Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Little v. Mayor and City Council of Ocean City

United States District Court, D. Maryland

September 26, 2019

ROBERT C. LITTLE et al., Plaintiff,
v.
MAYOR AND CITY COUNCIL OF OCEAN CITY, et al., Defendants.

          MEMORANDUM OPINION

          Ellen Lipton Hollander United States District Judge

         In this land use case, plaintiffs Robert and Pamela Little (together, the “Littles”) filed a First Amended Complaint against a host of defendants: the Mayor and City Council for the Town of Ocean City, Maryland (the “City” or “Ocean City”); Blaine Smith, the City’s former Assistant Director of Planning and Zoning; City engineer Terrance McGean (collectively, the “City Defendants”); Mark Belton, the former Secretary of the Maryland Department of Natural Resources (“DNR”)[1]; Jordan R. Loran, DNR Director of Engineering and Construction; and Emily Wilson, former DNR Director of Land Acquisition and Planning (collectively, the “DNR Defendants”). ECF 37. The City Defendants and the DNR Defendants were sued in their individual and official capacities. In sum, the Littles contend that the defendants have violated their rights to substantive and procedural due process, and have effected an unconstitutional taking of their property, under both federal and Maryland law, by thwarting their efforts to expand their oceanfront townhouse in Ocean City.

         The First Amended Complaint, which is supported by two exhibits (ECF 37-1; ECF 37-2), contains eight counts. Plaintiffs seek declaratory relief, compensatory and punitive damages, as well as equitable remedies. ECF 37 at 33-37.

         The suit is not a model of clarity. Count One appears to be lodged only against the City, based on the title, although the text makes reference to the individual City Defendants. The count asserts violations of substantive and procedural due process and the Takings Clause under the Fifth and Fourteenth Amendments to the Constitution, pursuant to 42 U.S.C. § 1983; Article 24 of the Maryland Declaration of Rights; and Article III, § 40 of the Maryland Constitution. ECF 37, ¶¶ 103-07. Because these claims are framed under Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658 (1978), I conclude that Count One is lodged only against the City. ECF 37, ¶ 105.

         Count Two is brought against the DNR Defendants in their individual and official capacities under the Fifth and Fourteenth Amendments to the Constitution, pursuant to § 1983, and Article 24 of the Maryland Declaration of Rights. Id. ¶¶ 108-12.[2] Counts Three and Four lodge “Inverse Condemnation” claims against Ocean City under Maryland law. Id. ¶¶ 113-22. Count Five, lodged against Ocean City and Smith, asserts a claim of negligence under Maryland’s Local Government Tort Claims Act (“LGTCA”), Md. Code (2013 Repl. Vol., 2018 Supp.), §§ 5-301 et seq. of the Courts and Judicial Proceedings Article (“C.J.”). Id. ¶¶ 123-27. In Count Six, plaintiffs present a claim of negligence against the City and McGean under the LGTCA. Id. ¶¶ 128-33. Count Seven, styled as a claim against Belton for “Specific Performance, ” seeks injunctive relief. Id. ¶¶ 134-36. Finally, Count Eight contains an inverse condemnation claim against Ocean City, under both federal and State law. Id. ¶¶ 137-41.

         Three motions are now pending. The City Defendants have moved to dismiss Counts One, Three, Four, Five, Six, and Eight, for lack of subject matter jurisdiction and for failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6). ECF 38. The motion is supported by a memorandum of law. ECF 38-1 (collectively, “City Motion”). The City Defendants assert, inter alia, that plaintiffs’ takings claims fail because plaintiffs lack a constitutionally protected property interest; the LGTCA claims are time-barred; and the individual defendants are entitled to qualified immunity. See ECF 38-1.

