McCoy v. Newmuis et al
Filing
78
MEMORANDUM AND ORDER granting 70 Motion of defendant for Summary Judgment. Signed by Judge Marvin J. Garbis on 1/21/2015. (jnls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
LANCE MCCOY
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Plaintiff
vs.
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AMATEUR ATHLETIC UNION
OF THE UNITED STATES, INC.
CIVIL ACTION NO. MJG-13-3744
*
*
Defendant
*
*
*
*
*
*
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MEMORANDUM AND ORDER RE: SUMMARY JUDGMENT
The Court has before it Defendant Amateur Athletic Union of
the United States, Inc.'s ("AAU") Motion for Summary Judgment
[Document 70] and the materials submitted relating thereto.
The
Court finds a hearing unnecessary.
I.
BACKGROUND
A.
Factual Background
The AAU is a non-profit organization incorporated in New
York with its principal place of business in Florida.
1].
[Document
It "is one of the largest, non-profit, volunteer, sports
organizations in the United States . . . . dedicated exclusively
to the promotion and development of amateur sports and physical
fitness programs."
[Document 76-1] at 1.1
1
The AAU objects to McCoy's reliance on Document 76-1, which
appears to be a list of "FAQs" taken from the AAU's website.
1
The Freddie Hendricks Track Club ("FHTC"), based in
Baltimore, Maryland, participated in and hosted AAU track and
field events during the relevant times at issue.
See [Document
76-5].
In 2007, Plaintiff Lance McCoy ("McCoy") participated as an
athlete with the FHTC.
for the FHTC.
Bryant Newmuis ("Newmuis") was a coach
As a coach, Newmuis "stretch[ed] athletes out,
help[ed] them with their workouts, and dr[o]ve students to and
from practice."
[Document 70-19] at 14 (Plaintiff's Answers to
Interrogatories).
In June or July 2007, Newmuis transported McCoy to his
(Newmuis') house to rest before track practice.
McCoy informed
Newmuis that he was experiencing pain in his leg.
According to
McCoy, Newmuis provided McCoy with "ice for [his] leg and then
began to massage and molest [him]."
Id.
Newmuis also sexually
assaulted McCoy on other occasions.
Am. Compl. ¶ 20.
The AAU contends that "Plaintiff has not authenticated this
document pursuant to Fed. R. Evid. 901, has not provided a
Uniform Resource Locator (URL) for the web site, and has not
stated when it was printed." [Document 77] at 3. On January 8,
2015, using the URL http://aausports.org/FAQs, the Court located
the AAU web site page that is attached as Document 76-1. Thus,
the Court will take judicial notice of the information. See
Jeandron v. Bd. of Regents of Univ. Sys. of Maryland, 510 F.
App'x 223, 227 (4th Cir. 2013) ("A court may take judicial
notice of information publicly announced on a party's web site,
so long as the web site's authenticity is not in dispute and 'it
is capable of accurate and ready determination.'" (quoting Fed.
R. Evid. 201(b))).
2
On October 30, 2008, Newmuis was convicted of "Sex Abuse
Minor" in the Circuit Court for Baltimore County, Maryland, Case
No. 03-K-07-004610."2
B.
Procedural Posture
1.
2010 Lawsuit
In May 2010, McCoy filed a lawsuit against Newmuis and the
FHTC in the Circuit Court for Baltimore City, asserting claims
of assault, battery, false imprisonment, and intentional
infliction of emotional distress, Case No. 24-C-10-004109.
[Document 70-3].
Liability was determined against Newmuis and,
by default, against the FHTC3 on liability.
The case proceeded
to a jury trial on damages.
In October 2011, the jury awarded damages to McCoy of
$1,800,000.00 against Newmuis and $600,000.00 against the FHTC.
[Documents 70-4, 70-5].
The circuit court, however, granted
2
See
http://casesearch.courts.state.md.us/inquiry/inquiryDetail.jis?c
aseId=03K07004610&loc=55&detailLoc=K. The Court takes judicial
notice of Newmuis' criminal conviction. See Colonial Penn Ins.
Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) ("We note that
'[t]he most frequent use of judicial notice of ascertainable
facts is in noticing the content of court records.' (alteration
in original)); Drubetskoy v. Wells Fargo Bank, N.A., No. CIV.
CCB-13-2196, 2013 WL 6839508, at *2 (D. Md. Dec. 20, 2013) ("A
court reviewing a motion to dismiss also may 'properly take
judicial notice of matters of public record.' . . . [T]he plea
agreement evidencing Drubetskoy's criminal conviction is a
matter of public record . . . ." (citations omitted)).
