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Sanders v. Callender

United States District Court, D. Maryland

January 9, 2018

KENNETH SANDERS, et al.
v.
DESIREE CALLENDER, et al.

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE.

         Presently 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).

         The 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.

         I. Background

         A. Prior Action

         This 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.

         The 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. ¶¶ 20-27.

         On May 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.

         B. Current Action[1]

         Plaintiff 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).

         After 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).

         Plaintiffs' 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 ¶ 27-V).

         Plaintiffs 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).

         II. Standard of Review

         The 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).

         Pro 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)).

         In 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 judgment. Id.

         III. Rooker-Feldman Doctrine

         This 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.[2] (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).

         Under 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 Cir. 2006).

         Thus, 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).

         Here, 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.

         Likewise, 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.

         Parts 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.[3]

         IV. Claim and Issue Preclusion

         Defendant 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 (2008).

         A. Res Judicata

         Defendant 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.

         In the 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 identity ...


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