Brown et al v. White's Ferry, Inc. et al

Filing 20

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 3/12/12. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
DEBBRA BROWN, et al.
:
v.

:

Civil Action No. DKC 11-1683

:
WHITE’S FERRY, INC., et al.
:
MEMORANDUM OPINION
Presently pending and ready for review in this Fair Labor
Standards Act case is the motion for partial summary judgment
filed by Plaintiffs Debbra Brown and James Parker.
13).

(ECF No.

The issues have been fully briefed, and the court now

rules, no hearing deemed necessary.

Local Rule 105.6.

For the

following reasons, the motion for partial summary judgment will
be denied.
I.

Background
Plaintiffs commenced this action against Defendant White’s

Ferry, Inc. (“WFI”) and Defendant Malcolm Brown on June 20,
2011, by filing a complaint alleging violations of the overtime
and minimum wages provisions of the Fair Labor Standards Act of
1938 (“FLSA”), the Maryland Wage and Hour Law (“MWHL”), and the
Maryland Wage Payment and Collection Law.

1

(ECF No. 1).1

WFI is

Plaintiffs purported to bring the action on behalf of
themselves and similarly-situated others, but their subsequent

a Maryland corporation with its principal place of business in
Dickerson, Maryland.

It operates a cable ferry service that

shuttles

the

cars

Maryland.

across

Potomac

River

between

Virginia

and

It also operates a small convenience store and café

adjacent to the ferry.
According to the complaint, Plaintiffs worked on a fulltime basis for WFI “from approximately April 1, 2009 through
August

13,

2010”

and

“primarily

performed

Defendants in their store and café.”

work

duties

(ECF No. ¶¶ 7, 9).

for
Mr.

Brown was “[a]t all times [their] supervisor,” responsible for
“set[ting]

and

direct[ing

their]

schedules,

their] rate[s] and method of pay.”

and

determin[ing

(Id. ¶ 3).

Plaintiffs

alleged that they were paid a “flat monthly salary” of $1,600.00
for Mr. Parker and $1,500.00 for Ms. Brown.

(Id. ¶ 11).

Though

they “regularly and typically worked about eighty (80) hours per
week,” WFI “never [paid them] overtime wages.”

(Id. ¶¶ 10, 13).

Their respective rates of pay, when averaged, were “less than
the Maryland and Federal Minimum Wage, $7.25 per hour.”

(Id. ¶¶

16, 18).
Defendants answered on July 19, 2011, denying all material
allegations,

including

that

Plaintiffs

ever

worked

more

than

motion
to
facilitate
identification
and
notification
of
similarly-situated employees (ECF No. 5) was denied (ECF Nos.
10, 11). Plaintiffs were permitted to renew that motion within
twenty-one days, but failed to do so.
2

forty hours per week or that they were not exempt from coverage
under the FLSA.

(ECF No. 3 ¶¶ 10, 12, 14).2

A scheduling order

was subsequently entered, establishing a discovery deadline of
May 3, 2012, and a dispositive motions deadline of June 4, 2012.
(ECF No. 17).
On December 9, 2011, Plaintiffs filed the pending motion
for partial summary judgment, seeking judgment against WFI with
respect to their FLSA and MWHL claims.

(ECF No. 13).

As

support, they attached their own declarations and WFI’s answers
to interrogatories and response to requests for production of
documents.

This evidence is problematic in several respects.

First, while Plaintiffs alleged in the complaint that they were
employed by WFI from “April 1, 2009 through August 13, 2010”
(ECF No. 1 ¶ 7), they assert in their declarations that they did
not start until September 1, 2009 (ECF No. 13-2 ¶ 3; ECF No. 133 ¶ 3).

Second, the complaint recites that Ms. Brown was paid

$1,500.00 per month (ECF No. 1 ¶ 11), but Plaintiffs now assert
that she was paid “$1,300.00 per month” (ECF No. 13-1, at 2),
citing WFI’s interrogatory response that states her “salary was

2

Defendants purported to verify their answer.
Their
attempted verification, however, was invalid because their
electronic signatures were not in compliance with section
III.F.4 of the court’s Electronic Filing Requirements and
Procedures manual. As will be seen, Mr. Brown’s declaration in
support of WFI’s opposition to the motion for summary judgment
suffers in part from the same infirmity.
3

$1330.00”

(ECF

NO.

