Quigley et al v. United States of America et al

Filing 69

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 6/5/12. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
LYNNE C. QUIGLEY, et al.
:
v.

:

Civil Action No. DKC 11-3223

:
UNITED STATES OF AMERICA, et al.
:
MEMORANDUM OPINION
Presently pending and ready for review in this consolidated
tort action is the “motion for reconsideration and/or in the
alternative motion to entertain suit even though required notice
not given pursuant to Md. Code Ann. Cts. & Jud. Proc. § 5304(d)” filed by Plaintiff Pollyana Barbosa.

(ECF No. 56).

The

issues have been fully briefed, and the court now rules, no
hearing being necessary.

Local Rule 105.6.

For the following

reasons, the motion for reconsideration will be denied.
I.

Background1
On

November

10,

2011,

Ms.

Barbosa

filed

this

action,

alleging that Defendants were negligently or strictly liable for
injuries

she

occurred

on

sustained
the

Clara

after
Barton

an

automobile

Parkway

(“the

accident

that

Parkway”).

Ms.

Barbosa alleged that during the overnight hours of January 19,

1

Three cases are consolidated in this action: Quigley v.
United States, No. DKC 11-3223; Ochoa v. United States, No. DKC
11-3224; and Barbosa v. United States, No. DKC 11-3225.

2009, a water main maintained by Defendant Washington Suburban
Sanitary

Commission

(“WSSC”)

burst,

releasing

water

that

traveled through a faulty storm drain onto the Parkway and froze
into ice.

Ms. Barbosa further alleges that early that morning,

Defendant Marcelo Pepe, in whose car Ms. Barbosa and Plaintiff
Adriana Ochoa were passengers, was driving on the Parkway when
he hit the ice, lost control, and collided with decedent Joseph
Quigley’s car.

According to her complaint, Ms. Barbosa was

ejected from Mr. Pepe’s vehicle and landed on top of its burning
exhaust

system,

all

of

which

caused

injuries

and

first-,

second-, and third-degree burns.
On April 2, 2012, Ms. Barbosa filed the present motion (ECF
No. 56), which seeks reconsideration of the court’s March 22,
2012, memorandum opinion and order dismissing her claims against
WSSC

(ECF

Nos.

50,

51).

Specifically,

the

motion

seeks

reconsideration of the dismissal of Count Two of the complaint,
the negligence claim.

WSSC filed an opposition on April 30,

2012.

On May 16, 2012, Ms. Barbosa replied.

(ECF No. 65).

(ECF No. 66).2

2

In her reply, Ms. Barbosa objects to the untimely filing
of WSSC’s opposition.
(Id. at 1).
She does not, however,
explain how she is prejudiced by this brief delay.
Therefore,
WSSC’s opposition will be considered in resolving Ms. Barbosa’s
motion. Cf. H & W Fresh Seafoods, Inc. v. Schulman, 200 F.R.D.
248, 252 (D.Md. 2000) (denying a motion to strike an opposition
because the moving party “has not shown that he was harmed in
2

II.

Motion for Reconsideration
Although Ms. Barbosa requests reconsideration pursuant to

Federal

Rule

of

Civil

Procedure

59(e),

appropriately analyzed under Rule 54.
there has been a final “judgment.”

her

motion

is

more

Rule 59(e) governs where

Fed.R.Civ.P. 59(e); see also

Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d
1462, 1469 (4th Cir. 1991) (“Rule 59(e) is equally applicable
only to a final judgment.”).

The March 22, 2012, order was not

a final “judgment,” however.

See Fed.R.Civ.P. 54(b) (“[A]ny

order or other decision, however designated, that adjudicates
fewer than all the claims or the rights and liabilities of fewer
than all the parties does not end the action . . . and may be
revised at any time before the entry of a judgment adjudicating
all the claims and all the parties’ rights and liabilities.”).
Thus,

Ms.

Barbosa’s

motion

for

reconsideration

is

better

construed as a motion for reconsideration of an interlocutory
order under Rule 54(b).

See Fayetteville Investors, 936 F.2d at

1469-70.
The precise standard governing a motion for reconsideration
of an interlocutory order is unclear.

Id. at 1472.

