Vogel et al v. Morpas et al
MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 11/9/2017. (jnls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BERNARD VOGEL, et al.,
WENDY MORPAS, et al.,
Civil Action No.: RDB-17-2143
Plaintiffs Bernard Vogel, individually and as a personal representative of the estate of
Jean Vogel, Thomas Vogel, Meredith Vogel, and Audrey Vogel (collectively, “Plaintiffs”)
bring this diversity action against Defendants Wendy Morpas (“Morpas”), Navigation, Inc.,
Navigation Group, Inc. (collectively “Navigation”), and Midlink Logistics, LLC (“Midlink”)
(collectively, “Defendants”), stemming from a motor vehicle accident involving Defendant
Morpas and Jean Vogel. Currently pending before this Court is Defendant Midlink’s Motion
to Dismiss Counts IV, V and VII of the Complaint for lack of personal jurisdiction and for
failure to state a claim for relief. (ECF No. 14.) The parties’ submissions have been reviewed
and no hearing is necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons that follow,
Defendant Midlink’s Motion to Dismiss (ECF No. 14) is GRANTED IN PART and
DENIED IN PART. Specifically, it is GRANTED as to the wrongful death action under
Michigan law (Count VII) and DENIED as to the survival and wrongful death actions under
Maryland law (Counts IV and V).
This Court accepts as true the facts alleged in Plaintiffs’ complaint. See Aziz v. Alcolac,
Inc., 658 F. 3d 388, 390 (4th Cir. 2011). Defendant Midlink, a Michigan corporation, brokers
shipping contracts for the interstate transportation of goods. (Compl., ECF No. 2 at ¶¶ 7-8.)
On or around February 16, 2016, Midlink entered into a “Load Confirmation and Payment
Agreement” (the “Agreement”) for Defendant Navigation to provide transportation and/or
trucking services for Peterson Farms, a client of Midlink. (Id. at ¶ 29; ECF No. 20-2.) The
Agreement provided that Defendant Navigation would transport produce from Hart,
Michigan to Philadelphia, Pennsylvania. (Id. at ¶ 29; ECF No. 20-2.) In addition, the
Agreement stated that Defendant Navigation would make six intermediate stops between
Michigan and Pennsylvania, including two stops in Maryland. (Id. at ¶ 29; ECF No. 20-2.) To
execute the job, Defendant Navigation hired Defendant Morpas to drive a large, loaded
eighteen-wheeler tractor trailer. (ECF No. 2 at ¶¶ 17, 27.) While Defendant Morpas was
driving on Kate Wagner Road in Carroll County, Maryland, he went through a flashing red
light at a high rate of speed without stopping or slowing down. (Id. at ¶ 18.) The tractor
trailer struck Jean Vogel’s vehicle which had been approaching the intersection with Kate
Wagner Road, ultimately causing the vehicle to catch on fire and Jean Vogel’s death.1 (Id. at
On July 31, 2017, Plaintiffs filed the instant action in the Circuit Court for Carroll
County, Maryland, bringing the following causes of action: survival action under Maryland
1 On July 25, 2017, Morpas was found guilty of criminal negligent manslaughter by vehicle and three related
traffic citations. Criminal Case No. 06-K-16-047627 (Cir. Ct. of Md. for Carroll County); see
law against all Defendants for negligence (Counts I, III, IV); survival action under Maryland
law against Defendant Navigation for respondent superior liability for the actions of
Defendant Morpas (Count II); wrongful death action under Maryland law against all
Defendants (Count V); wrongful death action under Illinois law against Defendant
Navigation (Count VI); and wrongful death against under Michigan law against Defendant
Midlink (Count VII). Defendants removed the case to this Court based on diversity
jurisdiction under 28 U.S.C. § 1441. (ECF No. 1.) Currently pending before this Court is
Defendant Midlink’s Motion to Dismiss those Counts in which it is named, specifically,
Counts IV, V, and VII, for lack of personal jurisdiction and failure to state a claim. (ECF
STANDARD OF REVIEW
Motion to Dismiss Under Rule 12(b)(2)
A motion to dismiss under Rule 12(b)(2) of the Federal Rules of Civil Procedure for
lack of personal jurisdiction challenges a court’s authority to exercise its jurisdiction over the
moving party. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). The jurisdictional question
is “one for the judge, with the burden on the plaintiff ultimately to prove the existence of a
