Overbey et al v. Mayor and City Council Baltimore et al

Filing 32

MEMORANDUM AND ORDER granting 29 Motion of Baltimore Brew, Ashley Amaris Overbey for Reconsideration; granting 10 Motion to Dismiss of Baltimore City Police Department; granting 11 Motion of Mayor and City Council of Baltimore for Summary Judgment and to Strike Jury Demand. Signed by Judge Marvin J. Garbis on 11/28/2017. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ASHLEY AMARIS OVERBEY, et al.

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Plaintiffs
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vs.

CIVIL ACTION NO. MJG-17-1793
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THE MAYOR AND CITY COUNCIL
OF BALTIMORE, et al.
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Defendants
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MEMORANDUM AND ORDER
The Court has before it the Motion to Dismiss of Baltimore
Police Department [ECF No. 10], Defendant Mayor and City Council
of Baltimore’s Motion to Dismiss or for Summary Judgment and to
Strike Jury Demand [ECF No. 11], and the materials submitted
relating thereto.

The Court has held a hearing and has had the

benefit of arguments of counsel.

I.

Background
A. Procedural History
The instant case, filed June 30, 2017 [ECF No. 5] pertains

to the settlement of a police brutality claim that Plaintiff
Ashley Overbey (“Overbey”) asserted against the Mayor and City
Council Of Baltimore (“the City”).

The underlying case was

settled when Overbey and the City entered into a settlement

agreement that was approved by the City’s Board of Estimates on
September 10, 2014.

See Settlement Agreement and Release

(“Agreement”), Def.’s Mot. Ex. 3, ECF No. 11-4.
Overbey now alleges that, in regard to the Agreement, the
City of Baltimore unlawfully penalized her protected speech
rights and breached the Agreement.

She seeks to challenge the

validity of the non-disparagement clause in the Agreement as
violative of Maryland public policy.

Plaintiff Baltimore Brew,

an independent daily news website, challenges the nondisparagement clause as a violation of Maryland public policy
and alleges that the non-disparagement clause in the Agreement
impinges on its right to a free press.
Defendants Baltimore City Police Department (“BPD”) and the
Mayor and City Council of Baltimore (“the City”) filed motions
to dismiss on July 27, 2017 [ECF Nos. 10 and 11, respectively].
By Order of October 4, 2017 [ECF No. 25], Judge Motz granted the
dismissal motions and entered judgment in favor of Defendants.
On October 13, 2017, Chief Judge Bredar reopened the case as to
Plaintiff Baltimore Brew by Order [ECF No. 26].
On October 31, 2017 the undersigned Judge held a
teleconference with the parties and requested that the
Plaintiffs file a motion to reconsider so that all pending
issues may be adjudicated.

Following the teleconference, the

Court issued a Procedural Order [ECF No. 28] stating that
2

“[u]pon the filing of Plaintiffs’ motion to reconsider, the
Court will consider all issues presented by the aforesaid
dismissal motions.”

On November 2, 2017, Plaintiffs filed the

requested motion [ECF No. 29].
A hearing in this case regarding all issues presented by
Defendants’ motions was held on November 16, 2017.

B. Alleged Facts
Plaintiffs alleged in the Amended Complaint (“AC”) that
between 2009 and 2017, the City of Baltimore paid more than 33.4
million dollars “in settlements and court judgments for lawsuits
alleging brutality and other police misconduct.”

AC ¶ 28.

About 95% of these settlements contain a non-disparagement
clause.

AC ¶ 19.

Plaintiff Overbey, a police brutality

claimant, was a party to one of these settlement agreements.
¶ 53.

AC

Plaintiff Baltimore Brew alleges that these settlements

agreements have “severely limited [its] ability to fully and
accurately report on the issue of police brutality and abuse of
power in Baltimore.”

AC ¶ 76.

The AC contains allegations regarding the substance of
Plaintiff Overbey’s police brutality claim, set against the
backdrop of many recent police brutality cases in Baltimore
City.

On April 30, 2012, around 9:40 PM, Overbey contacted the

BPD to report a burglary.

AC ¶ 33.

3

Allegedly, police arrived

in response to her call and, without provocation, several of the
officers became violent towards her: they “grabbed [her] by her
hair, twisted her arm behind her back, and violently slapped and
punched her,” “violently and maliciously beat[] [her] with
clenched fists” causing eye injury, struck her with a Taser,
“restrained her and cut off her airway by placing [a] knee on
her throat,” and finally arrested her.

AC ¶¶ 37-44.

