Rosela et al v. American Power Boat Association et al

Filing 99

MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 11/16/2017. (kw2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CARRIE ANN ROSELA et al.,
Plaintiffs,
v.

Civil Action No. ELH-16-2969

AMERICAN POWER BOAT
ASSOCIATION et al.,
Defendants.
MEMORANDUM OPINION
This case arises from unquestionably tragic events that occurred on June 28, 2015, during
the “Thunder on the Narrows” powerboat race on the waters of the Kent Narrows in Maryland.
During the race, the driver of a hydroplane lost control, veered off the race course, and crashed at
high speed into other boats located in the spectator area, injuring many attendees and killing
seven-year-old Julianne Addison Rosela. ECF 37 (Third Amended Complaint) at 6; id. ¶ 34.
Plaintiffs,1 the surviving family of the decedent and the other injured spectators, filed suit against
numerous defendants, including the American Power Boat Association (“APBA”); the Kent
Narrows Racing Association (“KNRA”); the owners and the operator of the power boat; and

1

The plaintiffs are Carrie Ann Rosela, individually and as surviving mother and personal
representative of the estate of Julianne Addison Rosela, deceased minor; Antonio Gapuz Rosela,
Jr., as surviving father of Julianne Addison Rosela; Michele L. Thomas; Gerald R. Maisel;
Bertha Maisel; Allison Oyler; Nicholas Romanchick; Sara Ashley Walder; Joseph F. Walder, Jr.;
Raymond Louis Stokes, III; Julia Barton Stokes; Ryan Michael Pribell; Robbie T. Root; Jennifer
Browing; Mitchell Thomas; R.J.T., a Minor, by his father and next friend, Mitchell Thomas;
Michael Boyd; and Richard P. Sweet, 3rd.

Everest National Insurance Company and Specialty Insurance Group, Inc. (collectively, “SIG”),2
the insurance companies that insured the race. Id. ¶¶ 19-31.3
Suit was initially filed in August 2016. ECF 1 (Complaint). Since then, plaintiffs have
filed three amended complaints, the most recent of which was filed in March 2017. See ECF 27
(Amended Complaint); ECF 29 (Second Amended Complaint); ECF 37 (Third Amended
Complaint).

Plaintiffs assert 41 counts, generally alleging negligence and related claims,

including a survival and wrongful death action. ECF 37, ¶¶ 143-517. As to the two defendants
that are Maryland corporations, jurisdiction is founded on admiralty, under 28 U.S.C. § 1333.
As to all other defendants, jurisdiction is based on diversity, under 28 U.S.C. § 1332.4
SIG has twice moved to dismiss the claims against the insurance companies. ECF 53;
ECF 89. SIG first moved to dismiss under Fed. R. Civ. P. 12(b)(6) in April 2017, arguing that it
owed no legal duty to plaintiffs. ECF 53 (“Motion 1”). Plaintiffs oppose Motion 1. ECF 71;

2

Everest National Insurance Company and Specialty Insurance Group, Inc. are
subsidiaries of the same parent company, and are alleged to be associated for purposes of this
suit. ECF 37, ¶¶ 30-31.
3

The defendants are the American Power Boat Association; American Power Boat
Association Region IV, Inc.; Kent Narrows Racing Association, Inc.; Alexander Findlow; Jared
Walls; Dan Walls; John Doe; Philip Justus Mitchell; Specialty Insurance Group, Inc.; and
Everest National Insurance Co.
4