ground for jurisdiction by a preponderance of the evidence.” Id.; Sigala v. ABR of VA, Inc.,
145 F.Supp.3d 486, 489 (D. Md. 2014). While a court may hold an evidentiary hearing or
permit discovery as to the jurisdictional issue, it also may resolve the issue on the basis of the
complaint, motion papers, affidavits, and other supporting legal memoranda. Consulting
Eng’rs Corp. v. Geometric Ltd., 561 F.3d 273, 276 (4th Cir. 2009); see also Sigala, 145 F.Supp.3d
If a court does not hold an evidentiary hearing or permit discovery, a plaintiff need
only make “a prima facie showing of a sufficient jurisdictional basis to survive the
jurisdictional challenge.” Consulting Eng’rs Corp., 561 F.3d at 276. When considering whether
the plaintiff has made the requisite showing, “the court must take all disputed facts and
reasonable inferences in favor of the plaintiff.” Carefirst of Maryland, Inc. v. Carefirst Pregnancy
Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003). Notably, “‘a threshold prima facie finding that
personal jurisdiction is proper does not finally settle the issue; plaintiff must eventually prove
the existence of personal jurisdiction by a preponderance of the evidence, either at trial or at
a pretrial evidentiary hearing.’” New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d
290, 294 n. 5 (4th Cir. 2005) (emphasis in original) (citation omitted).
Motion to Dismiss under Rule 12(b)(6)
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the dismissal of a
complaint if it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).
The purpose of Rule 12(b)(6) is “to test the sufficiency of a complaint and not to resolve
contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley
v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006); see also Goines v. Valley Cmty. Servs.
Bd., 822 F.3d 159, 165-66 (4th Cir. 2016). The sufficiency of a complaint is assessed by
reference to the pleading requirements of Rule 8(a)(2), which provides that a complaint must
contain a “short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2).
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain facts
sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 684, 129 S. Ct.
1937, 1949 (2009). Under the plausibility standard, a complaint must contain “more than
labels and conclusions” or a “formulaic recitation of the elements of a cause of action.”
Twombly, 550 U.S. at 555; Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013).
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 Houck v. Substitute Tr. Servs., Inc., 791 F.3d
473, 484 (4th Cir. 2015); Semenova v. Maryland Transit Admin., 845 F.3d 564, 567 (4th Cir.
Maryland has personal jurisdiction over Defendant Midlink
Before a court can exercise personal jurisdiction over a non-resident defendant, a
court must determine that (1) the exercise of jurisdiction is authorized under the state’s longarm statute pursuant to Rule 4(k)(1)(a) of the Federal Rules of Civil Procedure; and (2) the
exercise of jurisdiction conforms to the Fourteenth Amendment’s due process requirements.
Carefirst, 334 F.3d at 396; Sigala, 145 F.Supp. at 489. Defendant Midlink argues that Plaintiff
has not met either prong of the personal jurisdiction analysis.
When interpreting the reach of Maryland’s long-arm statute, Md. Code Ann., Cts. &
Jud. Proc., § 6-103(b), a federal district court must adhere to the interpretations of the
Maryland Court of Appeals. See Tulkoff Food Prod., Inc. v. Martin, No. ELH-17-350, 2017 WL
2909250, at *4 (D. Md. July 7, 2017) (citing Carbone v. Deutsche Bank Nat’l Trust Co., No.
RDB-15-1963, 2016 WL 4158534, at *5 (D. Md. Aug. 5, 2016); Snyder v. Hampton Indus., Inc.,
521 F. Supp. 130 (D. Md. 1981), aff’d, 758 F.2d 649 (4th Cir. 1985)). To satisfy the long-arm
prong of a personal jurisdiction analysis, a plaintiff must specifically identify a provision in
the Maryland statute that authorizes jurisdiction. Ottenheimer Publishers, Inc. v. Playmore, Inc.,
158 F. Supp. 2d 649, 652 (D. Md. 2001). While it is preferable that a plaintiff identify the
statute authorizing jurisdiction in its complaint, the plaintiff alternatively may reference the
applicable statute in its response to a defendant’s motion to dismiss. Johansson Corp. v. Bowness
Constr. Co., 304 F. Supp. 2d 701, 704 n.1 (D. Md. 2004).
