Breen v. Buttman (a.k.a. Guttman); In Re: John S. and Teresa J. Breen (U.S.D.C. Md.) (Not Approved for Publication)

Filed May 8, 2007. Opinion by Judge Richard D. Bennett.

This case was an appeal from the Order of United States Bankruptcy Judge Robert A. Gordon denying a Motion to Reconsider filed by Appellant-Debtors John S. Breen and Theresa J. Breen ("Appellants").

The Appellants filed a chapter 7 bankruptcy on May 17, 2002. On August 28, 2002, an Order of Discharge was entered and the case was closed on September 15, 2005. In 2003, before the bankruptcy case was closed, Appellant John Breen filed a complaint against his former employer in the Circuit Court for Baltimore County (the "State Court Litigation") alleging numerous causes of action based in large part from the allegation that Mr. Breen was not paid the full value of commissions earned while working as a finance manager for a car dealership.

In response to a motion to dismiss by the defendants in the State Court Litigation, Appellants filed a motion to reopen their bankruptcy case, which was granted "for the limited purpose of permitting the Debtor(s) to determine the estate’s interest in the state court action..." The Bankruptcy Court also ordered that a trustee be appointed in the reopened case (the "Trustee").

On May 31, 2006, the Trustee sought the Bankruptcy Court's approval of a settlement that he reached with the defendants in the State Court Litigation. The Appellants objected to the proposed settlement on the grounds that "'[t]he Debtor, John Breen, has an individual interest, separate and distinct from the estate, in the State Litigation, to which the Trustee’s authority does not extend.'"

The Bankruptcy Court found "'[T]hat (a) but for the amount of $500, the causes of action set forth in the Complaint and Amended Complaint pending in the Circuit Court of Baltimore County, ... are property of the bankruptcy estate, (b) the Trustee has good and sufficient cause for settling the State Litigation ... and (c) John Breen (the "Debtor") is entitled to an exemption in the amount of $5,028.51.'"

The Appellants appealed two issues: "(a) Whether the Bankruptcy Court erred in exercising jurisdiction over debtor’s post-petition wages and other state law claims and by extending the Trustee's authority to administer non-estate property?;" and "(b) Whether the Bankruptcy court erred in concluding that claims based upon post-petition events, during debtor's post-petition employment, and giving rise to post-petition damages, are property of the Chapter 7 bankruptcy estate?"

In rejecting the Appellants' arguments, the Court found that (1) "the Bankruptcy Court possessed 'related to' jurisdiction over the State Court Litigation;" (2) "the Trustee possessed authority to pursue the settlement of the" State Court Litigation; (3) "the Bankruptcy Court provided the Appellants with a full and fair opportunity to present evidence establishing the existence and value of post-petition claims before approving the proposed settlement;" and (4) the Bankruptcy Court's factual findings were not clearly erroneous.

Orders of the United States Bankruptcy Judge Robert A. Gordon are AFFIRMED.

The full opinion is available in PDF format.

O’gray Import & Export v. British Airways (U.S.D.C. Md.)(Not Approved for Publication)

Filed May 4, 2007--Opinion by Judge Richard D. Bennet

In an action by O’gray Import & Export against British Airways, PLC for damages due to British Airways’s delivery of spoiled cargo, the court granted a defense motion for summary judgment. According to the facts found by the Court, O’gray Import & Export hired British Airways to transport smoked fish from Accra, Ghana to Baltimore-Washington International Airport. The cargo arrived more than five days after the expected date and was delivered to the wrong shipper. When the FDA inspected the fish it was released to O’gray but placed on a hold because there was evidence of mold. Eventually the FDA found that the fish was not edible for sale to the public and denied entry of the shipment.

The Court determined that O’gray had failed to comply with the notice requirements of the Warsaw Convention, which governed the transportation at issue, and therefore its claim against British Airways was barred. On that basis the court granted the Defendant’s Motion for Summary Judgment.




The full opinion is available in PDF.

