Filed: Oct. 11, 2011
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1913 ELEANOR BLANKSON-ARKOFUL, Plaintiff - Appellant, v. SUNRISE SENIOR LIVING SERVICES, INCORPORATED; ZAIRA ORELLANA, Defendants – Appellees. Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, Senior District Judge. (1:09-cv-02291-JFM) Submitted: September 28, 2011 Decided: October 11, 2011 Before AGEE and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. A
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1913 ELEANOR BLANKSON-ARKOFUL, Plaintiff - Appellant, v. SUNRISE SENIOR LIVING SERVICES, INCORPORATED; ZAIRA ORELLANA, Defendants – Appellees. Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, Senior District Judge. (1:09-cv-02291-JFM) Submitted: September 28, 2011 Decided: October 11, 2011 Before AGEE and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Af..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1913
ELEANOR BLANKSON-ARKOFUL,
Plaintiff - Appellant,
v.
SUNRISE SENIOR LIVING SERVICES, INCORPORATED; ZAIRA
ORELLANA,
Defendants – Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:09-cv-02291-JFM)
Submitted: September 28, 2011 Decided: October 11, 2011
Before AGEE and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas B. Corbin, THOMAS B. CORBIN, P.A., Baltimore, Maryland,
for Appellant. Thomas P. Murphy, Jeffrey B. Hardie, HUNTON &
WILLIAMS LLP, McLean, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eleanor Blankson-Arkoful appeals the district court’s
order granting Appellees’ motion for summary judgment on her
employment discrimination, defamation, and false light claims
arising from her termination from one of Appellee Sunrise Senior
Living Services’ (“Sunrise”) nursing homes following a report of
alleged resident abuse. On appeal, Blankson-Arkoful seeks to
supplement the record on appeal with a memorandum in opposition
to Appellees’ motion to strike two exhibits that she
inadvertently failed to file in the district court. She also
argues that the district court erred in granting Appellees’
motion to strike and in granting summary judgment on her
defamation and false light claims. For the reasons that follow,
we decline to supplement the record and, finding no error, we
affirm the district court’s judgment.
Federal Rule of Appellate Procedure 10(a) provides
that the record on appeal consists of the “original papers and
exhibits filed in the district court,” any transcript of
proceedings, and a certified docket sheet. However, we have the
authority to permit the record to be supplemented “[i]f anything
material to either party is omitted from or misstated in the
record by error or accident.” Fed. R. App. P. 10(e)(2)(c); see
also Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003)
(identifying very limited exceptions to Rule 10(a)).
2
Initially, we note that the Clerk has already entered
an order denying Blankson-Arkoful’s motion for leave to file a
supplemental appendix containing only her memorandum in
opposition, and Blankson-Arkoful did not file a request for
reconsideration, vacation, or modification of that order within
fourteen days after its entry. See 4th Cir. R. 27(b).
Moreover, Blankson-Arkoful makes no proffer as to the
materiality of the memorandum and the reason for her failure to
move to file it in the district court upon realizing that it was
not properly transmitted. Therefore, we decline to exercise our
authority to make an exception to Rule 10(a).
Next, Blankson-Arkoful challenges the district court’s
ruling striking two exhibits that she failed to provide to
Appellees during discovery. 1 Federal Rule of Civil Procedure
37(c)(1) provides for the exclusion of evidence that the party
fails to provide as required during discovery, “unless the
failure was substantially justified or is harmless.” A district
court has broad discretion to determine whether such a failure
1
Blankson-Arkoful also argues that she was denied the
opportunity to respond to Appellees’ motion to strike these
documents because the district court issued its order seven days
prior to the due date for her response to Appellees’ motion.
Blankson-Arkoful does not cite any authority to support her
contention, and we conclude that any error by the district court
was harmless, as Blankson-Arkoful’s motion to reconsider gave
her an opportunity to be heard on the motion to strike.
3
is substantially justified or harmless and, in doing so, should
examine
(1) the surprise to the party against whom the
evidence would be offered; (2) the ability of that
party to cure the surprise; (3) the extent to which
allowing the evidence would disrupt the trial; (4) the
importance of the evidence; and (5) the nondisclosing
party’s explanation for its failure to disclose the
evidence.
Southern States Rack & Fixture, Inc. v. Sherwin-Williams Co.,
318 F.3d 592, 597 (4th Cir. 2003).
Here, the exhibits were a surprise to Appellees, as
Blankson-Arkoful did not provide them during discovery, and the
author of the exhibits was not deposed. Blankson-Arkoful’s
conclusory argument that her nondisclosure was inadvertent is
not sufficiently persuasive to excuse her failure. Accordingly,
we hold that the district court did not abuse its discretion in
granting Appellees’ motion to strike. 2
We review de novo a district court’s order granting
summary judgment, viewing the facts and drawing reasonable
inferences therefrom in the light most favorable to the non-
moving party. Robinson v. Clipse, 602 F.3d 605, 607 (4th Cir.
2010). Here, the district court did not abuse its discretion in
2
In any event, we have examined the documents excluded by
the district court and determine that they contain redundant and
immaterial evidence. Accordingly, we are confident that the
district court’s consideration of them would not have affected
the court’s disposition.
4
granting Appellees’ motion for summary judgment on Blankson-
Arkoful’s defamation and false light claims because, even
assuming their statements to police were defamatory or placed
Blankson-Arkoful in a false light, Sunrise and Orellana enjoyed
statutory immunity from civil liability for their reports. 3
Under Maryland law, “a person who believes that a resident of a
[nursing home] has been abused” is required to report the abuse
to an appropriate law enforcement agency. See Md. Code Ann.,
Health-Gen. § 19-347(b)(1) (LexisNexis 2009). Further, “a
person shall have the immunity from liability described under
§ 5-631 of the Courts and Judicial Proceedings Article for:
(1) Making a report under this section; [or] (2) Participating
in an investigation arising out of a report under this section.”
Md. Code Ann., Health-Gen. § 19-347(g). Immunity is provided by
Md. Code Ann., Cts. & Jud. Proc. 5-631 (LexisNexis 2006), to
those acting in good faith in reporting such abuse. Here,
Appellees asserted their good faith in reporting Blankson-
Arkoful’s conduct, and she makes only conclusory assertions to
the contrary.
To the extent that Blankson-Arkoful sued Orellana for
the report she made to Sunrise, we conclude that Orellana was
3
We may affirm for any grounds apparent from the record.
See MM ex rel. DM v. Sch. Dist. of Greenville Cnty., 303 F.3d
532, 536 (4th Cir. 2002).
5
protected by a common law qualified privilege. A person will
not be held liable on a claim of defamation or false light when
she acts, in good faith, “in furtherance of some interest of
social importance, which is entitled protection.” Gohari v.
Darvish, 767 A.2d 321, 328 (Md. 2001) (internal quotation marks
omitted) (defamation); see Bagwell v. Peninsula Reg’l Med. Ctr.,
665 A.2d 297, 319 (Md. Ct. Spec. App. 1995) (false light).
Because the reporting of resident abuse is a matter of social
importance entitled to protection and Blankson-Arkoful did not
adduce any evidence to dispute Orellana’s deposition testimony
showing that she acted in good faith, Orellana is immune from
suit for her statements to Sunrise executives.
In sum, we deny Blankson-Arkoful’s request to
supplement the record and we affirm the district court’s
judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
6
