A Helping Hand, LLC v. Baltimore County, Md., No. CIV.A. CCB-02-2568.

Citation295 F.Supp.2d 585
Decision Date17 December 2003
Docket NumberNo. CIV.A. CCB-02-2568.
CourtU.S. District Court — District of Maryland

Emanuel M. Levin, Levin and Associates PA, Joel C. Richmond, Law Office of Joel C. Richmond, Baltimore, MD, for Plaintiff.

John Edward Beverungen, Baltimore County Law Department, Towson, MD, Edward J. Gilliss, Jeffrey Grant Cook, Baltimore County Office of Law, Towson, MD, for Defendants.


BLAKE, District Judge.

Three motions are pending in this lawsuit alleging violations of the Americans with Disabilities Act ("ADA") and the Due Process Clause of the Fourteenth Amendment. First, the defendants, namely, Baltimore County, Maryland, the Baltimore County Department of Permits and Development Management ("Permits Department"), the Office of the Zoning Commissioner of Baltimore County ("OZC"), and the County Council of Baltimore County ("County Council" or "Council"), have moved the court to grant an untimely jury demand under Rule 39(b) of the Federal Rules of Civil Procedure. (Docket No. 10.) Second, the County Council, one of the defendants, has filed a motion for a protective order to preclude depositions of members of the Baltimore County Council, arguing that legislative immunity bars this discovery. (Docket No. 12.) Finally, the plaintiff, A Helping Hand, LLC ("Helping Hand"), which operates a drug and alcohol treatment program in Baltimore County, has filed a motion for a protective order to prevent discovery of medical information pertaining to its patients.1 (Docket No. 15.) The motions have been fully briefed and no oral argument is necessary. See Local Rule 105.6. For the reasons that follow, the court will grant Helping Hand's motion and the defendants' jury request, but will deny the defendants' other motion.


Only a brief summary of the facts is required to address the issues in these motions. According to Helping Hand's complaint, this litigation arose from efforts by the defendants to prevent Helping Hand from locating a methadone treatment clinic in Baltimore County. Methadone maintenance therapy is a proven method of treating heroin dependence; for some addicts, it is the only effective treatment. (Compl.¶ 21.) Although Helping Hand alleges that Baltimore County faces a "significant heroin addiction and treatment problem," there are, at present, only one or two treatment programs in Baltimore County, and the Director of the Baltimore County Bureau of Substance Abuse has expressed opposition to the establishment of additional clinics. (Id. ¶¶ 20, 22, 23.) Other methadone programs seeking to open in Baltimore County have experienced difficulties. In previous litigation, this court granted summary judgment in favor of a methadone clinic alleging violations of the ADA.2 See Smith Berch, Inc. v Baltimore County, 115 F.Supp.2d 520 (D.Md.2000). A suit is now pending alleging violations against yet a third clinic. See START, Inc. v. Baltimore County, No. CCB-03-2051 (D. Md. filed July 15, 2003).

Operating a methadone clinic in Maryland requires approval by state and federal regulators, as well as compliance with local zoning laws. (Id. ¶¶ 24-27.) On February 1, 2002, following encouraging discussions with state officials, Helping Hand signed a three-year lease agreement for a site in Baltimore County that had previously served as a medical clinic. (Id. ¶¶ 33-35, 47.) Though Helping Hand alleges it was entitled to operate the clinic "as of right" under local zoning laws, Baltimore County officials required it to undergo a lengthy permitting process involving the submission of two successive site plans, the first of which was rejected. (Id. ¶¶ 41, 48-54.) A permit was finally issued at approximately 1:00 p.m. on April 15, 2002. (Id. ¶ 54.) Upon receiving the permit, Helping Hand immediately began contacting patients, scheduling appointments, and ordering methadone. (Id. ¶ 56.)

Barely six hours after the permit was approved, however, the County Council passed Bill No. 39-02, which subjected methadone clinics to zoning requirements that Helping Hand's new site did not satisfy. (Id. ¶¶ 56-57, Ex. A.) The bill became effective the following day when the County Executive signed it. (Id. ¶ 57.) Notwithstanding a six month exemption in the new law for entities that began operation before the bill took effect, Baltimore County officials have cited Helping Hand for violating the ordinance and fined it $200 per day, arguing that Helping Hand was not "operating" as of the law's effective date.3 (Id. ¶¶ 5-6, 59.) Helping Hand alleges that the Council designed the bill to prevent its clinic from opening. (Id. ¶ 60.)

