Sampson v. United States of America et al
Filing
21
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 8/20/2015. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
SHARON SAMPSON
:
v.
:
Civil Action No. DKC 15-0243
:
UNITED STATES OF AMERICA, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this personal
injury case is a motion to dismiss or, in the alternative, for
summary judgment filed by Defendant Verizon Enterprise Solutions
LLC (“Defendant” or “Verizon ES”) (ECF No. 8) and Plaintiff
Sharon Sampson’s (“Plaintiff”) motion for leave to amend her
complaint (ECF No. 15).
The issues have been fully briefed, and
the court now rules, no hearing being deemed necessary.
Rule 105.6.
Local
For the following reasons, Defendant’s motion for
summary judgment will be granted, and Plaintiff’s motion for
leave to amend complaint will be denied.
I.
Background
The following facts are alleged in Plaintiff’s complaint.
(ECF No. 1).
On March 4, 2012, Plaintiff was walking on a
sidewalk in front of 5000 Ellin Road in Lanham, Maryland.
It is
undisputed that the building at 5000 Ellin Road is owned by the
United States of America (“United States”).
(ECF Nos. 1 ¶ 6; 19
¶ 6).
Plaintiff contends that she tripped and fell “due to a
defect in the sidewalk” resulting from the deterioration of “an
uneven surface adjacent to a cover over a utility vault (the
“vault”).
(ECF No. 1 ¶ 7).
Plaintiff alleges that she suffered
“various painful, serious and permanent injuries to her body,
which necessitated medical care and attention at great expense,
and
also
a
loss
of
time
and
employment, and other damages.”
In
Injury
February
or
Death
Administration
2015,
2014,
Plaintiff
Form
the
commenced
from
her
gainful
Claim
for
Damage,
(Id. ¶ 9).
Plaintiff
Standard
regarding
earnings
filed
95
2012
this
a
with
the
incident.
action
by
General
On
filing
Services
January
a
28,
complaint
against the United States pursuant to the Federal Tort Claims
Act (Count I) and against Verizon ES under a negligence theory
(Count II).
On May 21, 2015, Defendant Verizon ES moved to
dismiss or, alternatively, for summary judgment.
(ECF No. 8).
Plaintiff filed an opposition and motion for leave to amend (ECF
No. 15), and Defendant replied (ECF No. 20).
II.
Standard of Review
Ordinarily,
a
court
cannot
consider
matters
outside
the
pleadings or resolve factual disputes when ruling on a Rule
12(b)(6) motion to dismiss.
F.3d
442,
450
(4th
Cir.
See Bosiger v. U.S. Airways, 510
2007).
If
the
court
does
consider
matters outside the pleadings, “the motion must be treated as
2
one for summary judgment under Rule 56,” and “[a]ll parties must
be given a reasonable opportunity to present all the material
that is pertinent to the motion.”
Fed.R.Civ.P. 12(d); see also
Finley Lines Joint Protective Bd. Unit 200 v. Norfolk S. Corp.,
109 F.3d 993, 997 (4th Cir. 1997) (“[A] Rule 12(b)(6) motion to
dismiss supported by extraneous materials cannot be regarded as
one
for
summary
judgment
until
the
district
court
acts
to
convert the motion by indicating that it will not exclude from
its
consideration
materials.”).
It
of
the
motion
is
appropriate
the
to
supporting
consider
extraneous
the
extraneous
materials submitted by Defendants, and Plaintiff had notice by
virtue of the motion filed by Defendants.
See Warner v. Quilo,
No. ELH-12-248, 2012 WL 3065358, at *2 (D.Md. July 26, 2012)
(“When
the
movant
expressly
captions
its
motion
‘in
the
alternative’ as one for summary judgment, and submits matters
outside the pleadings for the court’s consideration, the parties
are deemed to be on notice that conversion under Rule 12(d) may
occur[.]”) (quoting Laughlin v. Metro. Wash. Airports Auth., 149
F.3d 253, 261 (4th Cir. 1998)).
Accordingly, Defendants’ motion
will be treated as one for summary judgment.
Summary judgment is appropriate under Federal Rule of Civil
Procedure Rule 56(a) when there is no genuine dispute as to any
material
fact,
and
the
moving
party
is
plainly
judgment in its favor as a matter of law.
3
In
entitled
to
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986), the Supreme Court
explained that, in considering a motion for summary judgment,
the “judge’s function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there
is a genuine issue for trial.”
A dispute about a material fact
is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
Id. at 248.
Thus,
“the judge must ask himself not whether he thinks the evidence
unmistakably favors one side or the other but whether a fairminded jury could return a verdict for the [nonmoving party] on
the evidence presented.”
Id. at 252.
In undertaking this inquiry, a court must view the facts
and the reasonable inferences drawn therefrom “in the light most
favorable to the party opposing the motion.”
Matsushita Elec.
Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(quoting
United
States
v.
Diebold,
Inc.,
369
U.S.
654,
655
(1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397,
405 (4th Cir. 2005).
evidence
in
support
The mere existence of a “scintilla” of
of
the
nonmoving
party’s
case
is
not
sufficient to preclude an order granting summary judgment.
