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Conwell Law LLC v. Tung

Court of Special Appeals of Maryland

February 25, 2015

CONWELL LAW LLC
v.
MARY BETH TUNG, ET AL

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[Copyrighted Material Omitted]

Page 1229

For Appellant: Scott A. Conwell, Conwell Law Firm, LLC on the brief, Crofton, MD.

For Appellee: Stephan Brennan, Pasadena, MD; Jonathan Greenbaum, Coburn & Greenbaum, PLLC on the brief, Washinton, D.C.

Eyler, Deborah S., Nazarian, Kenney, James A., III (Retired, Specially Assigned), JJ. * Judge Timothy E. Meredith did not participate, pursuant to Md. Rule 8-605.1, in the Court's decision to report this opinion.

OPINION

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[221 Md.App. 485] Nazarian, J.

This appeal arises from a suit brought in the Circuit Court for Anne Arundel County by a law firm, Conwell Law LLC (the " Firm" ), against its former employee, Mary Beth Tung, an associated firm, BIO Intellectual Property Services LLC (" BIO" ), and BIO's employee, Douglas Robinson.[1] The suit arose from the Firm's representation of Technical Furniture Group, LLC (" Technical Furniture" ) in matters before the United States Patent and Trademark Office (the " USPTO" ) Patent Trial and Appeal Board (the " Appeal Board" ). Ms. Tung, then an employee of the Firm, served as lead counsel in those matters and Mr. Robinson as back-up counsel.[2] The subject matter of the suit ends up not being important for our purposes, though--between failures of service and failure to state a claim, and notwithstanding the volume of paper filed in the case, the suit never got past the initial pleading stage.

[221 Md.App. 486] The circuit court dismissed the Firm's claims against both appellees with prejudice after finding that the Firm's initial (and later amended) complaint failed to state a claim against the BIO Defendants and that the Firm failed to effect service of process on Ms. Tung. On appeal, the Firm challenges these findings and raises for the first time issues concerning the appearance of impropriety in the circuit court. We find that the Firm failed to preserve its impropriety argument, reject the Firm's other arguments, and affirm.

I. BACKGROUND

The Firm filed its initial complaint against Ms. Tung, Mr. Robinson, and BIO on December 16, 2011.[3] It filed two versions of the complaint--one titled " COMPLAINT ( NON -CONFIDENTIAL)" (the " Non-Confidential Complaint" ) and the other titled " COMPLAINT (CONFIDENTIAL)" (the " Confidential Complaint" )--and explained in each version that only the Non-Confidential Complaint, which contained

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only a brief description of the parties and the claims, would be served on Ms. Tung and BIO. The Firm declined to serve the Confidential Complaint, which it claimed to have filed under seal, because it contained " extensive attorney-client and other extremely confidential information" regarding Technical Furniture.[4]

[221 Md.App. 487] On December 21, 2011, the circuit court issued original process directed to each defendant, which would expire 120 days after issuance (on April 19, 2012). The Firm, however, made no effort to serve the defendants in that time frame or for two months after the 120-day period expired. On May 24, 2012, as a result of the Firm's failure to effect service, the court issued a Notification of Contemplated Dismissal:

Pursuant to Maryland Rule 2-507, this [proceeding] will be " DISMISSED FOR LACK OF JURISDICTION OR PROSECUTION WITHOUT PREJUDICE," 30 days after service of this notice unless, prior to that time, a written motion showing good cause to defer the entry of an order of dismissal is filed.

On June 18, 2012, the Firm requested that the court reissue summonses, which it did that day. Then, on June 22, the Firm filed a Notice of Service, explaining that each defendant had been served with summons and the Non-Confidential Complaint. That same day, the Firm also filed its Response to Rule 2-507 Notification and Motion to Defer Dismissal, in which it explained that it intentionally delayed the filing of its complaint to protect the interests of its client, Technical Furniture, and that it only filed the complaint when it did " because [filing] was necessitated by the statute of limitations." It continued that the Firm " was delayed in proceeding [with service] . . . for the same reason as the delays in the initial filing, that it was protecting client interests and advocating on their behalf, all on related matters that effected [ sic ] and impacted the causes of action in the instant lawsuit." On this basis, the Firm requested that the court defer dismissal, [221 Md.App. 488] recognize that the Non-Confidential Complaint had been served, and stay the case.

