United States District Court, D. Maryland
KENNETH SANDERS, et al.
DESIREE CALLENDER, et al.
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE.
pending and ready for resolution are: (1) the motion to
dismiss filed by Defendant Prince George's County
Sheriff's Department (“PGCSD”) and Defendant
Deputy Sheriff G. Brown (ECF No. 12); (2) the motion to
dismiss filed by Defendant Prince George's County Police
Department (“PGCPD”) (ECF No. 21); (3) the motion
to dismiss filed by Defendant Marlboro Towing/Champion Towing
& Services, Inc. (“Marlboro Towing”) (ECF No.
30); (4) the motion to dismiss filed by Defendant Vendor
Resource Management, Inc. (“VRM”) (ECF No. 38);
(5) the request for sanctions filed by Defendant VRM (ECF No.
51); and (6) an order to show cause why the complaint should
not be dismissed as to Defendants Gomez Towing, Desiree
Callender, and Desiree Callender & Associates, Realtors
LLC (“DCAR”) for failure to comply with
Fed.R.Civ.P. 4(m). (ECF No. 55).
issues have been briefed, and the court now rules, no hearing
being deemed necessary. Local Rule 105.6. For the following
reasons, Defendant PGCSD and Defendant Brown's motion to
dismiss and Defendant VRM's motion to dismiss will be
granted. Defendants Desiree Callender, DCAR, and Gomez Towing
will be dismissed for ineffective service of process.
Defendant Marlboro Towing's motion to dismiss will be
granted in part and denied in part. Defendant PGCPD's
motion to dismiss will be granted in part and denied in part.
complaint is the second action initiated by Plaintiff Kenneth
Sanders regarding the foreclosure and eviction from his
residence located at 12118 Birchview Drive, Clinton Maryland
20735. The details of the foreclosure proceedings were fully
outlined in a prior decision. See Sanders v. Cohn,
Goldberg & Deutsch, LLC., No. DKC 15-1571, 2016 WL
223040 (D.Md. Jan. 19, 2016) (“Sanders
I”). In short, Plaintiff Sanders had purchased a
home in 1993 which was foreclosed on in June 2010 in the
Circuit Court for Prince George's County, Maryland. The
property was sold at a foreclosure sale, and the circuit
court ratified the sale. The foreclosure purchaser requested
a writ of possession, and the circuit court issued it. The
writ was executed on May 6, 2014. Id. at *2.
prior complaint alleged that on May 6, 2014, two employees of
Defendant DCAR went onto his property. Plaintiff Sanders told
them to leave, and after they left, “the Prince
George's County Police Department and the Prince
George's County Sheriff[']s Department surrounded the
. . . property, pointed assault weapons at [Plaintiff
Sanders'] and told him to get on the ground.”
Complaint ¶ 15, Sanders v. Cohn, Goldberg &
Deutsch, LLC, No. DKC-15-1571, 2016 WL 223040 (D.Md. May
29, 2015) (“Prior Complaint”). Plaintiff Sanders
alleged he was falsely accused of being “armed and
dangerous.” Id. ¶ 17. Plaintiff Sanders
further alleged that his wife came to the door and an officer
told someone to “‘handle her' and his wife
was then thrown to the ground, handcuffed and dragged to an
unmarked car at the property.” Id. ¶ 19.
The complaint stated that Plaintiff Sanders was put into an
unmarked police car, bomb sniffing dogs searched the home,
non-law enforcement personnel went into his home and removed
personal belongings, his car and his wife's car were
towed, and the locks to the house were changed. Id.
29, 2015, Plaintiff Sanders brought the prior suit against
entities involved in the foreclosure proceedings including
Defendants VRM, Desiree Callender, and DCAR. The complaint
alleged a variety of wrongful acts “based on the
argument that the underlying foreclosure sale and award of
possession were improper.” Sanders I, 2016 WL
223040, at *5. Defendants moved to dismiss arguing that the
Rooker-Feldman doctrine divested federal courts of
jurisdiction. Because the state courts had adjudicated the
foreclosure action and the foreclosure itself was the result
of that judgment and because district courts lack
jurisdiction to sit in review of state courts, the case was
dismissed on January 19, 2016. Id. at *8.
