.
On appeal, the petitioner argued that the respondent, by failing to answer the overwhelming call for absentee ballots in a timely fashion, had denied the petitioner the right to vote, or at least had imposed a severe burden on that right, and that the COMAR provision was only a discretionary exercise of the respondent's regulatory powers and was not required by statute. The respondent countered that it was impossible to determine the actual reason for the late mailings, since a number of factors were simply unknown. The Court agreed, noting that the skimpy record below gave little reason to overturn the judge's decision below in denying the TRO, given the petitioner's burden to prove 1) the likelihood that the petitioner would succeed on the merits, 2) the 'balance of inconvenience' between granting or denying the TRO, 3) the petitioner would suffer irreparable injury, and 4) the public interest.
The Court also rejected the petitioner's argument that Lamb v. Hammond required that state election statutes be strictly applied notwithstanding the negligence of state officials, instead finding that, in a absence of any clear evidence of the opposite conclusion, Lamb compels the exclusion of the noncompliant votes in order to safeguard the election process.
The full opinion is available in PDF.
The case was a "highlighted case." Thus, the briefs and other material are posted online by the Court of Appeals and are available here.
From the Court's headnote beginning its lengthy opinion:
Even in the absence of actual personal injury, economic loss, the cost to fix the defect alleged, is recoverable where it is also alleged that such defect has caused, in other cases, serious bodily injury and, thus, constitutes an unreasonable risk of death or serious injury.Petitioners Mr. and Mrs. Lloyd ("Lloyd") were the representative plaintiffs for a class action on behalf of designated purchasers of vehicles with certain types of front seats installed. They sought to recover from the respondents the cost of repairing and/or replacing the front seats in each class vehicle. Lloyd alleged that the seats were unsafe because they would allegedly collapse rearward in moderate and severe rear-impact collisions. None of the petitioners or any putative class members alleged that he or she had experienced personal injury as a result of the mechanical failure that caused the alleged defect.
In its Amended Complaint, Petitioners alleged seven causes of action:
- strict liability
- implied warranty of merchantability
- "negligent failure to disclose, failure to warn, concealment and misrepresentation" ("negligent misrepresentation")
- fraudulent concealment and intentional failure to warn
- unfair or deceptive trade practices
- civil conspiracy
"Thus, if the possible injury is extraordinarily severe, i.e., multiple deaths, we do not require the probability of the injury occurring to be as high as we would require if the injury threatened were less severe, i.e. a broken leg or damage to property. Likewise, if the probability of the injury occurring is extraordinarily high, we do not require the injury to be as severe as we would if the probability of the injury were lower."This precedent, driven by policy concern balancing a skeptical eye toward mere speculative damages against the policy of averting harms either reasonably foreseeable or severe, led the Court to uphold in turn each of the seven counts in Lloyd's Amended Complaint.
In his concurring opinion, Judge Eldridge noted his agreement with the holding and reasoning of the Court's opinion, but maintained his agreement today with his support of the dissenting opinion in the Morris case and one other precedent cited in the opinion, in which cases Judge Eldridge had previously dissented as an active member of the Court.
The full texts of both the opinion of the Court and Judge Eldridge's concurring opinion are available here in PDF.
Petitioner suffered an injury to his back while in the employ of the Montgomery County Board of Education and received a preliminary award of $114 per week for 50 weeks of benefits from the Workers' Compensation Commission (the "Commission.") After two reopenings of his case reflecting the deterioration of his condition, Petitioner received an amended award of 115 weeks of benefits to be paid at the enhanced rate of $223 per week, to commence as of the effective date of the new order, with credit for "payments made" under the prior orders that did not involve an enhanced rate of weekly compensation. This enhanced rate was awarded pursuant to Maryland's Workers' Compensation Law, Md. Ann. Code, LE Sec. 9-628 and -629, which sections provide for enhanced weekly rates once the number of awarded weeks of benefits exceeds 75 weeks.
