Young v. Swirsky et al
Filing
26
MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 10/26/2015. (hmls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
AARON YOUNG,
:
Plaintiff,
:
v.
:
SETH SWIRSKY,
:
Defendant.
Civil Action No. GLR-14-3626
:
MEMORANDUM OPINION
THIS MATTER is before the Court on Defendant’s, Seth Swirsky,
Motion to Dismiss Plaintiff’s, Aaron Young, Amended Complaint (ECF
No. 12) and Young’s Motion for Leave to File Surreply (ECF No. 22).
This case involves the sale of a circa 1930s New York Yankees
jersey worn by baseball legend Lou Gehrig.
(1)
whether
the
Court
can
assert
Principally at issue is
personal
jurisdiction
over
Swirsky, and (2) whether Young’s claims are time-barred by the
statute of limitations.
The Court, having reviewed the Motions and
supporting documents, finds no hearing necessary pursuant to Local
Rule 105.6 (D.Md. 2014).
The Court will grant Young’s Motion for Leave to File Surreply
because in his reply memorandum, Swirsky introduced a new issue
requiring a response.
The Court will also grant in part and deny
in part Swirsky’s Motion to Dismiss.
Not only can the Court
exercise specific personal jurisdiction over Swirsky, but also his
common law causes of action are not time-barred by Maryland’s
statute of limitations.
Because the Court is sitting in diversity,
however,
it
will
dismiss
Young’s
claims
for
violations
of
California law.
I.
BACKGROUND1
Swirsky resides in California, and Young resides in Maryland.
Swirsky owned a circa 1930s New York Yankees jersey worn by
baseball legend Lou Gehrig (the “Jersey”).
At some point, Swirsky
became interested in selling the Jersey and contacted Young about
the possibility of purchasing it.
Around the same time, Swirsky
arranged for Greg Manning Auctions, Inc. (“Greg Manning”) to
facilitate the sale.
In the summer of 1998, Swirsky and Young began more serious
discussions about the sale of the Jersey.
In mid-to-late 1998,
Swirsky traveled to Maryland to meet with Young in person.
During
their meeting, they agreed that Swirsky would sell the Jersey to
Young through Greg Manning, the sale of the Jersey would be
contingent
upon
Swirsky
providing
an
updated
letter
of
authentication, and they would finalize the price at a later date.
After their meeting in Maryland, Swirsky and Young reconvened
at a convention in Illinois, ultimately agreeing to a price of
$85,000.
Young purchased the Jersey on March 12, 1999, and Swirsky
provided some number of authentication letters that were not up-todate.
Approximately two weeks later, on March 25, 1999, Swirsky
1
Unless otherwise noted, the following facts are taken from
the Amended Complaint (ECF No. 3) and are assumed true and viewed
in a light most favorable to Young.
See Mylan Labs., Inc. v.
2
provided an updated letter of authentication (the “March 25, 1999
Letter”) by and through Grey Flannel, Inc. (“Grey Flannel”).
The
letter, however, did not identify the date on which the Grey
Flannel experts inspected the Jersey.
In April 2013, fourteen years after purchasing the Jersey from
Swirsky, Young met with baseball uniform and bat expert Dave
Bushing.
Bushing reviewed Young’s entire personal collection of
baseball memorabilia and upon inspecting the Jersey, raised several
concerns
over
its
authenticity.
investigate these concerns.
Young
decided
to
further
He contacted Grey Flannel and asked
them to provide assurance that the March 25, 1999 Letter was
legitimate.
Grey Flannel inspected the Jersey and concluded that
it “was in fact a counterfeit.”
(Am. Compl. ¶ 19, ECF No. 3).
Accordingly, Grey Flannel withdrew the March 25, 1999 Letter.
Also, in the spring of 2013, Heritage Auctions (“Heritage”)
contacted Young about consigning the Jersey.
But, when Heritage
inspected the Jersey, they identified several issues concerning its
authenticity and returned it to Young.
Young then contacted Swirsky in July 2013 to alert him of the
authenticity
Heritage.
concerns
raised
by
Bushing,
Grey
Flannel,
and
Young requested that Swirsky provide further assurances
of the Jersey’s authenticity, including information regarding the
previous owners of the Jersey and the methods of procurement for
Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).
