Sullivan et al v. Friedman et al
Filing
35
MEMORANDUM OPINION Signed by Judge George Levi Russell, III on 9/2/2015. (cags, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
WAYNE P. SULLIVAN, et al.,
:
Plaintiffs,
:
v.
:
CORPORAL AL FRIEDMAN, et al.,
:
Defendants.
Civil Action No. GLR-14-1426
:
MEMORANDUM OPINION
Pending before the Court is Defendants’, Corporal Al Friedman
and Baltimore County, Maryland, Motion for Summary Judgment (ECF
No. 29).
Having reviewed the pleadings and supporting documents,
the Court finds no hearing necessary.
2014).
See Local Rule 105.6 (D.Md.
For the reasons outlined below, the Motion will be granted.
I. BACKGROUND
On
June
2,
2009,
TEGSCO,
LLC,
d/b/a
AutoReturn
Baltimore
(“AutoReturn”) entered into a contract with Baltimore County to
provide an automated dispatch and management system to support all
activities
County.
associated
with
police-initiated
towing
in
Baltimore
The Baltimore County Police Department (“BPD”) provided to
AutoReturn a list of existing “Police Initiated Towing Licensees”
(“Licensees”) performing accident towing services.
AutoReturn then
entered into “Licensed Service Provider Agreements” with most of
the
then-existing
police
initiated
towers
in
Baltimore
County.
Since that time AutoReturn has been responsible for all municipal
towing management and logistics in Baltimore County.
Ron Perry, an AutoReturn Service Manager, oversees Baltimore
County’s
police-initiated
towing
operations.
By
email
dated
October 21, 2009, Perry sought verification of the tow reporting
areas from all existing Licensees.
Plaintiff, Sullivan & Sons,
Inc.,1 never objected to the tow reporting areas as outlined in
Perry’s
October
dispatch
21,
system,
2009
email.
incorporating
AutoReturn’s
Baltimore
County’s
areas, was implemented on January 4, 2010.
Defendant
request
Friedman
for
a
allegedly
specific
denied
tower
after
fully
reporting
On August 11, 2010,
motorist
a
tow
automated
heavy
Paul
Bonolis’s
duty
equipment
accident in one of the Sullivans’ assigned tow district.
On April 25, 2013, the Sullivans filed a Complaint in the
Circuit Court for Baltimore County, Maryland, alleging Defendants,
Friedman, Chief James W. Johnson, and Baltimore County, in concert
and individually, on or about August 11, 2010, and continuing to
the
date
of
filing
the
Complaint,
denied
the
Sullivans
lawful
access to specific geographic locations in Baltimore County for
towing, salvage, and recovery operations.
The Complaint alleges
tortious
advantage
interference
with
a
prospective
(Count
I),
negligent hiring (Count II), respondeat superior (Count III), and
violations
of
procedural
due
process
(Counts
IV-V)
protection (Count VI) under the Fourteenth Amendment.
1
and
equal
(ECF No. 2).
Plaintiff Sullivan & Sons, Inc. is a Maryland Corporation
engaged in the business of towing, salvage, and recovery.
Plaintiff Deborah M. Sullivan is the majority owner of Sullivan
& Sons, Inc. with her husband, Plaintiff Wayne P. Sullivan
(hereinafter collectively referred to as the “Sullivans”).
2
On April 28, 2014, Defendants removed the action to this Court.2
(ECF No. 1).
Johnson’s
On April 28, 2014, the Court granted Defendant James
Motion
to
Dismiss
the
Complaint.
As
a
result,
the
Sullivans’ claims for negligent hiring (Count II) and respondeat
superior
(Count
Defendants
claims.
now
III)
move
were
for
also
summary
dismissed.
judgment
(See
as
to
ECF
the
No.
6).
remaining
The Motion is ripe for disposition.
II. DISCUSSION
A.
