Educational Testing Service v. Hildebrant (Ct. of Appeals)

Filed: May 10, 2007—Opinion by Judge Irma Raker

Hildebrant sued Educational Service ("ETS") for malicious defamation and breach of contract after ETS concluded that Hildebrant had not followed mandatory testing procedures and canceled her test scores. According to Hildebrant, ETS breached its contract with her by failing to “"fairly and accurately report her leadership assessment scores" to the Montgomery County Board of Education. The Court of Special Appeals had earlier reversed summary judgment on the breach of contract claim and remanded for further proceedings based on an affidavit by Hildebrant denying that she failed to follow testing procedures.

The Court of Appeals disagreed on the ground that an affidavit that presents a general, conclusory denial of misconduct is not sufficient to establish a genuine dispute of material fact as to whether a testing proctor acted in bad faith. The Court ruled that the trial judge was correct in granting summary judgment for ETS where Hildebrant acknowledged her acceptance of the contract with ETS and did not create a genuine issue of material fact as to whether Baker had acted in bad faith. The decision by the CSA was reversed with instructions to remand.

The full opinion is available in PDF.

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.

Ivy v. Board of Education of Baltimore County (Maryland U.S.D.C.) (Not approved for publication)

Signed April 30, 2007. Memorandum and Order by Judge J. Frederick Motz (not approved for publication).

In a case filed pro se by a former employee ("Ivy") against her former employer ("Board of Education"), upon consideration of the Board of Education's motion for summary judgment, the judge GRANTED the motion, finding that Ivy had presented no evidence to support her claims of race, religious, age and disability discrimination.

The Memorandum and Order are available in PDF format.

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.

Bruns v. Potter (Maryland U.S.D.C.) (Not approved for publication)

Signed April 30, 2007. Memorandum and Order by Judge J. Frederick Motz (not approved for publication).

In an action in which an employee ("Bruns") alleged retaliation in violation of Title VII by his employer, the Postal Service, the defendant moved for summary judgment. Bruns failed to respond to the motion, and the judge GRANTED the defendant's motion, finding that there was no dispute as to any material fact, that the record showed that the disciplinary action against Bruns (being sent home and given a seven day suspension) was taken as a reasonable response to Bruns having "acted inappropriately and in a threatening manner" toward his supervisor, and that Bruns was treated no more harshly than any other employee in his circumstances.

The Memorandum and Order are available in PDF format.

Frank v. Home Depot (U.S.D.C. Maryland)

Filed April 11, 2007—Opinion by Judge William Quarles


The District Court granted Home Depot’s motions for summary judgment of a suit by Charles Frank, a former employee, for breach of contract and defamation related to his termination and certain statements made by a Home Depot employee to Frank’s potential future employer.

Home Depot had terminated Frank because he falsely stated that he had been properly licensed to operate the forklift when his license had expired. Thereafter, Lowe’s allegedly failed to hire him because of defamatory statements made by a Home Depot employee to someone at Lowe’s.

This is the second suit brought by Frank against Home Depot. In the first, Frank sued pro se, alleging retaliatory and discriminatory discharge in violation of Title VII of the Civil Rights Act of 1964 and wrongful discharge in violation of Maryland law. The Court had dismissed that suit for failure to state a claim.

The instant suit alleging breach of contract and wrongful discharge was previously dismissed without prejudice and reinstated on an amended complaint that added the defamation claim. The Court determined that the first count was barred by res judicata, while the defamation claim was barred by the statute of limitations and, in any event, by a statutory and common law qualified privilege, citing Md. Code Ann., Cts. & Jud. Proc. § 5-423 and Gohari v. Darvish, 363 Md. 42, 56 (2001).

The opinion and order are available in PDF.

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.

Ward v. Hammond et al. (Maryland U.S.D.C.) (Not approved for publication)

Filed March 30, 2007 --Opinion by Judge Catherine Blake

Ward, an inmate at the Western Correctional Institution ("WCI"), alleged that medical personnel at WCI had denied him medical treatment and housing for his complaints regarding knee and lower back problems related to an old automobile accident. The court considered motions to dismiss and/or for summary judgment, granting all but those pertaining to Plaintiff's claims against defendants Hammond, Van Meter, and Tessema (respectively, a nurse practitioner, nurse, and physician at WCI) for his medical treatment prior to July 1, 2005, based on a delay in providing treatment prior to that date.

