United States District Court, D. Maryland
ROBERT F. CHERRY, JR., et al. Plaintiffs
MAYOR AND CITY COUNCIL OF BALTIMORE CITY, et al. Defendants
MEMORANDUM AND ORDER RE: AMENDED COMPLAINT
J. GARBIS, UNITED STATES DISTRICT JUDGE
Court has before it Plaintiffs' Motion for Leave to File
Second Amended Complaint [ECF No. 215], Defendant Mayor and
City Council of Baltimore City's ["the
City's"] Motion to Abstain [ECF No. 225] and the
materials submitted relating thereto. The Court has held a
hearing and had the benefit of the arguments of counsel.
1962, Baltimore City enacted the Fire and Police
Employees' Retirement System of the City of Baltimore
(the "Plan"), which provides defined benefits to
its members and beneficiaries. In 2010, the City enacted
Ordinance 10-306, that unilaterally modified the provisions
of the Plan in several respects, effective July 1, 2010.
Plaintiffs filed the First Amended and Restated Class Action
Complaint for Declaratory, Injunctive, and Monetary Relief
[ECF No. 5] (the "Amended Complaint")
asserting state-law contract claims and federal
claims under the Contract and Takings clauses of the United
Court held that the City had violated Constitutional rights
of certain union members in violation of the Contract Clause. By
agreement of the parties, the Court dismissed the Takings
Clause claim as moot, dismissed the state-law contract claims
without prejudice, and entered a final judgment subject to
appeal. On appeal, the United States Court of Appeals for the
Fourth Circuit held that the Contract Clause rights had not
been impaired because the Plaintiffs retained a state-law
remedy for breach of contract and that the Takings Clause
Claim was no longer moot. Cherry, 762 F.3d at
373-74. The Court remanded the case for further proceedings.
Id. at 374. As to further proceedings, the appellate
The plaintiffs may attempt to refile in the district court
their state law claims that were dismissed without prejudice,
or they may initiate proceedings in state court alleging
breach of contract under Maryland law. If the plaintiffs
choose to pursue either of these two courses of action, the
district court may wish to hold any proceedings regarding the
Takings Clause claim in abeyance pending the resolution of
related contractual issues.
Id. at 374, n.6.
seek to refile the state-law contract claims in federal court
in the proffered Second Amended Complaint ("SAC").
Defendants seek to have the Court deny the motion or,
alternatively, to abstain from deciding the state-law
may file the proffered SAC only with the City's consent
or leave of Court. Fed.R.Civ.P. 15(a)(2). The City does not
consent. However, "the court should freely give leave
when justice so requires." Id.
City contends that amendment would be futile and that, in any
event, the Court should exercise its discretion to deny the
City asserts that amendment would be futile because the Court
would lack jurisdiction over the state-law claims asserted
therein due to the absence of any pending federal claim.
According to the City, the Takings Clause claim will not be
ripe until after the state-law claims are resolved and may be
rendered moot by the resolution of the state-law claims.
City's position appears to be worthy of reasonable
debate. If Plaintiffs prevail on the state-law claims - as
would be the case if they had prevailed on the Contract
Clause claims - it appears that they would obtain the relief
they seek on their federal claims. The City contends that
should Plaintiffs not prevail on their state-law contract
claims, they would not have any rights that were subject to
unconstitutional taking. However, it may be possible for