While the

standards articulated in Rules 59(e) and 60(b) are not binding

any way by the seven-day delay” in the filing of the
opposition).
Even if WSSC’s opposition were not considered,
however, Ms. Barbosa’s motion would still be denied.
3

in an analysis of Rule 54(b) motions, see Am. Canoe Ass’n v.
Murphy Farms, Inc., 326 F.3d 505, 514 (4th Cir. 2003), courts
frequently look to these standards for guidance in considering
such motions, Akeva L.L.C. v. Adidas Am., Inc., 385 F.Supp.2d
559, 565-66 (M.D.N.C. 2005).
Public policy favors an end to litigation
and recognizes that efficient operation
requires
the
avoidance
of
re-arguing
questions that have already been decided.
Most courts have adhered to a fairly narrow
set of grounds on which to reconsider their
interlocutory orders and opinions.
Courts
will reconsider an interlocutory order in
the following situations:
(1) there has
been an intervening change in controlling
law; (2) there is additional evidence that
was not previously available; or (3) the
prior decision was based on clear error or
would work manifest injustice.
Id. (citations omitted); see also Beyond Sys., Inc. v. Kraft
Foods, Inc., No. PJM-08-409, 2010 WL 3059344, at *1-2 (D.Md.
Aug. 4, 2010) (applying this three-part test when evaluating a
motion for reconsideration under Rule 54(b)).
reconsideration

under

Rule

54(b)

may

not

be

A motion for
used

merely

reiterate arguments previously rejected by the court.

to

Beyond

Sys., Inc., 2010 WL 3059344, at *2.
Ms.

Barbosa

advances

essentially

three

arguments

for

reconsideration, none of which compels revision of the court’s
prior decision.

First, she argues that the court relied in part

on an erroneous fact in reaching its decision that her claims

4

against WSSC fail for lack of notice under the Local Government
Tort Claims Act (“LGTCA”).
whether

good

cause

existed

She points out that in discussing
for

waiving

the

LGTCA’s

notice

requirement, the court questioned why Ms. Ochoa was able to
submit timely notice to WSSC on May 19, 2009, while Ms. Barbosa
was not.

(See ECF No. 56, at 3-4).

As Ms. Barbosa correctly

observes, although Ms. Ochoa’s notice letter to WSSC was dated
May 19, 2009, the United States Postal Service confirmation of
delivery clearly indicated that WSSC did not actually receive
the notice letter until July 10, 2009.

(ECF No. 34-2).

This

error, however, was not material to the court’s resolution of
this issue.
The LGTCA requires that notice be provided to the allegedly
offending government entity “within 180 days after the injury.”
Md. Code Ann., Cts. & Jud. Proc. § 5-304(b).
day after the accident was July 19, 2009.”
n.8).

Here, “the 180th

(ECF No. 50, at 14

Thus, even if it is true that Ms. Ochoa did not submit

notice to WSSC until July 10, 2009, she still submitted notice
prior to the 180-day deadline imposed by the LGTCA, much like
Mr. Quigley’s estate did on July 9, 2009.

Because Ms. Ochoa’s

notice was timely, the exact date of the notice is irrelevant.
All in all, Ms. Barbosa does not answer the overriding question
of “why her co-plaintiffs’ attorneys could respond in a timely
manner to the May 5, 2009, police report, but her attorney could
5

not.”

(Id. at 14).

The reasoning with respect to this issue

remains sound.
Second,

Ms.

Barbosa

re-argues

that

she

complied with the LGTCA notice requirement.
6).

substantially

(ECF No. 56, at 4-

She does not, however, proffer any new evidence that was

previously

unavailable,

advance

any

intervening

change

in

controlling law, or identify any clear error that would warrant
revising

the

court’s

comply

substantially

merely

reiterates

earlier
with

conclusion

the

arguments

LGTCA.

that

were

that

she

Instead,
previously

failed

Ms.

to

Barbosa

rejected

by

contending that WSSC was on actual notice of the underlying
accident

giving

rise

to

her

claims.

As

the

court

already

explained in its prior opinion, however, “substantial compliance
requires more than a mere lack of prejudice to the State.”

(ECF

No. 50, at 10 (quoting Johnson v. Md. State Police, 331 Md. 285,
291-92 (1993))).
Barbosa]

Indeed, “[i]t is required by the law that [Ms.

or her agent

must take an affirmative step towards

preserving her rights under the [LGTCA],” and, here, she has
alleged no facts suggesting that she did so.