Although Maryland courts “have consistently held that the state’s long-arm statute is
coextensive with the limits of personal jurisdiction set out by the Due Process Clause of the
Constitution,” Carefirst, 334 F.3d at 396, courts must address both prongs of the personal
jurisdiction analysis. Metro. Reg’l Info. Sys., Inc. v. American Home Realty Network, Inc., 888
F.Supp.2d 691, 699 (D. Md. 2012); CSR, Ltd. V. Taylor, 411 Md. 457, 475-76 (2009)
(explaining that if exercising “jurisdiction in a given case would violate Due Process,
[Maryland courts] construe our long-arm statute as not authorizing the exercise of personal
jurisdiction over the defendant” (internal citations omitted)). Under the second prong, courts
must determine whether the exercise of personal jurisdiction would comport with the due
process requirements of the Fourteenth Amendment. For a non-resident defendant, “due
process requires only that . . . a defendant . . . have certain minimum contacts . . . such that
the maintenance of the suit does not offend traditional notions of fair play and substantial
justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311
U.S. 457, 463 (1940)). A “minimum contacts” determination rests on the number and
relationship of a defendant’s contacts to the forum state, as well as whether the present
cause of action stems from the defendant’s alleged acts or omissions in the forum state. Id.
Thus, a court may exercise two types of personal jurisdiction: “‘general’ (sometimes
called ‘all-purpose’) jurisdiction and ‘specific’ (sometimes called ‘case-linked’) jurisdiction.”
Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., 137 S. Ct. 1773 (2017).
General jurisdiction arises when a defendant has continuous and systematic contacts in the
forum state. Id. at 1780. On the other hand, specific jurisdiction arises when there is an
“affiliation between the forum and the underlying controversy.” Id.; Carefirst, 334 F.3d at 397.
Regardless of which jurisdiction is asserted, the general rule is that “the exercise of judicial
power is not lawful unless the defendant ‘purposefully avails itself of the privilege of
conducting activities within the forum State, thus invoking the benefits and protections of its
laws.’” J. McIntyre Mach., Ltd. V. Nicastro, 564 U.S. 873, 877, 131 S. Ct. 2780, 2785 (2011)
(quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1288 (1958)).
A. Maryland’s long-arm statute authorizes the exercise of personal jurisdiction
Beginning with the first prong of the personal jurisdiction analysis, Plaintiff relies on
two provisions of the Maryland long-arm statute, which state:
(b) A court may exercise personal jurisdiction over a person, who directly or
by an agent:
(2) Contracts to supply goods, food, services, or manufactured
products in the State; [or] . . .
(4) Causes tortious injury in the State or outside of the State by an act
or omission outside the State if he regularly does or solicits business,
engages in any other persistent course of conduct in the State or
derives substantial revenue from goods, food, services, or
manufactured products used or consumed in the State[.]
Maryland Long–Arm Statute, Md. Code. Ann., Cts. & Jud. Proc. § 6-103.
Beginning with § 6-103(b)(2), Plaintiff argues that Midlink provided services in
Maryland when it “entered into a ‘Load Confirmation and Payment Agreement’ . . . with
Defendant Navigation and/or Defendant Navigation Group, Inc. to ‘transport various fresh
produce . . . from the point of origination’ in Michigan to Pennsylvania, with two
intermediate stops in Maryland. (ECF No. 20 at 10.) Midlink, however, argues that it “did
not conduct business or provide services in Maryland.” (ECF No. 23 at 1.) Rather, it acted as
a broker by connecting Peterson Farms with Defendant Navigation, and it was Navigation
that was contracted to supply the goods. (Id. at 1-2); see also Affidavit of Mark Swetz, ECF
No. 14-2 at ¶¶ j-k (explaining that once Navigation “accepted the load in Michigan, it
became responsible for the load and the manner and means by which it reached its
destination” and Midlink did not determine, contract for, or direct that any stops occur in
Section (b)(2) covers “contracts to supply good and services in Maryland, irrespective
of where the contract was negotiated.” Rao v. Era Alaska Airlines, 22 F.Supp.3d 529, 535 (D.