3
A default judgment was entered against the FHTC.
3
FHTC's motion to vacate the default judgment and default order
entered against it based on defective service.
70-6 to 70-10].
See [Documents
In May 2012, the circuit court dismissed
McCoy's complaint against the FHTC based on failure to state a
claim.
[Document 70-12].
The judgment against Newmuis remains
in effect.
2.
The Instant Lawsuit
In July 2012, McCoy filed a second complaint – the instant
lawsuit - against the FHTC in the Circuit Court for Baltimore
City, Case No. 24-C-12-004358, presenting the same claims
asserted in the 2010 lawsuit.
[Document 2].
McCoy filed an
Amended Complaint in April 2013, adding the AAU as a Defendant,
and purportedly adding Newmuis as a Defendant.
[Document 15].
In the Amended Complaint, McCoy asserts claims in five
Counts:
Count I:
Respondeat Superior
Count II:
Assault
Count III:
Battery
Count IV:
False Imprisonment
Count V:
Intentional Infliction of Emotional
Distress ("IIED")
On November 19, 2013, the circuit court dismissed all
claims against the FHTC.
[Document 50].
4
Upon dismissal of the FHTC, the AAU removed the case to
this Court, asserting diversity jurisdiction.
[Document 1].
McCoy filed a Motion to Remand [Document 52] based his having
named Newmuis, a Maryland citizen, as a non-diverse defendant
The Court denied the motion, stating:
Although
Bryant
Newmuis,
presumably
a
Maryland citizen, has been named as a
defendant
in
this
case,
there
is
no
contention that he was ever served with
process in the instant case. Moreover,
Plaintiff previously obtained a judgment
against Mr. Newmuis based upon the same
claims against him as are asserted in the
instant case.
Accordingly, Mr. Newmuis is
not
a
party
defendant
whose
presence
destroys federal diversity jurisdiction.
[Document 59] at 1.
In the Initial Scheduling Order issued on March 7, 2014
[Document 59], the Court stated:
The
parties
shall
engage
in
initial
discovery relating to Plaintiff's claim that
Defendant Amateur Athletic Union of the
United States, Inc. is liable for the
alleged tortious conduct committed by Bryant
Newmuis.
The parties engaged in initial, limited discovery.
By the
instant Motion, the AAU seeks summary judgment pursuant to
Federal Rule of Civil Procedure 56.
5
II.
SUMMARY JUDGMENT STANDARD
A motion for summary judgment shall be granted if the
pleadings and supporting documents "show[] that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law."
Fed. R. Civ. P.
56(a).
The well-established principles pertinent to summary
judgment motions can be distilled to a simple statement:
The
Court may look at the evidence presented in regard to a motion
for summary judgment through the non-movant's rose-colored
glasses, but must view it realistically.
After so doing, the
essential question is whether a reasonable fact finder could
return a verdict for the non-movant or whether the movant would,
at trial, be entitled to judgment as a matter of law.
See,
e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir. 1991).
Thus, in order "[t]o defeat a motion for summary judgment,
the party opposing the motion must present evidence of specific
facts from which the finder of fact could reasonably find for
him or her."
Mackey v. Shalala, 43 F. Supp. 2d 559, 564 (D. Md.
1999) (emphasis added).
However, "self-serving, conclusory, and
uncorroborated statements are insufficient to create a genuine
issue of material fact."
Int'l Waste Indus. Corp. v. Cape
6
Envtl. Mgmt., Inc., 988 F. Supp. 2d 542, 558 n.11 (D. Md. 2013);
see also Wadley v. Park at Landmark, LP, 264 F. App'x 279, 281
(4th Cir. 2008).
When evaluating a motion for summary judgment, the Court
must bear in mind that the "[s]ummary judgment procedure is
properly regarded not as a disfavored procedural shortcut, but
rather as an integral part of the Federal Rules as a whole,
which are designed 'to secure the just, speedy and inexpensive
determination of every action.'"
Celotex, 477 U.S. at 327
(quoting Fed. R. Civ. P. 1).
III. DISCUSSION
A.
Count I - Respondeat Superior
In Count I, McCoy states: "[a]s Newmuis' employer, FHTC is
responsible for all of the acts committed by Newmuis within the
scope of his employment."
refer to the AAU.
Am. Compl. ¶ 22.
Count I does not
However, it appears that McCoy seeks to hold
the AAU vicariously liable – under a respondeat superior theory
of liability – for the acts of Newmuis.
See, e.g., [Document
76] at 5.
