Hall v. Morales et al

Filing 13

MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 12/16/2014. (kns, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
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DEMETRIUS HALL,

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Plaintiff,

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v.

Case No.: PWG-14-944
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JULIO JAVIER MORALES, et al.,
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Defendant.
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MEMORANDUM OPINION1
Plaintiff filed this action in state court four days shy of the statute of limitations, but did
not serve Defendants until several months later, after he was warned by the court that the failure
to effect service could subject this case to dismissal. Plaintiff moved to delay the dismissal and
requested the issuance of new summonses, both of which were granted. Plaintiff then served
Defendants, who promptly removed to this Court. Defendants seek to dismiss this case under
Maryland Rule 2-507(b) because of Plaintiff’s delay in effecting service. Because I find that the
state court granted Plaintiff an extension of time to serve Defendants, and that Plaintiff then
timely served Defendants before the extended deadline, I deny the motion.

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This Memorandum Opinion disposes of Defendants Julio Javier Morales and Penske Truck
Leasing Co., Limited Partnership’s Motion to Dismiss or in the Alternative for Summary
Judgment (“Defs.’ Mot.”), ECF No. 8, Plaintiff Demetrius Hall’s Opposition (“Pl.’s Opp’n”),
ECF No. 11, and Defendants’ Reply (“Defs.’ Reply”), ECF No. 12.

I.

BACKGROUND
This civil action arises out of a motor vehicle collision (the “Collision”) in Laurel,

Maryland on August 27, 2010, in which a vehicle allegedly driven by Defendant Julio Javier
Morales collided with a vehicle being driven by Plaintiff Demetrius Hall, causing injuries to
Hall. Compl. ¶¶ 1–5, ECF No. 2. At the time of the Collision, the vehicle driven by Morales
was owned by Defendant Penske Truck Leasing Co., L.P. (“Penske Leasing”), and Morales was
acting as an agent of an unknown company sued under the fictitious name of John Doe Co.
(“Doe Co.”). Compl. ¶¶ 10, 15. In an affidavit affixed to his motion to dismiss, Morales
identifies his employer at the time as Penske Logistics, LLC (“Penske Logistics”). Morales Aff.
¶ 3, Defs.’ Mot. to Dismiss or in the Alternative for Summ. J. Ex. 4, ECF No. 8-4.
On August 23, 2013—two years and 361 days after the Collision, see Md. Code Ann.,
Cts. & Jud. Proc. § 5-101 (three-year statute of limitations for civil actions)—Hall filed his threecount complaint in the Circuit Court for Prince George’s County alleging (I) negligence by
Morales; (II) vicarious liability against Doe Co.; and (III) vicarious liability against Penske
Leasing. Compl. The Clerk of the Circuit Court issued summonses for both named Defendants,
Morales Summons, Pl.’s R. 103.5 Cert. Ex. 3, ECF No. 10-3; Penske Leasing Summons, Pl.’s R.
103.5 Cert. Ex. 4, ECF No. 10-4, but those summonses never were served, Opp’n to Def.’s Mot.
to Dismiss or in the Alternative for Summ. J., and Other Relief (“Def.’s Opp’n”) ¶ 2, ECF No.
11. It does not appear that Hall or his counsel took any action at all with respect to this case
between issuance of the summonses in August 2013 and February 2014.
On January 29, 2014, the Clerk of the Circuit Court sent Plaintiff’s counsel a Notification
to Parties of Contemplated Dismissal, advising him that, unless a motion showing good cause
was filed within thirty days, this case would be dismissed pursuant to Maryland Rule 2-507(b)

