Jenson v. Maloff (Maryland U.S.D.C.)

Decided April 27, 2007 -- Judge Andre M. Davis

Petitioner Dagmar Jenson filed for habeas corpus relief in the United States District Court for the District of Maryland following a state conviction for first degree murder and a handgun violation. Petitioner cited five grounds for habeas relief after exhausting her appellate and post-conviction remedies under Maryland law. The United States District Court denied all claims for habeas relief and dismissed Petitioner's petition generally.

A more elaborate synopsis of this opinion shall appear shortly.

Gordon Grocery, Inc. v. Associated Wholesalers, Inc. (Maryland U.S.D.C.) (Not Approved for Publication)

Signed April 30, 2007--Memorandum opinion by Judge Andre M. Davis. (Not approved for publication.)

In a previous opinion (MCW synopsis here), the Court remanded the case to state court from which it had been removed. After remand, the plaintiff amended its complaint. In response, the defendant again attempted to remove the case to federal court.

The plaintiff had previously attempted to amend its claim in federal court to state the same additional claim that it set forth in the amended complaint filed in state court. The defendant had previously opposed this amendment in federal court and the defendant's opposition was sustained. However, because Maryland state rules are more liberal with respect to the allowance of amendments, the defendant lacked the ability to attack the amendment procedurally in the state court. Instead, it argued that the amendment constituted a "changed circumstance" allowing it to again seek removal to the federal court.

The Court again remanded the case to state court holding that: "Plainly, defendant will not be heard to contend under the circumstances here that plaintiff engaged in 'procedural fencing' to deprive it of a federal forum. . . or that it 'uncovered' some 'new ground of removal' after this case was remanded." (Citations omitted.)

The Court's opinion is available in PDF.

Gordon Grocery, Inc. v. Associated Wholesalers, Inc. (Maryland U.S.D.C.) (Approved for Publication)

Signed February 28, 2007--Memorandum opinion by Judge Andre M. Davis. (Approved for publication.)

Held: Dispute over stock redemption procedures remanded back to state court on the basis of mootness.

Plaintiff Gordon Grocery, Inc. ("Gordon Grocery") is a shareholder in defendant Associated Wholesalers, Inc. ("Associated"), which is a Pennsylvania corporation operating as a cooperative engaged in the business of purchasing, manufacturing, processing, warehousing and distributing food and related merchandise for retail merchant shareholders such as plaintiff. In the fall of 2005, Associated notified Gordon Grocery that it had failed to satisfy the minimum purchase requirements of the cooperative, and that Associated would redeem Gordon Grocery's shares, thereby terminating their relationship. Associated proposed to do so in two installments, one-third initially, and two thirds in 2010, while Gordon Grocery asserted the right to immediate redemption, and filed in state court for a declaratory judgment to that effect. Associated had the case removed to federal court.

During discovery, Associated elected to rescind the redemption determination and retain Gordon Grocery as a shareholder, thus rendering the dispute over redemption procedures abstract, and moved for summary judgment on the ground of mootness. The judge agreed, but rather than rendering the requested "judgment" in favor of Associated, remanded the case to state court from which it had been removed, where the judge speculated (but declined to decide) that the state trial court might determine it lacks subject matter jurisdiction on the ground of mootness.

The memorandum opinion is available in PDF.

Firemen's Insurance Co v. Komatsu America Corp. (Maryland U.S.D.C.) (Not Approved for Publication)

Signed February 22, 2007. Memorandum opinion and order by Judge J. Frederick Motz. (Not approved for publication.)

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.

Andrew v. Clark (Maryland U.S.D.C.)(Approved for Publication)

Issued February 5, 2007 -- Opinion of Judge Andre M. Davis. Approved for publication.

Plaintiff served as a Major in the Baltimore City Police Department (BCPD) and was the Commanding Officer of the Eastern District of the BCPD at times relevant. After a barricade incident, Plaintiff prepared and distributed to his chain of command an "internal memorandum" criticizing the BCPD's handling of that incident. Receiving no response from his chain of command, Plaintiff released a copy of the internal memorandum to a Baltimore Sun reporter. Internal Affairs investigated the release and Plaintiff was subsequently fired.