Standards of Review
Under Federal Rule of Civil Procedure 56, the Court must grant
summary
judgment
if
the
moving
party
demonstrates
there
is
no
genuine issue as to any material fact, and the moving party is
entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a).
In
reviewing a motion for summary judgment, the Court views the facts
in a light most favorable to the non-moving party.
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.
H. Kress & Co., 398 U.S. 144, 158-59 (1970)).
Once
a
motion
for
summary
judgment
is
properly
made
and
supported, the opposing party has the burden of showing that a
genuine dispute exists.
Matsushita Elec. Indus. Co. v. Zenith
2
Baltimore County was not served with the Complaint until
March 31, 2014.
(Notice of Removal ¶ 7, ECF No. 1).
By
agreement, counsel accepted service on behalf of Friedman on
April 21, 2014.
(Id.).
Notice of removal was, therefore,
timely filed.
See 28 U.S.C. § 1446 (2012) (“Each defendant
shall have 30 days after receipt by or service on that defendant
of the initial pleading or summons . . . to file the notice of
removal.”).
3
Radio Corp., 475 U.S. 574, 586-87 (1986).
“[T]he mere existence of
some alleged factual dispute between the parties will not defeat an
otherwise
properly
supported
motion
for
summary
judgment;
the
requirement is that there be no genuine issue of material fact.”
Anderson, 477 U.S. at 247-48 (alteration in original).
A “material fact” is one that might affect the outcome of a
party’s case.
Id. at 248; see also JKC Holding Co. v. Wash. Sports
Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001) (citing HoovenLewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001)).
fact
is
considered
to
be
“material”
is
Whether a
determined
by
the
substantive law, and “[o]nly disputes over facts that might affect
the
outcome
of
the
suit
under
the
governing
preclude the entry of summary judgment.”
law
will
properly
Anderson, 477 U.S. at
248; accord Hooven-Lewis, 249 F.3d at 265.
B.
Analysis
1.
Constitutional Claims
First, Defendants argue the Sullivans’ constitutional claims
are barred by the statute of limitations.
There
actions
is
brought
no
federal
under
42
statute
U.S.C.
§
of
The Court agrees.
limitations
1983
(2012).
applicable
See
Burnett
to
v.
Grattan, 468 U.S. 42, 48 (1984). The Court, therefore, is required
to apply the analogous statute of limitations of the state where
the federal court sits. Id.
Here, all of the Sullivans’ claims are
subject to the three-year-default statute of limitations created by
Md.Code.Ann., Cts. & Jud.Proc. § 5-101 (West 2015). See Owens v.
4
Okure, 488 U.S. 235, 241 (1989); see also Owens v. Balt. City
State’s Attorney’s Office, 767 F.3d 379 (4th Cir. 2014) (affirming
that the Maryland statute of limitations, which affords plaintiffs
three years to file a personal injury action, applies to § 1983
claims), cert. denied sub nom. Balt. City Police Dep’t v. Owens,
135 S. Ct. 1893 (2015); see also Doe v. Archdiocese of Wash., 689
A.2d 634, 637 (Md.Ct.Spec.App. 1997) (“The Legislature has settled
upon a three-year period of limitations as a reasonable time to
bring suit in most cases.”). The accrual date of a § 1983 cause of
action, however, is resolved by federal law. Wallace v. Kato, 549
U.S. 384, 388 (2007).
Under
federal
law,
the
Sullivans’
§
1983
cause
of
action
accrues, and the limitation period commences, when the Sullivans
knew or had reason to know of their injury.
389.
Owens, 767 F.3d at
A plaintiff knows or has reason to know of its injury when it
possessed sufficient facts about the harm alleged that reasonable
inquiry will reveal its cause of action.
Nasim v. Warden, Md.
House of Corr., 64 F.3d 951, 955 (4th Cir. 1995).
The Court will,
therefore, “determine the accrual of [this] action by looking to
the
event
protect
that
his
should
or
her
have
rights.”
alerted
Owens,
the
767
typical
F.3d
lay
at
person
404
to
(quoting
D’Ambrosio v. Marino, 747 F.3d 378, 384 (6th Cir. 2014)).