The count asserted against Department of Public Safety and Correctional Services ("DPSCS") was dismissed because DPSCS is not a "person" under 42 U.S.C. § 1983 and is entitled to Eleventh Amendment immunity. Defendants CMS and PHS were dismissed because the doctrine of respondeat superior liability does not apply to § 1983 claims. The count asserted against those defendants stemmed from violations of prison directives, which the court held did not give rise to a § 1983 claim or a private right of action.

The court explained that a denial of medical care claim in violation of the Eighth Amendment required the plaintiff to prove an objectively serious medical condition and a subjective component of deliberate indifference on the part of prison officials or health care personnel. The Court determined that there was no dispute that Ward had a medical problem involving his knees relating to injuries suffered in a motor vehicle accident in the mid 1980's. The Court found a genuine dispute of material fact regarding the constitutionality of the level of care received by Ward for his orthopedic condition prior to July 1, 2005. Thus summary judgment was not granted for that time period as to the medical defendants.

The Opinion and Order are available in PDF.

Sykes v. Wicomico County (Maryland U.S.D.C.) (Not approved for publication)

Filed March 30, 2007 --Opinion by Judge Catherine Blake

Tyrone Sykes sued the defendants, Officers Phillips and Alessandrini for violations of federal and state law arising out of a scuffle during his arrest for criminal trespass in Salisbury, Maryland. In a Maryland district court trial, Sykes was found not guilty of the criminal trespass charge, after the judge found no probable cause for his arrest. The judge noted that under the common law one could resist reasonably in an unlawful arrest. In federal court Sykes alleged violations that included assault, battery, false imprisonment, false arrest, malicious prosecution, excessive force, violation of the Maryland Declaration of Rights, and violation of 42 U.S.C. § 1983.

Sykes claimed that his Fourth Amendment rights were violated because the defendants illegally searched his person after arresting him without a warrant. The court denied summary judgment on that claim because of a genuine dispute of material fact as to whether the officers had probable cause for the arrest. The court rejected summary judgment for the defendants based on qualified immunity because as stated by Syke’s version of the events, an arrest for trespass, and subsequent search, by the police without express authorization or prior agreement, and where the plaintiff articulates a plausibly legitimate reason for being on the premises, which has been acknowledged by the officer, is a constitutional violation.

Finding that the notice provisions of the Maryland Tort Claims Act do not implicate individual state employees, the court held that Sykes’s possible failure to comply with the MTCA would not bar his claim.

The defendants claimed that they were entitled to statutory immunity for the state law claims but the court rejected that as a basis for summary judgment because on the facts taken in the light most favorable to Sykes there was evidence sufficient for a jury to find actual malice, which would preclude qualified immunity. Analyzing the claims of excessive force during an arrest under the Fourth Amendment’s objective reasonableness standard and again taking the facts in the light most favorable to the plaintiff, the Court found a genuine dispute of material fact concerning whether defendants used excessive force.

With respect to the assault and battery claims, the court noted that police officials are not responsible in inflicting injury on a person being arrested, unless the officer acts with malice or gross negligence. Because there was a genuine dispute as to whether the police officers lacked probable cause in arresting Sykes for trespass, and taking the facts in the light most favorable to Sykes, the judge denied summary judgment on that basis because a jury could find malice in the defendants’ actions. On a similar reasoning, the court found summary judgment inappropriate as to the false arrest, false imprisonment, and malicious prosecution allegations.

The Opinion and Order are available in PDF.

Palm v. Wausau Benefits, Inc. (U.S.D.C. Maryland)(Not approved for publication)

Filed March 26, 2007—Opinion by Judge Andre Davis

Plaintiff Anthony Palm, a beneficiary under a group long term disability income policy sponsored by his former employer, sued under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001, et. seq., to challenge a denial of benefits.