On July 16, 2012, Ms. Tung filed a Motion to Dismiss pursuant to Rule 2-322(a), alleging insufficiency of process and service. She contended that the Firm, on June 19, 2012, delivered to her an incomplete copy of its complaint (the Non-Confidential Complaint), and that she had yet to be served with a complete copy of the complaint (the Confidential Complaint). She argued that as a party to the litigation, she was " entitled to access under Maryland Rule 16-1002(f)" to a full and complete copy of the complaint. The Firm never responded to this motion.

On July 24, 2012, the Firm filed a Motion to Stay, asking the court to stay the case until a similar case, involving " joint clients of both [the Firm] and Defendants," was resolved. (Emphasis in original.) The Firm contended that the court in the related case " issued an Order sealing all confidential client-related documents," and that " [f]actual and legal issues, including the amount of damages, are likely to be decided in [the related case], that affect the issues to be resolved in the instant lawsuit." Ms. Tung's response to the Firm's Motion to Stay, filed on July 30, 2012, incorporated her previously-filed Motion to Dismiss, noted that she still had

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not been served a complete copy of the complaint, and asked the court to rule on her Motion to Dismiss instead of staying the case. The court denied the Motion to Stay on August 6, 2012.

On August 20, 2012, Ms. Tung filed an opposition to the Firm's Motion to Defer Dismissal. She reiterated there much of what she had already argued: first, that the Firm had made no effort to serve the defendants with process for six months after filing its complaint; second, that the Firm only attempted to serve the defendants at all after the court issued the Notice of Contemplated Dismissal; third, that the Firm still had not served a complete copy of the complaint on the defendants; fourth, that the Firm had not demonstrated good cause for its delay; and finally, that she had been prejudiced by the delay.

[221 Md.App. 489] On August 28, 2012, the circuit court entered an order denying Ms. Tung's Motion to Dismiss, but found the Firm's initial service attempt (of the Non-Confidential Complaint) insufficient. Instead of dismissing the case, the court gave the Firm another opportunity to serve Ms. Tung:

ORDERED, that [the Firm] shall re-serve a copy of the Complaint and all accompanying papers upon [Ms. Tung] and submit a new affidavit of service to the Court within ten (10) days from the date this Order is docketed. If [the Firm] fails to comply with this Order, this action will be dismissed.

(Emphasis added.) The BIO Defendants had also moved to dismiss on the same grounds raised by Ms. Tung on August 22, 2012, and on September 5, 2012, the court entered an identical order with respect to them. But despite these orders, the Firm never served Ms. Tung or the BIO Defendants directly. Instead, on September 6 and 7, the Firm served summons and the Confidential Complaint on counsel for each party.

On September 28, 2012, the court entered an order noting the Firm's failure to comply with its September 5, 2012 Order concerning the BIO Defendants and dismissing the case without prejudice as to them:

Upon review of the file, the Court finds that an Order was entered on September 5, 2012, requiring [the Firm] to file a new affidavit of service on [the BIO Defendants]. [The Firm] has failed to comply as directed. Therefore, this 26th day of September, 2012, by the Circuit Court for Anne Arundel County, hereby ORDERED, that [the Firm's] Complaint is dismissed without prejudice.

The court did not mention whether the case was being dismissed with respect to Ms. Tung.

On October 11, 2012, the Firm filed a Motion for Reconsideration requesting that the court revisit its dismissal of claims against the BIO Defendants entered on September 26, 2012. The Firm argued that its service on the BIO Defendants' counsel was sufficient and that dismissal was inappropriate. [221 Md.App. 490] The Firm reasoned that service on counsel was appropriate because the BIO Defendants " accepted and acknowledged service, and that . . . Defendants had responded to the Complaint."

On October 24, 2012, Ms. Tung's counsel wrote a letter to Judge Davis-Loomis, the County Administrative Judge, asking that the case be specially assigned to a single judge to hear all open motions.