Here,
the
Sullivans’
claims
are
predicated
on
the
alleged
reassignment of specifically assigned and licensed tow districts in
Baltimore County.
In support of their claim, the Sullivans attach
5
to their Response to Motion for Summary Judgment a list of Prior
Tow Reporting Areas (Resp. Mot. Summ. J. [“Pls.’ Resp.”] Ex. 4, ECF
No. 33-6) and a list of Subsequent Tow Reporting Areas (Pls.’ Resp.
Ex. 5, ECF No. 33-7).
areas
demonstrates
A careful review of the assigned reporting
that
the
Sullivans
were
assigned
three
less
primary towing areas, one additional secondary towing area, and 125
less
heavy
duty
towing
areas
upon
the
implementation
of
AutoReturn’s fully automated dispatch system on January 4, 2010.
(Compare Pls.’ Resp. Exs. 4, 5).
The Subsequent Tow Reporting Areas, however, are attached to
an email dated October 21, 2009, in which Perry specifically sought
verification
Licensees.
of
the
(Pls.’
tow
reporting
Resp.
Ex.
5,
areas
at
2).
from
The
all
existing
Sullivans
objected to the tow reporting areas as outlined.
never
Further, the
Sullivans do not offer any evidence of subsequent changes to the
assigned
towing
areas.
Thus,
the
undisputed
record
evidence
demonstrates that the Sullivans possessed sufficient facts about
the harm alleged on October 21, 2009.
Nevertheless,
the
Sullivans
argue
the
continuous
violation
doctrine preserves the statute of limitations in this case based on
the
Defendants’
violation
continuing
doctrine
tolls
course
the
of
conduct.
statute
violations are continuous in nature.
of
The
limitations
continuous
where
the
Litz v. Md. Dep’t of Env’t,
76 A.3d 1076, 1089 (Md. 2013) (quoting MacBride v. Pishvaian, 937
A.2d
233,
240
(Md.
2007)).
First,
6
as
discussed
above,
the
Sullivans do not offer any evidence of subsequent changes to the
assigned
towing
areas
after
the
fully automated dispatch system.
implementation
of
AutoReturn’s
Moreover, Friedman and Officer
First Class Scott Keppler3 both affirmed, and the Sullivans do not
dispute, that the specifically assigned towing districts could not
have
been
manually
manipulated
automated dispatch system.
after
the
implementation
of
the
(Al Friedman Decl. App. Part I, at 19,
ECF No. 29-2); (Scott Keppler Decl. App. Part I, at 24).
Thus, all of the alleged economic harm resulting from each
instance in which the Sullivans were denied access to a specific
tow area are “merely the continuing ill effects” from the initial
allegedly tortious act of changing the assigned towing areas, and
not a “series of acts or course of conduct that would delay the
accrual of a cause of action to a later date.”
1090 (quoting MacBride, 937 A.2d at 240-41).
therefore,
that
the
Sullivans’
Litz, 76 A.3d at
The Court concludes,
constitutional
claims
began
to
accrue on October 21, 2009.
Because the statute of limitations applicable in this case is
three years, any accrued claim filed after October 21, 2012, is
time-barred. The Sullivans filed this lawsuit on April 25, 2013.
Consequently,
their
constitutional
claims
are
untimely
and
Defendants are entitled to judgement as a matter of law.
3
Officer Keppler is the liaison between AutoReturn and the
BPD.
On July 7, 2008, he took over responsibility for running
the towing unit under the supervision of Friedman and has
handled those responsibilities since that time.
7
Second, even assuming the Sullivans’ constitutional claims are
not barred by the statute of limitations, the claims fail because
the
Sullivans
have
failed
to
demonstrate
a
constitutionally
protected property interest in an assigned towing district.
considering
any
identifying
a
due
process
claim,
constitutionally
When
the
starting
point
is
protected
property
interest.