The Court considered it undisputed that Palm suffered from numerous impairments, including chronic lumbalgia, acute chronic lumbosacral paravertebral muscle spasm, bilaterally, and degenerative dessication with dorsal disc bulging at L4 - 5, L5 - S1 and C5 - 6, that are, collectively, disabling. On the ultimate issue, however, of whether the evidence was sufficient to establish that Palm was "totally disabled" from working in "any occupation," the Court determined that a physician’s opinion that Palm cannot perform sedentary or light duty work was rather conclusory and wholly undercut by other evidence in the record, including surveillance videos of Palm engaged in physical activity inconsistent with his claims.

On cross-motions for summary judgment, the Court found that Palm failed to show by a preponderance of the evidence that he is "totally disabled" within the definition of the relevant policy. At best, the Court said, the evidence was in equipoise (and parenthetically added that it was not), but in any event Palm failed to satisfy his burden to show “total disability” under the Policy.

The opinion 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.

MALDONADO v. MILLSTONE ENTERPRISES, INC., et al. (Maryland U.S.D.C.)(Not approved for publication)

Decided February 23, 2007—Opinion by Judge William Connelly

Plaintiff Maldonado alleged that Defendants caused injuries to him through the negligent failure to provide safe maintenance of a material hoist, failure to use reasonable care to discover and correct unsafe conditions on the material hoist, and failure to adequately warn of a hazardous and dangerous condition which Defendants knew or should have known existed. In considering defense motions for summary judgment, the Court struck Plaintiff’s expert report because it lacked an affidavit verifying its authenticity. The Court also found inadmissible an unsworn memorandum from an NSA safety specialist.

Because this case concerned the malfunction of complex machinery, the Court determined that the Plaintiff was precluded from relying on the doctrine of res ipsa locquitur and without expert testimony the Plaintiff was unable to establish a prima facie case. The Court added that even if the expert's opinion letter was admissible, it would not create a genuine issue of material fact because it was based on the inadmissible NSA memorandum and the expert himself had never examined the material hoist. Therefore the Court entered an order granting summary judgment in favor of the Defendants.


The opinion and order are available in PDF.

Weaver v. Schartiger (Maryland U.S.D.C.) (Not approved for publication)

Signed March 23, 2007. Memorandum and Order by Judge Catherine C. Blake (not approved for publication)

Upon consideration, the motion for partial summary judgment of the defendant ("Schartiger") is GRANTED except as to any claim for compensation due under the terms of the Agent Agreement, and the motion to compel of the plaintiff ("Weaver") is DENIED.

This case arose out of the termination of an Agency Agreement (the "Agreement") between Schartiger, owner of an insurance company, and Weaver, a former agent of the company. The Agreement was entered into to define the relationship of Weaver as an independent contractor working with, but not for, Schartiger, and set forth formulas for compensation, both during and after the term of the Agreement. The Agreement was to be "continuous", and contemplated annual review of the Agreement by the parties. When negotiations initiated by Schartiger to end the Agreement and move Weaver into an employee status were resisted by Weaver, Schartiger unilaterally terminated the Agreement, and Weaver filed suit.

The judge found that, under Maryland law, an employment contract without a stated duration is at will, terminable by either party, and thus Weaver's request for a declaratory judgment that the Agreement was not terminable must fail.

Likewise, Weaver's claim that she possessed an ownership interest in the business must fail, in light of explicit language in the agreement that Weaver was to be an independent contractor and that all policies and business produced were the exclusive property of Schartiger. Any implication that a provision in the Agreement that Weaver might receive 25% of the sale price of the company indicated an ownership interest was negated by the right of first refusal provision in the Agreement, which would require Weaver to pay the same price as a third-party bidder, indicating no such ownership interest.

The judge concluded that, except for any compensation due to Weaver under the Agreement, for which calculation sufficient information has already been provided, negating the need for further discovery, all her claims were denied.

The Memorandum and Order are available in PDF format.

Mercantile-Safe Deposit & Trust Company v. Chicago Title Insurance Company (Maryland U.S.D.C.) (Not approved for publication)

Signed March 20, 2007. Memorandum and Order by Judge Catherine C. Blake (not approved for publication)

On consideration of cross motions for summary judgment, the motion of the plaintiff ("Mercantile") is GRANTED, the motion of the defendant ("Chicago Title") is DENIED, and JUDGMENT ENTERED in favor of Mercantile.