13-4,

Resp.

to

Interrogs., at 3 (Interrog. No. 6)).

Pl.

Deb[b]ra

Brown’s

Ms. Brown asserts in her

declaration, moreover, that she was paid “a flat monthly salary
in the amount of $1,500.00 per month.”
Third,

in

support

of

their

argument

(ECF No. 13-3 ¶ 7).

that

“[a]t

no

time

did

Defendant keep time records or, in any way, attempt to track the
amount of hours Plaintiffs worked each day or week” (ECF No. 131, at 2), Plaintiffs point to WFI’s written response to their
requests

for

production

of

documents,

attached payroll records and W2 forms.”

which

states:

“See

(ECF No. 13-5, Resp. to

Pls.’ Req. for Produc. of Docs., at 2 (Req. No. 3); see also ECF
No. 13-4, at 2 (Interrog. No. 4) (“Payroll records for Debbra
Brown and James Parker are attached.”)).3
did

not

attach

the

payroll

records

to

Although Plaintiffs
their

motion,

WFI’s

discovery responses cast doubt on the veracity of their claim
that no records were kept.

Finally, Plaintiffs allege in the

complaint

times,

supervisor”

that
and

“[a]t
that

all
he

“directed

[Mr.]

Brown

[their]

determined Plaintiffs’ rate and method of pay.”
3).

was

[their]

schedules,

and

(ECF No. 1 ¶

In the memorandum in support of their motion, however, they

argue that “no individual supervised or directed Plaintiffs in

3

The original request for production of documents asked, in
relevant part, for “All documents that identify, describe, or
refer to the manner and extent to which each Plaintiff was
compensated by you.”
4

relation to their work performance while employed by Defendant”
(ECF No. 13-1, at 3), citing an interrogatory response by WFI
that

stated

roughly

the

same

thing

(ECF

No.

13-4,

at

4

(Interrog. No. 13)).
In opposing Plaintiffs’ motion, WFI provides a strikingly
different account of the relevant facts.

(See ECF No. 16).

For

example, WFI describes how Plaintiffs allegedly received free
housing and utilities, in addition to their wages (id. at 2-4);
that

for

roughly

six

months

of

the

one-year

term

of

their

employment, the store in which Plaintiffs claimed to have worked
eighty hours per week was closed (id. at 3); and that Plaintiffs
were nevertheless allowed to remain in the apartment, with Mr.
Parker continuing to receive his monthly salary, in exchange for
performing odd jobs during the off-season (id.).
In

their

reply

papers,

Plaintiffs

observe

that

“[WFI’s]

entire defense is that Plaintiffs, over the course of their
entire employment, never worked more than forty (40) hours in a
week[, and] relies wholly on Defendant’s Answers to Plaintiffs’
Interrogatories and the Affidavit of Malcolm E.D. Brown.”
No.

18,

at

2).

Plaintiffs

argue

that

“[t]he

(ECF

Interrogatory

Responses [i.e., one of four exhibits offered by Plaintiffs as
evidence in support of their own motion] and Affidavit . . .
are,

on

their

face,

insufficient

not

properly

verified or sworn to defend against Summary Judgment.”

(ECF No.

5

as

they

are

18,

at

2).

They

further

argue

that

Mr.

Brown’s

purported

electronic signature on the declaration was invalid.

(Id. at 2

n.1).

the

While

suggested
provide

by

Plaintiffs
WFI

additional

in

do

its

detail

not

directly

opposition
in

a

address

papers,

second

Mr.

Parker

declaration,

recites, in relevant part:
Following the 2009 season, Mr. Parker agreed
with Malcolm Brown . . . to continue to
perform work duties during the winter months
and
that
I
would
be
responsible
for
maintaining the White’s Ferry property, snow
removal of sidewalk, and would cook once a
week for Mr. Brown and his domestic partner
at his private residence.
Following the 2009 season, Ms. Brown agreed
with Malcolm Brown . . . to continue to
perform work duties during the winter months
and that she would clean Mr. Brown’s office,
hallway, and bathroom in exchange for the
rent of [the] apartment.
. . . .
In May 2010, after Ms. Brown and I reopened
the store and café, Ms. Brown and I were the
only individuals responsible for operating
White’s Ferry store and café.
. . . .
At a time during the season of 2010, I
talked to Mr. Brown to ask to be paid for
all the hours Ms. Brown and I worked.
At
that time, I presented Mr. Brown with the
list of hours worked to which Mr. Brown
responded[] that Ms. Brown and I were on
salary and that he was not going to pay [any
more] than that.