Halpert v. Dental Care Alliance, LLC (Maryland U.S.D.C.) (Not approved for publication)

Signed April 30, 2007. Memorandum Opinion by Judge Richard D. Bennett (not approved for publication)

In an action to enforce the contractual obligation of another entity, which obligation had been assumed by the defendant ("Dental Care Alliance"), to pay certain sums to the plaintiff ("Halpert"), on consideration of cross motions for summary judgment, the judge DENIED Halpert's motion, GRANTED summary judgment in favor of Dental Care Alliance on three of four counts and DENIED summary judgment on the final count, so the case will proceed to trial.

(synopsis to follow)

The Memorandum Opinion is available in PDF format.

Alford v. Genesis Healthcare (Maryland U.S.D.C.) (Not approved for publication)

Signed April 9, 2007. Memorandum Opinion by Judge Richard D. Bennett (not approved for publication)

Upon consideration, the motion by defendant ("Genesis") for summary judgment was GRANTED.

The plaintiff ("Alford") was employed by Genesis as a Registered Nurse in its nursing care facility in Maryland beginning in 2003. When complaints arose about her performance, an investigation determined that Alford had failed to properly handle controlled substances, and she was discharged in 2004. As required by statute, Genesis reported the medication errors to the Maryland State Board of Nursing, and consequently Alford was required to enter a rehabilitation program for nurses to avoid disciplinary action against her by the State Board.

In 2005, Alford filed suit against Genesis in state court, and Genesis subsequently had the case moved to federal court based upon diversity of citizenship. Alford sought relief from Genesis based upon counts sounding in respondeat superior, wrongful termination, civil conspiracy, invasion of privacy false light, and intentional infliction of emotional distress. Genesis moved for summary judgment, and the judge reviewed the evidence in a light most favorable to Alford to determine if there was a genuine issue as to any material fact.

The judge found that the doctrine of respondeat superior was not a separate cause of action, but would only be relevant if a cause of action existed against Alford's direct employer, in order to hold Genesis liable. Since Alford was an at will employee, and no evidence to support a claim of abusive discharge had been submitted, there was no wrongful termination in this case. Since Genesis was under a statutory duty to report Alford's misdeeds to the State Board, it had a qualified immunity sufficient to overcome Alford's allegation of defamation, and Genesis' qualified immunity would also protect it against Alford's false light charge. Finally, civil conspiracy is not a cause of action apart from an underlying tort, and since no tort had been demonstrated in this case, the judge granted Genesis' motion for summary judgment on all counts.

The Memorandum Opinion is available in PDF format.

Kernius v. International Electronics, Inc. (Maryland U.S.D.C.)

Signed March 30, 2007--Memorandum Opinion by Judge Richard D. Bennett.

Plaintiffs filed a patent infringement action against Defendants alleging that Defendants infringed U.S. Patent No. 6,628,771, relating to "a device that allows a person to use his or her call waiting feature when he or she is using the same telephone line to connect to the internet." This memorandum addresses the Defendants' request, and the Court's construction, of certain claim language from the Patent.

(synopsis to follow)

The full Memorandum is available in PDF.

Montrose Educational Services, Inc. v. Sylvan Learning Systems, Inc. (U.S.D.C. Maryland)(Not approved for publication)

Decided March 30, 2007—Opinion by Judge Richard D. Bennett

Montrose Educational Services, Inc. (“Montrose”) alleged that Sylvan Learning Systems, Inc. (“Sylvan”) had made fraudulent representations to induce Montrose to enter into a franchise agreement and then breached their contractual duties by failing to provide proper assistance. Montrose argued that Sylvan had presented certain demographic information from 1998 to Montrose regarding the territory in the franchise agreement and Montrose had relied on this information in its decision to buy that particular territory. Under the terms of the license agreement, Montrose had promised to pay certain fees and to operate in compliance with Sylvan’s standards of operation. In return, Montrose was to receive supervision and assistance, most notably through a Quality Assurance Review, which was to be conducted “approximately one hundred twenty (120) days after Licensee first opens its Center.” The Defendants allegedly did not offer much support to Montrose’s center and did not conduct a Quality Assurance Review until approximately two years after the opening of the center.

