United States District Court, D. Maryland, Southern Division
J. HAZEL, UNITED STALES DISTRICT JUDGE
case proceeded to trial on a claim of battery against
Defendants Iverson Mall Limited Partnership
("IMLP") and Defendant Professional 50 States
Protection of DC LLC ("Pro50") and a claim arising
under 42 U.S.C. § 1983 against Prince George's
County on a theory of bystander liability. The case stemmed,
in relevant part, from allegations that while being placed
under arrest by officers with the Prince George's County
Police Department at Iverson Mall, Plaintiff Byron Jordan was
punched in the face by a mall security officer employed by
Pro50. On January 24, 2018. the jury returned a verdict
finding no liability as to Prince George's County and its
officers, but finding Defendants IMLP and Pro50 liable for
battery and awarding compensatory and punitive damages
against both. Several motions were raised before. during and
after trial that are now pending, including Defendants'
Motion for Sanctions. ECF No. 193: and IMLP and Pro50's
Motion and Renewed Motion for Judgment as a Matter of Law.
ECF No. 234. Some of these issues were discussed during
trial, but no further hearing is necessary. See Loc.
R. 105.6 (D. Md. 2016).
Motion for Sanctions (ECF Nos. 192, 193)
December 4. 2017, Defendants filed a Motion for Sanctions.
ECF Nos. 192. 193. Defendants argue that Plaintiffs failed to
comply with the Court's March 17. 2017 Order establishing
pretrial dates and deadlines, along with Local Rule 106.3.
ECF No. 193 at 3-4. Specifically, they argue that
"Plaintiffs had the responsibility to prepare the first
draft of the pretrial order 14 days prior [to] the date on
which the pretrial order must be filed." Plaintiffs
"failed to do so." and default judgment in favor of
Defendants is an appropriate remedy. Id. at 4-8.
Plaintiffs did not respond to Defendants' motion in
sanction of default judgment in favor of the defense or
dismissal with prejudice is an "extreme sanction."
the district court has a "narrow" "range of
discretion" in applying such a sanction, and such a
sanction should be used in "only the most flagrant
case." Mitt. Fed. Sen: & Loan Ass'n v.
Richards & Ass0CS., Inc.. 872 F.2d 88. 92 (4th Cir.
1989). The Court must determine "(1) whether the
noncomplying party acted in bad faith; (2) the amount of
prejudice his noncompliance caused his adversary, which
necessarily includes an inquiry into the materiality of the
evidence he failed to produce: (3) the need for deterrence of
the particular sort of noncompliance: and (4) the
effectiveness of less drastic sanctions." Id.
circumstances here do not warrant the dismissal of this case
with prejudice, or the granting of default judgment in favor
of the Defendants. Defendants claim that they "have
sustained prejudice" because "[t]his case has been
ongoing for over four years" and Plainitffs
"'have repeatedly slowed this litigation process
with claims that were ultimately abandoned or were dismissed
outright for failure to state a claim." ECF No. 193 at
7. While Plaintiffs did miss certain pre-trial deadlines,
these oversights occurred at or around the time
Plaintiffs' counsel was seeking to have the trial
postponed because of difficulties with her office space.
Although any missed deadlines are frowned upon by the Court,
there was no bad faith and the Court finds there was no
prejudice caused by the delayed submissions. Thus. Defendants
are not entitled to a sanction of dismissal or an order of
default judgment and the Motion for Sanctions is denied.
Motion for Judgment as a Matter of Law (ECF No. 235)
era! Rule of Civil Procedure 5()(a) provides that "[i]f
a party has been fully heard on an issue during a jury trial
and the court finds that a reasonable jury would not have a
legally sufficient evidentiary basis to find for the party on
that issue, the court may ... grant a motion for judgment as
a matter of law against the party." "When the court
defers ruling on such a motion. Rule 50(b) allows a party to
renew it after the jury returns a verdict." Huskey
v. Ethicon, inc., 848 F.3d 151, 156 (4th Cir.).
cert, denied. 138 S.Ct. 107 (2017). "Judgment
as a matter of law is proper when, without weighing the
credibility of the evidence, there can be but one reasonable
conclusion as to the proper judgment. The movant is entitled
to judgment as a matter of law if the nonmoving party failed
to make a showing on an essential element of his case with
respect to which he had the burden of proof." Singer
v. Durtgan, 45 F.3d 823, 826-27 (4th Cir. 1995)
(internal quotations and citations omitted).
close of Plaintiffs case-in-chief. Defendants made a Motion
for Judgment as a Matter of Law on two primary issues.