This case arose out of the refusal by Chicago Title to pay claims made by the insured, Mercantile, under two lenders title insurance policies it had issued to cover two indemnity deed of trust ("IDOTs") granted to secure guarantees of two loans made by Mercantile to two family businesses. The guarantor and grantor of the IDOTs was the trustee named in two unrecorded qualified personal residence trusts ("QPRTs") established by the original owners of the property. The deed which transferred title to the trustee had recited in part that no party dealing with the trustee with regard to the property need inquire as to the trustee's authority or to the satisfaction of the terms of the trust documents. Neither Mercantile nor Chicago Title asked for or reviewed the trust documents.

When the loans went bad, certain of the beneficiaries under the QPRTs filed suit to dispute the validity of the IDOTs, claiming the trustee had engaged in improper self-dealing in violation of his responsibilities to the beneficiaries. Pursuant to a notice of claim from Mercantile, Chicago Title undertook to defend in the suit, without reservation of right to disclaim coverage. The trial court declared that the trustee had been without power to grant the IDOTs, since the loans were unconnected to the trusts and granting the IDOTs was inconsistent with the beneficiaries' interests. Mercantile lost on appeal, and was thus unable to foreclose on the IDOTs.

Upon Mercantile's filing of a proof of claim under the title policies with Chicago Title, counsel for Chicago Title requested access to Mercantile's records as part of its "investigation" of Mercantile's claim. Mercantile subsequently filed this suit, alleging breach of contract and asking declaratory relief.

After reviewing the standards for summary judgment, the judge noted that in Maryland, insurance policy language is not construed most strongly against the insurance company as drafter, but rather using customary, ordinary and accepted meanings of terms used. Chicago Title claimed that the claimed amounts were not covered, since the IDOTs were given to secure payments due under the guaranties, and that the guaranties were invalid for the same reason the IDOTs had been declared invalid. Even though the judge conceded that the IDOTs were clear that they secured the guaranties, she found they also "indirectly secured the underlying loan obligations," citing the common Maryland practice of using IDOTs to avoid imposition of recordation tax on the loan amount. The judge opined that "[i]nterpreting the language of the IDOT as though it secured only the unconditional guaranty agreements and not the underlying promissory notes would be to rely on a technical differentiation that ignores Maryland practice and, more importantly, contradicts the plain purpose of the IDOTs as well as the parties’ understanding of the title insurance contracts," and found that the policies secured the underlying loan obligations and that Mercantile had suffered losses covered under those policies.

In addition, the judge found that, by unconditionally accepting and continuing representation of Mercantile in the underlying and preceding litigation, Chicago Title was now estopped from disclaiming its liability, since it precluded Mercantile from obtaining independent counsel and possibly accepting offers of settlement that had been rejected by counsel provided by Chicago Title.

Chicago Title also raised several bases for exclusion of the claim, as set forth in the language of the policy. The judge had little difficulty finding that the defect here was not "created, suffered, assumed or agreed to" by Mercantile, since it had the same information available to it that was available to Chicago Title, nor had Mercantile concealed material facts about the transaction, nor had it breached the policy by refusing to produce records associated with the claim, since Chicago Title had effectively waived the requirement when it had proceeded to treat Mercantile's claim as covered throughout the litigation below without reservation of right.

Consequently, the judge entered judgment in favor of Mercantile for the policy amounts, plus prejudgment interest, but declined to award attorney fees to Mercantile.

The Memorandum and Order are 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.

Western World Insurance Company, Inc. v. Greene (Maryland U.S.D.C.) (Not approved for publication)

Signed March 13, 2007. Memorandum and Order and Declaration of Judgment by Judge Catherine C. Blake (not approved for publication)

On motion for summary judgment made by the plaintiff ("Western"), the judge GRANTED summary judgment in favor of Western and DECLARED the amounts due under certain insurance policies.

This case arose from a claim made by a tenant (Greene") for lead paint exposure over four years' occupancy in a residence insured by the landlord's insurance company ("Western World") in a series of four one-year policy periods. The first three years, the policy limit was $50,000 per year per occurence, while the policy limit was raised to $300,000 approximately half-way through the final year, one month after Greene had vacated the premises. Western World had offered Greene a total of $200,000, while Greene demanded $450,000, and Western World sought a declaratory judgment and summary judgment.