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for failure to effect service within 120 days of filing the complaint. Notification to Parties of
Contemplated Dismissal, Pl.’s R. 103.5 Cert. Ex. 5, ECF No. 10-5. One week later, on February
6, 2014, Hall filed a Motion to Defer Entry of Dismissal and Other Relief, Pl.’s 103.5 Cert. Ex.
6, ECF No. 10-6, in the circuit court along with a Line, Pl.’s 103.5 Cert. Ex. 7, ECF No. 10-7,
seeking reissuance of the summonses for Morales and Penske Leasing. New summonses were
issued that same day. 2d Morales Summons, Pl.’s 103.5 Cert. Ex. 8, ECF No. 10-8; 2d Penske
Leasing Summons, Pl.’s 103.5 Cert. Ex. 9, ECF No. 10-9.
Defendants were served with process by certified mail on February 24, 2014. Notice of
Removal ¶ 1, ECF No. 1. On March 12, 2014, an order was entered in the circuit court deferring
dismissal of this case, setting a status hearing for late April 2014, and advising counsel that “[i]f
counsel gets service and an answer is filed, plaintiff may write [Civil Coordinating Judge Leo E.
Green, Jr.] to take the matter off the docket for the April hearing date.” Mem. and Order of the
Court, Pl.’s R. 103.5 Cert. Ex. 11, ECF No. 10-11.
On March 26, 2014, Defendants removed to this Court, Notice of Removal, and on April
1, 2014, they filed their Motion to Dismiss or in the Alternative for Summary Judgment (“Defs.’
Mot.”), ECF No. 8.2 Hall filed his opposition on April 29, 2014, Pl.’s Opp’n—outside of the
time provided by Local Rule 105.2(a)3—and Defendants have replied, Defs.’ Reply to Pl.’s

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Because Hall consents to the dismissal of Penske Leasing, see infra, which is the only issue on
which Defendants seek summary judgment, I need not consider whether to convert this motion to
one for summary judgment under Fed. R. Civ. P. 12(d).

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Plaintiff has not sought to extend the time to file his opposition as he is required to do under
Fed. R. Civ. P. 6(b)(1)(B) and, because the time to file his opposition already has expired, it is
not clear that it may be extended sua sponte under Rule 6. Plaintiff’s continued disregard of
deadlines—particularly in the context of a motion that alleges Plaintiff’s lack of diligence in
prosecuting this action—is concerning. However, because Defendants have not moved to strike
Plaintiff’s Opposition and, in any event, treating a motion to dismiss as unopposed based upon a
delay in filing of less than two weeks would be harsh medicine, I will consider Plaintiff’s
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Opp’n to Defs.’ Mot. to Dismiss or in the Alternative for Summ. J. (“Pl.’s Reply”), ECF No. 12.
Having reviewed the filings, I find a hearing is not required. Loc. R. 105.6.
II.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) provides for “the dismissal of a complaint if it

fails to state a claim upon which relief can be granted.” Velencia v. Drezhlo, No. RDB-12-237,
2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012). This rule’s purpose “‘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.’” Id. (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th
Cir. 2006)). To that end, the Court bears in mind the requirements of Fed. R. Civ. P. 8, Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009),
when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, 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), and must state “a plausible claim for relief,” as “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice,”
Iqbal, 556 U.S. at 678–79. See Velencia, 2012 WL 6562764, at *4 (discussing standard from
Iqbal and Twombly). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 663.
That said, “‘factual allegations must be enough to raise a right to relief above a
speculative level.’” Proctor v. Metro. Money Store Corp., 645 F. Supp. 2d 464, 472–73 (D. Md.
2009) (quoting Twombly, 550 U.S. at 545). Particularly, the Court is not required to accept as
true “a legal conclusion couched as a factual allegation,” Papasan v. Allain, 478 U.S. 265, 286

Opposition. However, Plaintiff’s counsel is advised that the patience of the Court is not
inexhaustible.
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(1986), or “allegations that are merely conclusory, unwarranted deductions of fact or
unreasonable inferences,” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (citation omitted).
Additionally, a plaintiff fails to state a claim where the allegations on the face of the complaint
show that an affirmative defense would bar any recovery. Jones v. Bock, 549 U.S. 199, 214–15
(2007) (citing Fed. R. Civ. P. 8(c)); see Brooks v. City of Winston-Salem, 85 F.3d 178, 181 (4th
Cir. 1996) (noting that dismissal is proper “when the face of the complaint clearly reveals the
existence of a meritorious affirmative defense”).
III.