Overbey, through an attorney, filed a Complaint in the
Circuit Court for Baltimore City against the City and the
officers, alleging false arrest and false imprisonment, battery,
violation of the Maryland Declaration of Rights, and malicious
prosecution.

She pursued pretrial proceedings for approximately

two years before she was presented with the Agreement.

AC ¶¶

46-48.
Pursuant to the Agreement, the City agreed to pay Overbey
$63,000 “within sixty (60) days of the approval of this
Agreement by the Baltimore City Board of Estimates.”
§ 2, ECF No. 11-4.

Agreement

The Agreement included Section 9, entitled

“Non-Disparagement/Limitation on Public Statements,” which
states:
It is understood and agreed by the Settling
Parties that in exchange for the payment of
the Settlement Sum by the Released Parties,
the Releasing Party and that party’s agents,
representatives and attorneys shall strictly
refrain from and avoid any attempt at
defaming and/or disparaging the Released
4

Parties, including each of the Released
Parties’ employees or agents regarding any
matter related to, or arising from the
Litigation or the Occurrence. Further, in
exchange for the payment of the Settlement
Sum by the Released Parties and because the
allegations of the Occurrence and Litigation
are disputed, the Settling Parties agree
that the Releasing Party and his or her
agents, representatives and attorneys, shall
limit their public comments regarding the
Litigation and the Occurrence to the fact
that a satisfactory settlement occurred
involving the Parties. It is understood and
agreed by the Settling Parties that this
limitation on public statements shall
include a prohibition against discussing any
opinions, facts or allegations in any way
connected to the Litigation or the
Occurrence, or substance of any prior
settlement offers or discussions with the
news media, except that the Releasing
Party’s counsel may indicate that the
Litigation has been settled to avoid the
cost, time, expense and uncertainties of
protracted litigation.
The Settling Parties agree and understand
that a breach of the obligations set forth
in this Paragraph 9 is deemed by the
Settling Parties to be a material breach of
this Agreement for which the City is
entitled to a refund of fifty percent (50%)
of the Settlement Sum ($31,500.00) from the
Releasing Party. The remainder of the
Settlement Sum and all other obligations of
this Agreement shall remain in force. If it
is necessary for the City to pursue recovery
in litigation of the refund it is entitled
to under this paragraph, the City will be
entitled to recover all reasonable
attorney’s fees, costs and expenses of such
litigation from the Releasing Party.
Agreement § 9, ECF No. 11-4.

5

Overbey had been represented by counsel during the
negotiation of the Agreement, and signed the Agreement upon
advice of counsel in August 2014.

AC ¶¶ 52-53.

She alleges

that she misunderstood Section 9 to bind both her and the City,
and to only prohibit her from speaking to the media (and not to
the public at large).

AC ¶ 54.

Overbey received her settlement funds on October 8, 2014.
AC ¶ 64.

However, before that date, The Baltimore Sun published

a story about her case, including her mug-shot photo and her
settlement amount.

AC ¶ 59.

Overbey became upset after reading

the Sun story and corresponding reader comments, and responded
to them:
“I am the woman who this article is talking
about AND THE POLICE WERE WRONG!! This
article doesn’t come close to WHAT REALLY
HAPPENED or tell how three men over 200 lbs.
each beat me (115 lbs) bruises all over my
body a black eye AND tased twice all in
front my 2 yr old daughter so before you
decide to put ur MEANINGLESS opinion in on
something FIND OUT THE FACTS FIRST! IF I
were wrong my charges wldntve ben thrown out
and i wldntve received a dime. Its people
like you who make this cite the ****it…”
“AND THIS WAS ALL AFTER I CALLED THEM FOR
HELP AFTER MY HOME HAD BEEN BURGULARIZED
WHILE I WAS AT WORK!! SO ANYONE WHO HAS
ANYTHING TO SAY (NEGATIVITY) YOU CAN TAKE UR
OPINION AND SHOVE IT!!”
“I pay my taxes and support myself like
everyone else but unlike a lot of other
people I KNOW MY RIGHTS and I refused to let
them get away with this AGAIN!!”
6

AC ¶ 63.

The City determined that these comments violated the

Agreement’s Section 9 Non-Disparagement/Limitation on Public
Statements and withheld payment of one-half of the $63,000
settlement.

AC ¶ 64.

Thus, on October 8, 2014, Overbey

received a check from the City in the amount of $31,500, which
is half of the $63,000 agreed settlement amount.

Id.

