United States District Court, D. Maryland
ROBERT C. LITTLE et al., Plaintiff,
MAYOR AND CITY COUNCIL OF OCEAN CITY, et al., Defendants.
Lipton Hollander United States District Judge
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”); 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.
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.
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.
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. 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.
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.
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
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.
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
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.
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.
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.
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.
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.
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
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.
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.
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.
complaints led Loran to ask McGean for information about
plaintiffs’ use of Parcel A. Id. ¶ 50.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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. ¶
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.
Standard of Review
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.
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).
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.
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
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,
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
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
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).
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
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).
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).
“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
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
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.
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
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
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.
Motion to Strike
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.
12(f) of the Federal Rule of Civil Procedure governs a motion
to strike. It provides:
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.
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
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)).
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
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 ...