DISCUSSION
A. Defendants’ Motion to Dismiss
Defendants argue that this case should be dismissed as a result of Hall’s unexcused delay

in serving them with process. It is “well-settled that state law governs the sufficiency and
service of process before removal.” Eccles v. Nat’l Semiconductor Corp., 10 F. Supp. 2d 514,
519 (D. Md. 1998) (citations omitted). According to Defendants, dismissal is required by
Maryland Rule 2-507(b), which says:
(b) For Lack of Jurisdiction. An action against any defendant who has not been
served or over whom the court has not otherwise acquired jurisdiction is subject
to dismissal as to that defendant at the expiration of 120 days from the issuance of
original process directed to that defendant.
Md. Rule 2-507(b).
However, Rule 2-507(b) is not self-executing; it goes on to provide:
(d) Notification of Contemplated Dismissal. When an action is subject to
dismissal pursuant to this rule, the clerk, upon written request of a party or upon
the clerk’s own initiative, shall serve a notice on all parties pursuant to Rule 1-321
that an order of dismissal for lack of jurisdiction or prosecution will be entered
after the expiration of 30 days unless a motion is filed under section (e) of this
Rule.
(e) Deferral of Dismissal. On motion filed at any time before 30 days after
service of the notice, the court for good cause shown may defer entry of the order
of dismissal for the period and on the terms it deems proper.
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Md. Rule 2-507.
After he received notice from the circuit court of the contemplated dismissal, Hall
promptly filed a motion under Md. Rule 2-507(e), see Pl.’s Mot. to Defer Entry of Dismissal and
Other Relief, and the circuit court granted the motion, providing Hall with additional time in
which to serve Defendants and setting the case in for further proceedings in the event that service
was not effected, Mem. and Order of the Court, ECF No. 10-11. Defendants argue that they
have been prejudiced by the delay in service that resulted in their being haled into court several
months after they thought that the statute of limitations had run on Hall’s cause of action, Pl.’s
Mot. 10, and that Plaintiff had cited no “substantial and/or reasonable explanation or excuse for
the lack of diligence” in effective service, id. True though this may be, “under Rule 2-507
(‘Dismissal for lack of jurisdiction or prosecution’), the decision to grant or deny the dismissal is
committed to the sound discretion of the trial court,” Reed v. Cagan, 739 A.2d 932, 935 (Md. Ct.
Spec. App. 1999) (citing Powell v. Gutierrez, 529 A.2d 352 (Md. 1987)), and the circuit court
already exercised that discretion to delay dismissal of this case in order to provide Hall with
additional time to serve Defendants. I will not second-guess that decision here.
In any event, “Rule 2-507 was [not] promulgated to penalize plaintiffs for having lax
attorneys. [Its] primary focus was on pruning the docket of dead cases. A dead case is one in
which neither party demonstrates an interest in having the issue resolved.” Powell, 529 A.2d at
355. Though Plaintiff’s delay certainly is not to be commended, “our concern with expeditious
case management should not blind us to the true goal of our system, which is to provide a fair
determination of legitimate issues brought before us.” Id. at 356. Once contacted by the circuit
court, Plaintiff’s counsel acted quickly to prevent dismissal of this case and acquire jurisdiction
over Defendants. Because the Circuit Court for Prince George’s County already had declined to
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dismiss this case under Md. Rule 2-507(b) for failure to effect service in a timely fashion,
Defendants’ motion to dismiss on that basis must be denied.
Defendants also seek dismissal of Hall’s claim against Penske Leasing. Defs.’ Mot. 11–
13.