Plaintiffs are all citizens of Maryland. ECF 37, ¶¶ 1-18. Region IV and KNRA are
Maryland corporations. Id. ¶¶ 20-21. Ordinarily, this would defeat diversity jurisdiction, as 28
U.S.C. § 1332 requires complete diversity between plaintiffs and defendants. See Johnson v.
American Towers, LLC, 781 F.3d 693, 704 (4th Cir. 2015). However, the Fourth Circuit has said
that a plaintiff may maintain a single suit alleging jurisdiction under diversity against diverse
defendants, and under admiralty against other, non-diverse defendants. See Vodusek v. Bayliner
Marine Corp., 71 F.3d 148, 154 (4th Cir. 1995).
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ECF 72; ECF 72-1 (collectively, “Opposition 1”).5 SIG has replied. ECF 78; ECF 79.6 Several
months later, following limited discovery, SIG submitted a “Supplemental Rule 12(b)(6) Motion
to Dismiss and/or Rule 56 Motion for Summary Judgment.” ECF 89 (“Motion 2”). Motion 2 is
supported by 14 exhibits. ECF 89-1 through ECF 89-14. Plaintiffs have moved to strike Motion
2 or, in the alternative, they oppose it. ECF 90 (“Opposition 2”). SIG has replied. ECF 91.
In analyzing the motions, I am mindful that plaintiffs do not seek recovery under the
policy of insurance issued by SIG; they do not allege breach of contract. See ECF 37. Rather,
they allege that SIG was not a mere insurer. See ECF 37, ¶¶ 42, 54. According to plaintiffs,
SIG, on behalf of APBA and KNRA, assumed the duty to assure, inter alia, that the design of the
course and other safety standards were met, in order to protect third parties. Id. ¶¶ 73, 74. But,
plaintiffs assert that SIG failed to abide by minimum safety standards and failed to exercise due
care. See id. ¶¶ 67, 68. For example, plaintiffs allege that SIG established the buffer between
the race course and the spectator area, which was allegedly inadequate, and approved the design
of the race course. Id. ¶¶ 67-68; 71-73.
No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons
that follow, I shall deny both motions.

5

ECF 71 was submitted by all but one of the plaintiffs. The remaining plaintiff, Antonio
Gapuz Rosela, Jr., submitted a separate opposition to Motion 1 (ECF 72), supported by a
memorandum of law. See ECF 72-1.
6

ECF 78 is responsive to ECF 71. ECF 79 is directed to ECF 72. But, in ECF 79, SIG
merely adopts the content of ECF 78.
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I.

Factual Background7

In February 2015, KNRA began organizing the 25th Thunder on the Narrows, a boat
race cosponsored by the APBA. ECF 37, ¶¶ 36-37. In order to gain the sponsorship and official
sanction of the APBA, KNRA needed to procure insurance for the race. Id. ¶ 56. SIG, APBA’s
“exclusive agent in providing coverage for APBA and its member organizations” (id. ¶ 56) is
alleged to have established a consistent business relationship with APBA and to have regularly
attended APBA’s annual meetings. Id. ¶¶ 54, 56. According to plaintiffs, SIG was responsible
for the approval of APBA regattas, and for ensuring compliance with basic minimum safety
standards.

Id. ¶ 55.

In this capacity, plaintiffs allege that SIG, either on its own or in

collaboration with the APBA, developed a “Regatta Insurance Application.” Id. ¶ 58. The entire
process of assuring compliance with minimum safety standards, plaintiffs contend, was
administered by SIG. Id. ¶ 60. The application required KNRA to submit a scaled diagram of
the race course layout, including the location of the spectator fleet. Id. ¶ 59. The application,
allegedly drafted by SIG, indicated that the spectators should be located at least 250 feet outside
the outer course markers. Id. ¶ 43.
KNRA submitted the application and the diagram, but the diagram was not to scale and
was labeled with the proviso “Drawing NOT to Scale!” Id. ¶ 65. In the diagram, the spectator
fleet (where spectators could watch the race from their boats) is shown as being “within feet” of
the outside markers. Id. ¶ 68. Plaintiffs allege that SIG had actual knowledge that the course in
7

The factual allegations are derived from the Third Amended Complaint, and are
common to both motions. Based on the procedural posture of the case, I must assume the truth
of the well pleaded factual allegations therein. See, e.g., E.I. du Pont de Nemours & Co. v.
Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011).
The Court notes that the electronic pagination does not always correspond to the page
numbers as they appear on the parties’ submissions. The Court’s citations refer to the electronic
pagination.
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question “could not possibly provide a 250 foot buffer between the outside course buoys and the
spectator fleets.” Id. ¶ 67. A true 250 foot buffer would have placed the spectators on land,
rather than watching from their boats. Id. ¶ 68. Nevertheless, SIG accepted the application and
the diagram, and issued certificates of insurance for the race. Id. ¶ 71. Thereafter, the APBA
agreed to sanction the race, allegedly on the basis of SIG’s approval. Id. ¶¶ 72-73.
On the day of the race, plaintiffs were directed to view the race from an area “just a few
feet” beyond the course markers. Id. ¶ 123. They observed from recreational boats, located in
the designated spectator fleet area, as determined by SIG, APBA, and KNRA. Id. ¶ 125. And,
on June 28, 2015, at approximately 4:45 P.M., one of the racing boats veered off the course and
crashed into a string of the spectators’ boats. Id. ¶¶ 134-35. Seven-year-old Julianne Addison
Rosela drowned (id. ¶ 141), and other plaintiffs suffered substantial physical injuries. Id. ¶ 139.
This suit followed.
Additional facts are included in the Discussion.
II.