3
the authenticity letters that Swirsky provided at the time of sale.
Swirsky did not provide this information.
On November 18, 2014, Young filed suit against Swirsky in this
Court.
(ECF No. 1).
Young amended his Complaint on February 5,
2015, asserting the following causes of action: violation of
California Civil Code § 1739.7 (West 2015) (Count I); violation of
California Business and Professions Code § 17200 (West 2015) (Count
II); negligent misrepresentation (Count III); breach of contract
(Count IV); and breach of express warranty (Count V).
(ECF No. 3).
On April 27, 2015, Swirsky filed a Motion to Dismiss pursuant to
Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6).
12).
(ECF No.
Young filed his Opposition to Defendant’s Motion to Dismiss
on May 26, 2015 (ECF No. 15), and Swirsky filed his Response to
Plaintiff’s Opposition on July 14, 2015 (ECF No. 20).
On July 24,
2015, Young also filed a Motion for Leave to File Brief Surreply to
Defendant’s Response, to which he attached his proposed Surreply.
(ECF No. 22).
Swirsky then responded on July 29, 2015 (ECF No.
23), and Young replied on August 5, 2015 (ECF No. 24).
II.
A.
DISCUSSION
Standard of Review
Federal Rule of Civil Procedure 12(b)(2) governs motions to
dismiss for lack of personal jurisdiction.
When a non-resident
defendant challenges a court’s power to exercise jurisdiction, “the
jurisdictional question is to be resolved by the judge, with the
4
burden
on
the
plaintiff
ultimately
to
prove
jurisdiction by a preponderance of the evidence.”
grounds
for
Carefirst of
Md., Inc. v. Carefirst Pregnancy Ctrs. Inc., 334 F.3d 390, 396 (4th
Cir. 2003) (citing Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 59–
60 (4th Cir. 1993)).
“Yet when, as here, the district court
decides a pretrial personal jurisdiction dismissal motion without
an evidentiary hearing, the plaintiff need prove only a prima facie
case of personal jurisdiction.”
Combs
v.
Bakker,
886
F.2d
Mylan Labs., 2 F.3d at 60 (citing
673,
676
(4th
Cir.
1989)).
In
determining whether the plaintiff has proved a prima facie case of
personal
jurisdiction,
inferences
arising
from
the
Court
the
proof,
disputes, in the plaintiff’s favor.”
at 676).
“must
and
draw
all
resolve
reasonable
all
factual
Id. (citing Combs, 886 F.2d
Additionally, a court is permitted to consider evidence
outside the pleadings when resolving a Rule 12(b)(2) motion.
Structural Pres. Sys., LLC v. Andrews, 931 F.Supp.2d 667, 671
(D.Md. 2013) (citing Silo Point II LLC v. Suffolk Const. Co., 578
F.Supp.2d 807, 809 (D.Md. 2008)).
Rule 12(b)(6) governs motions to dismiss for failure to state
a claim upon which relief may be granted.
To survive a Rule
12(b)(6) motion, the complaint must allege enough facts to state a
plausible claim for relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
A claim is plausible when “the plaintiff pleads factual
5
content that allows the Court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Twombly, 550 U.S. at 556).
Id. (citing
Legal conclusions or conclusory
statements do not suffice and are not entitled to the assumption of
truth.
Id. (citing Twombly, 550 U.S. at 555).
Thus, the Court “must determine whether it is plausible that
the factual allegations in the complaint are ‘enough to raise a
right to relief above the speculative level.’”
Monroe v. City of
Charlottesville, 579 F.3d 380, 386 (4th Cir. 2009) (quoting Andrew
v. Clark, 561 F.3d 261, 266 (4th Cir. 2009)).
And in doing so, the
Court must examine the complaint as a whole, consider the factual
allegations in the complaint as true, and construe the factual
allegations in the light most favorable to the plaintiff.