From early 2002 to 2003, Montrose negotiated with the owners of two other Sylvan Learning Center franchises in Reno, Nevada, and Mobile, Alabama, in an attempt to purchase those franchises. During these negotiations, but before any sales were finalized, Defendants allegedly spoke to the Reno and Mobile franchise owners and told them that they would get a higher purchase price if they allowed Defendants to broker the sale to outside buyers rather than selling to Montrose. Montrose was not able to purchase either franchise.

The Complaint filed by Montrose sought damages in connection with five causes of action: breach of contract; breach of a covenant of good faith and fair dealing; fraud; negligent misrepresentation; and tortious interference with business relationships. Sylvan moved to dismiss or for summary judgment to the extent appropriate. Because the parties attached extrinsic documents to their briefs, the Court determined that the motion could be converted to a motion for summary judgment.

The Defendants argued that all of the causes of action were subject to Maryland's three-year statute of limitations and were time-barred. Montrose argued that, under the discovery rule, the claims were timely. Rejecting any continuing breach of contract theory and holding that by any measure, Montrose must have been aware of facts prior to February 6, 2003, with respect to the demographics and value of the territory, the Court granted summary judgment based on a statute of limitations bar as to all but the claim of tortious interference with business relationships. The Court determined that resolution of the tortuous interference count required more discovery and further briefing by the parties.

The opinion is available in PDF.

McClintick v. Leavitt (Maryland U.S.D.C.) (Not approved for publication)

Signed March 26, 2007. Opinion and Order by Judge Richard D. Bennett.

Memorandum and Opinion granting summary judgment in part.

Held: 1) A federal employee can seek relief for employment discrimination only by asserting causes of action under Title VII.

2) Not being nominated for a discretionary merit-based award may constitute an adverse employment action actionable under Title VII if the plaintiff can show that such a determination represents a decision on permanent pay status.

Facts: Plaintiff, white male, worked for U.S. Dept. Health and Human Services. His direct supervisor was an African-American female. In 2004, the Plaintiff was not nominated for a so-called Quality Step Increase ("QSI"). QSI's are awards given for sustained performance of high quality that significantly exceeds an acceptable level of competence. The Plaintiff had been nominated to receive a QSI for 2003, and had received other merit-based awards, when he was previously supervised by a different supervisor, who was Caucasian.

The Plaintiff sued, alleging that he did not receive a QSI for 2004 because of racial discrimination and retaliation for filing an earlier discrimination charge. The Plaintiff alleged four causes of action: Count I - race discrimination (Title VII), Count II - race discrimination (§1981); Count III - retaliation for participating in protected activity (Title VII); Count IV - retaliation in violation of §1981.

The Defendant moved to dismiss for failure to state a claim or, in the alternative, for summary judgment. The Court dismissed Counts II and IV because they were based upon §1981, a cause of action not available to Plaintiff, a federal employee. The Court denied the motion as to Counts I and III, finding that the Plaintiff had alleged sufficient facts to state a cause of action.

A full copy of the opinion is available in PDF format.

Bolton Partners Investment Consulting Group, Inc. v. The Travelers Indemnity Company of America (Maryland U.S.D.C.) (Not approved for publication)

Signed March 15, 2007. Memorandum Opinion by Judge Richard D. Bennett (not approved for publication)

In a case arising from the denial of coverage under comprehensive business insurance issued to the parent company of the plaintiff ("Bolton Partners") by the defendant ("Travelers"), and upon consideration of the parties' cross motions for summary judgment, the judge DENIED Bolton Partners' motion for partial summary judgment and GRANTED Travelers' motion for summary judgment.

In the course of providing consulting services to a client, an employee of Bolton Partners made allegedly defamatory statements about one of the companies being evaluated, which resulted in that company filing suit against Bolton Partners. Travelers declined to defend or indemnify under the insurance policy, citing the Designated Personal Services Exception. Bolton Partners eventually settled the suit, and sought indemnification from Travelers in this action.