Gardner v. City of Balt. Mayor & City Council, 969 F.2d 63, 68 (4th
Cir. 1992); see also Frall Developers, Inc. v. Bd. of Cty. Comm’rs
for Frederick Cty., No. CCB-07-2731, 2008 WL 4533910, at *8 (D.Md.
Sept.
30,
2008)
(“[T]he
‘starting
point’
for
analyzing
any
procedural due process claim is to determine whether the plaintiff
has a protected property interest ‘sufficient to trigger federal
due process guarantees.’” (quoting Scott v. Greenville Cty., 716
F.2d 1409, 1418 (4th Cir. 1983))).
Property interests under the
Fourteenth Amendment “are created and their dimensions are defined
by existing rules or understandings that stem from an independent
source such as state law . . . .” Id. (alteration in the original)
(quoting Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)).
In Roth, the Supreme Court of the United States explained that
“[t]o have a property interest in a benefit, a person clearly must
have more than an abstract need or desire for it. He must have more
than a unilateral expectation of it.
legitimate claim of entitlement to it.”
He must, instead, have a
408 U.S. at 577.
Under
this approach, any significant discretion conferred upon the BPD
and AutoReturn to define the BPD’s assigned towing district defeats
8
the
Sullivans’
claim
of
having
a
property
assigned to a specific towing district.
Thus,
the
Sullivans’
constitutional
interest
in
being
Gardner, 969 F.2d at 68.
property
interest
in
an
assigned towing district-if they have one at all-is created and
defined by Baltimore County Code §§ 21-16-101 et seq.
Under § 21-16-111.1(c)(3), AutoReturn is not required to offer
a police-initiated towing contract to every police-initiated towing
Licensee.
Upon execution of a contract, however, AutoReturn may
not cancel an executed contract unless the license has been revoked
or the Licensee has an opportunity to resolve the dispute through
arbitration.
See § 21-16-111.1 (Editor’s note).
Further, Section
5 of Bill No. 67-07 provided AutoReturn with the discretion to add
a new police initiated towing licensee in any geographic area upon
the expiration of 180 days after the execution of a contract with
the person who is performing accident towing services within that
geographic area.
See id.
license
notice
without
Baltimore
County
Code
Thus, while AutoReturn may not revoke a
and
does
an
opportunity
confer
upon
to
be
AutoReturn
heard,
the
significant
discretion to assign towing districts to specific Licensees.
Here, the Sullivans do not allege their license was revoked or
suspended;
merely
that
they
were
denied
access
to
an
assigned
towing district as of August 11, 2010, to the date of the filing of
their Complaint.
September
4,
2009,
August 11, 2010, is more than 180 days after
the
contract with AutoReturn.
date
on
which
the
Sullivans
executed
a
(See Defs.’ Mot. Summ. J. App. Part I
9
58, ECF No. 29-2). Thus, to the extent the Sullivans allege they
were deprived a constitutionally protected property interest in a
specific towing district as of August 11, 2010, the claim fails as
a matter of law.4
2.
Tortious Interference With a Prospective Advantage
The
Sullivans’
prospective
advantage
limitations.
applies
to
claim
is
of
tortious
similarly
interference
barred
by
the
with
statute
a
of
Under Maryland law, a three year limitation period
a
claim
of
interference
with
economic
relations
and/or prospective advantage. Md.Code.Ann., Cts. & Jud.Proc. §
5-101; see also Warfield-Dorsey Co., Inc. v. Travelers Cas. &
Sur. Co. of Ill., 66 F.Supp.2d 681, 687 (D.Md. 1999).
To the
extent the Sullivans’ claim is predicated upon the change in tow
reporting
areas
prior
to
the
implementation
of
AutoReturn’s
fully automated dispatch system on January 4, 2010, the Court
has already concluded that the Sullivans possessed sufficient
facts about the harm alleged on October 21, 2009.