Md. 2014) (emphasis in original) (citing A Love of Food I, LLC v. Maoz Vegetarian USA, Inc.,
795 F.Supp.2d 365, 370 (D. Md. 2011)). The issue, then, is whether by brokering the
Agreement that directed Navigation to make stops in Maryland, Defendant Midlink
contracted to supply goods or services in Maryland. When viewing the facts and allegations
in the light most favorable to Plaintiff, § (b)(2) is satisfied.2 Defendant Midlink agreed to
arrange for the transfer of produce by Defendant Navigation from Michigan to Philadelphia,
2 Plaintiff also argues that C.J. § 6-103(b)(4) applies “because [Midlink’s] actions caused tortious injury in
Maryland while deriving substantial revenue from its brokerage of shipping contracts requiring deliveries in
[Maryland].” (ECF No. 20 at 10.) Because this Court finds that § (b)(2) is satisfied, it does not reach this
with two stops in Maryland. Although Defendant Midlink maintains that it was Peterson
Farms’ choice to make the stops in Maryland, there can be no dispute that Defendant
Midlink brokered the Agreement on behalf of its client, and the Agreement facilitated the
stops in Maryland. Thus, Plaintiff has made a prima facie showing that Maryland’s long-arm
statute is satisfied, and this Court turns to the due process analysis.
B. Exercise of personal jurisdiction over Defendant Midlink comports with
As explained above, due process jurisprudence recognizes two types of personal
jurisdiction: specific and general. In its Response to Defendant Midlink’s Motion to Dismiss,
Plaintiff only asserts that specific jurisdiction is appropriate. (ECF No. 20 at 13.)3 The
United States Court of Appeals for the Fourth Circuit applies a three-part test to determine
whether there is specific jurisdiction over a defendant: “(1) the extent to which the defendant
purposefully availed itself of the privilege of conducting activities in the State; (2) whether
the plaintiffs’ claims arise out of those activities directed at the State; and (3) whether the
exercise of personal jurisdiction would be constitutionally reasonable.” Consulting Engineers,
561 F.3d at 278.
Midlink argues that there is no specific jurisdiction because “the only business
performed by Midlink in this case was conducted in Michigan when it served as a broker
between its Michigan client, Peterson Farms, and Navigation Group, Inc., for Navigation
Group, Inc. to transport a load for Peterson Farms consisting of sliced apples. Peterson
Farms, not Midlink, determined the load origination, destination, and any stops in between.
3 This Court notes that there is no basis to conclude that there is general jurisdiction or that Defendant
Midlink’s contacts with Maryland are “so ‘continuous and systematic’ as to render [it] essentially at home” in
Maryland. Daimler AG v. Bauman, 134 S. Ct. 746, 761 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v.
Brown, 564 U.S. 915, 919, 131 S. Ct. 2846, 2851 (2011)).
[Therefore] . . . the suit did not ‘arise out of or related to Midlink’s contacts with the forum.’”
(ECF No. 14-1 at 5) (emphasis in original).
On the issue of whether this Court can assert specific personal jurisdiction over
Defendant Midlink, the United States District Court for the Western District of Virginia case
Turner v. Syfan Logistics, Inc., No. 5:15cv81, 2016 WL 1559176 (W.D. Va. Apr. 18, 2016) is
instructive. In Turner, the plaintiff brought suit for negligent hiring and retention against the
defendant Syfan Logistics, Inc (“Syfan”), an interstate property broker that regularly
arranged interstate transport of goods. Id. at *1. At the request of a third party, Syfan hired
DD Logistics, Inc. (“DD”) to haul a load of frozen chicken from Tennessee to West
Virginia. Id. While driving in Virginia, the DD employee’s tractor trailer truck struck the
decedent’s car, killing him. Id. When the plaintiff brought suit in the Western District of
Virginia, Syfan moved to dismiss for lack of personal jurisdiction on the grounds that it was
a Georgia corporation with its sole place of business in Georgia, it maintained no employees,
offices, bank accounts, assets or real property in Virginia, the decision to retain DD occurred
in Georgia, and Syfan had no control over the methods, means or details of the
transportation. Id. Applying the three part test from Consulting Engineers, the court found that
it did have personal jurisdiction over Syfan.