Therefore, Ms.

Barbosa’s motion for reconsideration on this ground is denied.
See Beyond Sys., Inc., 2010 WL 3059344, at *2.
Finally, Ms. Barbosa re-argues that good cause can be found
for waiving the LGTCA notice requirement.

(ECF No. 56, at 6-8).

As with her previous argument, however, she does not submit any
6

previously-unavailable new evidence, point to any intervening
change in relevant law, or pinpoint any clear error that would
permit revisiting the court’s holding that no good cause exists
to absolve Ms. Barbosa’s counsel of their delinquency.

Instead,

Ms. Barbosa only focuses on her current counsel, Stephen Markey,
and attempts to explain why his delay in submitting notice to
WSSC should be excused.3

While Mr. Markey attempts to address

the court’s skepticism that he was diligent in preserving all of
his

client’s

rights

via

his

own

personal

affidavit,

which

details his efforts in pursuing Ms. Barbosa’s claims (see ECF
No. 56-2, at 1-4), nothing in that affidavit explains why he
could not have presented this evidence at the time the original
motion to dismiss was considered.

Ms. Barbosa’s argument for

reconsideration on this ground is thus unavailing.
Even

if

the

court

were

to

entertain

Mr.

Markey’s

explanation for his delay in complying with notice to WSSC on
behalf of his client,4 Ms. Barbosa still fails to untangle the

3

In its March 22, 2012, memorandum opinion, the court
remarked: “It is not clear that Mr. Markey himself was diligent
either. Upon taking over Ms. Barbosa’s case on July 9, 2009 —
ten days before the LGTCA notice period expired — one would
expect that a ‘reasonably prudent person’ would act quickly to
preserve his client’s rights.”
(ECF No. 50, at 15 n.10)
(internal citations omitted).
4

Mr. Markey did not submit notice until nearly three months
after he was retained. By contrast, Jeffrey Raden, counsel for
7

more

pressing

question

of

why

her

former

attorney,

Michael

Avery, did not comply with the LGTCA notice requirement.5

At

best, Ms. Barbosa attempts to justify Mr. Avery’s actions (or
lack thereof) by stating that “no claimant received the final
reconstruction report from the National Park Service until after
June 3, 2009 when a copy was mailed to counsel for Quigley, it
is unlikely Mr. Avery was aware of the water main break.”
No. 56, at 6 n.1).
court’s

attention

(ECF

Besides inexplicably being brought to the
now,

this

new

information

does

nothing

to

assuage the concerns expressed in the court’s prior opinion.

If

this reconstruction report contains evidence that a water main
break was involved in causing the accident, it was evidently
available to the parties over a month before notice to WSSC was
due.

Thus, if anything, this fact actually calls Mr. Avery’s

diligence even more into question.

Ms. Barbosa simply does not

provide any satisfactory explanation why Mr. Avery could not
comply

with

the

requirement

when

other

plaintiffs’

counsel

could.

Ms. Ochoa, required roughly ten days to do the same.
No. 56-1).
5

(See ECF

Indeed, Ms. Barbosa even blames Mr. Avery in part for Mr.
Markey’s delay in submitting notice.
She explains that Mr.
Avery did not inform her of the possibility that a water main
break was the source of the ice that caused the accident, and,
thus, she could not inform Mr. Markey of the possibility. (ECF
No. 56, at 6-8).
8

In sum, Ms. Barbosa admits that she was represented by Mr.
Avery during a key period of the timeline of relevant events in
this case.
her

She is bound by his actions and failures to act on

behalf.

F.Supp.2d
choose

an

651,

See
660

attorney

In

re

Fisherman’s

(E.D.Va.

1999)

and

then

avoid

Wharf

(“[O]ne
the

Fillet,
cannot

Inc.,

83

voluntarily

consequences

of

the

attorney’s acts or omissions.” (citing In re Walters, 868 F.2d
665, 668–69 (4th Cir. 1989))).

Accordingly, even if the court

were to reconsider the question of good cause, good cause to
waive the LGTCA notice requirement as to WSSC is absent in this
case.
III. Conclusion
For the foregoing reasons, the motion to reconsider filed
by Plaintiff Pollyana Barbosa will be denied.

A separate order

will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

9