The

accompanying letter stated that she was only receiving half of
the agreed-upon amount because of her above public comments
regarding The Baltimore Sun article.

II.

Id.

The Motions and Standards of Review
A.

The City’s Motion for Summary Judgment

The City has filed a motion to dismiss, or in the
alternative a motion for summary judgment, and has submitted
materials in addition to the Complaint regarding these motions.
[ECF No. 11].

The Court has not excluded these materials from

consideration.
When “matters outside the pleading are presented to and not
excluded by the court, the [12(b)(6)] motion shall be treated as
one for summary judgment under Rule 56.”

Fed. R. Civ. P. 12(d);

Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 260–
61 (4th Cir. 1998).

Because the Court has relied upon

supplemental affidavits and documents filed outside of the

7

pleadings, it will treat the pending motion as a motion for
summary judgment.
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 to 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).

8

When evaluating a motion for summary judgment, the Court
must bear in mind that the “summary 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).

B. The BPD’s Motion to Dismiss
The BPD’s Motion is styled as a motion to dismiss the
Complaint, on the basis that it is not a proper defendant in the
action.
A motion to dismiss filed pursuant to Federal Rule of Civil
Procedure 12(b)(6) tests the legal sufficiency of a complaint.
A complaint need only contain “‘a short and plain statement of
the claim showing that the pleader is entitled to relief,’ in
order to ‘give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.’”

Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (alteration in original)
(citations omitted).

When evaluating a 12(b)(6) motion to

dismiss, a plaintiff’s well-pleaded allegations are accepted as
true and the complaint is viewed in the light most favorable to
the plaintiff.

However, conclusory statements or “a formulaic

recitation of the elements of a cause of action will not
9

[suffice].”

Id.

A complaint must allege sufficient facts “to

cross ‘the line between possibility and plausibility of
entitlement to relief.’”

Francis v. Giacomelli, 588 F.3d 186,

193 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 557).
Inquiry into whether a complaint states a plausible claim
is “‘a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.’”
(quoting Twombly, 550 U.S. at 557).

Id.

Thus, if “the well-pleaded

facts [contained within a complaint] do not permit the court to
infer more than the mere possibility of misconduct, the
complaint has alleged – but it has not ‘show[n]’ – ‘that the
pleader is entitled to relief.’”

Id. (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 679 (2009) (alteration in original)).

III.

DISCUSSION
A.

Dismissal of Claims Against the BPD

The BPD argues that the entire case should be dismissed
against it because it is not the proper party to the lawsuit.
Def.’s Mot. Dismiss at 2, ECF No. 10-1.

The BPD “was not named

as a defendant” in Overbey’s underlying civil lawsuit, “did not
appear in that case, and is not a party to the Settlement
Agreement.”

Id.

the contract.

Nor is the BPD a third-party beneficiary to

Id. at 5.

Rather, the BPD argues, Plaintiff’s in

the instant case, “alleged causes of action are based entirely
10

on the conduct and practices of Baltimore City,” and the only
reference to the BPD in the Amended Complaint is in the
background discussion regarding the history of police brutality
in Baltimore.

Id. at 3.

In response, Plaintiffs argue that it is too early for the
Court to make a decision as to whether the BPD is properly in
the lawsuit, and that they need more discovery to make that
determination.

Pl.’s Opp. at 35, ECF No. 18.

Plaintiffs seek

to have the Court defer decision on the BPD’s motion.
The Court finds that there is no showing that additional
discovery would potentially support Plaintiff’s position that
the BPD is properly named as a defendant in the lawsuit.

The

BPD is not a party to the Agreement and is not alleged to be a
third-party beneficiary of the Agreement.

Parties may not be

held to a contract to which they are not a party or a thirdparty beneficiary.

See Cecilia Schwaber Tr. Two v. Hartford

Acc. & Indem. Co., 437 F. Supp. 2d 485, 489 (D. Md. 2006) (Under
Maryland law, “[a]s a general rule, ‘a contract cannot be
enforced by or against a person who is not a party to it.’”).
Moreover, Plaintiffs have not alleged any facts connecting
the BPD to the Agreement or to the City’s policy of entering
into these types of settlement agreements.

They simply state in

a conclusory matter that the BPD, along with the City, has “some
responsibility for the unlawful policy.”
11

Pl.’s Opp. at 35, ECF

No. 18.

This does not provide allegations stating a plausible

claim upon which relief from the BPD could be granted.
Accordingly, the BPD’s Motion to Dismiss [ECF No. 10] the
claims against it shall be GRANTED.

B.