Albright
v. Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. of Comm’rs of
Davidson Cnty., 407 F.3d 266, 268 (4th Cir. 2005) (citing Scheuer
v. Rhodes, 416 U.S. 232, 236 (1974)).
Furthermore, unlike with a
Rule 12(b)(2) motion, when resolving a 12(b)(6) motion, a court
ordinarily may not consider matters that are outside the complaint
or not expressly incorporated therein.
Murphy-Taylor v. Hofmann,
968 F.Supp.2d 693, 710 (D.Md. 2013) (quoting Clatterbuck v. City of
Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013)).
B.
Motion for Leave to File Surreply
The Court will grant Young’s Motion for Leave to File Surreply
because Swirsky introduced new information in his Response to
6
Plaintiff’s Opposition that Young previously did not have an
opportunity to address.
“Unless otherwise ordered by the court, surreply memoranda are
not permitted to be filed.” Local Rule 105.2(a) (D.Md. 2014).
Typically, “[s]urreplies may be permitted when the moving party
would be unable to contest matters presented to the court for the
first time in the opposing party’s reply.”
Khoury v. Meserve, 268
F.Supp.2d 600, 605 (D.Md. 2003) (citing Lewis v. Rumsfeld, 154
F.Supp.2d 56, 61 (D.D.C. 2001)).
As the Court will discuss infra,
whether Swirsky worked through an agent and what, if any, tasks his
agent performed in Maryland are critical to whether the Court can
exercise personal jurisdiction over Swirsky.
In his Response to
Plaintiff’s Opposition, Swirsky—for the first time—discussed the
involvement of Les Wolff in the sales transaction.
Swirsky quoted
from Wolff’s affidavit, which he attached to his reply memorandum,
to argue Wolff was the broker who assisted Swirsky in facilitating
the transaction and neither Wolff nor Swirsky traveled to Maryland
to solicit or negotiate with Young.
(See Def.’s Resp. Pl.’s Opp’n
at 12, ECF No. 20).
Because Young would be unable to contest matters presented to
the court for the first time in Swirsky’s Reply, the Court will
grant Young’s Motion for Leave to File Surreply.
The Court has
considered Young’s Surreply (ECF No. 22-1) when deciding how to
rule on Swirsky’s Motion to Dismiss.
7
C.
Motion to Dismiss for Lack of Personal Jurisdiction
The Court will deny Swirsky’s Motion to Dismiss on personal
jurisdiction grounds because Maryland’s long-arm statue authorizes
personal jurisdiction over Swirsky and Young has proved a prima
facie case of specific jurisdiction.
A
federal
district
court
may
only
exercise
personal
jurisdiction over a nonresident defendant when such exercise (1) is
authorized under the state’s long-arm statute and (2) comports with
the due process requirements of the Fourteenth Amendment to the
United States Constitution.
Carefirst, 334 F.3d at 396 (citing
Christian Sci. Bd. of Dirs. of the First Church of Christ v. Nolan,
259 F.3d 209, 215 (4th Cir. 2001)). Because Maryland’s long-arm
statute is coextensive with the limits of personal jurisdiction set
by the due process clause of the Constitution, Mohamed v. Michael,
370 A.2d 551, 553 (Md. 1977), the Court’s statutory inquiry merges
with its constitutional inquiry, Carefirst, 334 F.3d at 396.
The
Court, however, must still address both elements in the personal
jurisdiction analysis.
See Metro. Reg’l Info. Sys., Inc. v. Am.
Home Realty Network, Inc., 888 F.Supp.2d 691, 698 (D.Md. 2012)
(citing Dring v. Sullivan, 423 F.Supp.2d 540, 545 (D.Md. 2006)).
Before reviewing whether exercising personal jurisdiction over
Swirsky
is
authorized
under
Maryland’s
long-arm
statute
and
comports with due process, the Court must ascertain which factual
assertions it will consider.
Both parties submit affidavits and
8
declarations discussing the details of the Jersey sale.
sworn
statements,
however,
are
completely
These
contradictory
with
respect to two key issues: (1) the level and location of the
contact that Swirsky and Young had before finalizing the sale; and
(2) with whom Swirsky worked to broker the sales transaction and
how much contact this broker had with Young in Maryland.