Under Maryland law "there is no separate cause of action
for respondent superior."
Stewart v. Bierman, 859 F. Supp. 2d
754, 768 & n.8 (D. Md. 2012), aff'd sub nom. Lembach v. Bierman,
528 F. App'x 297 (4th Cir. 2013).
7
Rather, respondeat superior
"is a doctrine that imputes liability for a cause of action to a
principal."
Id. at 768 n.8.
Accordingly, the Court will dismiss Count I as a free
standing claim, but will consider Counts II, III, IV, and V to
assert a claims against the AAU for Newmuis' acts on a
respondeat superior theory..
B.
Newmuis as an Agent of the AAU
In his Response4 to the instant Motion, McCoy contends that
the AAU is liable for the acts of Newmuis because "Newmuis was
an agent of the AAU."
[Document 76] at 5.
However, McCoy has
not presented evidence adequate to permit a reasonable jury to
find that an agency relationship existed between Newmuis and the
AAU.
The United States Court of Appeals for the Fourth Circuit
has stated that:
Under
Maryland
law,
the
doctrine
of
respondeat superior permits "an employer to
be held vicariously liable for the tortious
conduct of its employee when that employee
was
acting
within
the
scope
of
the
employment relationship."
4
McCoy's Response is titled "Memorandum of Law in Support of
Plaintiff Lance McCoy's Motion for Summary Judgment." [Document
76]. However, in the first paragraph, McCoy states that he
"submits this Memorandum of Law in support of his Response in
Opposition of [sic] Defendant's Motion For Summary Judgment."
Id. at 1 (emphasis added). Accordingly, the Court will treat
Document 76 as a Response to the instant Motion and not as a
separate motion for summary judgment filed by McCoy.
8
Forkwar v. Empire Fire & Marine Ins. Co., 487 F. App'x 775, 778
(4th Cir. 2012) (citation omitted).
The doctrine of respondeat
superior can also apply to a principle-agent relationship.
Cf.
Henkelmann v. Metro. Life Ins. Co., 26 A.2d 418, 423 (Md. 1942)
("Of course, even an ag[en]t may be subject to the control of
his principal in respect to some portion of the work to be
performed, and under such circumstances the doctrine of
respondeat superior can be invoked.
But . . . the doctrine
applies in such a case only when the relationship of master and
servant existed in respect to the very thing from which the
injury arose.").
Under Maryland law:
An agency relationship is one that arises
from the manifestation of the principal to
the agent that the agent will act on the
principal's
behalf.
Although
such
a
relationship is not always contractual in
nature, it must be consensual.
Ultimately,
a reviewing court must determine that there
was an intent to enter into an agency
relationship.
That intent may be inferred
from conduct, including acquiescence.
Anderson v. Gen. Cas. Ins. Co., 935 A.2d 746, 752 (Md. 2007)
(emphasis added).
An agency relationship can be based on actual or apparent
authority.
Jackson v. 2109 Brandywine, LLC, 952 A.2d 304, 322
(Md. Ct. Spec. App. 2008) (citation omitted).
Actual authority,
which can be expressed or implied, "exists only when 'the
9
principal knowingly permits the agent to exercise the authority
or holds out the agent as possessing it.'"
omitted).
Id. (citation
Apparent authority exists when "'the words or conduct
of the principal cause the third party to believe that the
principal consents to or has authorized the conduct of the
agent.'"
Id. (citation omitted).
"The law is clear, however,
that a principal-agent relationship must arise from the conduct
of the principal, not the agent."
Id. at 323 (emphasis added).
McCoy has not presented any evidence of conduct by the AAU
authorizing Newmuis to act as the AAU's agent.
A.2d at 323.
See Jackson, 952
Nor has he presented evidence of a mutual intent
between Newmuis and the AAU to enter into an agency
relationship.
See Anderson, 935 A.2d at 752.
Instead, McCoy
offers only conclusory assertions, without supporting evidence,
that an agency relationship existed between Newmuis and the AAU.
McCoy contends that "[a]s a coach under the FHTC, Mr.
Newmuis was a member of the AAU."
[Document 76] at 4.
However,
he provides no evidence to establish that Newmuis complied with
the requirements to become a member of the AAU as a coach.
[Document 76-1] at 2.
See
For instance, there is no evidence that
Newmuis purchased a non-athlete membership or completed the
required coaches' education class.
See id.
There is no
evidence refuting the Director of Compliance of the AAU's
affidavit stating that a search of the AAU's membership records
10
revealed that Newmuis "has never been a member of the AAU."
Lyon Aff. ¶ 4.