Plaintiff filed and subsequently moved to amend a complaint in U.S. District Court alleging multiple state and federal counts against then Police Commissioner Kevin Clark and other parties. The complaint as amended alleged inter alia that Defendants' firing of Plaintiff:

1. violated the procedural due process requirements under the 14th Amendment of the Constitution and 14 U.S. Sec. 1983 of the United States Code, as amended, due to the defendants' failure to provide either:

a. an adjudicatory hearing; or

b. a demotion to a civil service position at which a hearing would ostensibly apply under the Maryland Law Enforcement Officer's Bill of Rights ("LEOBR"); and further

2. violated Plaintiff's right to freedom of speech with respect to the preparation and release of the internal memorandum.

Defendants moved under Rule 12(b)(6) to dismiss all federal counts from the complaint.

The U.S. District Court held that Plaintiff acted in his capacity as a agent of the BCPD in preparing and distributing the internal memorandum, and accordingly had no such protected freedom of speech rights in that professional capacity under the First Amendment as would trump the BCPD's power to discipline or fire an employee. It held further that Defendant had not violated any of Plaintiff's procedural due process rights, as Plaintiff had no "property' right in his as an at-will employee under Maryland law, and thus no federal constitutional provision protected him from the deprivation of that "property". The Court also held that while state law may entertain a right of Plaintiff to be demoted to a protected, civil service rank as an intermediate discipline in lieu of termination, no constitutional principles commanded such a right.

Accordingly, the U.S District Court dismissed under Rule 12(b)(6) all federal claims in the complaint with prejudice and all non-diversity of citizenship state law claims without prejudice.

The Memorandum Opinion may be read here in PDF.

Knowlton v. American Airlines, Inc. (Maryland U.S.D.C.) (Not Approved for Publication)

Filed January 31, 2007. Opinion by Judge Richard D. Bennett (Not approved for publication)

Myra Knowlton filed a breach of contract claim against American Airlines, Inc. ("AA") alleging that she was not provided a free breakfast as promised on an American Airlines flight in November 2005. AA removed the matter to the United States District Court for the District of Maryland pursuant to 28 U.S.C. §1441(b), alleging the Plaintiff's cause of action arises under either the Convention for the Unification fo Certain Rules Relating to International Transportation by Air ("Warsaw Convention") or the Convention for the Unification of Certain Rules for International Carriage by Air ("Montreal Convention") and the court therefore had jurisdiction because Plaintiff's claim arose under an international treaty. The Court considered Plaintiff's Motion to Remand.

Plaintiff booked a round-trip ticket with AA to fly from Baltimore-Washington International Airport in Baltimore, Maryland to the Dominican Republic. Plaintiff received an electronic confirmation of her travel itinerary from AA which included the notation "breakfast" on the flight departing from Baltimore on January 26, 2006. Once on the flight, Plaintiff did not receive a free breakfast. Instead the Plaintiff was told that AA no longer provided complimentary meals but that she could purchase breakfast for $3.00.

On March 3, 2006, Plaintiff filed a class-action complaint against AA on behalf of herself and others similarly situated. On March 31, 2006, AA removed the case to the United States District Court for the District of Maryland pursuant to 28 U.S.C. §1441(b), alleging Plaintiff's cause of action arises under either the Warsaw Convention or the Montreal Convention and, as such, is a federal question. On April 28, 2006, Plaintiff filed a Motion to Remand arguing her claim does not arise under either the Warsaw Convention or the Montreal Convention because those treaties only address claims for personal injury, property damage, and damage caused by delay arising during international flights. AA argued that even though the Montreal Convention did not discuss carrier liability for a breach of contract action as alleged by Plaintiff, the treaty still pre-empts Plaintiff's claim.

Held:

The U.S. is a party to the Montreal Convention which supersedes the much older Warsaw Convention. The Montreal Convention imposes three categories of strict liability on air carriers. Liability will be imposed for 1) the accidental death or bodily injury of a passenger while on board, embarking, or disembarking the plane; 2) damage to or loss of baggage; and 3) damage resulting from delay of passengers, baggage, or cargo. Article 29 of the Montreal Convention contains an express statement of exclusivity, stating "any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention."

AA asserted complete preemption as the basis for federal question removal jurisdiction. "Under complete preemption a state claim arises under federal law when Congress 'so completely pre-empts a particular area that any civil complaint raising the select group of claims is necessarily federal in character." Therefore, "if the Defendant can show that the Montreal Convention completely preempts Plaintiff's breach of contract claim, then removal was appropriate."