Notably in its discussion of the first prong, the court found that Syfan purposefully
targeted Virginia when the load confirmation agreement contemplated that to transport
goods from Moorefield, West Virginia to Chattanooga, Tennessee, there would necessarily
be travel through Virginia. Id. at *4. Therefore, Syfan “purposefully targeted Virginia as a
state through which DD would transport the load.” Id. In addition, the court considered that
as an interstate trucking broker, Syfan engaged in the business of arranging for interstate
shipments regularly and therefore “[i]t [could] come as no surprise to Syfan that litigation in
Virginia might ensue when Syfan’s conduct ensured DD would haul a load of frozen chicken
across a significant portion of the state.” Id. at *5. The court rejected Syfan’s argument that it
was DD who “unilaterally chose to carry the load through Virginia,” given that the load
confirmation clearly anticipated this fact. Id. at *6. Further, the court found that “Syfan’s
conduct directed at Virginia gave rise to Turner’s cause of action” given that the “accident
that killed [the decedent] arose from Syfan’s hiring of DD to haul chicken through Virginia.”
Id. at *7.
Turning to the first prong of the Consulting Engineers test, “the extent to which the
defendant purposefully availed itself of the privilege of conducting activities in the State,” on
its website Defendant Midlink boasts its nationwide coverage with “an extensive network of
reliable carriers to move . . . truckloads throughout the US.” (ECF No. 20-3.) In addition, it
lists the east coast as an area of strength. (Id.) In align with these services, at the request of its
client, Defendant Midlink arranged for the transportation of fresh produce from Michigan to
Pennsylvania, with two intermediate stops in Maryland. The Agreement that Defendant
Midlink brokered, then, obligated Defendant Navigation to travel through Maryland.
Thereby, Defendant Midlink purposefully targeted Maryland as a state through which
Defendant Navigation would transport the produce, and such transportation through
Maryland was a “contemplated future consequence” of Defendant Midlink’s action. See
Consulting Engineers, 561 F.3d at 278 (describing one factor for purposeful availment as
“whether the performance of contractual duties was to occur within the forum” (citing
Peanut Corp. of Am. v. Hollywood Brands, Inc., 696 F.2d 311, 314 (4th Cir. 1982))); see also Burger
King, 471 U.S. 462, 478, 105 S. Ct. 2174, 2185 (1985) (explaining that “contemplated future
consequences . . . must be evaluated in determining whether the defendant purposefully
established minimum contacts within the forum”).
Defendant Midlink maintains that because it “did not determine, contract for, or
direct that any stops should occur in the State of Maryland,” see Affidavit of Mark Swetz,
ECF No. 14-2 at ¶ k, Maryland does not have personal jurisdiction over it. However, as in
Turner, the Agreement anticipated that Defendant Navigation would travel through
Maryland, regardless of who chose to make stops in Maryland. Turner, 2016 WL 1559176 at
*6. Therefore, Defendant Midlink cannot plausibly claim that it is surprised that as a result of
brokering that Agreement, litigation in Maryland might ensue. Accordingly, this Court finds
that Defendant Midlink purposefully availed itself of the privilege of conducting activities in
Maryland. See Brandi v. Belger Cartage Service, Inc., 842 F.Supp. 1337, 1341-42 (D. Kan. 1994)
(finding personal jurisdiction over the defendant, a nationwide transportation brokerage
company, in part because the company “should certainly have foreseen the possibility of
litigation arising in a state through which it had arranged for the shipment of goods”).
As to the second and third prongs of the Consulting Engineers test, the accident that
resulted in Jean Vogel’s death arose from Midlink’s hiring of Navigation to perform the
terms of the Agreement. Accordingly, Midlink’s conduct directed at Maryland gave rise to
Plaintiff’s causes of actions against it. This Court also finds that the exercise of personal
jurisdiction is constitutionally reasonable under the third prong given that Midlink is a
nationwide business and the accident occurred in Maryland.4 Accordingly, this Court has
personal jurisdiction over Defendant Midlink and Defendant Midlink’s Motion to Dismiss
for lack of personal jurisdiction is DENIED.
