United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge
suffering injuries when Prince George’s County (the
“County”) police officers arrested him on June 3,
2012, Plaintiff Jesse Best filed suit against County Police
Officers Philchrist Tossou, Christopher Rothenberger, and
Unknown Police Officers Nos. 1-8, in their individudal and
official capacities, as well as County Police Chief Mark A.
Magaw. ECF No. 2. His Complaint includes four federal claims
pursuant to 42 U.S.C. § 1983 (Counts I-IV), and seven
state law claims (Counts V-XI). Id. Specifically, he
claims that the individual defendant police officers, and
Magaw under the theory of respondeat superior, are liable for
violations of the Maryland Declaration of Rights, false
arrest, false imprisonment, assault and battery, and
intentional infliction of emotional distress. Id. He
also sues Magaw for negligent supervision and training.
have filed a Memorandum in Support of Defendants' Partial
Motion to Dismiss Plaintiffs Complaint or, in the
Alternative, for Summary Judgment, ECF No. 16, arguing for
dismissal of the state law claims for failure to comply with
the Local Government Tort Claims Act ("LGTCA"), Md.
Code Ann., Cts. & Jud. Proc. §§ 5-301-5-304,
and dismissal of the assault claim in particular as barred by
the applicable statute of limitations. Best filed an
Opposition and Motion to Permit Claims for Good Cause Shown,
ECF No. 17, and Defendants filed a Reply, ECF No. 18. A
hearing is unnecessary in this case. See Loc. R.
has shown good cause to proceed with his state law claims,
despite lack of compliance with the notice requirements of
the LGTCA, and Defendants have not shown prejudice. However,
he concedes that his assault claim is barred by the one-year
statute of limitations and consents to its dismissal.
PL's Opp'n & Mot. 1 n.1. Accordingly, I will
grant Best's Motion to Permit Claims for Good Cause Shown
and grant in part and deny in part Defendants' Partial
Motion to Dismiss Plaintiffs Complaint or, in the
Alternative, for Summary Judgment, treated as a Motion for
Rule of Civil Procedure 12(b)(6) provides for "the
dismissal of a complaint if it fails to state a claim upon
which relief can be granted." Velencia v.
Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md.
Dec. 13, 2012). When a defendant attaches documents to a
motion to dismiss that are not "integral to the
complaint" or where the documents' authenticity is
disputed, the Court must treat the motion as one for summary
judgment to consider the documents. See CACI Int'l v.
St. Paul Fire & Marine Ins. Co., 566 F.3d 150, 154
(4th Cir.2009); Syncrude Canada Ltd. v. Highland
Consulting Grp., Inc., No. RDB-12-318, 2013 WL 139194,
at *2 (D. Md. Jan. 10, 2013); Fed.R.Civ.P. 12(d). When the
Court does so, "[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). Notably, "the
Federal Rules do not prescribe that any particular notice be
given before a Rule 12 motion is converted to a Rule 56
motion." Ridgell v. Astrue, DKC-10-3280, 2012
WL 707008, at *7 (D. Md. Mar. 2, 2012). Thus, this
requirement "can be satisfied when a party is 'aware
that material outside the pleadings is before the
court.'" Walker v. Univ. of Md. Med. Sys.
Corp., No. CCB-12-3151, 2013 WL 2370442, at *3 (D. Md.
May 30, 2013) (quoting Gay v. Wall, 761 F.2d 175,
177 (4th Cir. 1985)). Indeed, while the Court "clearly
has an obligation to notify parties regarding any
court-instituted changes in the pending proceedings, [it]
does not have an obligation to notify parties of the
obvious." Laughlin v. Metro. Wash. Airports
Auth., 149 F.3d 253, 261 (4th Cir. 1998). It is obvious
that the Court may construe a motion that is styled as a
"Motion to Dismiss or, in the Alternative, Motion for
Summary Judgment, " as is the case here, as a motion for
summary judgment. Ridgell, 2012 WL 707008, at *7;
see Laughlin, 149 F.2d at 260-61. Because I consider
documents attached to the parties' briefings, I will
treat Defendants' motion as a motion for summary
judgment. See Fed. R. Civ. P. 12(d).
judgment is proper when the moving party demonstrates,
through "particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .,
admissions, interrogatory answers, or other materials, "
that "there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(a), (c)(1)(A); see Baldwin v.
City of Greensboro, 714 F.3d 828, 833 (4th Cir. 2013).
If the party seeking summary judgment demonstrates that there
is no evidence to support the nonmoving party's case, the
burden shifts to the nonmoving party to identify evidence
that shows that a genuine dispute exists as to material
facts. See Celotex v. Catrett, 477 U.S. 317 (1986).
The existence of only a "scintilla of evidence" is
not enough to defeat a summary judgment motion. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986).