Moreover, McCoy provides no support for his
contention that – assuming Newmuis was a member of the AAU – the
status membership would establish an agency relationship between
Newmuis and the AAU.
Summary judgment is appropriate "against a party who fails
to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party
will bear the burden of proof at trial [because i]n such a
situation, there can be 'no genuine issue as to any material
fact.'"
Celotex, 477 U.S. at 322-23.
The Court finds that
McCoy has not presented sufficient evidence to permit a
reasonable jury to find that an agency relationship existed
between Newmuis and the AAU.
Accordingly, the AAU is entitled to summary judgment on all
claims.
C.
Vicarious Liability for Sexual Assaults
The
Court holds that the AAU is entitled to summary
judgment due to the absence of an agency relationship with
Newmuis.
Nevertheless, for the benefit of any reviewing court,
this Court states that even if there had been such a
relationship, it would grant summary judgment due to the absence
11
of proof that Newmuis' tortious actions were within the scope of
any agency relationship with the AAU.
An employer – or principal – can be held vicariously
liable, under the doctrine of respondeat superior, for the
tortious conduct of an employee – or agent – "where it has been
shown that the employee was acting within the scope of the
employment relationship at that time."
S. Mgmt. Corp. v. Taha,
836 A.2d 627, 638 (Md. 2003).
"An employee's tortious conduct is considered within the
scope of employment when the conduct is in furtherance of the
business of the employer and is authorized by the employer."
Tall v. Bd. of Sch. Comm'rs of Baltimore City, 706 A.2d 659, 667
(Md. Ct. Spec. App. 1998).
The Court of Appeals of Maryland has explained that in
determining whether an employee's – or agent's – conduct was
within the scope of the employment – or agency – relationship:
[A]n
important
factor
employee's
conduct
was
"foreseeable."
is
whether
"expectable"
the
or
Furthermore,
and
particularly
in
cases
involving intentional torts committed by an
employee, this Court has emphasized that
where an employee's actions are personal, or
where they represent a departure from the
purpose
of
furthering
the
employer's
business, or where the employee is acting to
protect his own interests, even if during
normal duty hours and at an authorized
locality, the employee's actions are outside
the scope of his employment.
12
Finally, "[w]here the conduct of the servant
is unprovoked, highly unusual, and quite
outrageous," courts tend to hold "that this
in itself is sufficient to indicate that the
motive was a purely personal one" and the
conduct outside the scope of employment.
Sawyer v. Humphries, 587 A.2d 467, 471-72 (Md. 1991) (emphasis
added) (citation omitted).
"Ordinarily, the question of whether an employee's conduct
is within the scope of employment is one for the jury.
The
issue becomes a question of law, however, when there is no
factual dispute."
Tall, 706 A.2d at 668.
"While Maryland courts have not squarely addressed the
narrow issue of whether an employer is vicariously liable for a
sexual assault committed by its employee against a third party,
it has discussed it in dicta."
Thomas v. Bet Sound-Stage
Rest./BrettCo, Inc., 61 F. Supp. 2d 448, 453 (D. Md. 1999).
In Tall v. Board of School Commissioners of Baltimore City,
706 A.2d 659, 661, 667 (Md. Ct. Spec. App. 1998), the Court of
Special Appeals of Maryland held that the board of school
commissioners was not vicariously liable for a teacher's act of
beating a disabled child on the arms and legs after the child
urinated in his pants because the teacher had not acted within
the scope of his employment.
The court stated that "[a]lthough
we have not uncovered any Maryland cases dealing with the
precise issues presented here, other jurisdictions that have
13
considered the scope of employment issue with respect to acts of
assault or sexual child abuse committed by a teacher upon a
student provide guidance."
Id. at 670.
In reaching its ruling, the Tall court relied, in part, on
two cases that involved a plaintiff's claims of vicarious
liability of an employer for sexual assaults by an employee
against a minor.
See id. at 669-70.
In Randi F. v. High Ridge
YMCA, 524 N.E.2d 966, 971 (Ill. App. Ct. 1988), the Appellate
Court of Illinois held that "the assault and sexual molestation
of a three-year-old child by a teacher's aide at a day care
center is a deviation from the scope of the employment having no
relation to the business of the day care center or the
furtherance thereof."
Similarly, in Boykin v. D.C., 484 A.2d 560, 561, 564 (D.C.
1984), the District of Columbia Court of Appeals held that the
District of Columbia was not liable for the sexual assault of a
12-year-old blind and deaf public school student by the school's
coordinator of the blind and deaf program because the acts fell
outside the scope of the coordinator's employment.