         The DNR Defendants have moved to dismiss Counts Two and Seven (ECF 40), under Rules 12(b)(1) and 12(b)(6), supported by a memorandum of law (ECF 40-1) (collectively, “DNR Motion”), and an exhibit. ECF 40-2. The DNR Defendants invoke the Pullman and Burford abstention doctrines. They also contend that plaintiffs’ claims are barred by the Eleventh Amendment; the individual defendants are immune from suit; and plaintiffs have not identified a cognizable property interest. See ECF 40-1. Further, pursuant to Fed.R.Civ.P. 12(f), the DNR Defendants have moved to strike portions of plaintiffs’ First Amended Complaint as well as plaintiffs’ Exhibit A (ECF 37-1). ECF 39. The motion is supported by a memorandum of law. ECF 39-1 (collectively, “Motion to Strike”).

         The Littles oppose each motion. ECF 44; ECF 45; ECF 46. The DNR Defendants replied to plaintiffs’ opposition to their Motion to Strike (ECF 49), and to plaintiffs’ opposition to their motion to dismiss. ECF50. The City Defendants have also filed a reply. ECF 52.

         No hearing is necessary to resolve these motions. See Local Rule 105.6. For the reasons that follow, I shall deny the Motion to Strike (ECF 39), and I shall grant in part and deny in part the City Motion (ECF 38) and the DNR Motion (ECF 40).

         I. Factual Background[3]

         The Littles own a beachfront townhouse in Ocean City, Maryland. ECF 37, ¶ 9. The property, located on Atlantic Avenue, is part of the Surf Village residential development complex. Id. Plaintiffs’ unit lies at the end of a row of condominiums, with one side abutting 32nd Street. Id. ¶¶ 31-32; see ECF 37-2. A side lot, roughly ten feet wide, referred to by the parties as “Parcel A, ” separates plaintiffs’ property from the 32nd Street sidewalk. ECF 37, ¶ 21; ECF 37-2.

         Surf Village was built in or about 1966. ECF 37, ¶ 20. Upon completion, the developer, Charles Lynch, retained ownership over small, unbuildable plots of land scattered throughout Surf Village, including Parcel A. Id. On September 15, 1975, Lynch gifted Parcel A to the City. Id. ¶ 24. Plaintiffs aver that Lynch transferred Parcel A “without giving proper notice of the conveyance to the adjacent property owner . . . .” Id.

         In 1985, a fire totally destroyed Surf Village. Id. ¶ 28. Although the condominiums were originally three stories, they were rebuilt as four-floor units. Id. According to plaintiffs, this violated the City’s Comprehensive Zoning Ordinance (“Ordinance”), which mandates that four-story buildings must be set back at least ten feet from City property. Id. ¶¶ 22, 29-30. Despite the violation, the City did not block the construction of new units. Id. ¶ 29.

         The Littles purchased their townhouse on May 18, 1994. Id. ¶ 18. In May 2005, the City extended 32nd Street towards the ocean. Id. ¶ 31. Soon thereafter, plaintiffs contacted McGean to request that the City slope the portion of the sidewalk near their house to make it level with 32nd Street. Id. ¶32. Plaintiffs hoped to then build a “short driveway” over Parcel A to connect their property to the road. Id. ¶ 33. They sought to install a “concrete pad” at the end of the driveway to function as a parking space and patio. Id.

         On April 26, 2005, the Littles filed a building permit application for the driveway and parking pad. Id. ¶ 34. The City granted their application on May 3, 2005, and they began construction shortly thereafter. Id. ¶ 35.

         The City conveyed its fee simple interest in Parcel A to DNR on June 1, 2005. Id. ¶ 37. DNR acquired Parcel A in furtherance of the Replenishment and Hurricane Protection Project, a joint initiative between DNR and the Army Corp of Engineers. Id. DNR recorded a deed to Parcel A on July 13, 2005. Id. The deed makes no mention of plaintiffs or any easements burdening the land. See id.