Citing a split in authority over whether the Montreal Convention or its predecessor, the Warsaw Convention, completely preempt state law claims, the Court was persuaded by the reasoning of those cases in favor of preemption. The Court concluded that "[t]he treaties were designed to create a uniform system of liability among airlines for claims arising from international flights... As a matter of public policy, airlines should not be subject to contract claims in state courts involving a three-dollar breakfast." Accordingly, the Plaintiff’s Motion to Remand was denied.

This opinion can be found in PDF.

Halkas v. Grigsby (Maryland U.S.D.C.)(not approved for publication)

Decided January 22, 2007--Memorandum Opinion by Judge Deborah K. Chasanow (not approved for publication)

Debtor initially filed Chapter 7 bankruptcy petition in 2001 which was ultimately converted to Chapter 13 in 2002. At the time the Chapter 13 plan was confirmed, Debtor owned two residential properties. The plan called for Debtor to retain both properties while making payments to her creditors; however, in 2003, Debtor consented to sell one of the properties, the proceeds of which would be partially retained by Debtor, partially paid to Trustee for the benefit of the creditors, and partially remitted to Debtor’s former spouse who had been co-owner before the sale. In August 2005, a motion to dismiss by Trustee was pending because Debtor did not stay current on payments agreed to in a modified plan from 2004 reducing her monthly payment. Debtor moved to sell the second residential property and in October 2005 the bankruptcy court ordered that all net sale proceeds be paid directly to Trustee and disbursed to pay creditors, up to the amount required to pay all claims against Debtor’s bankruptcy estate.

After completion of sale and Trustee’s distribution of proceeds, Debtor filed a motion contesting whether Trustee had the right to retain all proceeds of the sale. The bankruptcy court denied this motion in September 2006. Debtor filed a notice of appeal and filed an emergency motion in the bankruptcy court to stay the disbursement of the sale proceeds, which motion was denied September 29, 2006. On or about September 30, 2006, Trustee disbursed all remaining funds in the bankruptcy estate pursuant to the bankruptcy court’s Orders. Trustee filed a notice of plan completion in the bankruptcy court on October 5, 2006, and the bankruptcy court granted Debtor a discharge the next day.

On Debtor’s appeal, Trustee argued for dismissal pursuant to the doctrine of equitable mootness, definining mootness as when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome. To survive an assertion that a claim is moot, a party must have suffered an actual injury that can be redressed by favorable judicial decision. Even the availability of a partial remedy is sufficient to prevent a case from being moot. Since Trustee paid out all the proceeds of the sale pursuant to the bankruptcy court’s Orders, and no creditors were parties to the appeal, it would be impossible to fashion any relief for Debtor even if she prevailed in the appeal because the nonparty creditors could not be ordered to return funds they had received. Consequently, the action was moot.

Debtor argued that the case was not moot because if she were to prevail on appeal, she could attempt to enforce a money judgment against Trustee for the distributed funds. The Court found that Debtor could not recover funds from Trustee personally because Trustee never held the proceeds from the sale for her own use and Trustee indicated that the funds were distributed pursuant to the bankruptcy court’s Orders.

Debtor relied on an unpublished opinion, Walker v. Grigsby, No. AW-06-62, slip op. at 4 (D.Md. April 11, 2006), in which the court concluded that an appeal by a debtor’s attorney contesting an order granting him only part of his requested fee was not constitutionally moot. Because the Debtor and Trustee remained parties to the case and at least one creditor continued to be subject to the bankruptcy court’s jurisdiction, the court reasoned that the attorney might have the ability to seek payment, if he succeeded on appeal, from the Debtor, the Trustee, or other creditors. The instant case, however, differs in that the Trustee alleged she had paid out all available funds to nonparty creditors pursuant to the bankruptcy court’s Orders.

The full opinion is available in PDF

Laurel Sand & Gravel, Inc. v. Philbrick (Maryland U.S.D.C.)(not approved for publication)

Memorandum Opinion and Order dated January 3, 2007, by Judge J. Frederick Motz (not approved for publication)

In a brief letter memorandum, Judge Motz awarded a "hat trick" to the defendants, finding three separate grounds for dismissal of this case, which involved challenges by a mine owner/operator to the Maryland Dewatering Act.