The court
explained:
The sexual attack by Boyd on Valerie was
unprovoked.
It certainly was not a direct
outgrowth of Boyd's instructions or job
assignment, nor was it an integral part of
the
school's
activities,
interests
or
objectives. Boyd's assault was in no degree
committed to serve the school's interest,
14
but rather appears to have been done solely
for
the
accomplishment
of
Boyd's
independent,
malicious,
mischievous
and
selfish purposes.
Id. at 562.
The Tall court stated that "[t]he decision of the Boykin
court is consistent with decisions from other jurisdictions that
have refused to hold employers liable under the doctrine of
respondeat superior for sexual assaults upon children
perpetrated by school employees."
See Tall, 706 A.2d at 670-71
(citing cases).
Based upon the reasoning of the Court of Special Appeals of
Maryland in Tall, Judge Williams of this Court concluded in
Thomas v. Bet Sound-Stage Rest./BrettCo, Inc., 61 F. Supp. 2d
448, 454 (D. Md. 1999):
[A]bsent a decision by a Maryland court
squarely addressing the issue before this
Court, the prevailing law in Maryland must
be applied in the manner that its courts
would likely have ruled. . . . As such, the
Court finds that an employer cannot be held
vicariously
liable
for
sexual
assaults
committed by its employees or one it may
have given apparent authority.
See Green v. Wills Grp., Inc., 161 F. Supp. 2d 618, 626-27 (D.
Md. 2001) ("[U]nder Maryland law, an employer is not vicariously
liable for the torts of assault and battery based on sexual
assaults by another employee as they are outside the scope of
employment."); see also Samuels v. Two Farms, Inc., No. CIV.A.
15
DKC 10-2480, 2012 WL 261196, at *10 (D. Md. Jan. 27, 2012)
("Judges in this district have since applied the Tall court's
reasoning [and] repeatedly held that, under Maryland law, an
employer is not vicariously liable for torts arising from sexual
harassment by another employee because those torts arose outside
of the scope of employment." (citations omitted)).
Newmuis' conduct had no relation to the business of a youth
sports organization.
Nor was his conduct an integral part of
the AAU's activities, interests, or objectives.
A.2d at 562.
See Boykin, 484
Rather, an alleged sexual assault of a student
athlete by a coach appears to be "quite outrageous" conduct that
indicates "the motive was a purely personal one."
See Sawyer,
587 A.2d at 471-72.
The Court disagrees with McCoy that because Newmuis'
responsibilities purportedly "involved significant hands on
contact . . . [i]t was absolutely foreseeable that sexual,
inappropriate contact would be made."
[Document 76] at 8.
court in Boykin rejected a similar argument:
Appellant Boykin would have us hold that the
assault was a direct outgrowth of Boyd's
assignment
because
that
assignment
necessarily included some physical contact
. . . . The fact that physical touching was
necessarily a part of the teacher-student
relationship made it foreseeable that sexual
assaults could occur, she argues. We reject
this connection as too attenuated. We do not
believe that a sexual assault may be deemed
a direct outgrowth of a school official's
16
The
authorization to take a student by the hand
or arm in guiding her past obstacles in the
building.
484 A.2d at 562.
This Court finds the reasoning of the Court of Special
Appeals of Maryland in Tall and of Judge Williams of this Court
in Thomas persuasive and concludes that – even if McCoy were to
establish an agency relationship between Newmuis and the AAU –
the AAU would not be held vicariously liable for the alleged
sexual assaults by Newmuis because such acts were not within the
scope of a track coach's agency relationship with the AAU.5
Accordingly, the AAU is entitled to summary judgment on all
claims asserted in the Amended Complaint.
5
McCoy offers no support for his argument that because the
AAU offers general liability coverage including "Sexual Abuse &
Molestation," the AAU is liable to him for the abuse allegedly
inflicted by Newmuis. See [Document 76] at 3. McCoy has not
presented any evidence regarding the insurance policy upon which
he bases this argument and/or whether he made a claim under that
policy that was denied.
17
IV.
CONCLUSION
For the foregoing reasons6:
1.
Defendant Amateur Athletic Union of the United
States, Inc.'s Motion for Summary Judgment
[Document 70] is GRANTED.
2.
Judgment shall be entered by separate Order.
SO ORDERED, on Wednesday, January 21, 2015.
/s/__________
Marvin J. Garbis
United States District Judge
6
Because the Court has decided that the AAU is entitled to
summary judgment based upon the agency relationship and scope of
employment issues, it need not, and does not, address the AAU's
res judicata contentions.
18
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