         In the spring of 2014, plaintiffs decided to build a 1, 700 square-foot, four-story addition to their home, and hired an architect to draw up plans. Id. ¶ 40. The architect reviewed the designs with Smith, who, plaintiffs allege, “represented that he saw no impediments to building the addition.” Id. ¶¶ 42-43. In light of the meeting, the Littles hired a construction company. Id. ¶¶ 44, 46.

         On January 2, 2015, plaintiffs applied for a building permit for the expansion. Id. ¶ 46. The City granted the permit on January 29, 2015. Id. ¶ 47.

         According to plaintiffs, several of their neighbors contacted DNR in February 2015, with the goal of blocking the renovation. They assert that the President of the Surf Village Homeowners Association sent a letter to Loran, informing him that plaintiffs were using Parcel A as a driveway. Id. ¶ 48. Plaintiffs contend that another resident relayed the same information to Loran. Id. ¶49.

         These complaints led Loran to ask McGean for information about plaintiffs’ use of Parcel A. Id. ¶ 50.

         On February 11, 2015, Loran told McGean and Smith that DNR did not approve of plaintiffs’ use of Parcel A. Id. ¶ 51. The next day, McGean informed plaintiffs that their renovation did not comply with the City’s Ordinance because they lacked the requisite number of parking spaces for their expansion. Id. ¶¶ 51, 54.

         Undeterred, the Littles submitted a new permit application to the City, reducing the number of bedrooms in the proposed renovation to comply with the parking-space zoning requirement. Id. ¶ 56. The City reissued the building permit on February 24, 2015. Id. ¶ 57. Plaintiffs began construction “almost immediately.” Id. ¶ 58. The oceanside deck and concrete pad were demolished; the contractor began to lay a foundation; and they purchased structural steel and other materials. Id. ¶¶ 58-59. During the construction, plaintiffs decided to add a fourth-floor balcony to their house. Id. ¶ 60. The balcony required a variance from the City’s ten-foot setback requirement. Id.

         On March 26, 2015, the City’s Board of Zoning Appeals (“BZA”) held a hearing in regard to the request for a variance. Id. ¶¶ 60-61. It did not go well for plaintiffs. A lawyer representing two Surf Village residents challenged the building permit for the Littles’ expansion. Id. ¶ 62. The attorney confronted Smith “with the fact that the 1975 conveyance of Parcel A by Lynch to the City created a new side yard 10 ft. setback, which meant the permit did not comply with zoning requirements.” Id. According to plaintiffs, Smith “admitted that he erred in calculating the setback as well as the parking requirements . . . .” Id. ¶ 64. As a result, the BZA rescinded the Littles’ building permit and issued a stop work order. Id. ¶ 65.

         The Littles received encouraging news on April 6, 2016. DNR informed them that it intended to return Parcel A to the City, as it was no longer needed for shoreline protection. Id. ¶ 68. The Littles spoke with McGean, who told them that they could purchase Parcel A from the City, thereby removing the zoning problems blocking their expansion. Id. ¶ 69.

         On July 7, 2015, plaintiffs returned to the BZA, this time seeking an amendment to the Ordinance, which would allow them to build the addition. Id. ¶¶ 70-71. However, the BZA rejected their proposal, even though Smith had backed it. Id. ¶ 71.

         Given this defeat, plaintiffs refocused their energies on facilitating the transfer of Parcel A from DNR to the City. Id. ¶ 73. The transfer cleared DNR’s internal review process, id. ¶ 73, and was set for a vote by the Maryland Board of Public Works (“BPW”) during its August 2016 session. Id. But, according to plaintiffs, Loran and Wilson “removed” Parcel A from BPW’s agenda. Id. ¶ 76. In support of this contention, plaintiffs allege that on July 26, 2016, Loran met with Bruce Bereano, a lobbyist hired by Surf Village residents, to discuss BPW’s agenda. Id. ¶ 79.