Instead, the evidentiary materials submitted must show facts
from which the finder of fact reasonably could find for the
party opposing summary judgment. Id.
argue that the Court should dismiss Best's state law
claims (Counts V-XI) because Plaintiff failed to comply with
the notice requirement of the LGTCA. Defs.' Mem. 4. Under
the LGTCA, local governmental entities can be held liable for
state constitutional torts and common law torts. See
Martino v. Bell, 40 F.Supp.2d 719, 723 (D. Md. 1999);
DiPino v. Davis, 729 A.2d 354, 370-71 (Md. 1999).
However, to sue a local government or its employees for
unliquidated damages based on an injury prior to October 1,
2015,  a plaintiff must provide written
notice of the claim within 180 days after the injury giving
rise to the suit. Cts. & Jud. Proc. § 5-304(b).
Further, the notice must be provided to the county attorney,
id. § 5-304(c)(3)(iii).
to give actual notice is not fatal to a claim if a plaintiff
substantially complies with the notice requirements.
Huggins v. Prince George's Cnty., Md., 683 F.3d
525, 538 (4th Cir. 2012). Substantial compliance is a narrow
exception to the LGTCA notice requirement; "substantial
compliance will occur when the local government receives
actual notice such that it is given the opportunity to
properly investigate the potential tort claim."
Id. (quoting Hansen v. City of Laurel, 996
A.2d 882, 891 (Md. Ct. Spec. App. 2010) (alteration,
citation, and internal quotation marks omitted)). Notably,
"substantial compliance has no application to an
outright failure to comply." Moore v. Norouzi,
807 A.2d 632, 643 (Md. 2002) (citing Blundon v. Taylor,
110 A.2d 658, 670 (Md. 2001)). Therefore, "[t]here
must be some effort to provide the requisite notice and, in
fact, it must be provided, albeit not in strict compliance
with the statutory provision." Id. In addition
to showing "substantial compliance as to the content of
the notice within the 180-day period, " a plaintiff must
show substantial compliance "as to the statutory
recipient." Huggins, 683 F.3d at 538.
Best's alleged injuries occurred on June 3, 2012. The
180-day period ended on Friday, November 30, 2012. Best sent
a letter dated Monday, December 3, 2012, one business day
late, to the County's Attorney's Office by certified
mail, and the Attorney's Office received it on December
4, 2012. PL's Opp'n & Mot. 1-2; id. Ex.
4, ECF No. 17-3; Defs.' Mem. 6; Tice Aff ¶ 3,
Defs.' Mem. Ex. 1, ECF No. 16-1. Thus, Best did not
comply with the LGTCA's notice requirement. See
Cts. & Jud. Proc. § 5-304(b).
the LGTCA provides "an exception to the notice
requirement" in Cts. & Jud. Proc. § 5-304(d).
Subsection (d) states that, "notwithstanding the other
provisions of [§ 5-304], unless the defendant can
affirmatively show that its defense has been prejudiced by
lack of the required notice, upon motion and for good cause
shown the court may entertain the suit even though the
required notice was not given." Best's Opposition
incorporates a Motion to Permit Claims for Good Cause Shown,
in which he argues that he diligently prosecuted his claim
"by ... filing ... a complaint with the Internal Affairs
Division less than three motnhs after the incident" and
thereby "ensuring] that an investigation opened."
PL's Opp'n & Mot. 10. He also contends that,
"even though incorrect, Mr. Best's former
attorney's mailing on December 3, 2012, was a good faith
attempt to comply with the notice requirement and it was
reasonable under the circumstances." Id. at 11.
Declaration of Eric F. Rosenberg that Best attaches to his
Opposition and Motion, his former attorney states that he
"initially believed that Mr. Best's act of
submitting a Prince George's County Police Department
Complaint Form to Prince George's County Police Internal
Affairs Division eighty-nine (89) days after the incident
satisfied the 180-day notice requirement." Rosenberg
Decl. ¶ 7, PL's Opp'n & Mot. Ex. 2, ECF No.
17-1. But, "[t]o err on the side of caution, "
Rosenberg "decided to also submit a Notice of Claim
Letter to the PG County Attorney's Office prior to the
180-day deadline, " which he sent by certified mail,
return receipt requested, on December 3, 2012, and by
hand-delivery the next day. Id. ¶ 8. He
explained that he "mistakenly believed that December 3,
2012 was 180 days after June 3, 2012, " either "due
to a mathematical computation or because [he] conflated 180
days with six calendar months." Id. ¶ 12.
The test for good cause shown "is that of ordinary
prudence ... whether the claimant prosecuted his claim with
that degree of diligence that an ordinarily prudent person
would have exercised under the same or similar
circumstances." Bibum v. Prince George's
County,85 F.Supp.2d 557, 565 (D. Md. 2000). While
ignorance of the notice requirement is not good cause,