Town of Port Deposit v. Petetit
| Citation | 113 Md.App. 401,688 A.2d 54 |
| Decision Date | 01 September 1996 |
| Docket Number | No. 234,234 |
| Parties | TOWN OF PORT DEPOSIT, et al., v. Pierre PETETIT, et ux. , |
| Court | Court of Special Appeals of Maryland |
William J. Chen, Jr., Rockville, for appellant, Port Deposit.
Daniel Karp (Denise Ramsburg Stanley and Allen, Johnson, Alexander & Karp, Baltimore, on the brief) for appellant, Maranto.
Daniel M. Clements (Andrew D. Alpert, Israelson, Salisbury, Clements & Bekman and Max D. Miller of Bel Air, MD on the brief), Baltimore, for appellee.
Argued before WILNER *, C.J., and MOYLAN, J., and THEODORE G. BLOOM, J. Retired (Specially Assigned).
THEODORE G. BLOOM, Judge, Retired Specially Assigned.
These appeals by the Town of Port Deposit (the Town) and its former chief of police, Samuel Maranto, are from an order of the Circuit Court for Harford County (Whitfill, J.) refusing to dismiss with prejudice or grant summary judgment with respect to certain counts in a complaint filed by appellees, Pierre Petetit and his wife, Becky. The jurisdictional basis for the Town's appeal from the interlocutory order is its claim of governmental immunity; the jurisdictional basis for Maranto's appeal is his claim of public official immunity.
The sole issue presented to us by the Town is:
Did the appellees' complaint state causes of action against the Town of Port Deposit for which relief could be granted?
Maranto presents two issues:
1. Did the circuit court err in denying Chief Maranto's motion to dismiss Plaintiffs' state constitutional claim or for summary judgment based on immunity where Plaintiffs could demonstrate no evidence of actual malice?
2. Did the circuit court err in refusing to dismiss Counts Four, Seven and Eight without leave to amend when they were brought in violation of the conditions placed by the federal court pursuant to Federal Rule of Civil Procedure 41(a)(2) on Plaintiffs' voluntary dismissal without prejudice?
Intertwined with those issues is a jurisdictional question: are these appeals, or either of them premature?
The following statement of facts was described in the Memorandum Opinion and Order of the circuit court as "undisputed." None of the parties has challenged that description.
On the evening of 14 November 1992, appellee Pierre Petetit, a resident of the State of Oregon, went to Harvey's, Jr., a bar at the intersection of Arena Road and Conowingo Road (U.S. Route 1) in Harford County. Between 10:00 p.m. and 2:00 a.m. that night, he consumed approximately seven alcoholic drinks.
Around 2:00 a.m. on the 15th, Mr. Petetit became involved in a verbal confrontation with several other customers in the bar, including Jeffrey Keeney and Burton Anderson. Mr. Petetit exited the bar, intending to leave the area. The verbal altercation, however, continued onto the parking lot and escalated into a violent assault on Petetit by unidentified patrons of the bar. Mr. Petetit entered his truck to escape the attack, whereupon his assailants began throwing rocks at the truck; one of them attempted to jump onto the truck's running board. Mr. Anderson ran into the path of the truck and was struck by it. Mr. Petetit proceeded to drive away from the scene in order to escape his attackers and to seek police protection.
Just as Mr. Petetit was leaving the bar's parking lot, Maranto (then Chief of Police of the Town of Port Deposit), who was driving home from work, passed Harvey's, Jr. He was in plainclothes, off-duty, and driving his own personal vehicle with a passenger in it. As he passed Harvey's, Jr., at approximately 2:15 a.m., he saw several men throwing rocks at Petetit's truck, the truck striking Anderson, and Petetit speeding off. Maranto let his passenger out of the car and instructed him to call police.
Leaving the premises, Petetit drove south on U.S. Route 1 in search of help. Observing a vehicle following him in a manner that he interpreted as threatening and believing that the bar patrons who had assaulted him were pursuing him in that vehicle, Mr. Petetit increased his speed in an attempt to reach the Bel Air Police Barracks before being overtaken. The vehicle pursuing him was Maranto's. Believing that Petetit was placing the public at risk, Maranto fired several shots at the rear wheel of Petetit's truck. That high-speed pursuit continued for approximately eight miles, with Petetit being unaware that he was being pursued by a police officer and not by the men who had attacked him. Petetit's truck finally came to a stop when the right front tire blew out as he attempted to make a U-turn in order to get the attention of a passing state trooper. Emerging from his vehicle, Maranto pointed a gun at Petetit, identified himself as a police officer, pulled Petetit from his truck and threw him to the ground, placed handcuffs on him, and detained him until a state trooper arrived.