Failure to state a claim
A. Wrongful death action under Michigan law (Count VII)
Count VII of the Complaint brings a wrongful death action against Defendant
Midlink under Michigan law. Defendant Midlink argues that the claim should be dismissed
because Maryland, and not Michigan, law applies.5 “A federal court sitting in diversity is
required to apply the substantive law of the forum state, including its choice-oflaw rules.” Francis v. Allstate Ins. Co., 709 F.3d 362, 369 (4th Cir. 2013) (citing Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 79 (1938); Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487, 496
(1941)). Maryland adheres to the doctrine of lex loci delicti, which applies the law of the state
“where the tort or wrong was committed.” Laboratory Corp. of America v. Hood, 395 Md. 608
(2006). The parties dispute whether Maryland law applies as the accident occurred in
Maryland, or whether Michigan law applies as Defendant Midlink contracted with Defendant
Navigation in Michigan.
4 The United States Supreme Court has directed courts to consider several factors when determining whether
the exercise of personal jurisdiction is constitutionally reasonable, including: “the burden on the defendant,
the interests of the forum State, . . . the plaintiff's interest in obtaining relief[, and] ‘the interstate judicial
system's interest in obtaining the most efficient resolution of controversies; and the shared interest of the
several States in furthering fundamental substantive social policies.’” Asahi Metal Indus. Co., Ltd. v. Superior
Court of California, Solano Cnty., 480 U.S. 102, 113, 107 S. Ct. 1026, 1033 (1987) (quoting World-Wide
Volkswagen, 444 U.S. 286, 292, 100 S. Ct. 559, 564 (1980)).
5 At the outset, this Court notes that Plaintiff’s Complaint brings two wrongful death actions against
Defendant Midlink, one under Maryland law (Count V) and one under Michigan law (Count VII). In both
states, a wrongful death action is an action against a person whose wrongful act caused the death of another.
Md. Code Ann., Cts. & Jud. Proc. § 3-902(a); Mich. Comp. Laws Ann. § 600.2922(1).
Under the doctrine of lex loci delicti, Maryland courts “apply the law of the State where
the injury—the last event required to constitute the tort—occurred.” Hood, 395 Md. at 615,
911 A.2d at 845. The Fourth Circuit has further clarified that under Maryland’s choice of law
rules, the law of the place of injury is “‘where the injury was suffered, not where the
wrongful act took place.’” Baker v. Booz Allen Hamilton, Inc., Nos. 08-1152, 08-2321, 358 Fed.
App’x. 476, 480-81 (4th Cir. Dec. 28, 2009) (quoting Johnson v. Oroweat Foods Co., 785 F.2d
503, 511 (4th Cir. 1986) (applying Maryland law)); Dickman v. Banner Life Ins. Co., No. WMN16-192, 2016 WL 7383869 (D. Md. Dec. 21, 2016).
Plaintiff cites Jones v. Prince George’s Cnty., 378 Md. 98 (2003) for the proposition that
because, presumably, Defendant Midlink’s investigation into Defendant Navigation occurred
in Michigan, Michigan law should apply. In that case, the plaintiff brought a wrongful death
action against multiple defendants based on negligent training and supervision. Id. The
plaintiff alleged that while the negligent conduct occurred in Maryland, the conduct resulted
in a death in Virginia. Id. at 109. Under these facts, the court applied Maryland law given that
all of the wrongful acts had occurred in Maryland. Id. However, in a subsequent suit in the
same case in this Court, the Fourth Circuit affirmed the district court’s application of
Virginia law. Jones v. Prince George’s Cnty. Md., No. 08-1397, 355 Fed. App’x. 724, 729 (4th Cir.
2009). In reaching this conclusion, the Fourth Circuit explained that “even if Maryland
would have an interest in applying its own substantive law, Maryland’s choice of law
principles compel the application of Virginia law in this case.” Id. Further, three years after
the decision in Jones, the Maryland Court of Appeals explicitly explained that the lex loci deliciti
rules require that courts “apply the law of the State where the injury—the last event required
to constitute the tort—occurred.” Hood, 395 Md. at 615.
In this case, the injury necessary to sustain Plaintiff’s claims occurred in Maryland
when Defendant Morpas struck Jean Vogel’s vehicle. Therefore, Maryland law and not
Michigan law applies to a wrongful death action against Defendant Midlink, and accordingly
Count VII of the Complaint is DISMISSED.