Montgomery County appealed the Commission's decision to the Montgomery County Circuit Court, which reversed in part the decision of the Commission, holding that credit was to be made not for the dollar amount of payments made but only for the prior weeks of payment without dollar adjustments for those prior weeks' lower rate. Upon etitioner's appeal of that decision, the Court of Special Appeals upheld the Circuit Court. Petitioner appealed to the Maryland Court of Appeals.
Citing precedent in prior cases in which workers' compensation claimants' awards had been both increased and decreased in judicial proceedings, the Court of Appeals upheld the decision of Court of Special Appeals, holding that amended awards by the Commission do not effectuate a retroactive rate increase for weeks already paid and do not require a credit for dollars of payment, only for weeks of payment at the previously applicable rates.
The opinion is available in full here in PDF.
Saturday, February 10, 2007
Burman was convicted in a jury trial of conspiring to distribute cocaine and possession with intent to distribute cocaine. Burman then filed a motion seeking the return of property the government seized pursuant to a search warrant leading to his indictment and subsequent conviction.
Property purchased with the proceeds of drug trafficking is subject to forfeiture pursuant to 21 U.S.C. §881 and, by statute, the government must initiate a forfeiture case by giving notice to any interested party in addition to publishing notice in a publication of general circulation. The interested party has a specified time in which to file a claim and may either file a request for judicial forfeiture proceedings with the seizing agency or elect to remain in the administrative forum by filing a petition for remission or mitigation. If the interested person seeks the prior option, the agency must refer the request to the applicable United States Attorney, who then files a complaint for forfeiture in federal district court, per 18 U.S.C. §983(a)(3). If a person to whom notice was sent does nothing and the administrative tribunal declares the property forfeited, the district court, by statute, lacks subsequent jurisdiction over the property with one exception: if the claimant alleges the government failed to provide him with adequate notice and that he did not otherwise know of the forfeiture proceedings. If the court concludes that the claimant was adequately advised of the forfeiture proceedings, the court must dismiss the claim. However, if the court concludes that notice was lacking, the government must return the property and/or file a new forfeiture action.
Under 18 U.S.C. §983(e), an "interested party" may move to set aside a declaration of forfeiture if (i) the government failed to take reasonable steps to provide him with notice, and (ii) the moving party did not otherwise know or have reason to know of the forfeiture in time to file a timely claim. The Court places the burden on the government to show that it took "reasonable steps" to provide notice to the claimant. "Reasonable notice" requires that the government must (i) send a certified letter, return receipt requested, to the facility where the prisoner is housed, (ii) show that a prison official signed for the letter, and (iii) provide evidence that mail delivery procedures existed at that facility that were reasonably calculated to ensure that the notice, once addressed to the inmate, would still reach him upon arrival at the prison (and, indeed, would only be accepted were the inmate actually present). Notice sent to the inmate's relatives, lawyer or former residence is insufficient.
The DEA sent multiple Notices of Forfeiture to Burman addressed to several jails, to his mother, and to attorneys who had represented him, but there is no evidence that these notices ever reached Burman. The government presented no evidence that Burman was at the particular jails when the notices were delivered, that the persons who signed for the notices were prison officials, or that mail delivery procedures at the jails were reasonably calculated to ensure that the notices reached Burman. Burman, however, evidently knew the government was seeking forfeiture of some of his property because he mailed the DEA letters asking what was happening with certain items. The DEA treated these letters as requests for judicial forfeiture proceedings, but denied the requests either because they were untimely or because Burman failed to submit his claims under oath as required by the statute. The DEA mailed Burman a number of corrective notices advising that his claim must be sworn under oath and giving him 20 days to cure the defect. Except with respect to one item of property, Burman never filed a claim that met the formal requirements. There is, further, no direct evidence that any of the corrective notices ever reached Burman. Consequently, the Court granted, in part, Burman's request for return of some of the property seized and reserved judgment on the remaining property ordering the government provide further evidence and briefing.
The full opinion is available in PDF.
Robin Cathcart was convicted by a jury of first degree assault and false imprisonment after brutally beating his former girlfriend and thereafter precluding her from leaving her apartment to seek medical assistance. For the first degree assault, the court imposed a sentence of ten years. For the common law offense of false imprisonment, the court sentenced Cathcart to life imprisonment, consecutive to the ten year sentence for assault, with all but ten years suspended. No period of probation was imposed with respect to the suspended part of the life sentence.
