Dow v. Jones, CIV.CCB-01-2303.

Citation311 F.Supp.2d 461
Decision Date31 March 2004
Docket NumberNo. CIV.CCB-01-2303.,CIV.CCB-01-2303.
PartiesJeffrey DOW v. James Benny JONES, et al.
CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)

Andrew Charles Meehan, David C Wright, Wright and Meehan, Chestertown, MD, for Plaintiff.

James Benny Jones, Washington, DC, pro se.

Edwin H. Harvey, Washington, DC, pro se.

George L Garrow, Jr., Garrow and Evans LLP, Washington, DC, for Defendants.


BLAKE, District Judge.

Now pending before the court is a motion for summary judgment filed by the defendant, Seals Jones Wilson Garrow & Evans, L.L.P., against the plaintiff, Jeffrey Dow. The issues in this motion have been fully briefed and no hearing is necessary. See Local Rule 105.6. For the reasons stated below, the motion for summary judgment will be denied.


This case involves claims of legal malpractice arising from the representation of the plaintiff, Jeffrey Dow ("Dow"), in a criminal trial in Maryland state court.

On October 3, 1996, Dow was charged with various criminal offenses in the Circuit Court for Wicomico County, Maryland, arising from an alleged sexual assault of a minor. At the time, Dow was a radio disc jockey and a candidate for mayor of Berlin, Maryland. Although Dow had been appointed counsel from the Office of the Public Defender for Wicomico County, he also sought private counsel to represent him. On November 15, 1996, Dow and his wife met at the Washington, D.C. office of the law firm Seals Jones Wilson Garrow & Evans, L.L.P. ("SJWGE") with two partners, James Benny Jones ("Jones") and Robert Wilson. Dow states that Jones agreed at that meeting to represent Dow, on behalf of himself and the firm SJWGE. (Pl.'s Opp. Mem. at Ex. A, Dow Aff., at ¶ 5.) On January 15, 1997, Dow paid a $1,000.00 retainer to Jones and executed a criminal retainer agreement, agreeing to pay a flat fee of $12,500.00 for the representation. The retainer agreement is printed on SJWGE letterhead, and states that Dow agrees "to retain the legal services of Attorney James Benny Jones to provide representation" in his pending criminal case.1 (Id. at Ex. D.)

At some time between January 15 and March 26, 1997, Dow also retained attorney Edwin H. Harvey ("Harvey") to assist Jones as co-counsel in the case. On March 11, Jones sent a letter to the Assistant State's Attorney, copied to the Office of the Public Defender, stating that he represented Dow in the pending criminal case and that he would be entering his appearance. The letter is printed on SJWGE letterhead, but refers only to "my representation" of Dow. (Id. at Ex. E.) On March 26, Harvey sent a notice entering the appearances of James Benny Jones and Edwin H. Harvey as attorneys of record for Dow in the pending criminal case. This notice does not reference the firm of SJWGE, but lists Jones's business address as 1010 Massachusetts Avenue, NW, Washington, D.C., which is the address for SJWGE. (Def.'s Reply at Ex. 5.)

According to Dow, Jones advised him that he would leave the investigation of the case to the Office of the Public Defender explaining to Dow that this was standard criminal defense practice. (Pl.'s Opp. Mem. at Ex. A, Dow Aff., at ¶ 8.) Dow states that the defendants "conducted only a cursory, one day investigation" and failed to interview key defense witnesses. (Id. at ¶ 21.) According to Dow, Jones and Harvey also failed to move for a change of venue despite substantial pretrial publicity, did not question potential jurors about this pretrial publicity, did not object to the presentation of inadmissible testimony at his trial, and failed to call available defense witnesses, including alibi witnesses. (Id. at ¶ 28-30, 37-50.)

