Stone et al v. Town of Cheverly, Maryland et al

Filing 43

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 6/5/2018. (kns, Deputy Clerk)

FiLED
U.S. DIS fRICT COURT
IN THE UNITED STATES J)ISTRICT COURTDIS1HICT MARYLAND
OF
FOR THE J)ISTRICT OF MARYLAND
Southern

1018JUN - 5 P 2: 51

Division

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elE \K'S rF'";C:'
Al GR[fW:- .

EARL STONE, ('I :Il,

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Plaintiffs,

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Case No.: G.IH-17-353
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TOWN OF CHEVERLY, MARYLAND,
et ;11'9

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Defendants.

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MEMORANDUM OPINION
Plaintiffs Earl Stonc and Edmund Gizinski. ronncr Cheverly 1'01 Orticcrs. bring claims
icc
against the Town or Chcvcrly and Chief of Police I larry Robshaw. Town Administrator David
Warrington. and Sergeant Jarod J. Towers. individually and in their oftieial capaeitics. related to
Robshaw's and Warrington's alleged pattern of discrimination and retaliation within the
Cheverly Police Dcpartmcnt. On Scptcmber 5.2017. the Court issued an Order dismissing eight
of the ten counts set forth in thc Complaint. ECF No. 34. Plaintiffs now move thc Court to
amcnd judgmcnt and rcconsider that Ordcr. ECF No. 40-1. Dcfcndants tiled an opposition to
Plaintifts' Motion. ECF No. 41. to which Plaintifts have not rcplied. No hearing is nccessary.
Loe. R. 105.6 (D. Md. 2016). For the liJllowing reasons. Plaintiffs' Motion is dcnied.
I.

BACKGROUND
Plaintifts brought a myriad of ledcral and statc claims related to Defendants' allcged

pattern of discrimination and retaliation. ECF NO.2. but because Plaintifts lailed to mect thc
spceifie procedural requircments associatcd with many of the remedies thcy sought. thc Court

dismissed

all but two of these claims. Only Stone's

Count 1 and Stone and Gizinski's
ECI-' No. 34 '13. As related
state law claims because
notice requirements

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lederal age discrimination

claims under 42 U.S.c.

Plaintiffs'

1985(2) within Count 7 remain. See

Motion herein, the Court dismissed

Plaintiffs did not strictly or substantially

set forth in the Local Government

Ann .. CIs & .Iud. Proc.

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claim within

all of Plaintiffs'

comply with the statutory

Tort Claims Act ("LGTCA").

Md. Code

ECF No. 33 at 15.1 Nor did Plaintiffs demonstrate

good

cause for their failure to comply. It!.
The Court also dismissed

Plaintiffs'

in protected

activity and tor opposing

Disabilities

Act ("ADA")

claim that they were retaliated against f(Jr engaging

practices

made unlawli.I1 by the Americans

and Age Discrimination

in Employment

found that Plaintitl's failed to exhaust their administrative
Opportunity

Commission

put their employer

("EEOC')

because

on notice of any potential

Plaintiffs'

The Court

remedies with the Equal Employment
EEOC charge of discrimination

ADA and ADEA retaliation

Rather. the EEOC charge only alleged that Plaintiffs
conduct protected

Act ("ADEA").

with

did not

claims. !d. at 19.

were retaliated against for engaging

in

under Title VII of the Civil Rights Act, and the ADA and ADEA retaliation

claims could not be expected

to tollow from a reasonable

Title VII-related

!d. at 19.2

II.

allegations.

administrative

investigation

into their

DISCUSSION
Plaintiffs

now seek relief Irom the Court's

to Amend Judgment

and For Reconsideration:'

claims should not be dismissed

prior Order, styling their motion as a "Motion

ECI-' No. 40. Plaintiffs argue that their state law

tix tailure to comply with the LGTCA notice provisions

because

I Pin cites to documents filed on the Coun"s electronic filing system (CM/ECF)
refer to the page numbers generated
bv that system.
"While ihe COUI1"lUnd that Plaintiffs exhausted their Title VII retaliation claim. the Coul1 dismissed the claim
because Plaintiffs' underlying conduct supporting their charge \vas not protected activity under Title VII.

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such provisions arc inapplicable to dcfendants sued in their individual capacity for torts
committed with malice. evil intent. or recklessness. See Eel' No. 40-1 at 2. Plaintifts also argue
that their EEOC charge was suflicient to exhaust their administrative remedies for their
retaliation claims. Id. Pursuant to Local Rule 105.10 (D. Md. 2016). a motion to reconsider any
order issued by the Court shall be liled within fourteen days. except as otherwise provided in
Federal Rules of Civil Procedure 50. 52. 59. or 60. Plaintiffs' motion was tiled on October I.
2017. more than lourteen days alier the Court's September 5.2017 Order. ECF No. 34. and is
untimely. Therell)re. Plaintifts' motion will only be considered ifallowed by one of the
enumerated Federal Rules.
Plaintifts do not mention these Rules. any other Federal or Local Rules. or any other legal
authority as a basis for why the Court should reconsider its prior ruling. Of the lour rules
referenced in Local Rule 105.10. only Rules 59(e) and 60 arc potentially applicable: however.
neither rule can provide the relief Plaintifts seek. Rule 59(e) provides that a motion to alter or
amend a judgment "must be tiled no later than 28 days alier the entry of the judgment:'
However. because the Court did not dismiss all of Plaintifts' claims. the Order is not presently a
"judgment" in that it is not an "order from which an appeal lies." See Fed R. Civ. P. 54(a): 54(b)
(noting that any order or decision that adjudicates lewer than all the claims docs not end the
action unless the court expressly directs entry of a linaljudgment

as to one or more of the

claims). Therell)re. Plaintifts cannot seck relief through Rule 59(e).
Rule 60 provides that the Court may relieve a party from an Order lor the lollowing
reasons:

(I) mistake. inadvertence. surprise. or excusable neglect: (2) newly disco\'ered
evidence ... : (3) fraud (whether previously called intrinsic or extrinsic).
misrepresentation. or misconduct by an opposing party: (4) the j udgmenl is void:
(5) the judgment has been satislied ... : (6) any other reason that justifies relief.