On October 31, 2012, before the court specially assigned the case, Ms. Tung filed a Motion to Dismiss for Failure to Comply with Terms of the Court's August 28, 2012 Order. The August 28, 2012 Order had

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directed the Firm to re-serve Ms. Tung with the Confidential Complaint within ten days of entry, but, as we explained, the Firm served counsel for Ms. Tung, not Ms. Tung herself. Ms. Tung argued that the Firm failed to comply with the August 28, 2012 Order because she never agreed to allow her counsel to accept service on her behalf, and that dismissal was appropriate.

The circuit court, through Judge Goetzke, entered an order on November 19, 2012, addressing both the Firm's Motion for Reconsideration of the September 26, 2012 Order (filed on October 11, 2012) and Ms. Tung's Motion to Dismiss for Failure to Comply with the August 28, 2012 Order. Judge Goetzke explained that the court " determined that, as of the date of this Order, it has no in personam jurisdiction over any defendant in [the] matter" and gave the Firm another chance to effect service:

ORDERED, that this case is dismissed without prejudice as to all [defendants]; and it is,
ORDERED, that [the Firm] may request one additional summons pursuant to Rule 2-122 (a) for each Defendant, provided the request is not made later than 7 days from the date on which this Order is docketed (" Final Summons" ); [5] and it is,
[221 Md.App. 491] ORDERED, that this dismissal shall be stricken as to any Defendant over whom the court acquires in personam jurisdiction as a result of service pursuant to Rule 2-121 of the Final Summons for that Defendant; and it is,
ORDERED, that on request of a Defendant, an order of dismissal with prejudice shall be filed as to any Defendant over whom the court has not acquired in personam jurisdiction as set forth in the preceding paragraph.

(Underlining supplied.)

Shortly thereafter, on December 5, 2012, Judge Davis-Loomis entered an Assignment Order assigning the case to Judge Caroom.

On January 28, 2013, the Firm filed an Affidavit of Service stating that " the Defendants were previously served the Confidential Complaint on September 6th and 7th, 2012," and providing documentation of subsequent service on counsel between January 22 and 24, 2013. The Firm concluded that " [a]ll counsel have been served." (Emphasis added.)

That same day, Judge Caroom, now specially assigned to the case, held a hearing on the open motions.[6] The parties discussed the November 19, 2012 Order issued by Judge Goetzke that dismissed the case without prejudice and provided the Firm one additional chance to serve the defendants:

[COUNSEL FOR MS. TUNG]: . . . I would point out . . . that Judge Goetzke's order from November 21 said that Judge Goetzke had considered the motion for reconsideration and that as of that date the Court determined that, as of November 21, it had no in personam jurisdiction over any defendant after having considered the motion for reconsideration.
[221 Md.App. 492]

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And then went [on to] order [the Firm], with regard to all Defendants, to have summonses reissued within seven days. And then indicated that, upon request of the Defendant, an order for dismissal with prejudice would be filed as to any defendant as to whom service had not been acquired under, as Judge Goetzke termed it, in a defined term, the final summons.
THE COURT: And set a deadline of January . . . 28, meaning it needed to be done before today?
[COUNSEL FOR MS. TUNG]: Right. Well, they needed to be issued by [November 28] and . . . that has not occurred. The same thing occurred with the motion for reconsideration. There were exhibits from [the Firm] saying we mailed them to counsel for Ms. Tung. Mailing to counsel of the summons is not service.
Judge Goetzke ordered that they be served pursuant to Maryland Rule 2-121. And Maryland Rule 2-121 expressly delineates the means of service, as I am sure you are aware, and mailing them to counsel is not service.

(Emphasis added.) In response, the Firm argued that its service of the Confidential Complaint and Final Summons shortly before the hearing satisfied Judge Goetzke's Order:

[COUNSEL FOR THE FIRM]: I served[7] personally last week via certified mail all the Defendants. I have green cards right here with their signatures.
Last week, I did file an affidavit of service with the Court for both cases, Conwell Law and Technical Furniture Group. I have a copy of the Technical Furniture Group case with the date stamped right here.
* * *
I would also like to point out, first of all, it was the confidential complaint that was served in January to all [221 Md.App. 493] Defendants. I would also like to mention that this was not--
THE COURT: Meaning for which you have the green cards?
[COUNSEL FOR THE FIRM]: Yes. Yes, that is what this is from.
THE COURT: Okay, so let me invite you to show--I am not sure if they have seen it any more than I have, the green cards and the return of service ...

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