The Court
need not resolve these contradictions, however, because it must
resolve all factual disputes in Young’s favor.
at 60 (citing Combs, 886 F.2d at 676).
whether
Young
has
proved
a
prima
Mylan Labs., 2 F.3d
Therefore, when determining
facie
case
of
personal
jurisdiction, the Court will rely solely on the affidavits attached
to Young’s Opposition to Defendant’s Motion to Dismiss and his
Surreply (ECF Nos. 15-1, 15-2, 22-4, 22-5).
1.
Maryland Long-Arm Statute
Maryland’s long-arm statute provides, in relevant part, that
“[a] court may exercise personal jurisdiction over a person, who
directly or by an agent . . . [c]auses tortious injury in the State
by an act or omission in the State.”
Proc. § 6-103 (West 2015).
Md. Code Ann., Cts. & Jud.
Here, Young alleges he suffered
tortious injury in Maryland resulting from Swirsky’s negligent
misrepresentation
concerning
the
authenticity
of
the
Jersey.
According to the Amended Complaint, as well as Young’s and Hughes’s
affidavits, when Swirsky met with Young in Maryland, he did not
disclose that the Jersey was, or might be, inauthentic.
9
(ECF Nos.
3, 15-1, 15-2, 22-4, 22-5).
Because the failure to disclose this
material information is an omission that occurred in Maryland, the
Court
finds
Maryland’s
long-arm
statute
authorizes
personal
jurisdiction over Swirsky.
2.
“A
Due Process
court’s
exercise
of
jurisdiction
over
a
nonresident
defendant comports with due process if the defendant has ‘minimum
contacts’ with the forum, such that to require the defendant to
defend its interests in that state ‘does not offend traditional
notions of fair play and substantial justice.’” Carefirst, 334 F.3d
at 397 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945)).
To satisfy the minimum contacts test, the plaintiff must
“show that the defendant ‘purposefully directed his activities at
the residents of the forum’ and that the plaintiff’s cause of
action ‘arise[s] out of’ those activities.’”
Corp.
v.
Geometric
Ltd.,
561
F.3d
273,
277
Consulting Eng’rs
(4th
Cir.
2009)
(alteration in original) (quoting Burger King Corp. v. Rudzewicz,
471 U.S. 462, 472 (1985)).
There are two types of personal jurisdiction: general and
specific.
With general jurisdiction, the defendant’s contacts with
the state are not the basis for the suit and the “jurisdiction over
the
defendant
must
arise
from
the
defendant’s
persistent, but unrelated contacts with the state.”
F.3d
at
397.
Conversely,
with
10
specific
general,
more
Carefirst, 334
jurisdiction,
the
defendant’s contacts form the basis of the suit.
Id.
Here,
Young’s suit arises from the alleged activities that Swirsky and
his agent conducted in Maryland.
whether
Young
jurisdiction.
has
proved
a
Thus, the Court must determine
prima
facie
case
of
specific
See Mylan Labs., 2 F.3d at 60 (citing Combs, 886
F.2d at 676).
The United States Court of Appeals for the Fourth Circuit has
developed a three-prong test for specific jurisdiction in which “we
consider (1) the extent to which the defendant purposefully availed
itself of the privilege of conducting activities in the State; (2)
whether the plaintiff[’s] claims arise out of those activities
directed at the State; and (3) whether the exercise of personal
jurisdiction would be constitutionally reasonable.”
Consulting
Eng’rs, 561 F.3d at 278 (quoting ALS Scan, Inc. v. Digital Serv.
Consultants, Inc., 293 F.3d 707, 712 (4th Cir. 2002)).
“The first prong articulates the minimum contacts requirement
of constitutional due process[.]”
Id.
In seeking to resolve
whether Swirsky’s contacts with Maryland satisfy this prong, the
Court may consider whether Swirsky or his agent reached into
Maryland to solicit or initiate business and whether Swirsky or his
agent made in-person contact with Young in Maryland regarding their
business relationship.
See id. (discussing the non-exclusive
factors a court may consider when evaluating the first prong of the
specific jurisdiction test in a business context); Nucor Corp. v.