Dow was tried before a jury on July 30 and 31, 1997, and was found guilty of second degree sex offense, third degree sex offense, and perverted sexual practice. Dow was sentenced to 15 years of imprisonment, all but seven years suspended, and 36 months of supervised probation. The trial court denied a motion for new trial, and Dow's direct appeal was dismissed by the Office of Public Defender. In March 1999, Dow filed a petition for post-conviction relief, alleging ineffective assistance of counsel at his criminal trial. On March 6, 2000, the Circuit Court for Wicomico County vacated Dow's convictions and granted a new trial. On November 26, 2001 the Circuit Court for Wicomico County entered a nolle prosequi in the pending criminal case against Dow.

SJWGE was organized as a registered limited liability partnership ("LLP") in the District of Columbia in May 1994. Dow states that the five named partners of SJWGE held themselves out to the public generally, and to Dow specifically, as partners operating a law firm under the name of Seals Jones Wilson Garrow & Evans, L.L.P. (Id. at ¶ 6.) On June 27, 1997, approximately one month before Dow's criminal trial, SJWGE received a certificate from the District of Columbia government formally canceling the firm's status as a limited liability partnership. The firm states that SJWGE actually had dissolved as of May 1, 1997. (Def.'s Reply at 2.) Dow states that he was not notified and was not aware of SJWGE's dissolution, or that Jones might not have the authority to act for SJWGE, or that Jones might not be a partner of SJWGE.2 (Pl.'s Opp. Mem. at Ex. A, Dow Aff., at ¶ 10.)

Dow originally filed this suit in the Circuit Court for Wicomico County on July 28, 2000 against Jones, Harvey, SJWGE, and the four individual partners of SJWGE other than Jones. On December 28, 2000 the Circuit Court entered summary judgment in favor of the individual partners other than Jones, but denied defendant SJWGE's motion for summary judgment. The remaining defendants removed the case to this court on August 3, 2001. On September 26, 2002 this court denied the defendants' motion to dismiss or, in the alternative, transfer the case, and denied the plaintiff's motion for entry of default judgment.


Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment

shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion:

By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original).

"A party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of [his] pleadings,' but rather must `set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir.2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court must "view the evidence in the light most favorable to ... the nonmovant, and draw all reasonable inferences in her favor without weighing the evidence or assessing the witness' credibility," Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir.2002), but the court also must abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir.1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).


Dow argues that this court should apply the law of the case doctrine, and uphold the Circuit Court's denial of SJWGE's prior summary judgment motion. Dow states that the present summary judgment motion does not contain "any new discernibly different arguments or facts," with the exception of an argument under Fed.R.Civ.P. 26 regarding Dow's proposed expert. (Pl.'s Opp. Mem. at 8.) SJWGE represents that at least some of the arguments made in its present motion were not made in state court, but provides no further details. (Def.'s Reply at 4.) The record does not contain a copy of any written order or memorandum from the state court, and neither party has made any further representations regarding the prior ruling.

"Under the law of the case doctrine, `when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'" Columbus-America Discovery Group v. Atl. Mut. Ins. Co., 203 F.3d 291, 304 (4th Cir.2000) (quoting Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983)). When a case is removed from state court to federal court, the law of the case doctrine preserves any prior rulings by the state court in that case. See, e.g., Pac. Employers Ins. Co. v. Sav-a-Lot of Winchester, 291 F.3d 392, 398 (6th Cir.2002); Redfield v. Cont'l Cas. Corp., 818 F.2d 596, 605 (7th Cir.1987). Law of the case has been described as an "amorphous concept," which "directs a court's discretion, it does not limit the tribunal's power." Arizona, 460 U.S. at 618, 103 S.Ct. 1382. The doctrine does not apply if the parties have presented new evidence or new arguments, or if the prior ruling is legally erroneous. See Smith v. Amedisys, Inc., 298 F.3d 434, 447-48 (5th Cir.2002); Krueger Assocs., Inc. v. Am. Dist. Tel. Co. of Penn., 247 F.3d 61, 65-66 (3d Cir.2001); Major v CSX Transp., 278 F.Supp.2d 597, 615-16 (D.Md.2003).

The law of the case doctrine "is not a matter of rigid legal rule, but more a matter of proper judicial administration which can vary with the circumstances." Hill v. BASF Wyandotte Corp., 696 F.2d 287, 290 n. 3 (4th...

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