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Gray v. Kern

United States District Court, D. Maryland

April 13, 2016

RAYMOND GRAY, et al., Plaintiffs
v.
OFFICER WILLIAM SCOTT KERN, et al., Defendants

Page 364

          For Raymond Gray, by Carolyn Gray, Guardian of the Person and Property of Raymond Gray, Sheri Gray, Plaintiffs: A Dwight Pettit, Law Offices of A. Dwight Pettit, P.A., Baltimore, MD; Allan B Rabineau, Law Office of Allan Rabineau, Baltimore, MD.

         For Officer William Scott Kern, Individually and in his official capacity, Defendant: Michael L Marshall, LEAD ATTORNEY, Chaz Romeo Ball, Schlachman Belsky and Weiner PA, Baltimore, MD.

         For Commissioner Anthony Batts, Individually and in his official capacity, Baltimore Police Department, Defendants: Kristin Elizabeth Blumer, LEAD ATTORNEY, City of Baltimore, Depart of Law, Office of Legal Affairs, Baltimore, MD; Glenn Todd Marrow, Baltimore City Law Department, Legal Affairs Division, Baltimore, MD.

         For Mayor and City Council of Baltimore City, Defendant: Michael Patrick Redmond, LEAD ATTORNEY, Baltimore City Law Department, Baltimore, MD.

Page 365

         MEMORANDUM AND ORDER

         William M. Nickerson, Senior United States District Judge.

         Before the Court is Defendant William Scott Kern's Second Motion to Dismiss for Lack of Jurisdiction. ECF No. 109. Upon a review of the pleadings and applicable case law, the Court determines that no hearing is necessary. Local Rule 105.6. For the reasons set forth below, the Court will grant Defendant Kern's motion.

         This action relates to the shooting of Plaintiff Raymond Gray by Defendant, Baltimore Police Officer William Scott Kern, during a training exercise on February 12, 2013.[1] Plaintiffs Raymond and Sheri Gray filed a Complaint in the Circuit Court for Baltimore City on June 14, 2013. The matter was removed to this Court on August 5, 2013. ECF No. 1. Plaintiffs filed an amended eleven count complaint on May 27, 2014. ECF No. 67. On February 5, 2015, Defendant Kern moved for summary judgment on all claims. ECF No. 78. On August 21, 2015, this Court granted judgment in Defendant Kern's favor as to Plaintiffs' claims of false imprisonment; violation of Articles 19, 24, and 26 of the Maryland Declaration of Rights; negligence; and § 1983 claims for excessive force, deprivation of federal rights, and failure to train. ECF No. 94. The remaining claims against Defendant Kern are state law tort claims of battery, assault,

Page 366

intentional infliction of emotional distress, gross negligence, and loss of consortium.

         On August 25, 2015, Defendant Kern offered, in accordance with Federal Rule of Civil Procedure 68, to allow judgment to be entered against him in the amount of $200,000, which was, according to Defendant, the maximum amount Plaintiffs could recover by law. ECF No. 101. After Plaintiffs refused to accept Defendant's Rule 68 offer of judgment, Defendant Kern filed his first Motion to Dismiss for Lack of Jurisdiction. ECF No. 100. On October 12, 2015, when Defendant Kern's first Motion to Dismiss was filed, it was well-settled in the United States Court of Appeals for the Fourth Circuit that " [w]hen a Rule 68 offer unequivocally offers a plaintiff all the relief she sought to obtain, the offer renders the plaintiff's action moot." Warren v. Sessoms & Rogers, P.A., 676 F.3d 365, 371 (4th Cir. 2012) (internal citations omitted).

         On January 20, 2016, while Defendant Kern's first Motion to Dismiss was pending, the Supreme Court issued a decision in Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 193 L.Ed.2d 571 (2016), which abrogated Warren. In Gomez, the Supreme Court " granted certiorari to resolve a disagreement among the Courts of Appeals over whether an unaccepted offer can moot a plaintiff's claim, thereby depriving federal courts of Article III jurisdiction." Id. at 669. The Supreme Court, in a 6-3 decision issued by Justice Ginsburg, found,

in accord with Rule 68 of the Federal Rules of Civil Procedure, that an unaccepted settlement offer has no force. Like other unaccepted contract offers, it creates no lasting right or obligation. With the offer off the table, and the defendant's ...

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