11
Bell, 482 F.Supp.2d 714, 722 (D.S.C. 2007) (“The contacts within
the
forum
of
circumstances,
a
be
party’s
agent
attributed
.
to
.
the
.
may,
party
in
for
appropriate
purposes
of
establishing jurisdiction.” (citing Rush v. Savchuk, 444 U.S. 320,
332
(1980))).
In
the
context
of
establishing
personal
jurisdiction, an employee is an agent of his employer.
(“[Employee]
was
acting
as
[employer’s]
agent
such
Id.
that
[employee’s] contacts with the forum state are attributable to
[employer] itself.”).
When “determining whether prior business negotiations in the
forum state give rise to specific jurisdiction, the ‘strongest
factor’
is
‘whether
the
relationship in some way.’”
692
(D.Md.
2002)
defendant
initiated
the
business
Giannaris v. Cheng, 219 F.Supp.2d 687,
(quoting
Nueva
Eng’g,
Inc.
v.
Accurate
Electronics, Inc., 628 F.Supp. 953, 955 (D.Md. 1986)).
A single
instance of negotiations in the forum state may give rise to
specific jurisdiction.
See Carefirst, 334 F.3d at 397 (“Even a
single contact may be sufficient to create jurisdiction when the
cause of action arises out of that single contact, provided that
the principle of ‘fair play and substantial justice’ is not thereby
offended.” (citing Nichols v. G.D. Searle & Co., 783 F.Supp. 233,
238 (D.Md. 1992), aff’d, 991 F.2d 1195 (4th Cir. 1993))).
Here, Swirsky initiated the business relationship with Young
by meeting with him in Pikesville to negotiate the terms of the
12
Jersey sale.
(Young Aff. ¶ 8, ECF No. 15-1).
When doing so, he
“reached into the forum state to solicit or initiate business” and
“made in person contact with [Young] in [Maryland] regarding the
business relationship.”
Consulting Eng’rs, 561 F.3d at 278.
This
single contact in Maryland gave rise to Young’s causes of action
because not only did Young and Swirsky agree on some of the final
terms
of
the
sale,
but
also
Swirsky
did
not
disclose
any
authenticity concerns.
Moreover, Swirsky’s contact with Maryland did not end with his
meeting in Pikesville.
Swirsky also reached into Maryland to
solicit and initiate business through his agent—Bill Hughes.
In
his affidavit, Hughes states that Swirsky “employed” him to broker
the transaction.
(Hughes Aff. ¶ 7, ECF No. 15-2).
Hughes, as
Swirsky’s agent, solicited Young about purchasing the Jersey,
arranged for Young and Swirsky to meet in Pikesville and personally
attended the meeting to memorialize any terms of the sale, and met
with Young on at least two other occasions in Maryland to discuss
the sale.
(Id. ¶¶ 8—13).
In sum, Swirsky’s personal contact with Maryland and his
contact
through
Hughes,
his
agent,
demonstrate
that
Swirsky
“purposefully availed [him]self of the privilege of conducting
activities in the State[.]”
Consulting Eng’rs, 561 F.3d at 278
(quoting ALS Scan, 293 F.3d at 712).
13
“The second prong of the test for specific jurisdiction—that
the plaintiff’s claims arise out of the activities directed at the
forum—requires that the defendant’s contacts with the forum state
form the basis of the suit.”
Id. at 278–79.
This prong is
satisfied because Swirsky’s contact with Young in Maryland, both
personally and through his agent Hughes, form the basis of Young’s
suit.
“The third prong—that the exercise of personal jurisdiction be
constitutionally reasonable—permits a court to consider additional
factors to ensure the appropriateness of the forum[.]”
Id. at 279.
These factors include:
(1) the burden on the defendant of litigating
in the forum; (2) the interest of the forum
state in adjudicating the dispute; (3) the
plaintiff’s interest in obtaining convenient
and effective relief; (4) the shared interest
of
the
states
in
obtaining
efficient
resolution of disputes; and (5) the interests
of the states in furthering substantive social
policies.
Id.