Sanders and Plaintiff Paula Webber (“Plaintiffs”)
filed this complaint on April 24, 2017. This complaint
contains many of the same allegations as the prior complaint.
According to the complaint two people went onto the property
at 12118 Birchview Drive at 7:30 A.M. After these people
left, three Prince George's County police officers came
onto the property and “point[ed] assault weapons at
[P]laintiff [Sanders'] head” and these officers
were “followed by fifty (50) plus hostile
officers.” (ECF No. 2 ¶ 27-E). The officers told
Plaintiff Sanders to go to the ground and “put his
hands behind his head.” (Id.). Plaintiff
Sanders was told by police that they had “received a
call stating” that Plaintiff Sanders was
“‘armed and dangerous[.]'”
(Id. ¶ 27-G). Plaintiffs believe this call came
from Defendant Desiree Callender or one of Defendant
DCAR's employees. During the ordeal, Plaintiff Webber
walked outside the house to investigate what was occurring
and “saw Plaintiff Sanders handcuffed on the
ground” and was then “assaulted and violently
thrown to the ground.” (Id. ¶ 27-I).
Plaintiffs were handcuffed and remained in police vehicles
for more than eight hours. During that time, “Plaintiff
Sanders was physically violated and sexually
assaulted[.]” (Id. ¶ 27-J).
Plaintiffs were detained, “the Prince George['s]
County Sheriffs entered [the] premises and carried away
personal property belonging to Plaintiffs.” (ECF No. 2
¶ 27-N). Defendants DCAR and VRM “deliberately
threw all [P]laintiff['s] furniture on the
pavement[.]” (Id. ¶ 27-P). Defendant
Gomez Towing “towed Plaintff['s] vehicles out of
the garage [and] on to the main street[.]”
(Id. ¶ 27-S).
current complaint also mentions a separate event. On June 17,
2015 Defendant PGCPD and Defendant Marlboro Towing towed
Plaintiffs' vehicle and refused to return it. (ECF No. 2
filed this action in the Circuit Court for Prince
George's County. (ECF No. 2). Plaintiffs bring claims for
negligence, conversion, false imprisonment, loss of profits,
assault and battery, trespass to chattels, intentional
infliction of emotional distress, and violations of 42 U.S.C.
§ 1983. The case was removed to federal court on June
22, 2017. (ECF No. 1). Defendant PGCSD and Defendant Brown
moved to dismiss on June 27. (ECF No. 12). Defendant PGCPD
moved to dismiss on June 28. (ECF No. 21). Defendant Marlboro
Towing moved to dismiss on July 14. (ECF No. 30). Defendant
VRM moved to dismiss on July 21. (ECF No. 37). Plaintiffs
were ordered to show cause why Defendants Gomez Towing,
Desiree Callender, and DCAR should not be dismissed without
prejudice on August 29. (ECF Nos. 55).
Standard of Review
purpose of a motion to dismiss under Rule 12(b)(6) is to test
the sufficiency of the complaint. Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir.
2006). A plaintiff's complaint need only satisfy the
standard of Rule 8(a), which requires a “short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). “Rule
8(a)(2) still requires a ‘showing, ' rather than a
blanket assertion, of entitlement to relief.” Bell.
Atl. Corp. v. Twombly, 550 U.S. 544, 556 n.3 (2007).
That showing must consist of more than “a formulaic
recitation of the elements of a cause of action” or
“naked assertion[s] devoid of further factual
enhancement.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal citations omitted).
se pleadings are liberally construed and held to a less
stringent standard than pleadings drafted by lawyers.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976));
Haines v. Kerner, 404 U.S. 519, 520 (1972). Liberal
construction means that the court will read the pleadings to
state a valid claim to the extent that it is possible to do
so from the facts available; it does not mean that the court
should rewrite the complaint to include claims never
presented. Barnett v. Hargett, 174 F.3d 1128, 1132
(10thCir. 1999). That is, even when pro
se litigants are involved, the court cannot ignore a
clear failure to allege facts that support a viable claim.