Cathcart appealed arguing that, under the circumstances of the case, the imposition of a life sentence for the common law offense of false imprisonment was unconstitutionally disproportionate and therefore illegal. Noting that the maximum sentence in Maryland for kidnapping – an aggravated form of false imprisonment – was only thirty years and that the permissible sentence for false imprisonment in other States ranged from six months to ten years, he complained that holding the victim in her apartment for up to three hours was grossly disproportionate and therefore cruel and unusual.
The Court of Special Appeals concluded that the sentence was effectively one of ten years, rather than life, given the fact that no period of probation was imposed with respect to the suspended part of the life sentence and that Cathcart could therefore never serve more than ten years on that sentence. It affirmed the trial court’s judgment reasoning that, under the circumstances, a sentence of ten years for false imprisonment was not unconstitutionally disproportionate.
In his petition for certiorari, Cathcart maintained that a sentence of life imprisonment, with all but ten years suspended with no probation, constituted an illegal sentence, but the nature of his complaint differed. Carthcart argued that, in the absence of a period of probation attached to the suspended part of the sentence, the effect of the sentence, as articulated and when considered together with the ten year sentence for assault, is to preclude any parole consideration for the entire duration of the twenty years. Because the term of confinement includes a life sentence, parole eligibility is calculated on each sentence separately and then aggregated. Because first degree assault is a crime of violence, he must serve five years before he becomes eligible for parole on that sentence (the greater of one-half of the sentence imposed for the violent crime or one-fourth of the aggregate sentence.) If the sentence imposed for false imprisonment is treated as a life sentence, even though all but ten years is suspended, he would have to serve at least 15 years before he becomes eligible for parole on that sentence. That alone would make the entire part of the false imprisonment sentence ordered executed by the court immune from parole. Further, when the 5 year minimum on the assault is aggregated with the 15 year minimum on the false imprisonment, under the structure of the Circuit Court, he would not be eligible for parole for 20 years and that, as a result, the entire 20 year aggregate sentence he received would be a non-parolable one. Cathcart argued that the sentence was illegal on two fronts, (1) it is cruel and unusual to impose a non-parolable sentence of 15 years for false imprisonment, and (2) by precluding the prospect of parole in the absence of any authorizing statute, the court has effectively intruded upon the discretion of the Parole Commission, thereby exercising an Executive function in violation of the separation of powers principle enunciated in Article 8 of the Maryland Declaration of Rights.
As there was no challenge to the 10 year sentence imposed for first degree assault, the Court focused on the sentence for false imprisonment and set forth the options available in sentencing a defendant for a crime that carries a prison sentence. The court may
(1) impose a sentence up to the maximum term allowed and, by stating no contrary ruling, implicitly direct that the entire sentence be executed; (2) suspend the imposition or execution of sentence and place the defendant on probation on the conditions that the court considers proper. This section provides two options: the court may defer the actual imposition of a sentence in favor of probation, or it may impose a sentence and suspend the execution of all of it in favor of the probation. In either event, so long as the probation is not revoked, the defendant will not be incarcerated at all. If the probation is revoked, the court may then proceed either to impose the sentence that it had deferred or direct execution of all or any part that it had previously imposed but suspended; (3) impose a sentence for a specified time and provide that a lesser time be served in confinement or suspend the remainder of the sentence and order probation for a time. If the court chooses the latter approach, it must impose the full sentence it intends to impose; and (4) impose a sentence of custodial confinement or imprisonment as a condition of probation. The split sentence option may be used in connection with a life sentence; however, there must be a period of probation attached to the suspended part of the sentence.