Upon cross motions for summary judgment, the judge first addressed Travelers' claim that it had no duty to defend because Bolton Partners was not an "insured", since the policy was issued to the parent corporation of Bolton Partners. The judge found the structure of the policy to contemplate coverage of the subsidiary, and also because the issue had not been previously raised by Travelers in declaring its intent not to defend, and Travelers was thus estopped to raise that issue now.

Turning to the professional services exception, the judge noted that, unlike many other states, Maryland does not construe insurance contracts against the drafter, but rather uses normal principles of interpretation. Looking to cases in other jurisdictions, the judge found that such exceptions had been interpreted broadly. Turning to the facts here, the judge found the claimed defamation to have been within the context of Bolton Partners' performance of their professional services. Thus, the suit fit within the Professional Services Exception, and Travelers was not required to defend under its policy. Accordingly, the judge GRANTED Travelers' motion for summary judgment.

The Memorandum Opinion is available in PDF format.

Waybright v. Frederick County Dept. of Fire & Rescue, et al. (Maryland U.S.D.C.) (Approved for Publication)

Signed March 1, 2007. Memorandum Opinion by Judge Richard D. Bennett.

Defendants' motions for summary judgment GRANTED in part (as to the federal and state constitutional claims) and DENIED in part (as to Maryland tort law claims), and REMANDED to state court for determination of the surviving claims.

This case arose out of the death of a firefighter recruit during training in Frederick County, Maryland, and was originally filed with the Circuit Court for Frederick County against the Frederick County Maryland Department of Fire & Resuce Services, the individual trainer directly involved ("Coombes"), and other individual members and officers of the Department and the Board of Commissioners of Frederick County, Maryland, and later removed to federal court in light of the claimed violation of substantive due process under 42 U.S.C. Section 1983.

Coombes and the other defendants filed separate summary judgment motions on all federal and state law claims. Coombe asserted a defense of qualified immunity with respect to the constitutional claims, where "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory of constitutional rights of which a reasonable person would have known", quoting Harlow v. Fitzgerald. In attempting to determine whether the actions at issue here "shock the conscience", the plaintiffs suggested that the "deliberate indifference" standard be applied, either under the "special relationship" or "state created danger" theories of DeShaney, or the "opportunity to deliberate" theory of the 6th Circuit Estate of Owensby case. The judge noted that the Fourth Circuit had not yet adopted the approach taken in the Owensby case, and found neither of the other approaches to apply in this case. Thus, the higher intent-to-harm standard would be applied, and in this case there was no allegation that Coombe intended to harm the trainee fireman. Therefore, the state and federal constitutional claims against Coombe failed, and summary judgment in his favor was granted.

The constitutional claims against the other defendants relied on "supervisory liability" and the judge found that they must fail, since as above there was no constitutional violation by Coombes as employee, insufficient showing of knowledge of risk of a constitutional violation, and insufficient showing of deliberate indifference to such risk. Therefore, summary judgment in favor of the other defendants on the state and federal constitutional claims was granted.

Defendants also sought summary judgment on the state tort claims, but the judge declined to rule on them, instead ordering a remand to state court for further consideration.

The opinion is available in PDF format.

McGrath-Malott v. State of Maryland (Maryland U.S.D.C.) (Not Approved for Publication)

Signed February 23, 2007. Memorandum opinion by Judge Richard D. Bennett. (Not approved for publication.)

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.

E.E.O.C. v. EMS Innovations, Inc. (Maryland U.S.D.C.)(Not Approved for Publication)

Decided February 12, 2007 - Memorandum Opinion by Judge Richard D. Bennett (not approved for publication)

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.

Rodeheaver v. CNH America, LLC (Maryland U.S.D.C.) (Not Approved for Publication)

Issued February 7, 2007 -- Opinion by Judge Richard Bennet. Not approved for publication.

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.

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.

Braxton v. Domino's Pizza, LLC (Maryland U.S.D.C.)(not approved for publication)

Decided December 21, 2006--Opinion by Judge Richard D. Bennett (not approved for publication)

Employment discrimination case alleging, inter alia, numerous violations of 42 U.S.C. §§2000e, et seq. and 42 U.S.C. §1981, as well as breach of contract and tort claims based on the law of the State of Maryland. Among the claims were a count asserting a cause of action for negligent supervision and a count claiming wrongful discharge, i.e., that the plaintiff's discharge violated Maryland public policy. The Court granted the defendant's motion to dismiss as to these claims.