As for the interest of the forum state, “[a] State generally
has a ‘manifest interest’ in providing its residents with a
convenient forum for redressing injuries inflicted by out-of-state
actors.”
Chartier v. M. Richard Epps, P.C., No. ELH-14-1071, 2014
WL 4748629, at *11 (D.Md. Sept. 23, 2014) (alteration in original)
(quoting Burger King, 471 U.S. at 474).
As such, Maryland has a
manifest interest in the adjudication of this matter.
14
Moreover,
Young’s interest in obtaining convenient and effective relief
outweighs the potential inconvenience to Swirsky.
Thus, having determined that the Fourth Circuit’s three-prong
test is satisfied, the Court concludes Young has proven a prima
facie case of specific jurisdiction.
D.
Motion to Dismiss for Failure to State a Claim
1.
Statutory Causes of Action (Counts I and II)
The Court will grant Swirsky’s Motion to Dismiss with respect
to Counts I and II because the Court is sitting in diversity and
must apply Maryland substantive law.
Paradoxically, after arguing Swirsky’s contacts with Maryland
were sufficient for personal jurisdiction in this Court, alleging
that numerous events in Maryland led to the final sale of the
Jersey, and arguing that Maryland common law should apply to Counts
III–V, Young asserts causes of action under California statutory
law.
Specifically, he alleges Swirsky violated California Civil
Code § 1739.7 (West 2015) (Count I) and California Business and
Professions Code § 17200 (West 2015) (Count II).
Young’s statutory
causes of action must be dismissed for at least two reasons.
First, “[a] federal court sitting in diversity must apply the
substantive law of the state in which the cause of action arose.”
Nationwide Mut. Ins. Co. v. Welker, 792 F.Supp. 433, 437 (D.Md.
1992) (emphasis added) (citing Erie R.R. Co. v. Tompkins, 304 U.S.
64, 78 (1938)).
This “substantive law” includes the law of the
15
state legislature.
See id. (concluding that court must “apply the
law of Maryland as it has been established by the Maryland state
courts and legislature.” (citing Wilson v. Fraser, 353 F.Supp. 1
(D.Md. 1973))); see also Cilento v. B. T. Credit Co., 424 F.Supp.
1, 1 (D.Md. 1977) (applying Maryland statutory law when district
court was sitting in diversity).
Young’s causes of action arose in Maryland.
When Young and
Swirsky met in Pikesville, they finalized many of the final terms
of the Jersey sale including that Swirsky would sell it through
Greg Manning and the sale was contingent upon Swirsky providing an
updated letter of authentication.
Furthermore, Young alleges that
the “ultimate disposition of the [Jersey] occurred in [Maryland],”
as did the “events giving rise to the subject claims.” (Am. Compl.
¶ 4).
Second, “[i]n a diversity case a federal court must follow the
conflict of laws rules prevailing in the state in which it sits.”
Harvard v. Perdue Farms, Inc., 403 F.Supp.2d 462, 466 (D.Md.
2005)(citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487,
496 (1941)).
In cases sounding in tort, Maryland applies the maxim
of lex loci delicti—the law of the place of the harm—to determine
the applicable substantive law.
Id.; see Hauch v. Connor, 453 A.2d
1207, 1210 (Md. 1983) (rejecting the application of Maryland’s
statute because the harm related to the underlying tort occurred in
Delaware).
16
Young’s suit sounds in tort because the gravamen of his
Amended Complaint is that Swirsky misrepresented the authenticity
of
the
Jersey.
Indeed,
even
his
claims
for
violations
of
California statutory law are based on Swirsky’s misrepresentations.
(See Am. Compl. ¶¶ 28–35).
Accordingly,
because
Young’s
causes
of
action
arose
in
Maryland, as did the harm resulting from the tortious conduct, the
Court must apply Maryland substantive law and will dismiss Counts I
and II.
2.
Common Law Causes of Action (Counts III–V)
The Court will deny Swirsky’s Motion to Dismiss with respect
to Counts III through V because they are not barred by Maryland’s
statute of limitations.
Young asserts common law causes of action for negligent
misrepresentation (Count III), breach of contract (Count IV), and
breach of express warranty (Count V).