Failure to impose a period of probation does not necessarily make the sentence illegal but simply precludes it from having the status of a split sentence under CP § 6-222. Because the effect of the omission is to limit the period of incarceration to the unsuspended part of the sentence, that becomes, in law, the effective sentence. If the court has chosen not to impose a period of probation and thereby limited the period of incarceration to the unsuspended portion of the sentence, the effect of remanding the case for it to do so would be tantamount to allowing it to increase the sentence from that fixed number of years to a life sentence, and our jurisdiction does not allow for that. Consequently, the matter was remanded to the Circuit Court to amend the sentence imposed on the false imprisonment conviction to imprisonment for 10 years, consecutive to the sentence imposed on the first degree assault conviction.
The full opinion is available in PDF.
Charles Williams was convicted in a bench trial of aiding and abetting Anthony Henderson and Cheryl Gains in the attempted robbery of a Citgo station in Baltimore County. The trial judge found Williams guilty of attempted robbery with a dangerous weapon (Count 1); attempted robbery (Count 2); assault in the first degree (Count 3); attempted theft (Count 4); use of a handgun in the commission of a felony (Count 6); and use of a handgun in the commission of a crime of violence (Count 7). Williams was acquitted of wearing, carrying or transporting a handgun (Count 5) and two counts of possession of a firearm (Counts 8 and 9).
Williams was convicted as a principal in the second degree to those crimes, in part, because he drove Henderson and Gaines to and from the station where the crimes took place. The Court of Special Appeals found the guilty verdicts inconsistent with the acquittal for wearing, carrying or transporting a handgun because Williams could not have used the handgun if he did not first possess it. The trial judge neither acknowledged the inconsistencies offered nor offered any justification to explain how Williams was not in joint constructive possession of the handgun used in the crime.
The Court of Special Appeals compared the “use” of a handgun to the “possession” and determined that the Legislature intended “use” to be something more than “possession” – an active, rather than a passive operation or employment of a handgun. The intermediate appellate court acknowledged that there existed no evidence that Williams actually possessed the handgun but noted that his convictions were not based on his actual use of the handgun; they were based on Henderson’s use of the handgun and William’s complicity in Henderson’s actions. The court explained that before Williams could use the gun he had to have possessed it, and the trial court failed to explain that inconsistency. As such, the Court of Special Appeals reversed Williams’ convictions for attempted robbery with a dangerous weapon, assault in the first degree, and use of a handgun in the commission of a crime of violence and a felony. It affirmed all the other verdicts and remanded the case to the Circuit Court for new sentencing.
Upon the State’s writ of certiorari, this Court reasoned that verdicts are inconsistent if they are “lacking consistency; not compatible with another fact or claim.” BLACK’S LAW DICTIONARY 781 (8th ed. 1999). Inconsistent verdicts in jury trials are permissible in criminal cases; however, inconsistent verdicts of guilty and not guilty by a trial judge at a nonjury trial are not ordinarily permitted. When a trial judge renders inconsistent verdicts, the remedy is to reverse or vacate the verdict entered on the inconsistent guilty verdict. Where, however, there is an apparent inconsistency in the verdicts at a nonjury trial, but where the trial judge on the record satisfactorily explains the apparent inconsistency, the guilty verdict may stand. If there is only an apparent inconsistency which in substance disappears upon review of the trial court’s explanation, the guilty verdict will not be vacated.
The Court agreed with the State’s distinctions between misdemeanors and felonies in the application of the law of accessoryship in Maryland, but disagreed that those differences render the verdicts inconsistent, as a matter of law, in this case. The Court established that the common law doctrine of accessoryship is applicable to felonies only and outlined the differences:
A principal in the first degree is one who actually commits a crime, either by his own hand, or by an inanimate agency, or by an innocent human agent. A principal in the second degree is one who is guilty of a felony by reason of having aided, counseled, commanded or encouraged the commission thereof in his presence, either actual or constructive. A principal in the second degree differs from an accessory before the fact because an accessory before the fact is one who is guilty of a felony by reason of having aided, counseled, commanded or encouraged the commission thereof, without having been present either actually or constructively at the moment of perpetration. Lastly, an accessory after the fact is one who, with knowledge of the other’s guilt, renders assistance to a felon in the effort to hinder his detection, arrest, trial or punishment. These differences are not applicable to misdemeanors because, in Maryland, the principles of accessoryship apply only to felonies; as to misdemeanors, all participants in a crime are considered principals.