Choice of Law8

As noted, this Court’s jurisdiction as to the claims against SIG is founded on diversity.
See 28 U.S.C. § 1332. A federal court sitting in diversity must apply the law of the state in
which the court is located, including the forum state's choice of law rules. Colgan Air, Inc. v.
Raytheon Aircraft Co., 507 F.3d 270, 275 (4th Cir. 2007). Thus, Maryland law applies. And,
regarding tort claims, Maryland applies the law of the state where the alleged harm occurred
(“lex loci delicti”). See, e.g., Proctor v. Washington Metropolitan Area Transit Auth., 412 Md.
691, 726, 990 A.2d 1048, 1068 (2010).

8

The parties seem to assume that Maryland law applies.
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In this case, the crash giving rise to the claims occurred “on the navigable waters of Kent
Narrows, located entirely within the geographic boundaries” of Maryland. ECF 37, ¶ 34.
Therefore, I shall apply Maryland tort law to the motions.
III.

Motion 1
A.

As noted, Motion 1 is a motion to dismiss under Fed. R. Civ. P. 12(b)(6). ECF 53. A
defendant may test the legal sufficiency of a complaint by way of a motion to dismiss under Rule
12(b)(6). In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. Bd.,
822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir.
2010), aff’d sub nom. McBurney v. Young, 569 U.S. 221 (2013); Edwards v. City of Goldsboro,
178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion by a
defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of
law “to state a claim upon which relief can be granted.”
Whether a complaint states a claim for relief is assessed by reference to the pleading
requirements of Fed. R. Civ. P. 8(a)(2). That rule provides that a complaint must contain a
“short and plain statement of the claim showing that the pleader is entitled to relief.” The
purpose of the rule is to provide the defendants with “fair notice” of the claims and the
“grounds” for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
To survive a motion under Fed. R. Civ. P. 12(b)(6), a complaint must contain facts
sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see
Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in Twombly expounded the pleading
standard for ‘all civil actions’ . . . .” (citation omitted)); see also Willner v. Dimon, 849 F.3d 93,
112 (4th Cir. 2017). But, a plaintiff need not include “detailed factual allegations” in order to

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satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. Moreover, federal pleading rules “do not
countenance dismissal of a complaint for imperfect statement of the legal theory supporting the
claim asserted.” Johnson v. City of Shelby, ___ U.S. ____, 135 S. Ct. 346, 346 (2014) (per
curiam).
Nevertheless, the rule demands more than bald accusations or mere speculation.
Twombly, 550 U.S. at 555; see Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir.
2013). If a complaint provides no more than “labels and conclusions” or “a formulaic recitation
of the elements of a cause of action,” it is insufficient. Twombly, 550 U.S. at 555. Rather, to
satisfy the minimal requirements of Rule 8(a)(2), the complaint must set forth “enough factual
matter (taken as true) to suggest” a cognizable cause of action, “even if . . . [the] actual proof of
those facts is improbable and . . . recovery is very remote and unlikely.” Twombly, 550 U.S. at
556 (internal quotation marks omitted).
In reviewing a Rule 12(b)(6) motion, a court “must accept as true all of the factual
allegations contained in the complaint” and must “draw all reasonable inferences [from those
facts] in favor of the plaintiff.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d
435, 440 (4th Cir. 2011) (citations omitted); see Semenova v. Maryland Transit Admin., 845 F.3d
564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015);
Kendall v. Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert. denied, 565 U.S. 943 (2011). But,
a court is not required to accept legal conclusions drawn from the facts. See Papasan v. Allain,
478 U.S. 265, 286 (1986). “A court decides whether [the pleading] standard is met by separating
the legal conclusions from the factual allegations, assuming the truth of only the factual
allegations, and then determining whether those allegations allow the court to reasonably infer”