Swirsky argues these claims
are barred by Maryland’s statute of limitations because Young’s
allegations demonstrate that he observed a “red flag” in 1999 that
put him on notice of the nature and cause of his injury: the March
25, 1999 Letter did not identify an inspection date.
Compl. ¶ 15).
The
(See Am.
The Court is not persuaded.
statute
of
limitations
for
Young’s
negligent
misrepresentation claim is three years, Md. Code Ann., Cts. & Jud.
Proc. (“CJP”), § 5-101 (West 2015), and the statute of limitations
17
for his breach of contract and breach of warranty claims is four
years, Md. Code Ann., Com. Law (“CL”), § 2-725 (West 2015).
These
limitations periods commence when the causes of action “accrue.”
CJP § 5-101; CL § 2-725.
Pursuant to Maryland’s “discovery rule,”
civil causes of action “accrue” when “the plaintiff discovers, or
through the exercise of due diligence, should have discovered, the
injury.”
Windesheim v. Larocca, 116 A.3d 954, 962–63 (Md. 2015)
(quoting Frederick Rd. Ltd. P’ship v. Brown & Sturm, 756 A.2d 963,
973 (Md. 2000)).
“Before an action can accrue under the discovery rule, ‘a
plaintiff must have notice of the nature and cause of his or her
injury.’”
of
notice
Id. (quoting Frederick Rd., 756 A.2d at 973).
that
will
trigger
the
running
of
the
One type
statute
limitations under the discovery rule is “implied notice.”
of
Also
known as “inquiry notice,” implied notice “is notice implied from
‘knowledge of circumstances which ought to have put a person of
ordinary prudence on inquiry (thus, charging the individual) with
notice of all facts which such an investigation would in all
probability have disclosed if it had been properly pursued.’”
Id.
(quoting Poffenberger v. Risser, 431 A.2d 677, 681 (Md. 1981)).
At this juncture of the litigation, it would be inappropriate
for the Court to determine whether Young was on inquiry notice on
March 25, 1999.
The question of when a plaintiff is on notice of
his causes of action for purposes of a statute of limitations
18
defense is a question of fact to be decided by a jury.
O’Hara v.
Kovens, 503 A.2d 1313, 1320 (Md. 1986) (“[W]hether or not the
plaintiff’s failure to discover his cause of action was due to
failure on his part to use due diligence, or to the fact that
defendant so concealed the wrong that plaintiff was unable to
discover it by the exercise of due diligence, is ordinarily a
question of fact for the jury.”); see Frederick Rd., 756 A.2d at
974 (“[T]he question of notice generally requires the balancing of
factual
issues
and
the
assessment
believability of the evidence[.]”).
of
the
credibility
or
Here, it is unclear whether
authenticity certificates for sports memorabilia typically include
inspection dates and whether the absence of an inspection date
would put a person of ordinary prudence on notice that something
might be amiss.
These are issues for a fact finder to resolve.
Young alleges he did not discover that the Jersey might not be
authentic until 2013 when Dave Bushing, Grey Flannel, and Heritage
all identified authenticity concerns.
Because the
(Am. Compl. ¶¶ 18–20).
Court must accept these allegations as true and
construe them in the light most favorable to Young, England v.
Marriott Int’l, Inc., 764 F.Supp.2d 761, 769 (D.Md. 2011), and a
question of fact exists as to when Young should have discovered the
Jersey might not be authentic, the Court finds, at this stage of
the litigation, that Young’s common law causes of action are not
barred by the statute of limitations.
19
Thus, Swirsky’s Motion to
Dismiss Young’s common law causes of action will be denied without
prejudice at this time.
III. CONCLUSION
For the foregoing reasons, Young’s Motion for Leave to File
Surreply (ECF No. 22) is GRANTED and Swirsky’s Motion to Dismiss
(ECF No. 12) is GRANTED in part and DENIED in part.
II are DISMISSED.
Counts I and
A separate Order follows.
Entered this 26th day of October, 2015
/s/
_____________________________
George L. Russell, III
United States District Judge
20
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