Baltimore Brew’s Standing to Sue

Defendants contend that Baltimore Brew does not have
standing to bring this lawsuit because it has not alleged an
injury-in-fact and because it “does not have a First Amendment
right to access information that the parties to the Settlement
agreement promised by contract to keep from the general public.”
Def.’s Mot. at 25, ECF No. 11-1.
To show standing, Baltimore Brew “must demonstrate (1) an
‘injury in fact’; (2) a ‘causal connection between the injury
and the conduct complained of,’ such that the injury is ‘fairly
traceable’ to the defendant’s actions; and (3) a likelihood that
the injury ‘will be redressed by a favorable decision.’”

Benham

v. City of Charlotte, N.C., 635 F.3d 129, 134 (4th Cir. 2011).
To show an “injury in fact,” the Plaintiff must have “‘adduce[d]
facts demonstrating that [it has] suffered an invasion of a
legally protected interest,’” that is ‘concrete and
particularized’ and ‘actual or imminent,’ rather than
‘conjectural or hypothetical.’”).

12

Id. at 135.

The press’s access to information has been limited under
the Supreme Court’s First Amendment jurisprudence.

See, e.g.,

Cohen v. Cowles Media Co., 501 U.S. 663, 672 (1991) (The “First
Amendment does not confer on the press a constitutional right to
disregard promises that would otherwise be enforced under state
law.”); Branzburg v. Hayes, 408 U.S. 665, 684 (1972) (the “First
Amendment does not guarantee the press a constitutional right of
special access to information not available to the public
generally.”); Associated Press v. Nat’l Labor Relations Bd., 301
U.S. 103, 132 (1937) (“The publisher of a newspaper has no
special immunity from the application of general laws.”).
Baltimore Brew alleges that it has reported “on BPD
lawsuits and settlements involving allegations of police
brutality” since the summer of 2011.

AC ¶ 68.

To report these

stories, Baltimore Brew relies on (1) Board of Estimates’
published agendas which include settled lawsuits above $25,000,
and (2) the City’s official memorandum for each settled lawsuit.
AC ¶¶ 70-73.

Baltimore Brew alleges that these documents are

one-sided and incomplete without the version of facts as alleged
by the plaintiffs in the various lawsuits.

AC ¶ 75.

Because

the non-disparagement clauses in the settlement agreements
prevent the plaintiffs from discussing their cases, Baltimore
Brew argues that the clauses impair its “ability to gather news
and receive speech” about incidents of police brutality.
13

Pl.’s

Opp. at 27, ECF No. 18.

Specifically, the alleged injury is the

“restriction of access to specific and essential sources of
information–the victims of police brutality.”

Id. at 26.1

However, Baltimore Brew has not shown that it was entitled
to access the information at issue in the first place.
Baltimore Brew is neither a party to the contract nor a thirdparty beneficiary to the contract.

It appears to be arguing

that Overbey, as a party to the Agreement, had the right to
ignore confidentiality clauses if a member of the press asked
for information covered by that clause.
The Supreme Court’s jurisprudence precludes a finding that
the press has unrestricted access to any information they seek.
See, e.g., Cohen, 501 U.S. at 669 (“the truthful information
sought to be published must have been lawfully acquired.”).
Because Baltimore Brew was not entitled to the information at
issue in the first place, it would not suffer a legally
cognizable injury if Overbey agreed not to provide the
information.
Plaintiff Baltimore Brew relies heavily on a Sixth Circuit
case to argue that it has standing in this case.
v. Young, 522 F.2d 234, 237 (6th Cir. 1975).

See CBS Inc.

Although it is

likely true that news gathering qualifies for First Amendment

1

Baltimore Brew does not allege that it has suffered injury due
to self-censorship. Pl.’s Opp. at 26, ECF No. 18.
14

protections, id., First Amendment protections are not absolute
and may be curtailed under some circumstances, Cohen, 501 U.S.
at 669.

Moreover, the CBS Inc. case is distinguishable at the

very least because Baltimore Brew had access to Overbey’s
version of the facts as filed in her Civil Complaint, and could
have interviewed Overbey prior to the Agreement.

The Plaintiffs

in CBS Inc., on the other hand, were “effectively cut off from
any access whatever to important sources of information about
the trial.”

CBS Inc., 522 F.2d at 237.

Finally, any Baltimore Brew argument that it sustained an
alleged injury-in-fact from the combination of all of the
settlements containing a similar disparagement clause does not
constitute “concrete and particularized” injury as required by
Benham, 635 F.3d at 134.2
Accordingly, the City shall be granted summary judgment on
Baltimore Brew’s claims.