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that the plaintiff is entitled to the legal remedy sought. A Society Without a Name v. Virginia,
655 F.3d 342, 346 (4th. Cir. 2011), cert. denied, 566 U.S. 937 (2012).
B.
In Motion 1, SIG argues that its decision to issue an insurance policy to other defendants
to insure the race does not give rise to liability in tort to plaintiffs, because it owed no legal duty
to plaintiffs. ECF 53 at 4-5, 10. SIG maintains that its liability is limited to its contractual
obligations, under the applicable insurance policy, for covered losses caused by an insured. Id.
at 4-5.
According to SIG, plaintiffs allege liability under the principle articulated in the
Restatement (Second) of Torts § 315, as interpreted by Maryland courts. That rule provides
(id.):
There is no duty so to control the conduct of a third person as to prevent him from
causing physical harm to another unless
(a) a special relation exists between the actor and the third person which
imposes a duty upon the actor to control the third person’s conduct, or
(b) a special relation exists between the actor and the other which gives to the
other a right to protection.
The Maryland Court of Appeals has held that “‘§ 315, which reflects the common law of
this State, outlines the appropriate analytical framework for determining whether an actor has a
duty to control a third person.’” Remsburg v. Montgomery, 376 Md. 568, 590, 831 A.2d 18, 31
(2003) (quoting Lamb v. Hopkins, 303 Md. 236, 245, 492 A.2d 1297, 1302 (1985)).
SIG argues that it never had a duty under this framework, because plaintiffs have not
alleged the existence of a special relationship between SIG and any other party. ECF 53 at 14.
Plaintiffs rejoin with two arguments: Plaintiffs did allege a special relationship between SIG and
the organizers of the boat race (ECF 72-1 at 18); and, in any case, plaintiffs’ primary theory of

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liability is not based on § 315 of the Restatement (Second) of Torts, but rather § 324A. ECF 721 at 5-6.
Section 324A of the Restatement (Second) of Torts states:
One who undertakes, gratuitously or for consideration, to render services to
another which he should recognize as necessary for the protection of a third
person or his things, is subject to liability to the third person for physical harm
resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person,
or
(c) the harm is suffered because of reliance of the other or the third person
upon the undertaking.
As noted by plaintiffs, the principles of this section have been recognized as part of Maryland
law. ECF 71 at 7-8. See Brady v. Ralph M. Parsons Co., 327 Md. 275, 282, 609 A.2d 297, 300
(1992); see also E.G. Rock, Inc. v. Danly, 98 Md. App. 411, 423, 633 A.2d 485, 491 (1993);
Heinrich v. Goodyear Tire & Rubber Co., 532 F. Supp. 1348, 1353 (D. Md. 1982).
As the late Judge Miller discussed in Heinrich, 532 F. Supp. at 1354, to show liability
under § 324A a plaintiff must allege that the defendant undertook a duty, and that the plaintiffs
were injured by the defendant’s acts or omissions in connection with the undertaking of that
duty. “In addition, . . . the plaintiff must then produce evidence fulfilling the criteria set out in
subsections (a), (b) or (c)” of § 324A. Id.
Plaintiffs assert that, in the context of a motion to dismiss, they have sufficiently alleged
SIG’s tort liability under this framework. See ECF 71 at 15-18. They maintain that SIG’s “role
was not limited to solely an insurance provider.” ECF 71 at 6. Plaintiffs allege that SIG
affirmatively undertook to play a significant role in the development of the safety arrangements
and course design for Thunder on the Narrows. Id. at 12-13. In particular, plaintiffs have
asserted that “SIG provided the service of safety compliance for the benefit of Defendants APBA
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and KNRA” (ECF 37, ¶ 42), and “SIG was completely responsible . . . for the approval and
sanctioning of regattas held by an APBA member club.” Id. ¶ 55. In furtherance of this
contention, plaintiffs allege that “APBA relied wholly, or in part, upon the Regatta Insurance
Application and approval process undertaken, paid for, and administered by [] SIG as a method
for assuring compliance with the basic minimum standards for safety.” Id. ¶ 60.
As for SIG’s alleged breach of this assumed duty, plaintiffs contend that, although SIG
required KNRA to submit a race plan that allowed for a minimum of 250 feet between the race
course and the spectator fleet (ECF 37, ¶¶ 43, 44), SIG knowingly approved a race plan that
could not possibly have allowed for the required 250 foot buffer. Id. ¶¶ 67, 68. Plaintiffs
contend that “[i]t is reasonable to infer that Defendant SIG provided this service for the benefit
of race spectator Plaintiffs.” ECF 71 at 14. Given that SIG undertook to ensure the safety of the
event, plaintiffs allege that SIG knew or should have known it approved a plan that was
inadequate by its own specified criteria.
Plaintiffs have also alleged facts to fulfill the criteria in § 324A(a), (b), and (c). They
assert that SIG failed to use reasonable care in reviewing the Regatta Insurance Application. Id.
¶¶ 64, 67. In addition, plaintiffs have alleged that SIG undertook to perform a duty that KNRA
and APBA owed to plaintiffs and other attendees. Id. ¶¶ 42, 55. And, plaintiffs have alleged that
APBA relied on SIG to provide these safety services. Id. ¶ 60.
Of course, these allegations may prove to be false. SIG protests that its actions were
taken solely in the context of deciding whether to provide insurance for the event. ECF 78 at 3.
Perhaps so. But, at this stage in the litigation, plaintiffs need only allege facts that state a claim
that is plausible on its face. See Hall v. DIRECTV, LLC, 846 F.3d 757, 765 (4th Cir. 2017). This