B. Survival and wrongful death actions under Maryland law (Counts IV and
Count IV of the Complaint brings a survival action against Defendant Midlink and
Count V brings a wrongful death action against all of the Defendants. Although not clear in
the Complaint, the parties’ submissions clarify that the actions are based on the theory that
Defendant Midlink negligently hired Defendant Navigation. Under Maryland law, “an
employer may be liable for negligence in ‘selecting, instructing, or supervising . . . [and
independent] contractor.’” Schramm v. Foster, 341 F.Supp.2d 536, 551 (D. Md. 2004) (quoting
Rowley v. Mayor and City Council of Baltimore, 305 Md. 456, 462, 505 A.2d 494, 497 (1986)).
Th[e] duty to use reasonable care in the selection of carriers includes, at least,
the subsidiary duties (1) to check the safety statistics and evaluations of the
carriers with whom it contracts available on the SafeStat database maintained
by [the Federal Motor Carrier Safety Administration], and (2) to maintain
internal records of the persons with whom it contracts to assure that they are
not manipulating their business practices in order to avoid unsatisfactory
Id. Defendant Midlink argues that Plaintiff’s Complaint merely recites the elements of a
negligent hiring cause of action without making any specific factual allegations as to how
Midlink was negligent in hiring Defendant Navigation. In addition, that “[t]here are no
factual allegations as to what Midlink knew, when it knew it, and how it acted upon such
information and knowledge.” (ECF No. 23 at 5.) In opposition, Plaintiff points to
Paragraphs 30 and 31 of the Complaint, which allege:
30. Defendant Navigation and/or Defendant Navigation Group has a long
and extensive history of violations of the federal motor carrier safety
regulations such as:
a. Failing to preserve drivers’ record of duty status for six months;
b. Failing to conduct post-accident testing;
c. Furnishing false or misleading information on an MCS-150, MCS
150B, or MCS-150C;
d. Operating a commercial motor vehicle not in accordance with the
laws, ordinances, and regulations of the jurisdiction in which it is being
e. Unsafe driving;
f. Authoring and/or submitting false and/or inaccurate reports of duty
g. Failing to require drivers to prepare record of duty statuses in the
form and manner prescribed by law;
h. Failing to have a means of indicating the nature and due date of the
various inspection and maintenance operations to be performed;
i. Failing to keep a record of inspection, repairs and maintenance
indicating their date and nature;
j. Failing to require drivers to prepare driver vehicle inspection reports;
k. Failing to retain vehicle inspection reports for at least 3 months;
l. Using commercial vehicles which are not periodically inspected.
31. Upon information and belief, a significant number of these violations
occurred prior to the collision in this case. Nevertheless, Defendant Midlink
selected Defendant Navigation and/or Navigation Group as the carrier to
transport the load of its client, Peterson Farms, which significantly increased
the risk of harm presented by these carriers to innocent third parties such as
Jean. Upon information and belief, Defendant Midlink failed to properly
investigate or completely ignored Defendant Navigation’s and/or Defendant
Navigation Group’s extensive history of violations of the federal motor carrier
(ECF No. 2 at ¶¶ 30-31.)
Accepting as true the facts alleged in Paragraphs 30 and 31, Plaintiff’s survival and
wrongful death actions against Defendant Midlink survive a motion to dismiss. Plaintiff
alleges at least twelve Federal Motor Carrier Safety Administration Regulation violations by
Navigation. Defendant Midlink’s insistence that Plaintiff needed to allege what Midlink
actually knew misconstrues the duty of reasonable care articulated by this Court in Schramm.
Plaintiff has plausibly alleged that given the list of Navigation’s violations, Defendant
Midlink failed to use reasonable care by selecting Navigation, maintaining Navigation in its
stable of carriers, failing to check the safety statistics and evaluations of Navigation, and/or
ignoring or failing to appreciate the significance of these violations. (ECF No. 2 at ¶ 48.)
Therefore, Defendant Midlink’s Motion to Dismiss Count IV of the Complaint and Count V
as alleged against Midlink is DENIED.
For the reasons stated above, Defendant Midlink’s Motion to Dismiss (ECF No. 14)
is GRANTED IN PART and DENIED IN PART. Specifically, it is GRANTED as to the
wrongful death action under Michigan law (Count VII) and DENIED as to the survival and
wrongful death actions under Maryland law (Counts IV and V).
A separate Order follows.
Dated: November 9, 2017
Richard D. Bennett
United States District Judge
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