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See Fed. R. Civ. P. 60(b)( I)-( 6). Plaintiffs do not allege that any of the live enumerated reasons
apply. and the Court finds that their arguments in support of their Motion do not justify relief
under Rule 60(b)(6). See Dm!'el/ ". Slale Farm Fire and Cas. A 1110. Ins. Co.. 993 F.2d 46. 48 (4th
Cir. 1993) (Rule 60(b)( 6) is a catchall provision limited to "situations involving extraordinary
circumstances. ").
In opposition to Defendants' Motion to Dismiss. or Alternatively. for Summary
Judgment. ECF No. 19. Plaintiffs unsuccessfully argued that the Court should excuse their
failure to comply with the notice requirements of the LGTCA because their failure to do so did
not prejudice Defendants. ECF No. 23 at 57. Plaintiffs now argue that the LGTCA's notice
provisions do not apply to individual defendants acting with malice. See ECF 1\0. 40-1 at 3 ("in
each of the following state law claims [Plaintiffs] are asserting malicious conduct and/or a
reckless disregard for Plaintiffs' protected rights which takes the conduct outside the notice
provisions and protections of the LGTCA"). However. the Court will not consider the merits of
such an argument for the first time herein because a Rule 60(b)(6) motion "is not an appropriate
place to slip in arguments that should have been made earlier:' See Karraker
lil(,..

I'.

Rel1/-A-Cel1/er.

411 F.3d 831. 837 (7th Cir. 2005): see also Uniled Slales ". Williams, 674 F.2d 310. 312-13

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(4th Cir. 1982) (".Rulc 60(b) docs not authorize a motion mcrely fl)r rcconsidcration ofa legal
.

ISSUC.

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Finally. Plaintiffs provide no issuc fl)r the Court to reconsider with respcct to their ADA
and ADEA retaliation elaims. Plaintiffs repeat their prior argumcnt that their ..EEO charge
clearly mentions thatthcy were retaliated against for opposing and participating in Ofc.
Schmidt"s discrimination and rctaliation case:. ECF No. 40-1 at II. But Plaintiffs filii to
acknowledge that while the Court did lind that their EEO ehargc mentioned discrimination and
rctaliation. the Court dctermined that the Chargc was limited to conduct relating to
discrimination and retaliation under Title VII. not thc ADEA or ADA. Plaintitfs providc no
additional arguments to even suggest that the Court erred in this regard. but Plainti ffs arc frec to
appeallhc Courfs conclusion upon tinaljudgmcnt.

See Aikens \.. Ingram. 652 F.3d 496. 502 (4th

Cir. 2011) (".In short. Rule 60(b)(6) does not servc as a substitutc for appcal. ..).

. \Vhilc not ruling on Plaintiffs' argument regarding the applicability of tile LGTCA's notice provision for claims
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against individual defendants acting with malice. the Court notes that Plaintiffs rely on one casco Barher \'. Pope.
935 A.2d 699 (Md. 2007). for Iheir argument. See ECF No. 40-1 al 8. Simply pUI. Barher is not applicable. In
Barher. the Maryland Court of Appeals held that the notice requirements of tile Maryland Tort Claims Act
("MTCA") do not apply when a plaintiffs complaint sufficiently alleges malice or gross negligence. See Bathllr.
935 A.2d at 714. The COUl1 of Appeals made no mention of\vhether a similar rule applies to claims under the
I.GTCA. In facl. the Court of Appeals explicilly nOled that the slalutes serve dilrerent purposes and. as a result. case
law applying 10 one does not necessarily apply to the other. '<-;et.' it!. at 710 ("Notice under the MTCA plays an
integral part. ho\vever. in the invocation of\vaiver of the State's sovereign immunity,"); id. at 712 (noting that \vhile
the LGTC/\ pennitsjudicial consideration ora claim \vhen a plaintiff can show good cause for failure to comply
\vith the notice provisions. no such allowance exists under the MTCA). Plaintiffs provide 110 case law applying
Barher to excuse a plaintiffs failure to provide notice as required by tile LGTCA. and the Court \\/ill not decide the
issue here. (t: Oys/a/, .. l3al/s. No. JKB-14-3989. 20 I5 WI. 5698534. at 'I I (D. Md. Sept. 25. 2015) (noling Ihal a
finding of malice allows a plaintiff to execute ajudgment against the employees themselves and allows the local
govenlment to seek indemnification from the employee. but it "does not allow a potential tort plaintin"to evade the
notice requirements of Section 5-304,"),

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III.

CONCLUSION
For the foregoing reasons. I'laintills' Motion to Amend Judgment and for

Reconsideration. Eel' No. 40. shall be denied. A separate Order follows.

Dated: JUlle5.

2018
GEORGE J. HAZEL
United States District Judge

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