United States District Court, D. Maryland
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,
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.
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.
Mayor and City Council of Baltimore City, Defendant: Michael
Patrick Redmond, LEAD ATTORNEY, Baltimore City Law
Department, Baltimore, MD.
M. Nickerson, Senior United States District Judge.
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.
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. 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
intentional infliction of emotional distress, gross
negligence, and loss of consortium.
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).
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