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remains the case “even if . . . [the] actual proof of those facts is improbable and . . . recovery is
very remote and unlikely.” Twombly, 550 U.S. at 556 (internal quotation marks omitted).
As alleged, plaintiffs’ claim is plausible. As a result, I need not reach the question of
whether SIG had a special relationship with another entity under § 315 of the Restatement
(Second) of Torts, and I shall deny Motion 1.
IV.

Motion 2
A.

SIG’s Motion 2 is predicated on Rule 12(b)(6) or, in the alternative, Rule 56(a). A
motion styled in this manner implicates the court’s discretion under Rule 12(d) of the Federal
Rules of Civil Procedure. See Kensington Vol. Fire Dep’t, Inc. v. Montgomery Cty, 788 F. Supp.
2d 431, 436-37 (D. Md. 2011). As indicated, a court is ordinarily “not to consider matters
outside the pleadings or resolve factual disputes when ruling on a motion to dismiss.” Bosiger v.
U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). However, a court, in its discretion, may
consider matters outside of the pleadings, pursuant to Rule 12(d). If the court does so, “the
motion must be treated as one for summary judgment under Rule 56,” but “[a]ll parties must be
given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed. R.
Civ. P. 12(d); see Adams Housing, LLC v. Cty of Salisbury, Maryland, 672 F. App’x 220, 222
(4th Cir. 2016) (per curiam). Where, as here, the movant expressly captions its motion “in the
alternative” as one for summary judgment, and submits matters outside the pleadings for the
court’s consideration, the parties are deemed to be on notice that conversion under Rule 12(d)
may occur; the court “does not have an obligation to notify parties of the obvious.” Laughlin v.
Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998).

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A district judge has “complete discretion to determine whether or not to accept the
submission of any material beyond the pleadings that is offered in conjunction with a Rule
12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not
consider it.” C. Wright & A. Miller, 5C Fed. Prac. & Proc. Civ. § 1366 (3d ed.). This discretion
“should be exercised with great caution and attention to the parties’ procedural rights . . . .” Id.
In general, courts are guided by whether consideration of extraneous material “is likely to
facilitate the disposition of the action[]” and “whether discovery prior to the utilization of the
summary judgment procedure” is necessary. Id.
Ordinarily, summary judgment is inappropriate “where the parties have not had an
opportunity for reasonable discovery.” Kolon Industries, 637 F.3d at 448-49; see Putney v.
Likin, 656 Fed. App’x. 632, 638-640 (4th Cir. 2016) (per curiam); McCray v. Maryland Dep’t of
Transp., 741 F.3d 480, 483 (4th Cir. 2015). However, “the party opposing summary judgment
‘cannot complain that summary judgment was granted without discovery unless that party has
made an attempt to oppose the motion on the grounds that more time was needed for
discovery.’” Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002)
(quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)). To raise
adequately the issue that discovery is needed, the non-movant typically must file an affidavit or
declaration pursuant to Rule 56(d) (formerly Rule 56(f)), explaining why, “for specified reasons,
it cannot present facts essential to justify its opposition,” without needed discovery. Fed. R. Civ.
P. 56(d); see Harrods, 302 F.3d at 244-45 (discussing affidavit requirement of former Rule
56(f)).
“[T]o justify a denial of summary judgment on the grounds that additional discovery is
necessary, the facts identified in a Rule 56 affidavit must be ‘essential to [the] opposition.’”