The judge had little difficulty finding that there was no dispute over any material fact, since the increase in policy limit in the final year did not occur until after Greene had vacated the premises, and the increase in the insurance premium was proportional to the roughly one-half year of enhanced coverage. The judge also did not find that the claim, raised for the first time on appeal, of in utero lead exposure in the last year, thus raising the total claim to $250,000, created a dispute as to a material fact. Consequently, the judge granted Western World's motion for summary judgment, and declared the policy limit for occurances prior to the endorsement date was limited to $50,000 per occurance, and thus the limit for Greene was $50,000 for that year, and $200,000 in total for all four years.

The Memorandum and Order and Declaration of Judgment are available in PDF format.

Bank of America v. Gibbons (Ct. of Special Appeals)

Filed March 13, 2007. Opinion by Judge Sally Adkins.

Over a six year period, the husband of appellee Gibbons (Mrs. Gibbons), pocketed proceeds from unauthorized sales of securities owned by several customers of his employer, appellant Bank of America Corporation (the Bank). The value of these misappropriated stocks allegedly exceeded $1.5 million. Mr. Gibbons deposited the proceeds in a solely-owned account. From there, he moved some of the funds into a jointly-owned account and a still smaller portion into another jointly-held account from which Mrs. Gibbons wrote checks, primarily for household and family purposes.

The Bank sought to recover the funds deposited in this final account from Mrs. Gibbons on a conversion and unjust enrichment theory. Mrs. Gibbons, who had no knowledge of her husband's theft, sought and obtained summary judgment, convincing the motion court that the Bank had no evidence to support any of the three elements of unjust enrichment.

"Under Maryland law, '[a] claim of unjust enrichment is established when: (1) the plaintiff confers a benefit upon the defendant; (2) the defendant knows or appreciates the benefit; and (3) the defendant's acceptance or retention of the benefit under the circumstances is such that it would be inequitable to allow the defendant to retain the benefit without the paying of value in return.' Benson v. State, 389 Md. 615, 651-52 (2005)."

On appeal, the court held that neither an implied-in-fact contract, nor direct dealings between the parties, nor the direct transfer of funds from plaintiff to defendant was required to meet the first element. Furthermore, it is not necessary to show that the recipient knew the funds were stolen to meet the second element. All that is required is that the recipient gave no consideration for the funds. Similarly, the lack of knowledge that the funds were stolen is not automatically fatal to proof of the third element. Instead, the motion court should have considered whether Mrs. Gibbons would have suffered any loss had she been ordered to make restitution, whether her husband had used the money without benefiting the family, or whether other equitable circumstances should come into play. Thus, under the reasoning of the court, it is legally possible that the Bank could recover funds from the completely innocent spouse of a thief.

The opinion is available in PDF.

Miller v. Mandarin Homes, Ltd. (Maryland U.S.D.C.) (Not Approved for Publication)

Signed February 28, 2007 -- Memorandum Opinion by Judge Catherine C. Blake. (Not approved for publication).

Held: Plaintiffs' Motion to Modify Scheduling Order was denied, and defendants' Motion for Summary Judgment granted. Plaintiffs had not provided sufficient evidence to establish their claims under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA").

In this case, plaintiffs had alleged a violation of CERCLA, claiming that the developer, Mandrin Homes ("Mandrin") and agent, Champion Realty ("Champion") knew or should have known that the house sold to the plaintiffs was part of a solid and hazardous waste dump. Defendants filed a Motion for Summary Judgment claiming that plaintiffs had failed to prove (1) that a landfill existed near their property (2) that hazardous materials were released on the property, or (3) that any such release caused plaintiffs' injuries.

The Court found the affidavit of plaintiffs' expert to be speculative, using words like "consistent with," and "indicative," and "may" instead of attesting to the actual facts as being more likely so than not to a reasonable degree of professional certainty. In addition, plaintiffs' expert was not a medical doctor and was not otherwise qualified to testify to medical causation.

The Court declined to grant plaintiffs additional time to conduct discovery, finding that they had shown no good cause for such an extension.

This memorandum opinion is available in PDF

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.

Elliott v. MD Dept of Human Resources (Maryland U.S.D.C.) (Not Approved for Publication)

Signed February 22, 2007. Memorandum Opinion and Order by Judge Catherine C. Blake. (Not approved for publication)

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.