C. Overbey’s First Amendment Claims
Constitutional rights, including First Amendment rights,
may be waived in a contract under certain circumstances.
2

See

At the motions hearing, Plaintiff Baltimore Brew indicated that
it seeks discovery to find a settling party that did not
voluntarily enter into a settlement agreement with a nondisparagement clause. Hearing Rough Tr. 7:12-8:6. However,
this type of investigation should have been completed before the
suit was filed because the names of all settling parties are
matters of the public record. Hearing Rough Tr. 17:15-24.
15

Lake James Cmty. Volunteer Fire Dep’t, Inc. v. Burke Cty., N.C.,
149 F.3d 277, 280 (4th Cir. 1998) (concluding that a contract
requiring the fire department to waive its First Amendment right
to petition the government was enforceable).

For such a waiver

to be effective, it must be “knowing,” “voluntarily given,” and
“must not undermine the relevant public interest.”

Id.

Regarding public interest, the “contract will be enforced unless
the interest promoted by its enforcement is outweighed by the
public policy harms resulting from enforcement.”

Id.

Plaintiff Overbey was represented by an attorney during her
civil lawsuit and during the negotiations of the Agreement.

She

was advised by counsel to enter into the Agreement, and did so,
despite some initial hesitations.

AC ¶ 53.

She was not coerced

in any way to sign the agreement.

Therefore, the Court finds

that her waiver was “knowing” and “voluntarily given.”

See Lake

James, 149 F. 3d at 280.
Overbey argues that the waiver should not be enforced
because it “undermines the accountability and transparency that
is necessary to the effective operation of the Police
Department.”

Pl.’s Opp. at 19, ECF No. 18.

However, it is by

no means clear that preventing post-settlement discussions of
police brutality cases would undermine the BPD’s ability to
commit to transparency and accountability, when other procedures
exist to hold the BPD accountable for its actions.
16

See, e.g.,

USA v. Police Department of Baltimore, Consent Decree, JKB-1799, ECF No. 2-2 (Jan. 12, 2017).

Whether additional procedures

are necessary as a matter of public policy is not for this Court
to decide.

Moreover, there are also public policy interests

which are promoted by a enforcing a voluntary settlement
agreement: e.g., reducing time and resources spent on litigation
in courts and fostering confidence in negotiating future
settlement agreements.

Thus, the Court finds that any existing

public policy harms do not outweigh the interest in enforcing
the contract.

See Lake James, 149 F.3d at 280.

To bolster her public policy argument, Plaintiff relies on
a 9th Circuit case to argue that the waiver should be deemed
unenforceable as a matter of public policy.

See Davies v.

Grossmont Union High Sch. Dist., 930 F.2d 1390, 1398 (9th Cir.
1991).

In Davies, plaintiff’s right to run for political office

was restricted in a settlement agreement, which the Sixth
Circuit invalidated because it “results in a limitation on the
fundamental right to vote of every resident” under that
jurisdiction.

Id.

There is a significant difference between

waiving the right to run for political office and waiving the
right to speak about the facts of a settled case.

Thus, the

Court finds that Davies is readily distinguishable from the
present case.

17

Overbey also argues that she did not understand the scope
of the non-disparagement clause.

However, any alleged

unilateral mistake or misunderstanding about the Agreement would
not be a valid excuse from performance.

There is no allegation

of fraud or inequitable conduct inducing any alleged
misunderstanding.

Nationwide Mut. Ins. Co. v. Voland, 103 Md.

App. 225, 234 (1995) (“We note that ‘[t]he law in this State is
clear that, absent intentional, culpable conduct, such as fraud,
duress or undue influence, a unilateral mistake is ordinarily
not a ground for relief from a contract.’”).

Overbey was

represented by an attorney and had every opportunity to
investigate the scope of the provision before she signed the
Agreement.3
Finally, Overbey argues that the provision was a product of
unequal bargaining power, for two main reasons.

First, because

similar provisions are included in 95% of the settlement
agreements, the “ubiquity of the provision suggests it is a nonnegotiable component” of all agreements.

3

Pl.’s Opp. at 18, ECF

At the hearing, Plaintiff Overbey argued that it was not clear
that the Agreement was signed voluntarily after substantive
negotiations, and that she needs further discovery. See Hearing
Rough Tr. 28:10-15 (“The fact is we don’t know if there was a
negotiation over the money. We don’t know if there was a
negotiation over anything.”). This speculation does not
constitute “specific facts” showing a genuine issue for trial.
Anderson, 477 U.S. at 250. See also id. at 249-50 (“If the
evidence is merely colorable . . . or is not significantly
probative . . . summary judgment may be granted.”).
18

No. 18.