In accordance with these definitions and case law, the Court concluded that Williams must have possessed the handgun before he could use it. Because Williams embraced the entire criminal enterprise, it was inconsistent for the trial judge to conclude that Williams used the handgun but did not actually or constructively possess that gun. The judge, further, failed to adequately explain how Williams was not in possession of the handgun while traveling to the Citgo station but nonetheless embraced all of the other crimes committed in furtherance of the attempted armed robbery. Consequently, the convictions for attempted robbery with a dangerous weapon, assault in the first degree, and use of a handgun in the commission of a crime of violence and a felony must be reversed.
The full opinion is available in PDF.
Friday, February 9, 2007
This is a products liability case in which plaintiff alleged injury as a result of a defective tractor. Plaintiff sought relief under strict liability, negligence, and breach of implied warranty. The United States District Court granted summary judgment for both defendants.
On June 8, 2004, plaintiff purchased a tractor manufactured by defendant CNH. On August 17, 2004, plaintiff was using the tractor on a dirt road near his property. In the course of doing so, he set the parking brake, set the transmission to neutral, and got off the tractor. Shortly thereafter, he noticed that the tractor was rolling away from him. He chased after the tractor trying to stop it, but was caught underneath it. Plaintiff suffered multiple injuries to his back and ribs. Despite the injuries, he continued to use the tractor for three months, or 58.5 actual hours, before he had the vehicle inspected. In January 2005, the tractor was inspected and the brakes were adjusted.
The current case was filed on August 24, 2005, and Motions for Summary Judgment were filed by the defendants on April 18, 2006 and April 19, 2006.
The court first and set forth the standard of review, explaining that summary judgment is appropriate when there is "no genuine issue as to any material fact, and the moving party is plainly entitled to judgment in his favor as a matter of law."
The court then applied the standard to the current facts. The court first analyzed the counts for strict liability. The elements of strict liability are, "(1) the product was a defective condition at the time that it left the possession or control of the seller, (2) that it was unreasonably dangerous to the user or consumer, (3) that the defect was a cause of the injuries, and (4) that the product was expected to win did reach the consumer without substantial change in its condition."
A product can be defective in three separate ways: design, manufacturing, and failure to warn. The defect can be proven a three different ways, "(1) direct proof based on the nature of the accident in the context of the particular product involved; (2) circumstantial proof based on an inference of a defect from a way of several factors; [or] (3) director for to prove through a pain testimony by an expert witness in." The court can consider the following factors, "(1) expert opinion as to possible causes for the accident, (2) cost it after the sale of the product the accident occurred, (3) whether the same accident occurred in similar products, (4) the absence of other causes for the accident, and (5) whether the accident was one that does not occur without a defect." In this case, plaintiff claimed a design defect. The court concluded that plaintiff had not offered sufficient evidence as to whether the brake was actually defective to present the case to a jury. The court found that there was no reliable evidence of the condition of the brakes at the time of the incident.
The court then considered whether the tractor was unreasonably dangerous to plaintiff as its operator. An unreasonably dangerous product is "one which is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Courts also weigh "the utility of the risk inherent in its design against the magnitude of the risk." The court found that the tractor was not unreasonably dangerous to plaintiff as its operator because plaintiff "was able to use the tractor without difficulty before the accident and continue to use it even after the accident." The court was also persuaded by the fact that plaintiff failed to heed two of the four warnings in the tractor's manual and warning labels. The court was also cognizant of the fact that plaintiff continued to use the tractor for approximately 100 hours even after the accident occurred. This suggested to the court that under the balancing act of utility of the risk against the magnitude of the risk, plaintiff had failed to meet his burden.
The court then went on to examine the issue of causation. The court determined that the true causation of the injuries was plaintiff attempting to get back on the tractor after he saw it moving away from him. This attempt was a superseding intervening cause of plaintiff's injuries.
The court also determined that plaintiff misused the tractor by failing to heed all of the warnings to be found in the owners' manual and all the warning labels. Misuse is not an affirmative defense to a claim for strict products liability, but it does "negate a design defect claim."