         On August 1, 2016, Loran told McGean that DNR intended to attach use restrictions to Parcel A should it be transferred to the City. Id. ¶ 80. Plaintiffs claim that Loran acted maliciously and interfered with their vested property rights. Id. ¶ 82. Further, they allege that Bereano influenced Loran and Wilson “to impose additional arbitrary restrictions on the deed” to “prevent” the project from proceeding, and that he interfered with the City’s agreement with plaintiff. Id. ¶ 84.

         Loran met with McGean and Bereano on December 19, 2016, at DNR’s office in Annapolis, to discuss the restrictions. Id. ¶ 89. Plaintiffs allege that, throughout January and February of 2017, Bereano “continued to seek the assistance” of Loran and Wilson to block the transfer of Parcel A. Id. ¶ 90.

         Plaintiffs wrote to Wilson and McGean on March 6, 2017, stating “that the DNR’s actions were arbitrary in nature and that the property, Parcel A should be returned to City in the same condition as the City had conveyed it to the DNR.” Id. ¶ 92.

         McGean presented DNR’s proposed use restrictions to the City Council of Ocean City (“City Council”) on March 28, 2017. Id. ¶ 93. During that meeting, he also provided the City Council with plaintiffs’ letter to Wilson. Id. The City Council allegedly instructed McGean to relay to DNR that it disfavored the restrictions. Id. Plaintiffs represent that upon learning of the City Council’s position, Loran decided DNR should retain ownership of Parcel A to avoid further controversy. Id. ¶ 94. Loran sent plaintiffs a letter on June 20, 2017, reiterating that DNR owns Parcel A and that plaintiffs have no rights to the land. Id. ¶ 95.

         On October 2, 2017, plaintiffs contacted the City seeking reimbursement for the failed expansion. Id. ¶ 96. As of the filing of the suit, the City had not responded. Id. ¶ 98.

         II. Standard of Review

         As noted, both the City Defendants and the DNR Defendants have moved to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, and under Rule 12(b)(6) for failure to state a claim.

         A. Rule 12(b)(1)

         Under Rule 12(b)(1), the plaintiff bears the burden of proving, by a preponderance of evidence, the existence of subject matter jurisdiction. See Demetres v. East West Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015); see also The Piney Run Preservation Ass’n v. Cty. Comm’rs of Carroll Cty., 523 F.3d 453, 459 (4th Cir. 2008); Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). A challenge to subject matter jurisdiction under Rule 12(b)(1) may proceed “in one of two ways”: either a facial challenge, asserting that the allegations pleaded in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting “‘that the jurisdictional allegations of the complaint [are] not true.’” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted); accord Durden v. United States, 736 F.3d 296, 300 (4th Cir. 2013).

         In a facial challenge, “the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction.” Kerns, 585 F.3d at 192. On the other hand, in a factual challenge, “the district court is entitled to decide disputed issues of fact with respect to subject matter jurisdiction.” Id. In that circumstance, the court “may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Velasco v. Gov’t of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004); see also United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347-48 (4th Cir. 2009); Evans, 166 F.3d at 647.

         Both the City Defendants and the DNR Defendants raise a facial challenge to the Court’s subject matter jurisdiction. Therefore, the Court looks to the four corners of the Amended Complaint.

         B. Rule 12(b)(6)

         A defendant may test the legal sufficiency of a complaint by way of a motion to dismiss under Rule 12(b)(6). In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), aff’d sub nom. McBurney v. Young, 569 U.S. 221 (2013); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of law “to state a claim upon which relief can be granted.” Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed.R.Civ.P. 8(a)(2). That rule provides that a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” The purpose of the rule is to provide the defendants with “fair notice” of the claims and the “grounds” for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

         To survive a motion under Fed.R.Civ.P. 12(b)(6), a complaint must contain facts sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (citation omitted) (“Our decision in Twombly expounded the pleading standard for ‘all civil actions’ . . . .”); see also Paradise Wire & Cable Defined Benefit Pension Plan v. Weil, 918 F.3d 312, 317 (4th Cir. 2019); Willner v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017). To be sure, a plaintiff need not include “detailed factual allegations” in order to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. Moreover, federal pleading rules “do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby, Miss., 574 U.S. 10, 10, 135 S.Ct. 346, 346 (2014) (per curiam). But, mere “‘naked assertions’ of wrongdoing” are generally insufficient to state a claim for relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citation omitted).