Second, Plaintiff Overbey was “homeless and destitute”

at the time and had no real option but to sign the contract.
Id.
The Court recognizes the Plaintiff’s difficult economic and
social situation but does not agree with the contention that the
non-disparagement obligation can be avoided.

This contract was

not a contract of adhesion because there was ample opportunity
for Overbey to negotiate its terms.

See Walther v. Sovereign

Bank, 386 Md. 412, 430 (2005) (“A contract of adhesion has been
defined as one ‘that is drafted unilaterally by the dominant
party and then presented on a ‘take-it-or-leave-it’ basis to the
weaker party who has no real opportunity to bargain about its
terms.’”).
Typically, contracts of adhesion appear in consumer
contract disputes in which the consumer signs a standard-form
contract without the ability to negotiate about its terms.
Walther, 386 Md. at 430.

Here, the Agreement itself was only

eight pages long and the non-disparagement clause was not hidden
in fine print.

Overbey was represented by counsel and could

have decided to refuse the settlement and proceed to trial.

She

could have leveraged her position to demand that the nondisparagement clause be removed from the contract.

The fact

that these non-disparagement clauses are in the vast majority of
agreements does not mean that they are non-negotiable clauses.
19

And the fact that Plaintiff Overbey was impoverished at the time
and decided to settle her claim for a financial payment does not
render the Agreement a contract of adhesion.
The Court recognizes that a plausible claim could exist in
a different case with different facts.

However, Plaintiff

Overbey has not presented any evidence showing any indication
that her own contract negotiation was entered into involuntarily
or somehow unfairly negotiated.

This is fatal to her claim.

Accordingly, Defendant Mayor and City Council of
Baltimore’s Motion for Summary Judgment as to Plaintiff
Overbey’s First Amendment claims shall be GRANTED.

D.

Overbey’s Contract Claims

Counts III, IV, and V of the AC assert contract claims.

In

Count III, the AC alleges that the Agreement violates Maryland’s
public policy of “promot[ing] the disclosure of information
related to the administration of state and local services,”
“impair[ing] the media from performing its vital role as
government watchdog,” and “playing off the victim’s poverty.”
AC ¶¶ 97, 99, 101.

In Count IV, the AC alleges that the

Agreement’s liquidated damages provision is unlawful because it
is excessive and has the effect of punishing Overbey for
breaching the contract.

AC ¶¶ 105, 108.

In Count V, the AC

alleges that the City breached the contract when it unilaterally
20

withheld half of the settlement amount owed to Overbey, instead
of paying the full amount and then seeking a refund.

AC ¶¶ 110-

113.
Even if these contract claims were meritorious, they are
barred by the relevant statute of limitations.

In Maryland, a

contract claim against the local government is barred “unless
the claimant files suit within the later of 1 year after: (1)
The date on which the claim arose; or (2) The date of completion
of the contract that gave rise to the claim.”

Md. Code Ann.,

Cts. & Jud. Proc. § 5-5A-01.
The Agreement was signed in August 2014 and approved by the
City’s Board of Estimates on September 10, 2014.

The City

tendered payment of half of the settlement funds on October 8,
2014, which, according to the AC, constitutes a breach of the
Agreement.

The original Complaint in the instant case was filed

on June 29, 2017, substantially more than a year after the
alleged breach.

ECF No. 1.

Accordingly, Defendant Mayor and City Council of
Baltimore’s Motion for Summary Judgment shall be GRANTED as to
Counts III, IV, and V.

E.

Motion to Stirke Jury Demand

Because there are no more pending claims for jury trial,
the City’s Motion to Strike Jury Demand is moot.
21

IV.

Conclusion
For the foregoing reasons:
1. The Motion for Reconsideration [ECF No. 29] is GRANTED
and all claims have now been adjudicated.
2. The Motion to Dismiss of Baltimore City Police
Department [ECF No. 10] is GRANTED.
3. Defendant Mayor and City Council of Baltimore’s Motion
for Summary Judgment and to Strike Jury Demand [ECF
No. 11] is GRANTED.
4. All claims are dismissed against all Defendants.
5. Judgment shall be entered by separate Order.

SO ORDERED, this Tuesday, November 28, 2017.

/s/__________
Marvin J. Garbis
United States District Judge

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