Helping Hand brought suit against the defendants on August 2, 2002. It alleges violations of Titles II and IV of the ADA, which prohibit, respectively, discrimination in the "services, programs, [and] activities" of a "public entity," 42 U.S.C. § 12132, and "interfere[nce] with" rights protected by the ADA, id. § 12203(b). Its theory is that its patients—"individuals with histories of alcohol and drug dependencies and individuals who are participating in or seeking methadone maintenance treatment" —are disabled under the ADA, and that Baltimore County has administered its zoning laws in a manner that discriminated against Helping Hand based on its association with these patients and penalized it for attempting to aid them in the enjoyment of their ADA rights. (See id. ¶¶ 81-89.) In addition, Helping Hand alleges that the defendants deprived it of property without due process by subjecting it to "an unnecessary and costly hearing process" regarding the $200 fines and by arbitrarily "disallowing its location from a previously approved site." (Id. ¶¶ 90-93.) Helping Hand is seeking declaratory, injunctive, and compensatory relief, as well as punitive damages and attorney's fees. (Id. at 22-23.)


The first motion under consideration is the defendants' jury demand. Because the defendants neither requested a jury in their Answer (docket no. 7) nor filed a demand within ten days of submitting that pleading, they no longer have an automatic right to jury trial. See Fed.R.Civ.P. 38(b). The defendants must instead petition the court, as they have done, to grant a belated jury request under Rule 39(b).

"[T]he decision to grant jury trial pursuant to Rule 39(b) is committed to the discretion of the trial court." Malbon v. Pa. Millers Mut. Ins. Co., 636 F.2d 936, 940 (4th Cir.1980); see also Martin v. Pepsi-Cola Bottling Co., 639 F.Supp. 931, 933 (D.Md.1986). The Fourth Circuit has identified several relevant considerations:

(1) whether the issues are more appropriate for determination by a jury or a judge (i.e., factual versus legal, legal versus equitable, simple versus complex); (2) any prejudice that granting a jury trial would cause the opposing party; (3) the timing of the motion (early or late in the proceedings); (4) any effect a jury trial would have on the court's docket and the orderly administration of justice.

Malbon, 636 F.2d at 940 n. 11 (internal citations omitted). In addition, several courts, including the District of Maryland, have considered a fifth factor, "the reason for the failure to make a timely demand." Wright Mfg., Inc. v. Great Dane Power Equip., Inc., 45 U.S.P.Q.2d 1543, 1543, 1998 WL 105470 (D.Md.1998); see also, e.g., Farias v. Bexar County Bd. of Trustees Mental Health Retardation Servs., 925 F.2d 866, 873 (5th Cir.1991); Vannoy v. Cooper, 872 F.Supp. 1485, 1487 (E.D.Va. 1995).

The first three Malbon factors support the defendants' position. This case "does not present issues so complex as to make jury resolution difficult"; indeed, because the outcome may "turn on the credibility of the parties," a "resolution by a jury may be particularly appropriate." Martin, 639 F.Supp. at 933; see also B. Braun Med. Inc. v. Abbott Labs., 892 F.Supp. 112, 114 (E.D.Pa.1995) (assigning equitable issues to the jury under Rule 39(b) based on the "predominantly factual nature of the dispute").4 Moreover, considering that the request was made when discovery was just beginning, Helping Hand will have "ample time to prepare for a jury trial." Martin, 639 F.Supp. at 933; see also Lawrence v. Hanson, 197 F.Supp.2d 533, 537 (W.D.Va.2002) (upholding a magistrate judge's decision to grant jury trial under Rule 39(b) where the request was made "well before the trial date"). No significant prejudice has been shown. On the other hand, the fifth factor, the reason for the untimeliness, weighs against granting a jury trial. By the defendants' own admission (Def.'s Mot. at 1), their failure to make a timely demand was due to mere inadvertence — an excuse that courts have not received kindly. See, e.g., Wright, 45 U.S.P.Q.2d at 1543-44; Farias, 925 F.2d at 873. The fourth factor does not weigh greatly in favor of either side. A jury trial is not substantially more burdensome than a bench trial for the court and the parties, see Lawrence, 197 F.Supp.2d at 537, although in considering the impact on the court's calendar it is necessary to contemplate not only the effect of the delay in the particular case at hand, but also "the effect of routinely granting such motions on the overall effectiveness of the court's docketing system," Gelardi v. Transamerica Occidental Life Ins. Co., 163 F.R.D. 495, 497 (E.D.Va.1995).

On balance, application of the five-factor test appears to favor granting the defendants' jury request; accordingly, the defendants' motion will be granted.


Next, the defendants seek a protective order to shield the individual members of the County Council from discovery. Helping Hand has indicated that it will seek depositions of the seven members of the Council; given that intentional discrimination violates the ADA, its goal is presumably to gather evidence about the councilors' intentions in passing Bill No. 39-02. While it appears that the councilors may decline to be deposed...

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