         In other words, the rule demands more than bald accusations or mere speculation. Twombly, 550 U.S. at 555; see Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). If a complaint provides no more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action, ” it is insufficient. Twombly, 550 U.S. at 555. “[A]n unadorned, the-defendant-unlawfully-harmed-me accusation” does not state a plausible claim of relief. Iqbal, 556 U.S. at 678. Rather, to satisfy the minimal requirements of Rule 8(a)(2), the complaint must set forth “enough factual matter (taken as true) to suggest” a cognizable cause of action, “even if . . . [the] actual proof of those facts is improbable and . . . recovery is very remote and unlikely.” Twombly, 550 U.S. at 556 (internal quotation marks omitted).

         In reviewing a Rule 12(b)(6) motion, a court “must accept as true all of the factual allegations contained in the complaint” and must “draw all reasonable inferences [from those facts] in favor of the plaintiff.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations omitted); see Semenova v. Md. Transit Admin., 845 F.3d 564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v. Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert. denied, 565 U.S. 943 (2011). But, a court is not required to accept legal conclusions drawn from the facts. See Papasan v. Allain, 478 U.S. 265, 286 (1986); Glassman v. Arlington Cty., 628 F.3d 140, 146 (4th Cir. 2010). “A court decides whether [the pleading] standard is met by separating the legal conclusions from the factual allegations, assuming the truth of only the factual allegations, and then determining whether those allegations allow the court to reasonably infer” that the plaintiff is entitled to the legal remedy sought. A Society Without a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011), cert. denied, 566 U.S. 937 (2012).

         Courts ordinarily do not “‘resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses’” through a Rule 12(b)(6) motion. Edwards, 178 F.3d at 243 (quoting Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)). However, “in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6).” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc); accord Pressley v. Tupperware Long Term Disability Plan, 553 F.3d 334, 336 (4th Cir. 2009). Because Rule 12(b)(6) “is intended [only] to test the legal adequacy of the complaint, ” Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993), “[t]his principle only applies . . . if all facts necessary to the affirmative defense ‘clearly appear[ ] on the face of the complaint.’Goodman, 494 F.3d at 464 (quoting Forst, 4 F.3d at 250) (emphasis added in Goodman).

         “Generally, when a defendant moves to dismiss a complaint under Rule 12(b)(6), courts are limited to considering the sufficiency of allegations set forth in the complaint and the ‘documents attached or incorporated into the complaint.’” Zak v. Chelsea Therapeutics Int’l, Ltd., 780 F.3d 597, 606 (4th Cir. 2015) (quoting E.I. du Pont de Nemours & Co., 637 F.3d at 448). The court “may not consider any documents that are outside of the complaint, or not expressly incorporated therein . . . .” Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of Gilbert, Ariz., 576 U.S. __, 135 S.Ct. 2218 (2015), as recognized in Cahaly v. Larosa, 796 F.3d 399 (4th Cir. 2015); see Bosiger v. U.S. Airways, Inc., 510 F.3d 442, 450 (4th Cir. 2007).

         But, under limited circumstances, when resolving a Rule 12(b)(6) motion, a court may consider documents beyond the complaint without converting the motion to dismiss to one for summary judgment. Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 508 (4th Cir. 2015). In particular, a court may properly consider documents that are “explicitly incorporated into the complaint by reference and those attached to the complaint as exhibits.” Goines, 822 F.3d at 166 (citation omitted); see also Six v. Generations Fed. Credit Union, 891 F.3d 508, 512 (4th Cir. 2018); Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014); U.S. ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014); Am. Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004), cert. denied, 543 U.S. 979 (2004); Phillips v. LCI Int’l Inc., 190 F.3d 609, 618 (4th Cir. 1999).