6

story
did

which

(ECF No. 18-1 ¶¶ 4, 5, 11, 20).4
II.

Standard of Review
A court may enter summary judgment only if there is no

genuine issue as to any material fact and the moving party is
entitled
56(a);

to

judgment

Celotex

Corp.

as

a

matter

v.

Catrett,

of
477

law.

See

U.S.

Fed.R.Civ.P.

317,

322

Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).

(1986);
Summary

judgment is inappropriate if any material factual issue “may
reasonably be resolved in favor of either party.”

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); JKC Holding Co.
LLC v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.
2001).
The
burden

party

to

moving

demonstrate

for

summary

that

there

judgment
is

no

has

the

genuine

initial

dispute

of

material fact and that the movant is entitled to judgment as a
matter of law.

In asserting that there is no genuine dispute of

fact, a moving party must cite to materials in the record or
show that the fact cannot be genuinely disputed.

For instance,

a moving party may assert that the opposing party cannot produce
admissible evidence to support a fact on which that adverse

4

On January 5, 2012, Mr. Brown filed a supplemental
“affidavit.”
(ECF No. 19).
While this document was not
accompanied by motion papers, it is, in effect, a surreply,
which Defendants did not request leave to file.
Accordingly,
the court will not consider it. See Local Rule 105.2.a.
7

party will have the burden of proof.

Thereafter, a party may

“object that the material cited [by the other party] cannot be
presented

in

a

form

that

Fed.R.Civ.P. 56(c)(2).
burden

is

on

the

would

be

admissible

in

evidence.”

In the face of such an objection, “[t]he

proponent

to

show

that

the

material

is

admissible as presented or to explain the admissible form that
is anticipated.”

Fed.R.Civ.P. 56(c)(2) advisory committee notes

(2010 amendment).
“A party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or denials of
[his]

pleadings,’

but

rather

must

‘set

forth

specific

showing that there is a genuine issue for trial.’”

facts

Bouchat v.

Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.
2003) (quoting former Fed.R.Civ.P. 56(e)).
proof

.

.

.

will

not

suffice

to

prevent

“A mere scintilla of
summary

judgment.”

Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003).

“If the

evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.”
249–50 (citations omitted).
construe

the

favorable

to

facts
the

that

party

Liberty Lobby, 477 U.S. at

At the same time, the court must
are

presented

opposing

the

in

motion.

the

light

See

Scott

Harris, 550 U.S. 372, 378 (2007); Emmett, 532 F.3d at 297.

8

most
v.

III. Analysis
Plaintiffs bring their FLSA claims under 29 U.S.C. §§ 206
and 207.

Section 206 provides that “[e]very employer shall pay

to each of his employees who in any workweek is engaged in
commerce

or

employed

in

in

the

an

production

enterprise

of

goods

engaged

in

for

commerce,

commerce

or

or
in

is
the

production of goods for commerce” wages of at least $6.55 per
hour for any work performed prior to July 24, 2009, and $7.25
per

hour

thereafter.

29

U.S.C.

§

206(a)(1).

Section

207

requires employers to compensate their employees “at a rate not
less than one and one-half times the regular rate” for any hours
worked in excess of forty per week.

29 U.S.C. § 207(a)(1).

The

MWHL is “the State parallel” to the FLSA, Friolo v. Frankel, 373
Md. 501, 513 (2003), and the requirements of that provision
“mirror those of the federal law,” Turner v. Human Genome Scis.,
Inc., 292 F.Supp.2d 738, 744 (D.Md. 2003).

Thus, Plaintiffs’

claim under the MWHL “stands or falls on the success of their
claim[s]

under

the

FLSA.”

Id.;

see

also

Jennings

v.