More than
three years prior to the filing of this lawsuit on April 25,
2013.
Consequently,
interference
with
a
the
Sullivans’
prospective
claim
advantage
is
of
tortious
untimely
and
Defendants are entitled to judgement as a matter of law.
4
The Court notes that the Sullivans failed to allege or
otherwise identify any specific towing district to which they
were assigned but denied access and, therefore, failed to
demonstrate a “right to relief above the speculative level.”
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
10
To the extent the Sullivans’ claim of tortious interference
with a prospective advantage is predicated upon the allegation
that Friedman denied an owner’s request for a specific tower on
August
11,
2010,
the
claim
fairs
no
better.
First,
the
undisputed evidence demonstrates that Friedman could not have
engaged in any unlawful conduct calculated to cause damage to
the
Sullivans;
and,
second,
the
Sullivans
have
failed
to
establish an injury to a prospective economic relationship.
In Maryland, to prove a claim of tortious interference with
a prospective advantage, a plaintiff must show:
(1) intentional and willful acts; (2) calculated to
cause damage to the plaintiffs in their lawful
business; (3) done with the unlawful purpose to cause
such damage and loss, without right or justifiable
cause on the part of the defendants (which constitutes
malice); and (4) actual damage and loss resulting.
Audio Visual Assocs., Inc. v. Sharp Elec. Corp., 210 F.3d 254,
261 (4th Cir. 2000) (quoting Alexander & Alexander, Inc. v. B.
Dixon Evander & Assocs., Inc., 650 A.2d 260, 269 (Md. 1994)).
“[W]rongful or malicious interference with economic relations is
interference
unlawful.”
by
conduct
that
is
independently
wrongful
or
Alexander, 650 A.2d at 271.
Here, the Sullivans fail to establish that Friedman engaged
in any unlawful conduct.
The incident in dispute was alleged to
involve an overturned vehicle at the intersection of Eastern
Avenue at Martin Boulevard on August 11, 2010.
11
(See Defs.’ Mot
Summ. J. App. Part II, at 152, ECF No. 29-3).
According to the
BPD’s Computer-Aided Dispatch system, however, the incident in
question occurred on May 6, 2010 at 3:08pm.
at 87).
2:30
pm.
(See App. Part II,
On May 6, 2010, Friedman’s work hours were 6:30 am to
(Second
Friedman
Decl.
App.
Part
II,
at
86).
Additionally, the BPD’s payroll records indicate that on May 6,
2010, Friedman was charged three hours of optional leave.
(Id.
at
that
88).
Thus,
the
undisputed
evidence
demonstrates
Friedman worked from 6:30 am until 11:30 am on the day of the
alleged incident and, therefore, could not have been present at
the accident scene at 3:08 pm as alleged in the Complaint.
Despite the Sullivans’ contention, Paul Bonolis could not
unequivocally identify Friedman as the officer who denied his
request for a specific tower.
(See Bonolis Dep. 13:2-21, Jan.
7, 2015, ECF No. 33-14) (speculating as to whether Friedman was
present at the scene of the accident).
“The nonmoving party
‘cannot create a genuine issue of material fact through mere
speculation or the building of one inference upon another.’”
Othentec
Ltd.
v.
Phelan,
526
F.3d
135,
140
(4th
Cir.
2008)
(quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)).
Moreover, the Sullivans have failed to establish injury to
a
prospective
economic
relationship
because
they
failed
to
allege or otherwise demonstrate that they were assigned to the
towing district in which the May 6, 2010 accident occurred.
12
Accordingly, the Sullivans’ claim of tortious interference with
a prospective advantage fails as a matter of law.
III. CONCLUSION
For the reasons given above, Defendants’ Motion for Summary
Judgment (ECF No. 29) is GRANTED.
A separate Order will follow.
Entered this 2nd day of September, 2015
/s/
_____________________________
George L. Russell, III
United States District Judge
13
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