Weller v. Dep't of Soc. Servs., 901 F.2d 387,
391 (4th Cir. 1990); Forquer v. Schlee,
No. RDB-12-969, 2012 WL 6087491, at *3 (D.Md. Dec. 4, 2012)
(“[E]ven a pro se complaint must be dismissed
if it does not allege a plausible claim for relief.”
(citation and internal quotation marks omitted)).
addition, dismissal may be proper “when the face of the
complaint clearly reveals the existence of a meritorious
affirmative defense.” Brooks v. City of
Winston-Salem, 85 F.3d 178, 181 (4th Cir.
1996). Even if the defense does not appear on the face of the
complaint, “when entertaining a motion to dismiss on
the ground of res judicata, a court may take
judicial notice of facts from a prior judicial proceeding
when the res judicata defense raises no disputed
issue of fact.” Andrews v. Daw, 201 F.3d 521,
524 (4th Cir. 2000). Reference to these facts does
not convert a motion to dismiss into a motion for summary
case was removed to federal court because one of the claims
arises under federal law. (ECF Nos. 1; 2 ¶ 59); 28
U.S.C. §§ 1331, 1441. Defendant VRM moves to
dismiss on jurisdictional grounds arguing that a state court
decision caused Plaintiffs' injury and, therefore, the
Rooker-Feldman doctrine bars adjudication of
Plaintiffs' complaint. (ECF No. 38-1, at 14-16, 23-26).
Plaintiffs respond that their “action is not an attack
on a state court final judgment but an attempt to remedy
multiple wrongs[.]” (ECF No. 53, at 7).
the Rooker-Feldman doctrine, lower federal courts
lack jurisdiction to sit in appellate review of a state court
judgment because Congress has only authorized the Supreme
Court of the United States to review final state court
judgments. Thana v. Bd. of License Comm'rs for
Charles Cty., 827 F.3d 314, 318-19 (4th Cir.
2016). “However, a federal court is not stripped of its
jurisdiction simply because the claim challenges conduct that
was previously examined in a state court action.”
Elyazidi v. SunTrust Bank, 780 F.3d 227, 233
(4th Cir. 2015). The doctrine “applies only
when the loser in state court files suit in federal district
court seeking redress for an injury allegedly caused by the
state court's decision itself.” Davani v. Va.
Dep't of Transp., 434 F.3d 712, 713 (4th
the lower federal courts lack jurisdiction to hear claims of
injuries resulting from the foreclosure and the issuance of
the writ of possession. Sanders I, 2016 WL 223040,
at *5. The state court decided those issues, any injury was
caused by those decisions, and, thus, the
Rooker-Feldman doctrine bars adjudication of those
claims. Id. Federal district courts, however, have
jurisdiction to hear claims that the eviction was excessive
because these injuries, even if related to a state court
judgment, were not caused by the state court judgment per
se. See Elyazidi, 780 F.3d at 232-33 (finding a
federal district court retained jurisdiction over a claim
that representations about attorneys' fees made pre-trial
were unlawful after a state court determined the entitlement
to attorneys' fees).
Plaintiffs' claims generally stem from an allegation that
Defendants “undertook activities and engaged in actions
far in excess of the acts necessary to perform the
repossession of the premises.” (ECF No. 2 ¶
20) (emphasis in the original). The negligence claim alleges
that in executing the writ Defendants failed to act with the
requisite degree of care which caused greater injuries to
person and property than should have occurred. (Id.
¶ 30). Similarly, the conversion claim and the claim for
loss of future profits allege that Defendants permanently
deprived Plaintiffs of personal property which the writ did
not authorize. (Id. ¶¶ 27-R, 36, 46). In
support, Plaintiffs allege that Defendants took personal
documents among other items and that unsupervised workers
carried Plaintiffs' shoes and clothing to a car.