The first grounds raised were based on principles of res judicata and collateral estoppel, claiming that the earlier Maryland case of Maryland Aggregates Ass'n, Inc. v. State of Maryland resolved or could have resolved the issues in this case. For res judicata claims, the federal courts are to apply the law of the state in which the prior case was heard, in this case Maryland. The court found that two of the requisite elements were not in dispute, namely that there was a final judgment on the merits and the parties were the same, and after some consideration found the final element, that the claims were substantially similar (though the court noted that, had the other bases for dismissal proved unavailing, he might have considered certifying the question to the Maryland Court of Appeals for resolution).

The second ground was that the plaintiff's claim failed as a matter of law, in that the Dewatering Act did not deprive the plaintiff of any property right in requiring the dewatering mine operator to pay for new wells for adjacent landowners presumptively affected by the dewatering operation, and the plaintiff had failed to identify any "property interest" that the state has invaded.

The third ground was a claim that the abstention doctrine of Younger v. Harris precluded the federal court from interfering with an ongoing state proceeding which involved important state interests and provided an adequate opportunity for the plaintiff to raise the federal constitutional claims advanced in the federal suit. Here, the plaintiff had admittedly failed to appeal the result of a Maryland administrative proceeding that had denied its claims, and thus voluntarily gave up the right to resolve those matters in the Maryland courts). The judge also found an important, substantial and vital state interest, even though the Fourth Circuit has not yet specifically identified regulation of water use for Younger purposes, finding at least an analogy to zoning and regulation of land use which have long been held to justify federal abstention.

The full opinion is available in PDF, as is the order.

Harkum v. US (Maryland U.S.D.C.)(not approved for publication)

Decided December 29, 2006 -- Opinion by Judge J. Frederick Motz (not approved for publication)

In a brief memorandum opinion providing relatively few factual details of the case, the United States District Court for the District of Maryland reviewed a motion for summary judgment filed by the United States regarding Plaintiff's six civil counts under Maryland common law arising out of the arrest and shooting of Joseph Schultz. The opinion does not specify either the precise causes of action or the relationship between Plaintiff and Joseph Schultz, but indicates that Plaintiff was in Schultz's presence when a federal agent shot him.

The Court held that sovereign immunity entitled the United States to judgment as a matter of law on Counts I and II of the complaint, holding that the discretionary function exception to the waiver of sovereign immunity under the Federal Tort Claims Act applies to those counts. The Court denied summary judgment against all four remaining counts, finding that a reasonable fact finder could find that the federal agent who shot Schultz did so with recklessness or gross negligence and therefore find for Plaintiff.

The Court also mentioned the existence of a separate, prior federal civil action by Schultz against federal agent Braga, distinguishing the cases in a brief footnote.

The full opinion and associated order are available in PDF format.

Jimenez v. Barnhart (Maryland U.S.D.C.)(not approved for publication)

Decided December 20, 2006--Opinion by Judge J. Frederick Motz (not approved for publication)

Pro se action for employment discrimination by an employee of the Social Security Administration. Defendants' Motion to dismiss or, in the alternative, for summary judgment, granted.

Held:

1. Director of the Office of Personnel Management has only discretionary authority to seek review of a decision of the Merit Systems Protection Board (the "MSPB"), which discretion may only be exercised if the Director concludes that "the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management and that the Board's decision will have a substantial impact on a civil service law, rule, regulation, or policy directive."


2. A challenge to a decision of the MSPB can only be brought in the United States Court of Appeals for the Federal Circuit and a United States District Court has no jurisdiction over such claims.


3. An adverse finding of the MSPB with respect to discrimination claims are required to be filed in a United States District Court within 30 days after the MSPB’s decision became final. She did not do so. If a review of an MSPB decision as to other claims is sought, that appeal must be filed in the United States Court of Appeals for the Federal Circuit within 60 days after the MSPB's decision became final. The United States District Court cannot review a decision of the United States Court of Appeals for the Federal Circuit.


4. Certain claims are barred if an employee does not appeal an adverse decision of the Social Security Administration to the MSPB.
   


5. Any claim with regard to the issuance of a Performance Assessment Plan to an employee fails because the issuance of the Plan is not a "ultimate employment decision" of the type necessary to give rise to a discrimination claim.

The full opinion is available in PDF.