         However, “before treating the contents of an attached or incorporated document as true, the district court should consider the nature of the document and why the plaintiff attached it.” Goines, 822 F.3d at 167 (citing N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 455 (7th Cir. 1998)). Of import here, “[w]hen the plaintiff attaches or incorporates a document upon which his claim is based, or when the complaint otherwise shows that the plaintiff has adopted the contents of the document, crediting the document over conflicting allegations in the complaint is proper.” Goines, 822 F.3d at 167. Conversely, “where the plaintiff attaches or incorporates a document for purposes other than the truthfulness of the document, it is inappropriate to treat the contents of that document as true.” Id.

         A court may also “consider a document submitted by the movant that [is] not attached to or expressly incorporated in a complaint, so long as the document was integral to the complaint and there is no dispute about the document’s authenticity.” Goines, 822 F.3d at 166 (citations omitted); see also Woods v. City of Greensboro, 855 F.3d 639, 642 (4th Cir. 2017), cert. denied, __ U.S. __, 138 S.Ct. 558 (2017); Oberg, 745 F.3d at 136; Kensington Volunteer Fire Dep’t. v. Montgomery Cty., 684 F.3d 462, 467 (4th Cir. 2012). To be “integral, ” a document must be one “that by its ‘very existence, and not the mere information it contains, gives rise to the legal rights asserted.’” Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F.Supp.2d 602, 611 (D. Md. 2011) (citation omitted) (emphasis in original). See also Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”).

         In addition, “a court may properly take judicial notice of ‘matters of public record’ and other information that, under Federal Rule of Evidence 201, constitute ‘adjudicative facts.’” Goldfarb, 791 F.3d at 508; see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d 462, 466 (4th Cir. 2011), cert. denied, 565 U.S. 825 (2011); Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009). However, under Fed.R.Evid. 201, a court may take judicial notice of adjudicative facts only if they are “not subject to reasonable dispute, ” in that they are “(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Moreover, in the context of a motion to dismiss, “[a] court may take judicial notice of docket entries, pleadings and papers in other cases without converting a motion to dismiss into a motion for summary judgment.” Brown v. Ocwen Loan Servicing, LLC, PJM-14-3454, 2015 WL 5008763, at *1 n. 3 (D. Md. Aug. 20, 2015), aff’d, 639 F. App’x. 200 (4th Cir. May 6, 2016); cf. Anderson v. Fed. Deposit Ins. Corp., 918 F.2d 1139, 1141 n.1 (4th Cir. 1990) (holding that a district court may “properly take judicial notice of its own records”). But, “these facts [must be] construed in the light most favorable” to the non-movant. Clatterbuck, 708 F.3d at 557.

         As noted, plaintiffs have attached two exhibits to the First Amended Complaint. ECF 37-1; ECF 37-2. ECF 37-1 is a twenty-page compilation of assorted documents. It contains seven maps as well as what appear to be letters and memoranda from DNR, the Maryland Department of Planning, and the Army Corps of Engineers. See Id . The First Amended Complaint cites to Exhibit A generally; it does not specify, however, which document supports what factual allegation. See e.g., ECF 37, ¶¶ 73, 76. Because the exhibits are attached to the Complaint, they may be considered. But, it is not the Court’s job to decipher the relevance of the documents, without any guidance from plaintiffs.

         ECF 37-2 is a land survey of plaintiffs’ property, which was filed with the State of Maryland on April 19, 2007. Id. It is a legal instrument whose “very existence” has an operative effect on the rights at issue in the suit. Severstal Sparrows Point, LLC, at 794 F.Supp.2d at 611. Because there is no dispute as to its authenticity, and the survey is integral to plaintiffs’ claims, it is a proper subject of consideration under Rule 12(b)(6).