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Scott v. Nuvell Fin. Servs., LLC, 789 F. Supp. 2d 637, 641 (D. Md. 2011) (alteration in original)
(citation omitted). A non-moving party’s Rule 56(d) request for additional discovery is properly
denied “where the additional evidence sought for discovery would not have by itself created a
genuine issue of material fact sufficient to defeat summary judgment.” Strag v. Bd. of Trs.,
Craven Cmty. Coll., 55 F.3d 943, 954 (4th Cir. 1995); see Amirmokri v. Abraham, 437 F. Supp.
2d 414, 420 (D. Md. 2006), aff’d, 266 Fed. App’x. 274 (4th Cir.), cert. denied, 555 U.S. 885
(2008).
Plaintiffs contend that conversion to summary judgment is inappropriate because they
have not had an adequate opportunity for discovery. ECF 90 at 2. In support of their contention,
plaintiffs have submitted the Declaration of Roy L. Mason, Esq., in accordance with Rule 56(d).
See ECF 90-1. Mr. Mason, an attorney for several plaintiffs, avers that “SIG’s liability in this
case will hinge in large part on evidence concerning their representations to the boat race
organizers (APBA/KNRA), SIG’s conduct in contributing to the creation of APBA/KNRA’s race
safety rules and regulations, and the manner and extent of APBA/KNRA’s reliance on SIG’s
conduct and representations.” Id. ¶ 4. Moreover, Mason avers that plaintiffs have identified
specific sources of information which they have not yet had the opportunity to investigate. Id. ¶
5. He states (id.):
First, neither Everest National Insurance Co., Specialty Insurance Group, Inc., nor
any of their corporate designees or representatives have been deposed. Second,
discovery has revealed that insurance representatives attended annual APBA
meetings. Plaintiffs have yet to discover the full scope of what was discussed at
those meetings, what representations SIG made during those meetings, or what
contributions SIG made to APBA’s race safety rules at those meetings. Third, of
the more than a dozen anticipated APBA/KNRA representatives/witnesses, only
four have been deposed.
I agree that plaintiffs are entitled to conduct discovery relevant to their claims. A party
“needs an ‘adequate opportunity’ to present its case and ‘demonstrate a genuine issue of material
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fact.’” Adams Housing, LLC, 2016 WL 6958439, at *2. As the Fourth Circuit stated in McCray,
741 F.3d at 483, “[s]ummary judgment before discovery forces the non-moving party into a
fencing match without a sword or mask.”
Accordingly, I decline to convert Motion 2 into one for summary judgment. Instead, I
shall construe it as a motion to dismiss under Rule 12(b)(6).9
B.
As noted, SIG has attached 14 exhibits to Motion 2. Under limited circumstances, when
resolving a Rule 12(b)(6) motion, a court may consider documents beyond the complaint without
converting the motion to dismiss to one for summary judgment. Goldfarb v. Mayor & City
Council of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015). In particular, a court may consider
documents that are “explicitly incorporated into the complaint by reference and those attached to
the complaint as exhibits . . . .” Goines, 822 F.3d at 166 (citations omitted); see also U.S. ex rel.
Oberg v. Pennsylvania Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014);
Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014); Am. Chiropractic
Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004), cert. denied, 543 U.S. 979
(2004); Phillips v. LCI Int’l Inc., 190 F.3d 609, 618 (4th Cir. 1999).