See
Anderson, 477 U.S. at 252.
A “party cannot create a genuine dispute of material fact
through mere speculation or compilation of inferences.”
Shin v.
Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted).
4
Indeed,
this
court
has
an
affirmative
obligation
to
prevent
factually unsupported claims and defenses from going to trial.
See
Drewitt
v.
Pratt,
999
F.2d
774,
778–79
(4th
Cir.
1993)
(quoting Felty v. Graves–Humphreys Co., 818 F.2d 1126, 1128 (4th
Cir. 1987)).
III. Analysis
Defendant
Verizon
ES
moves
to
dismiss
or,
in
the
alternative, for summary judgment arguing that Verizon ES cannot
be sued because it no longer exists as an entity (ECF No. 8, at
7) and neither it nor the entity it merged into, Verizon Long
Distance LLC (“Verizon LD”), owned the utility vault at issue
(Id. at 8).1
Because Defendant relies on materials outside the
pleadings,
the
judgment.
Defendant submitted multiple affidavits swearing that
neither
Verizon
motion
ES
will
nor
be
Verizon
construed
LD
owns
utility vaults at the address in question.
as
or
one
for
operates
summary
land
or
(ECF Nos. 8-2, at 4;
8-3, at 2; 20-2, at 2).
Rather than respond to Defendant’s assertions, Plaintiff
requests
discovery.
leave
to
amend
(ECF No. 15).
her
complaint
and
proceed
with
Plaintiff argues that she should be
granted leave to amend to change the name of Defendant from
Verizon ES to Verizon LD.
Plaintiff also argues that she should
1
Verizon ES merged into Verizon LD on November 15, 2014.
(ECF No. 8-2, at 4).
At the time Plaintiff commenced this
action, Verizon ES did not exist as an entity.
5
be permitted to conduct discovery on Verizon LD (as the proposed
new Defendant) “to determine what entity assumed the ownership,
control, and maintenance responsibilities of the vault in []
question.”
to
(ECF No. 15, at 10).
determine
“whether
that
In addition, Plaintiff seeks
entity
had
any
knowledge
of
Plaintiff’s claims in this case prior to the expiration of the
applicable statute of limitations so as to permit their being
added as a party to suit.”
Plaintiff’s
amended
(Id.).
complaint
is
Defendant counters that
barred
by
the
statute
of
limitations and would be futile because Verizon LD does not own,
operate, or control the vault in question.
There is no genuine dispute as to the fact that neither
Verizon ES nor Verizon LD owned, operated, or controlled the
vault at 5000 Ellin Street.
Defendant submitted multiple sworn
affidavits affirming that neither entity owned the vault at the
time of the incident or at the time Plaintiff commenced this
action.
Verizon
Plaintiff does not provide any facts alleging that
ES
or
Verizon
LD
owns
the
vault
beyond
allegations resulting in unsupported conclusions.
2).
cursory
(ECF No. 15-
Plaintiffs mere speculation, based on a compilation of
inferences, see Shin, 166 F.Supp.2d at 375, that Verizon ES was
the owner of the vault is not enough to create a genuine dispute
of fact.
6
In response to discovering that Defendant Verizon ES merged
into Verizon LD, Plaintiff seeks leave to amend her complaint to
reflect
this
change.
Federal
Rule
of
Civil
Procedure
Rule
15(a)(1) permits a party to amend its pleading once as a matter
of course within 21 days after serving it; or 21 days after
service of a responsive pleading; or 21 days after service of a
motion under Rule 12(b), (e), or (f), whichever is earlier.
“In
all other cases, a party may amend its pleading only with the
opposing party’s written consent or the court’s leave.
court
should
freely
give
Fed.R.Civ.P. 15(a)(2).
leave
when
justice
so
The
requires.”
The court should deny leave to amend
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
Goldsboro,
178
would
F.3d
231,
be
futile.”
(4th
242
internal quotation marks omitted);
Cir.
Edwards
1999)
v.
City
(citation
of
and
Keller v. Prince George’s
Cnty., 923 F.2d 30, 33 (4th Cir. 1991) (upholding a district
court order denying plaintiff leave to amend his complaint to
include claims that were barred by the applicable statute of
limitations because such amendment would be futile).
“An
amendment
is
futile
when
the
proposed
amendment
is
clearly insufficient or frivolous on its face, or if the amended
claim would still fail to survive a motion to dismiss pursuant
to Fed.R.Civ.P. 12(b)(6).”
El–Amin v. Blom, No. CCB–11–3424,
7
2012 WL 2604213, at *11 (D.Md. July 5, 2012) (citations and
internal quotation marks omitted).
Here, Plaintiff’s request to
amend her complaint and name Verizon LD as a defendant would be
futile.
As noted above, Verizon LD did not own, operate, or
control the vault at 5000 Ellin Street.
no
support
to
create
a
genuine
Plaintiff has offered
issue
about
this
fact.
Plaintiff’s proposed amendment is clearly insufficient to cure
her complaint’s deficiency in not accurately naming the correct
owner of the vault as the defendant.
To help cure the complaint’s deficiency, Plaintiff requests
permission to conduct discovery pursuant to Rule 56(d).