         In addition, the DNR Defendants attached an exhibit to the DNR Motion. See ECF 40-2. The exhibit contains the deed recording the City’s transfers of Parcel A to DNR on June 1, 2005. Plaintiffs do not address whether the Court may consider the DNR Defendants’ exhibit. However, this exhibit undergirds the First Amended Complaint insofar as plaintiffs allege that they possess an easement to Parcel A. Further, plaintiffs do not dispute the authenticity of the exhibits. And, given that the deed was recorded, the Court may take judicial notice of it. Accordingly, at this juncture, I may consider ECF 40-2, without converting the motions to ones for summary judgment.

         III. Motion to Strike

         On the same day that the DNR Defendants filed their motion to dismiss, they also moved to strike portions of plaintiffs’ First Amended Complaint. See ECF 39; ECF 40.

         Rule 12(f) of the Federal Rule of Civil Procedure governs a motion to strike. It provides:

         The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:

(1) on its own; or
(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.

         Matter is immaterial or impertinent if it is not relevant to the issues involved in the action. See Cobell v. Norton, 224 F.R.D. 1, 5 (D.D.C. 2004); see also Zaloga v. Provident Life and Acc. Ins. Co. of Am., 671 F.Supp. 2d. 623, 633 (M.D. Pa. 2009) (“‘Immaterial matter is that which has no essential or important relationship to the claim for relief.’” (citation omitted)); Blevins v. Piatt, No. ELH-15-1551, 2015 WL 7878504, at *2 (D. Md. Dec. 4, 2015). A court may not, however, strike matter as immaterial where the relevance of allegations may turn on disputed issues of fact or law. See Rackley v. Bd. Trustees of Orangeburg Reg’l Hosp., 310 F.2d 141, 143 (4th Cir. 1962) (holding the district court erred in striking a paragraph in the complaint where “it did not conclusively appear that this circumstance was not germane to the claimants’ case”); accord Greater Northern Ins. Co. v. Recall Total Info. Mgmt., Inc., No. TDC-13-1829, 2014 WL 5298014, at *4 (D. Md. Oct. 14, 2014). Scandalous material is that which “‘unnecessarily reflects on the moral character of an individual or states anything in repulsive language that detracts from the dignity of the court.’” Cobell, 244 F.R.D. at 5 (citation omitted).

         “Rule 12(f) motions are generally viewed with disfavor because striking a portion of a pleading is a drastic remedy and because it is often sought by the movant simply as a dilatory tactic.” Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001) (internal quotation marks and citations omitted). Therefore, “[w]hen reviewing a motion to strike, ‘the court must view the pleading under attack in a light most favorable to the pleader.’” Piontek v. Serv. Ctrs. Corp., No. PJM 10-1202, 2010 WL 4449419, at *8-9 (D. Md. Nov. 5, 2010) (quoting Clark v. Milam, 152 F.R.D. 66, 71 (S.D. W.Va. 1993)). And, in determining whether to grant a motion to strike, the court “enjoys wide discretion . . . in order ‘to minimize delay, prejudice and confusion by narrowing the issues for discovery and trial.’” Haley Paint Co. v. E.I. du Pont de Nemours & Co., 279 F.R.D. 331, 335 (D. Md. 2012) (quoting Hayne v. Green Ford Sales, Inc., 263 F.R.D. 647, 649 (D. Kan. 2009)).

         In its Motion to Strike, the DNR Defendants ask the Court to strike the following portions of the First Amended Complaint, ECF 39-1 at 4-6:

1. The photograph on page 4, which allegedly depicts Parcel A;
2. A photograph on page 5, captioned “pictures of the pilings, easement and area of the intended addition, ” which purports to show plaintiffs’ oceanside deck;
3. A photograph on page 6, depicting plaintiffs’ deck and concrete pad;
4. Citations to case law in Paragraphs 10, 13, 36, 105, 114, 119, Prayer for ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.