(Id. ¶¶ 27-N, 27-R). Defendants do not
argue that the state court judgment granted them any right to
keep the personal property alleged to have been taken.
Because these claims are not directed at an injury caused by
a state-court judgment itself but rather to injuries caused
by a failure appropriately to carry-out the state court
judgment, jurisdiction is proper.
the Section 1983 claim, intentional infliction of emotional
distress, false imprisonment, and assault and battery claims
allege that the force used to restrain Plaintiffs was
excessive and unreasonable. (ECF No. 2 ¶¶ 42, 51,
58). Plaintiffs allege that Defendants “point[ed]
assault weapons at [P]laintiff [Sanders's] head”,
that Plaintiff Sanders was “sexually assaulted . . .
multiple times”, and that Defendants Callender and DCAR
made false statements causing Plaintiffs' arrests and
mistreatment. (Id. ¶¶ 27-E, 27-J, 42).
Defendants do not argue that the state court judgment granted
them the right to use the amount of force allegedly used in
the circumstances it was used. Again, these claims challenge
actions related to, but independent from, a state court
judgment, and, therefore, jurisdiction is proper.
of the trespass to chattel claim, however, are barred by the
Rooker-Feldman doctrine. In support of the claim
against Desiree Callender, DCAR, and VRM, Plaintiffs simply
allege that Defendants moved Plaintiffs' property from
the house to “the pavement and lawn[.]” (ECF No.
2 ¶ 27-P). Unlike other claims, Plaintiffs do not allege
that Defendants were excessive in their interference with
Plaintiffs' property rights. Those defendants were acting
pursuant to a writ of possession, Sanders I, 2016 WL
223040, at *4, and the writ of possession authorized the
interference with personal property. See Md.Rules,
Rule 2-647; Report & Recommendation, Apg Hous., LLC
v. Moore, No. ELH-15-3720, 2016 WL 1048004, at *2 (D.Md.
Mar. 11, 2016). Thus, Plaintiffs are “complaining of
injuries caused by [the] state-court judgment”, and
district courts lack jurisdiction to sit in review of that
judgment. Exxon, 544 U.S. at 284. Plaintiffs'
claim for trespass to chattel against Desiree Callender,
DCAR, and VRM will be dismissed.
Claim and Issue Preclusion
VRM also argues that claim and issue preclusion act as
procedural bars to Plaintiffs' claims. (ECF No. 38-1, at
17-23). Plaintiffs respond that this suit involves different
parties, different causes of actions, and there was no final
judgment in the prior action. (ECF No. 53, at 7-8). As an
initial matter, Plaintiff Webber was not a party to the
previous litigation, and, therefore, her claims cannot be
barred. Taylor v. Sturgell, 553 U.S. 880, 892-93
VRM argues that Plaintiff Sanders' claims are barred
under res judicata by both the judgment in the
Maryland state-court foreclosure proceeding and the prior
federal case. (ECF No. 38-1, at 18-19). Federal courts must
“give the same preclusive effect to a state-court
judgment as another court of that State would give.”
Exxon, 544 U.S. at 293. Although Maryland gives
preclusive effect to all matters litigated and “as to
all matter which with propriety could have been litigated in
the first suit, ” Alvey v. Alvey, 225 Md. 386,
390 (1961), these claims arise out of acts that postdate the
final state-court judgment. Thus, these claims could not have
been brought in the Maryland proceedings and the Maryland
judgment does not preclude the claims.
prior federal case, jurisdiction was based on the presence of
a federal question. (Prior Complaint ¶ 1). When
jurisdiction is based on a federal question, the preclusive
effect of a decision is governed by federal common law.
United States ex rel. May v. Purdue Pharma L.P., 737
F.3d 908, 912 (4thCir. 2013). Under federal common
law, “[t]he application of res judicata turns
on the existence of three factors: (1) a final judgment on
the merits in a prior suit; (2) an identity of the cause of
action in both the earlier and the later suit; and (3) an