9

As plaintiffs acknowledge, “SIG is not barred from filing more than one motion to
dismiss over the course of this litigation.” ECF 90 at 5. And, other judges of this Court have
interpreted Rule 12 permissively to allow for the filing of multiple motions to dismiss. See
Aviles-Cervantes v. Outside Unlimited, Inc., RDB-16-1214, 2017 WL 3916985, at *5 (D. Md.
Sept. 7, 2017); see also F.T.C. v. Innovative Mktg., Inc., 654 F. Supp. 2d 378, 383 (D. Md.
2009).
Plaintiffs style Opposition 2 as a “Motion To Strike Or, In The Alternative, Opposition”
to Motion 2. ECF 90 at 1. They argue that, rather than being an independent motion, Motion 2
is, in substance, a surreply relating to Motion 1. Id. at 4. Plaintiffs contend that, as a surreply,
Motion 2 is untimely and procedurally defective, and should therefore be struck. Id. at 6.
Because I shall deny Motion 2 on its merits, I need not consider this argument.
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A court may also “consider a document submitted by the movant that was not attached to
or expressly incorporated in a complaint, so long as the document was integral to the complaint
and there is no dispute about the document’s authenticity.” Goines, 822 F.3d at 166 (citations
omitted); see also Woods v. City of Greensboro, 855 F.3d 639, 642 (4th Cir. 2017), petition for
cert. filed, No. 17-492 (Oct. 3, 2017); Kensington Volunteer Fire Dep’t. v. Montgomery Cnty.,
684 F.3d 462, 467 (4th Cir. 2012). To be “integral,” a document must be one “that by its ‘very
existence, and not the mere information it contains, gives rise to the legal rights asserted.’”
Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F. Supp. 2d 602, 611 (D.
Md. 2011) (citation omitted) (emphasis in original).
Most of the exhibits SIG has attached to Motion 2 are not integral to the Third Amended
Complaint. However, SIG has also attached the Regatta Insurance Application (ECF 89-2),
which plaintiffs repeatedly refer to in the Third Amended Complaint (see, e.g., ECF 37, ¶ 71),
and which may be considered to give rise to several of plaintiffs’ claims. Plaintiffs, in their
Opposition 2, do not challenge the authenticity of the Regatta Insurance Application. Therefore,
I shall consider it.
C.
SIG points to the Regatta Insurance Application for its contention that it never undertook
any duty to provide safety services in connection with the race. ECF 89 at 2. In particular, SIG
cites language at the end of the application, which states (ECF 89-2 at 8) (capitals in original):
NEITHER THE RIGHT TO MAKE AN UNDERWRITING AND/OR LOSS
CONTROL INSPECTION NOR THE MAKING THEREOF NOR ANY
REPORT THEREOF SHALL CONSTITUTE AN UNDERTAKING ON
BEHALF OF OR FOR THE BENEFIT OF ANY INSURED OR OTHERS TO
FORECAST ANY ACCIDENT OR ITS SEVERITY, OR DETERMINE OR
WARRANT THAT SUCH PROPERTY OR OPERATIONS ARE SAFE OR
HEALTHFUL, OR ARE IN COMPLIANCE WITH ANY ENGINEERING
STANDARDS, RULES OR REGULATIONS.
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The application was signed by Christopher R. Oliver, Jr., KNRA’s Vice-President, indicating his
assent, and that of KNRA, to the terms. ECF 89 at 9.
Therefore, SIG asserts that “there is simply no evidence that [SIG] undertook to act either
for the benefit of the race organizers or any spectators.” Id. at 16. This may be so. However,
because I construe Motion 2 as a motion to dismiss, and not as a motion for summary judgment,
the question at hand is not whether any evidence supports plaintiffs’ allegations. Instead, I must
determine if plaintiffs’ complaint states a claim that is plausible on its face.

See Hall v.

DIRECTV, LLC, 846 F.3d at 765; see also Twombly, 550 U.S. at 570.
The language in the Regatta Insurance Application may suggest that SIG never undertook
to provide safety services to any other party. But, plaintiffs have alleged that SIG did provide
such services. And, the contract provision is not necessarily dispositive; plaintiffs have filed a
Rule 56(d) affidavit contending that they expect discovery to reveal conduct and further
representations by SIG to KNRA and APBA that are relevant to the claim. ECF 90-1, ¶ 5. SIG
may have declared that it would not undertake to provide services for the benefit of APBA, but
later it may have done so. Moreover, SIG may have made other contrary representations to
APBA or KNRA that plaintiffs have not yet discovered.
At this stage, I must accept as true the allegations of the Third Amended Complaint. As
discussed in the context of Motion 1, the allegations set forth in the Third Amended Complaint
state a claim that is plausible on its face. Accordingly, I need not reach the parties’ other
arguments. I shall deny Motion 2.

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V.

Conclusion

For the reasons stated above, I shall DENY Motion 1 and Motion 2. An Order follows,
consistent with this Memorandum Opinion.

Date: November 16, 2017

/s/
Ellen Lipton Hollander
United States District Judge

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