Rule
56(d) allows the court to deny summary judgment or delay ruling
on the motion until discovery has occurred if the “nonmovant
shows by affidavit or declaration that, for specified reasons,
it cannot present facts essential to justify its opposition.”
Fed.R.Civ.P.
56(d).
Ordinarily,
summary
judgment
is
inappropriate if “the parties have not had an opportunity for
reasonable discovery.”
Indus.,
Inc.,
637
F.3d
E.I. du Pont de Nemours & Co. v. Kolon
435,
448
(4th
Cir.
2011).
Notably,
requests under Rule 56(d) “cannot simply demand discovery for
the sake of discovery.”
Hamilton v. Mayor & City Council of
Balt., 807 F.Supp.2d 331, 342 (D.Md. 2011).
Courts interpreting
Rule 56(d) have consistently held that a nonmovant’s request may
be denied if “the additional evidence sought for discovery would
8
not have by itself created a genuine issue of material fact
sufficient to defeat summary judgment.”
Ingle ex rel. Estate of
Ingle v. Yelton, 439 F.3d 191, 195 (4th Cir. 2006) (internal
quotation marks omitted); see Poindexter v. Mercedes-Benz Credit
Corp, No. 14-1858, 2015 WL 4081208, at *3 (4th Cir. July 7, 2015)
(upholding district court’s summary judgment ruling despite the
plaintiff’s Rule 56(d) request because she “has not explained .
. . how the information [sought in discovery] could possibly
create a genuine issue of material fact sufficient for her to
survive
summary
analysis”).
judgment,
or
otherwise
affect
the
court’s
Put simply, Rule 56(d) does not authorize “fishing
expedition[s].”
Morrow
v.
Farrell,
187
F.Supp.2d
548,
551
(D.Md. 2002), aff’d, 50 F.App’x 179 (4th Cir. 2002).
Plaintiff’s counsel contends that “Plaintiff is unable to
present sufficient facts to respond to [Defendant’s] Motion for
Summary [Judgment] on the issue of the ownership, control and
maintenance of the utility vault and cover plate in question at
the time of the incident and at present.”
(ECF No. 15-2, at 2).
Defendant argues that Plaintiff’s request for discovery should
be denied because the information Plaintiff requests would not
create a genuine dispute as to the fact that neither Verizon ES
nor
Verizon
LD
owned
the
vault.
(ECF
No.
20-1,
at
4-5).
Defendant stresses that “Plaintiff should not be able to conduct
9
discovery against entities that clearly have no relationship to
the allegations in the suit.”
(Id. at 5).
Here, the additional discovery sought by Plaintiff would
not,
by
itself,
create
sufficient
to
defeat
Additional
discovery
a
genuine
Defendant’s
issue
will
not
of
summary
change
the
Verizon ES nor Verizon LD owns the vault.
material
judgment
fact
fact
motion.
that
neither
Plaintiff’s request
appears to be based on the belief that either Verizon ES or
Verizon LD owned the vault at the time of Plaintiff’s injury.
However, Defendant’s multiple affidavits clearly state that both
Verizon ES and Verizon LD do “not currently and [have] never
owned, operated, or maintained any utility vaults or other such
underground telecommunication facilities at or near 5000 Ellin
Street in Lanham, Maryland.”
(ECF No. 20-2 ¶¶ 5-6).
Indeed,
Plaintiff has failed to counter with any specified facts or
allegations
challenging
this
or
would
otherwise.
See,
e.g.,
show
demonstrating
Mercer
why
v.
Arc
discovery
of
Prince
George’s Cnty., 532 Fed.App’x 392, 400 (4th Cir. 2013) (upholding
summary
judgment
“minimal
effort
insufficient
to
for
[to
the
detail
compel
defendant
why
denial
because
discovery
of
the
the
was
plaintiff’s
necessary]
[defendant’s]
is
summary
judgment motion”); Fierce v. Burwell, No., 2015 WL 1505651, at
*8 (D.Md. Mar. 31, 2015) (granting summary judgment for the
defendant and noting with respect to the plaintiff’s Rule 56(d)
10
request:
“These
are
not
specified
reasons.
Defendants
have
specified the facts, and provided extensive evidence in support
of
those
facts,
judgment.”).
specified
which
they
argue
entitle
them
to
summary
Plaintiff’s Rule 56(d) affidavit does not state
reasons,
investigation,
why
other
than
Plaintiff
ownership of the vault.
for
lack
cannot
present
of
facts
diligent
as
to
the
Plaintiff waited nearly three years to
file suit after the alleged incident and merely conducted a
cursory
investigation
into
the
ownership
of
the
vault.
Accordingly, Plaintiff cannot use Rule 56(d) to carry out a
fishing
expedition
and
attempt
to
cure
a
deficient,
inconclusive, and ultimately incorrect investigation into the
ownership of the vault.
IV.
Conclusion
For the foregoing reasons, Defendant Verizon ES’ motion for
summary judgment will be granted, and Plaintiff’s motion for
leave to amend complaint will be denied.
against the United States (Count I) remains.
Plaintiff’s claim
A separate order
will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
11
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