See ECF No. 243 at 31. Defendants argued first that
"there's been no evidence that the people [Mrs.
Jordan] saw [punching Mr. Jordan] were actually employed by
Pro50"' or Iverson Mall Limited Partnership.
Id. The Defendants also argued that
Plaintiffs' medical experts had not testified to a
reasonable degree of medical certainty, thereby making their
opinion testimony inadmissible, and that, as a result, there
was no evidence that any injuries suffered by Mr. Jordan were
caused by the events of May 4. 2013. ECT No, 243 at 36, The
Court took the Motion under advisement, and reserved ruling;
however, the Court later noted that in deciding the Motion it
would only consider evidence that had been introduced at the
time the Motion was made at the conclusion of the
Plaintiffs" case-in-chief. Id. at 125. The
Defendants renewed their Motion for Judgment as a Matter of
Law at the close of Defendants" case-in-chief.
Id. at 124. At that point, again, the Court took the
Motion under advisement, and reserved ruling. Id. at
the close of trial and the jury's verdict, the Court
welcomed additional written submissions from the parties on
the pending Motion for Judgment as a Matter of Law. On
February 8. 2018. Plaintiffs submitted their briefing. ECF
No. 233. and on February 20. 2018. Defendants submitted
theirs. ECF No. 235. Plaintiffs subsequently responded on
March 6, 2018. ECF No. 238. to which Defendants replied on
March 16. 2018, ECF No. 246. These submissions addressed
whether IMLP is entitled to judgment as a matter of law on
Plaintiffs" battery claim, whether Pro50 is entitled to
judgment as a matter of law on Plaintiffs" battery
claim, the award of punitive damages, and whether
Plaintiffs' expert testimony was proper. The Court
addresses these issues in turn.
Judgment Against Iverson Mall Limited
Plaintiffs alleged that Pro50 and Prince George's County
employees were the ones who caused harm to Mr. Jordan, they
additionally seek liability from 1MLP. arguing that IMLP is
vicariously liable under a theory of respondeat superior.
See ECF No. 152 at 14 ("iverson Mall is liable for
PRO5O"s battery because PRO50 was acting within the
scope of its employment with Iverson Mall."). Under this
theory, "an employer may be found liable for torts
committed by its employee while acting in the scope of
employment." Asphalt & Concrete Servs.. Inc. v.
Perry, 108 A.3d 558. 580 (Md.App. 2015),
aff'd 133 A.3d 1143 (Md. 2016). Respondeat
superior "only applies when the relation (if master
and servant, employer and employee or principal and agent is
shown to exist between the wrongdoer and the person sought to
be charged for the result of the wrong." Hoerr v.
Hanline. 149 A, 2d 378, 381 (Md. 1959). In assessing
whether an employer/employee relationship exists between two
parties. Maryland courts consider: (I) the power to select
and hire the employee. (2) the payment of wages. (3) the
power to discharge. (4) the power to control the
employee's conduct, and (5) whether the work is part of
the regular business of the employer. Asphalt &
Concrete Servs.. Inc. v. Perry. 108 A.3d 558. 580
(Md.App. 2015), aff'd 133 A.3d 1143 (Md. 2016).
seek judgment as a matter of law in favor of IMLP. arguing
that "Plaintiffs introduced no testimony or documents
regarding IMLP, the type of organization that it is, the
nature of its business, whether it owns any property, how it
was connected to the events giving rise to this case, what,
if any, relationship it has to the Iverson Mall building, or
what, if any. relationship it has with Pro50." ECF No.
235-1 at 12. Plaintiffs argue that '"IMLP cannot
argue post-trial that it is not a proper party to this suit,
because it waived that argument very early in this
litigation." ECF No. 233 at 3. See also ECF No.
238 at 3-5. Plaintiffs further argue that "the record
powerfully shows that IMLP is synonymous with Iverson
Mall." id. at 4. and goes on to reference
"evidence presented at the damages portion of the trial
that IMLP owned and operated Iverson Mall." Id. ...