Rapid

Response Delivery, Inc., No. WDQ-11-0092, 2011 WL 2470483, at *5
(D.Md.

June

sufficiently

16,

2011)

pleaded

a

(finding
claim

that

under

the

judgment

as

the

plaintiffs

MWHL

by

had

adequately

pleading their FLSA claim).
Plaintiffs

seek

summary

first

three

counts of the complaint as well as liquidated damages.

They

9

to

the

initially

argue

violation

of

that

the

their

FLSA

is

evidentiary

lessened

burden

because

records of the hours that they worked.

WFI

in

proving

did

not

a

keep

(ECF No. 13-1, at 6-7).

Citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946),
they contend that they “need only ‘prove that [they have] in
fact performed work for which [they were] improperly compensated
and . . . produce sufficient evidence to show the amount and
extent

of

that

inference.’”
687-88)).

work

as

a

matter

of

just

and

reasonable

(ECF No. 13-1, at 6 (quoting Anderson, 328 U.S. at

To that end, they proffer their declarations to show

that they never received overtime pay despite working eighty
hours

per

week

on

average

and

that

their

eighty-hour

weeks

resulted in a regular rate of pay below the minimum wage.

(ECF

No. 13-2 ¶¶ 6, 9; ECF No. 13-3 ¶¶ 6, 9).5
This
evidence.

argument

is

confusing

in

light

of

Plaintiffs’

own

As noted, WFI’s discovery responses suggest not only

that WFI kept payroll records for Plaintiffs, but also that
those records have been provided to Plaintiffs during the course
of this litigation.
or

otherwise

Neither party has presented those records

addressed

their

content.

Moreover,

Mr.

Parker

asserts in his second declaration that he presented Mr. Brown

5

“[The] regular rate is determined by totaling all the sums
received at such day rates or job rates in the workweek and
dividing by the total hours actually worked.”
29 C.F.R. §
778.112.
10

with

a

record

of

all

of

Plaintiffs’

work

hours,

demanding

payment (see ECF No. 18-1 ¶ 20), but no such record has been
provided by Plaintiffs.

In light of this conflicting evidence

and the limited record before it, the court cannot conclude that
WFI did not maintain records of Plaintiffs’ work hours.

Thus,

it is not certain that the burden of proof set forth in Anderson
is applicable here.
Even assuming that no records conclusively establish the
number of hours Plaintiffs’ worked, there is still a genuine
dispute as to the hours based on the current record, rendering
summary judgment on any of the first three counts inappropriate.
Despite

their

declarations

to

the

contrary,

Plaintiffs

have

introduced evidence that they worked only forty hours or less
each

week

responses.

by

attaching

Interrogatory

to

their

motion

WFI’s

No.

9

WFI’s

response

and

discovery
read

as

follows:
INTERROGATORY NO. 9.
State the number of
hours worked by each [Plaintiff] for you,
per week.
Identify all documents and
statements which relate thereto, including
but not limited to time sheets and pay
stubs.
Ans.:
The plaintiffs
less each week.
(ECF No. 13-4, at 3).

worked

40

hours

or

Although Plaintiffs do not specifically

cite Interrogatory No. 9 in support of their motion, it is well
within

the

court’s

purview

to
11

consider

that

evidence

here.

Fed.R.Civ.P. 56(c)(3) (“The court need consider only the cited
material, but it may consider other materials in the record.”).
Incredibly, Plaintiffs argue in their reply papers that the
court

should

summary

not

consider

judgment,

evidence.

(ECF

even
No.

WFI’s

though

18,

at

interrogatory

they

themselves

2-3).

They

responses
marshaled

contend

that

on
the
the

responses were not made on personal knowledge, as required by
Rule 56, thus making them inadmissible and inappropriate for
consideration.

Plaintiffs’ argument is unavailing for at least

two reasons.
First, the Federal Rules contain no such requirement that
answers to interrogatories by based on personal knowledge.
56 dictates only that affidavits or declarations
personal knowledge.

Fed.R.Civ.P. 56(c)(4).

Rule

be made on

The proper form of

answers to interrogatories is set forth in Rule 33, which states
“interrogatories must be answered by the party to whom they are
directed; or if that party is a public or private corporation, .
. . by any officer or agent, who must furnish the information
available

to

the

party.”