For the reasons set forth above, the court also granted the motions for summary judgment on the ordinary negligence claims. Moreover, plaintiff was contributorily negligent in chasing after the tractor.
For similar reasons, the court granted summary judgment to the defendants on plaintiff's claims of res ipsa loquitur and breach of implied warranty of merchantability.
This opinion is available in PDF.
Family Law Article §9-101 provides as follows:
(a) In any custody or visitation proceeding, if the court has reasonable grounds to believe that a child has been abused or neglected by a party to the proceeding, the court shall determine whether abuse or neglect is likely to occur if custody or visitation rights are granted to the party.Issue: Where the trial court has reasonable grounds to believe that a child has been abused, is the trial court required to make a factual finding of abuse and if so, must the factual finding be supported by a preponderance of the evidence?
(b) Unless the court specifically finds that there is no likelihood of further child abuse or neglect by the party, the court shall deny custody or visitation rights to that party, except that the court may approve a supervised visitation arrangement that assures the safety and the physiological, psychological, and emotional well-being of the child.
Held: Yes. In reversing the decision of the Court of Special Appeals (and thereby affirming the trial court), the Court of Appeals held that, if a court if a trial court finds that there are reasonable grounds to believe that a child has been abused there must be further fact finding by the trial court on the substantive issue of abuse by a preponderance of evidence. The Court of Appeals specifically rejected claims that §9-101 created a less stringent standard of proof.
Full opinion available in PDF.
Issue: Venue - improper joinder. In an action for trespass to land located in the county where the action is brought, is it permissible to join an action for a separate trespass to land located entirely in a different county, when the two parcels are not contiguous or under common ownership and have no other connection with each other.
Held: No. A cause of action for trespass to land is a "local action" which must be brought in the county where the property lies.
The Plaintiffs, separate owners of two land parcels, one in Baltimore County and one in Baltimore City, filed a complaint in Baltimore County against Comcast for trespass. The plaintiffs complained that the defendant had run cable across their land without permission. The plaintiffs sought certification as a class. Before class certification was granted, the defendant moved to dismiss, challenging the plaintiffs' choice of venue. The defendant argued that, as a local action, a claim for trespass must be brought in the county where the property is located.
As no class had been certified, the circuit court treated the claim as involving only the named plaintiffs. The court concluded that a cause of action for trespass must be brought in the county in which the property lies, and that a claim for trespass to property in one county may not properly be joined with a proceeding in another county. Accordingly, the court dismissed without prejudice.
The circuit court warned the plaintiffs not to join the same actions in one case in Baltimore County a second time or the case would be dismissed. The plaintiffs did not follow this advice. Instead, they refiled a nearly identical complaint, which the circuit court then dismissed the complaint with prejudice. The Court of Special Appeals affirmed.
Relying upon CJP §§ 6-203, the Court held that venue in an action of trespass to land is in the county where all or any portion of “the subject matter of the action” is located. The Court held that the property was the subject matter.
To avoid this result, the plaintiffs made two arguments for an exception. First, they argued that the properties were not separate "subject matters," but part of an aggregate subject matter comprising all of the properties of the putative class members. Therefore, venue should lie in any county in which such land could be found. Second, they argued that their other causes of action, for unjust enrichment and to quiet title, arising from the trespass, were not local actions and may be brought in any county.
The Court rejected these arguments. In doing so, it explicated the historical difference between "local" actions, which must be brought where the subject matter is located, and "transitory" actions, which may be brought wherever the defendant works, lives, or has a principal office. Ultimately, it concluded that all of the claims arose out of the trespass and that courts will look to substance, rather than labels, in making determinations about venue.
Accordingly, the Court affirmed the dismissal. The Court then noted that normally, transfer of the offending claim to the proper venue would be the normal remedy. The Court noted, however, that the plaintiffs had been given that option by the circuit court, but they had rejected it by refiling the claims together. Accordingly, the Court said that it found no abuse of discretion in the circuit court's dismissing the action with prejudice.
The full opinion is available in PDF.