“Plaintiff consents to the dismissal of Defendant Penske Truck Leasing Co., Limited

Partnership from the instant action.” Pl.’s Opp’n ¶ 15. Accordingly, Defendants’ Motion will be
granted with respect to Penske Leasing.
B. Amendment of the Complaint
In Plaintiff’s Opposition, Hall has requested leave to amend his complaint to name
Penske Logistics as Morales’s employer in lieu of Doe Co. Pl.’s Opp’n ¶ 16. “Although Fed. R.
Civ. P. 15 does not expressly require a motion before the court may grant leave to amend a
pleading, Fed. R. Civ. P. 7(b)(1) clearly states that ‘[a] request for a court order must be made by
motion.’” Craig v. Melwood Horticultural Training Ctr., Inc., No. PWG-13-2742, 2014 WL
3547341, at *5 (D. Md. July 16, 2014) (emendation in original). Moreover, Hall has not
complied with the provisions of Local Rule 103.6: he has not provided a proposed amended
complaint or a redline, nor has he indicated that he sought the consent of opposing counsel.
Simply, Hall has not properly sought leave to amend and, because it does not appear likely that
amendment would be proper in any event, I decline to grant leave sua sponte.
Fed. R. Civ. P. 15(a)(2) provides that the “court should freely give leave [to amend] when
justice so requires.” The Fourth Circuit has explained that leave to amend should be denied
“‘only when the amendment would be prejudicial to the opposing party, there has been bad faith
on the part of the moving party, or the amendment would have been futile.’” Laber v. Harvey,
438 F.3d 404, 426 (4th Cir. 2006).

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Here, Hall seeks to add Penske Logistics as a new defendant over a year after the statute
of limitations expired on August 27, 2013. Fed. R. Civ. P. 15(c)(1) provides, in relevant part:
An amendment to a pleading relates back to the date of the original pleading
when[, inter alia,]:
....
(B)
the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out—or attempted to be set out in the
original pleading; or
(C)
the amendment changes the party or the naming of the party against whom
a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period
provided by Rule 4(m) for serving the summons and complaint, the party
to be brought in by amendment:
(i)
received such notice of the action that it will not be prejudiced in
defending on the merits; and
(ii)
knew or should have known that the action would have been
brought against it, but for a mistake concerning the proper party’s
identity.
Fed. R. Civ. P. 15(c)(1).
There is no question that the time for Hall to effect service now has expired, whether
measured under Md. Rule 2-113 or Fed. R. Civ. P. 4(m).

And even if Penske Logistics

previously had received notice, it is unlikely that Hall could satisfy the requirement of Rule
15(c)(1)(C)(ii).

The Fourth Circuit has “distinguished between mistake due to a lack of

knowledge and mistake due to a misnomer. In so doing, [it has] not viewed lack of knowledge
of the proper party to be sued as a ‘mistake’ as that term is used in Rule 15(c)(3)(B).” Locklear
v. Bergman & Beving AB, 457 F.3d 363, 366 (4th Cir. 2006). If Hall believes that he has a good
faith basis to argue that he is entitled to amend his complaint and could obtain jurisdiction over
Penske Logistics, he will need to present that argument in a fully briefed motion and not in a
single paragraph in an unrelated memorandum of law. But because it appears unlikely that Hall
could assert a timely claim against Penske Logistics in any event, I will not allow him to amend
his complaint absent a motion demonstrating that an amendment would not be futile.

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IV.

CONCLUSION
For the aforementioned reasons, Defendants Julio Javier Morales and Penske Truck

Leasing Co., L.P.’s Motion to Dismiss or in the Alternative for Summary Judgment will be
GRANTED with respect to Penske Truck Leasing Co., L.P., and otherwise DENIED.
A separate order will issue.
Dated: December 16, 2014

/S/
Paul W. Grimm
United States District Judge

dsy

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