Fed.R.Civ.P.

33(b)(1).

Moreover,

“[e]ach interrogatory must, to the extent it is not objected to,
be

answered

separately

and

fully

12

in

writing

under

oath.”

Fed.R.Civ.P. 33(b)(3).6
to

a

corporate

Thus, Rule 33, at least as it pertains

party,

does

not

mandate

responses be made on personal knowledge.

that

interrogatory

See Shepherd v. Am.

Broadcasting Cos., 62 F.3d 1469, 1482 (D.C. Cir. 1995) (“Federal
Rule of Civil Procedure 33 expressly permits a representative of
a corporate party to verify the corporation’s answers without
personal

knowledge

information

as

of

is

every

response

available

to

by
the

‘furnish[ing]
party.’”

such

(quoting

Fed.R.Civ.P. 33)); Saudi v. Northrop Grumman Corp., 221 F.R.D.
452, 456 (E.D.Va. 2004) (overruling plaintiff’s objection that
the

corporate

based

on

its

defendant’s
agent’s

interrogatory

knowledge

and

responses

belief).

were
Here,

made
WFI’s

interrogatory responses conform to Rule 33’s requirements:

the

answers

by

its

evidence

for

are

principals.

certified

and

Accordingly,

executed
they

on

are

behalf
competent

of

WFI

consideration on summary judgment.
Second, Plaintiffs cannot in good conscience ask the court
to rely on the discovery responses in support of their motion
and then argue that the evidence is incompetent to the extent

6

Plaintiffs’ cited cases in support of its contention that
answers to interrogatories must be made on personal knowledge
are inapposite because they concern the proper form of
affidavits.
See, e.g., Evans v. Techs. Applications & Serv.
Co., 80 F.3d 954, 962 (4th Cir. 1996) (“[Former] Federal Rule of
Civil Procedure 56(e) specifically requires that affidavits
submitted on summary judgment contain admissible evidence and be
based on personal knowledge.” (emphasis added)).
13

that WFI relies on the same evidence.
any

objection

to

the

admissibility

Indeed, a party waives
of

evidence

on

summary

judgment by offering that evidence in support of its own motion.
See Capobianco v. City of N.Y., 422 F.3d 47, 55 (2d Cir. 2005);
cf. Motor Club of Am. Ins. Co. v. Hanifi, 145 F.3d 170, 175 (4th
Cir.

1998)

(holding

that

the

defendant

waived

its

hearsay

objection to evidence proffered by the plaintiff in opposition
to a motion for summary judgment where the defendant submitted
the same evidence in support of its own prior motions); see also
10A Charles Alan Wright et al., Federal Practice & Procedure §
2722

(3d

ed.

2011)

(“[On

summary

judgment,]

uncertified

or

otherwise inadmissible documents may be considered by the court
if not challenged.
deemed

to

have

The objection must be timely or it will be

been

waived.”).

Here,

Plaintiffs

seek

to

establish several material facts in their favor based on WFI’s
answers to the interrogatories.
is

highly

disingenuous

for

(See ECF No. 13-1, at 2-3).

them

to

propose

that

those

It
same

interrogatory responses may not be used to establish material
facts in favor of WFI.

That WFI may not have affirmatively

pointed to that evidence is of no consequence as, again, the
court may consider any evidence currently on the record before
it in evaluating summary judgment.
With a fact as basic as the number of hours worked by
Plaintiffs in dispute, it cannot be found that any overtime
14

wages were owed or that the regular rate of pay was below the
minimum

wage.7

Plaintiffs

have

not

satisfied

their

initial

burden on summary judgment of showing that there is no genuine
dispute of material fact as to WFI’s liability under the FLSA
and the MWHL.
Fortunately for WFI, the burden does not shift to it to
counter
likely

Plaintiffs’
would

not

evidence.
have

Had

been

able

that
to

occurred,
consider

the

Mr.

court

Brown’s

proffered affidavit — the “Affidavit of Malcolm E.D. Brown” (ECF
No.

16-2)8

—

because

it

fails

to

conform

to

Rule

56.