On 10 November 1993, Pierre and Becky Petetit filed in the Circuit Court for Harford County a multiple count complaint asserting various causes of action against appellants, including a count based on 42 U.S.C. § 1983. Citing appellees' assertions of federal constitutional claims, appellants succeeded in having the case removed to the United States District Court for the District of Maryland on the basis of federal question jurisdiction.
On 20 December 1993, appellees sought leave to amend their complaint, which the District Court granted. Two months later, the court granted Maranto's motion to dismiss Counts One (gross negligence), Two (negligence), Five (intentional infliction of emotional distress), Eight (injury to filial [sic] relationship), and Ten (violation of 42 U.S.C. § 1983), and further denied appellees' motion to extend discovery. Appellees then sought to amend their complaint again, in order to substitute causes of action alleging violations of the Maryland Declaration of Rights for the stricken federal constitutional claims. Neither appellant opposed the motion. Appellees also requested the court to remand the case to the Maryland court, citing the then-existing lack of federal question jurisdiction. The court denied the motion to remand because, despite the absence of a federal question, the court had diversity jurisdiction. Nevertheless, the court granted appellees' motion for leave to amend their complaint.
On 12 April appellant Maranto subsequently filed a motion to dismiss for failure to state a claim or, alternatively, to grant summary judgment with respect to Counts Six (violations of the Maryland Declaration of Rights), Seven (loss of consortium), and Nine (assault). The plaintiffs responded by moving to dismiss the case voluntarily, without prejudice, intending to litigate their claims in a Maryland court. In his memorandum opinion and order, Judge Frederick Smalkin granted the Petetits' motion to dismiss without prejudice, stating:
The only possible prejudice to the defendants from reinstitution of the suit in a state court can be avoided by conditioning the order of dismissal on prohibition of assertion of any claims other than those stated in the complaint as presently amended, and on prohibition of further discovery by the plaintiffs without leave of court, all of which the Court has power to order under the broad authority under (F.R.Civ.Pr.) 41(a)(2).
The following counts remained at the time Judge Smalkin granted the motion to dismiss:
Count Defendant
Three: Respondeat Superior Town
Four: Negligent Hiring and Supervision Town
Six: Violation of Maryland Declaration Maranto
of Rights
Seven: Loss of Consortium Maranto
and Town
Nine: Assault Maranto
Ten: Violations of Maryland Declaration Maranto
of Rights and Town
----------
After the voluntary dismissal of this action in the federal court, appellees filed in the Circuit Court for Harford County an eight count complaint against the Town and Samuel Maranto, asserting the following causes of action:
Count Defendant
One: Violation of Maryland Declaration Maranto
of Rights
Two: Violation of Maryland Declaration Town
of Rights
Three: Gross Negligence Maranto
Four: Loss of Consortium Maranto
Five: Negligence Maranto
and Town
Six: Loss of Consortium Town
Seven: Battery Maranto
and Town
Eight: Loss of Consortium Maranto
and Town
Appellees alleged in their complaint that the Town was responsible for providing law enforcement services and was responsible for the training, instruction, supervision, discipline, control and conduct of ... Maranto, and had the power, right and duty to control the manner in which [Maranto] carried out the objectives of [his] employment and to see that all policies, order, rules, instructions and regulations promulgated for [Maranto] were consistent with the constitution and law of the United States, State of Maryland and the municipality.
They further alleged that at all times referred to in the complaint Maranto "was acting under color of law and pursuant to his authority as a law officers [sic] of the Town of Port Deposit, Maryland." With respect to Maranto, appellees asserted that he acted "intentionally, negligently, wantonly, reckless, maliciously, and ... with complete and deliberate indifference for [Petetit's] rights...."
In response to appellees' complaint, the Town filed a motion to dismiss; Maranto also filed a motion to dismiss, or alternatively, for...
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