1. In order to prove a cause of action for either negligent hiring, supervision or retention, a plaintiff must establish that her injury was caused by the tortious conduct of a coworker, that the employer knew or should have known by the exercise of diligence and reasonable care that the coworker was capable of inflicting harm of some type, that the employer failed to use proper care in selecting, supervising or retaining that employee, and that the employer's breach of its duty was the proximate cause of the Plaintiff's injuries. Because negligent supervision claims "existed at common law" in Maryland, such claims therefore "may only be predicated on common law causes of action." Claims for racial discrimination under 42 U.S.C. §1981 did not exist at common law. Thus, the plaintiff's claim for negligent supervision must fail.


2. To sustain a claim for wrongful discharge, the employee must show that (1) he was discharged; (2) the basis for his discharge violates some clear mandate of public policy; and (3) there is a nexus between the employee’s conduct and the employer's decision to fire the employee. See Wholey v. Sears Roebuck & Co., 803 A.2d 482, 489 (Md. 2002). Whether public policy considerations constitute a clear mandate of public policy is a
   question of law. Id. at 487 (citations omitted). Plaintiff's contention that she was improperly terminated for complaining that her supervisor failed to adequately address security concerns in connection with the conduct of a former employee does not jeopardize a clear mandate of public policy.

The full opinion is available in PDF.

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

Decided December 20, 2006--Opinion by Judge Richard D. Bennett (not approved for publication)

Action brought by the federal government and State of Maryland for alleged violations of the Clean Water Act, 33 U.S.C. §§1251, et seq., the Rivers and Harbors Act of 1899, 33 U.S.C. §§401, et seq., and Md. Code Ann. Envir. §16-202(a).

Landowner (Costello) was granted emergency permits by Maryland to rebuild an erosion control structure, called a revetment, that had been destroyed by Hurricane Isabel. One condition of the permits was that the new revetment must have the same location and dimensions as the previously existing revetment. Costello retained PCI and Mielke, an engineer employed by PCI, to prepare permit applications and to design and construct the new revetment.

In the process of constructing the revetment during those four months, the defendants used earth-moving equipment to discharge fill material, including rock, dirt, and sand, into Whitehall Creek without a permit. These discharges allegedly created an obstruction to the navigable waters of the United States. They also resulted in the filling of State wetlands without a license.

The U.S. and the State of Maryland filed a Complaint in this Court alleging that defendants violated the Clean Water Act ("CWA"), the Rivers and Harbors Act of 1899 ("RHA"), and the provisions of Maryland's Code concerning permits to fill wetlands ("Maryland Wetlands Statute"), because the new revetment did not comply with the conditions of the emergency permit.

The plaintiffs sought a variety of injunctive relief as well as civil penalties. The injunctive relief sought was to enjoin defendants "from discharging or causing the discharge of dredged or fill material or other pollutants into any waters of the United States except in compliance with the CWA and RHA" and "from placing any unauthorized structures or obstructions or performing any work waterward of the mean high water mark without first having obtained all requisite federal and state permits."

PCI and Mielke filed the a motion to dismiss. They argued that injunctive relief should not be imposed against them and raised two arguments in support of their position. First, they argued that because they have no property rights to the site, they could not carry out any injunctions issued by this Court. Second, they argue that the injunctions would be moot, because "the alleged actions of these Defendants have all been completed, and these Defendants play no role in any current (or potential) alleged 'discharge' of pollutants, dredged or fill material."

Held:

1. The fact that PCI and Mielke do not have property rights in the site does not preclude this Court from issuing injunctive relief against them or any defendant to ensure compliance with environmental statutes.


2. PCI's and Mielke's mootness argument was rejected because their "allegedly wrongful behavior" is not only "reasonably expected" to occur, but will undoubtedly occur until the structure is removed.

The full opinion is available in PDF.