An

7

Additionally,
Plaintiffs’
proffered
evidence
is
intrinsically inconsistent as to another material fact regarding
the specific issue of overtime pay:
whether WFI was on notice
of Plaintiffs’ alleged overtime hours.
“In order to be liable
for overtime wages under the FLSA, an employer must have
knowledge, either actual or constructive, of [that] overtime
work.” Bailey v. Cnty. of Georgetown, 94 F.3d 152, 157 (4th Cir.
1996). Here, on one hand, Plaintiffs point to WFI’s response to
Interrogatory No. 13, which states that no one “supervised
and/or directed each Plaintiff in relation to the performance of
his employment duties,” to suggest that WFI could not know how
many hours they worked.
(See ECF No. 13-1, at 7-8 (“As such,
Plaintiffs are, as a matter of law, the only individuals who
could know how many hours that [they] worked per week.”)).
On
the other hand, in their reply, Plaintiffs attach a new
affidavit of James Parker, which declares that Malcolm Brown was
aware of the hours they worked. (See ECF No. 18-1, Parker Aff.,
¶¶ 13-16). As Plaintiffs themselves cannot make up their minds
as to what the facts in this case suggest, it seems
straightforward to deny their motion for partial summary
judgment on this issue.
8

Though WFI styles this document as an affidavit, it is, in
effect, an unsworn declaration. See 28 U.S.C. § 1746 (outlining
the requirements for unsworn declarations).
15

affidavit or declaration “must be made on personal knowledge.”
Fed.R.Civ.P. 56(c)(4).
this district.

That condition is strictly construed in

See, e.g., Barnett v. Perry, No. CCB–11–CV–0122,

2011 WL 5825987, at *7 (D.Md. Nov. 16, 2011) (permitting a party
to

resubmit

information,

affidavits
and

belief”

originally
so

as

to

based
conform

on
to

“knowledge,
the

“personal

knowledge”-requirement of Rule 56, even where some statements
may have been made on personal knowledge).

Here, Mr. Brown’s

“affidavit” is made “to the best of [his] knowledge, information
and belief.”

As Plaintiffs observe, this type of affirmation is

insufficient to permit consideration of the document.
Mr.
signed.
reason

Brown’s

affidavit

is

also

undated

and

improperly

While the absence of a date is not, in and of itself,
to

discount

an

affidavit

or

declaration,

courts

have

typically excused that omission only where extrinsic evidence
demonstrates the approximate date of signing.

See, e.g., Peters

v. Lincoln Electric Co., 285 F.3d 456, 475-76 (6th Cir. 2002);
Montgomery v. Ruxton Health Care, IX, LLC, No. 3:06cv024, 2006
WL 3746145, at *3 (E.D.Va. Dec. 15, 2006).
such extrinsic evidence is presented.
the

method

by

which

non-attorneys

In this case, no

Regarding the signature,
may

sign

a

document

electronically is set forth in the court’s Electronic Filing
Requirements and Procedures manual, which requires counsel to
include a certification that an originally-signed copy of the
16

document

is

available

for

inspection

at

any

time.

See

Electronic Filing Requirements and Procedures for Civil Cases
(June

13,

2011)

§

III.F.4,

available

at

http://www.mdd.uscourts.gov/publications/forms/Civil%20Manual%20
FINAL.pdf.

Here, no such attestation was included.

In sum, the evidence provided by Plaintiffs in support of
their motion reveals that there is a genuine dispute of material
fact

regarding,

Plaintiffs.

inter

alia,

Accordingly,

the

they

number

are

not

of

hours

entitled

worked
to

by

summary

judgment at this time.9
IV.

Conclusion
For the foregoing reasons, the motion for partial summary

judgment filed by Plaintiffs Debbra Brown and James Parker will
be denied.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

9

Because Plaintiffs have not shown that judgment is
warranted in their favor as to liability under either the FLSA
or the MWHL, judgment is similarly not warranted as to their
request for liquidated damages under either statute.
See
Landmark Realty, Inc. v. Great Am. Ins. Co., No. JKS 10-278,
2010 WL 5055805, at *6 (D.Md. Dec. 3, 2010) (noting that the
“question of damages . . . is dependent on resolution of the
liability issues”).
17