WILLIAM D. QUARLES, JR., District Judge.
Betsy Ross, for herself and as next friend of her minor daughter
Ross was a licensed Foster Care Parent through CCDSS; in 2008 she was an active member of the Cecil County Foster Parent Association ("CCFPA"). ECF No. 46 ¶ 2. In 2008, Ross had been elected President of CCFPA and was to begin her term on August 15, 2008. Id. ¶ 125.
In July or August 2008, Ross discovered that Mary Klesius, CCDSS Supervisor of Foster Care Services, was placing unspent state funds into the CCFPA checking account. Id. ¶¶ 2, 4, 14. Believing the transactions were unlawful, Ross asked Klesius for copies of all CCFPA bank statements, decided not to expend CCFPA funds — contrary to Klesius's directions — and filed a complaint with the Ombudsman for the Maryland Department of Human Resources ("MDHR"), John Bertulis.
In August 2008, Ross was caring for seven children: one biological child, a child she had adopted about two and a half months earlier, and five foster children. Id. 1120-21. Ross had been preparing to adopt one of the foster children, K.R.; K.R.'s natural parents' rights had been terminated, CCDSS had approved Ross as an adoptive parent for K.R., and an adoption finalization hearing was scheduled for August 20, 2008. Id. 122, 60.
On August 15, 2008, at 1:30 p.m., Klesius and Tina Linkous, an adoption coordinator for CCDSS, "decided, based on allegations of neglect," that Ross's foster children would be removed from her home. Id. 1120. Linkous drove to interview one of Ross's former foster children in Pennsylvania, to investigate allegations about Ross, while Klesius and Rebecca Sutton, a CCDSS social worker, pulled Ross out of a CCFPA meeting and told her that CCDSS would remove the five foster children, including K.R., and that Ross "would be further investigated." Id. ¶¶ 15, 18.
At 3:10 p.m. that day, Linkous reported to CCDSS by telephone that the child claimed that Ross had neglected her foster children when the child was in Ross's care. Id. ¶ 18. The child told Linkous that:
At 4:30 p.m. that day, Sutton, LaTonya Cotton, and Kim Compton — two other CCDSS social workers — entered Ross's home without a warrant or Ross's consent, and removed the five foster children. Id. ¶¶ 5, 7, 21-24.
On September 10, 2008, Ombudsman Bertulis began an investigation of CCDSS, presumably based on Ross's complaint. Id. ¶ 17.
On September 17, 2008, CCDSS completed its investigation of the neglect report, concluding that the neglect was "unsubstantiated... which [means] ... there is insufficient evidence of a failure to provide proper care and attention." ECF No. 49-5. "[C]hild neglect could neither be indicated or ruled out." Id.
On September 28, 2008, CCDSS returned K.R. to Ross's care, and scheduled a new adoption finalization hearing for October 15, 2008. ECF No. 46 ¶ 26.
On June 18, 2009, Ross sent a letter to Maryland Delegate Richard Sossi, noting her complaints about CCDSS. The letter discussed the August 15, 2008 removal of the children "[b]ased solely on allegations of neglect," and requested Delegate Sossi's help in "holding [CCDSS] accountable." ECF No. 49-2.
On January 21, 2010, Ross and her attorney, Daniel Cox, Esq., entered a settlement agreement with CCDSS, through the Maryland Office of Administrative Hearings. ECF No. 46-1. In exchange for Ross's dismissal of administrative complaints against CCDSS, CCDSS agreed to change the ruling on the neglect allegations from neglect "unsubstantiated" to neglect "ruled out," and "to make no negative statements regarding ... Betsy Ross." Id. The parties agreed "that the terms of this settlement agreement shall remain confidential." Id.
Though it was not included in the settlement agreement, Ross also agreed to give up her CCDSS foster care home license because she expected to become a private foster care provider with The Arc, a private foster care association. ECF No. 46 ¶ 28.
In March 2010, Helen Murray-Miller, a Licensing Coordinator in the Office of Licensing and Monitoring in the Social Services Administration of Maryland's Department of Human Services, "advised" Dianne Ross, The Arc's Director of Family Services, to tell Betsy Ross that it would be inappropriate to complete a home study — part of The Arc's licensing process — at the time, because Betsy Ross had been "public[ly] critici[zing] CCDSS, largely through letters to the editor published in the local newspaper." ECF No. 49-10 ¶ 5. Murray-Miller believed that, because CCDSS would work with The Arc in placing foster children in foster homes, the home study should take place after the issues had been resolved. Id.
On March 18, 2010, The Arc told Ross that it would not consider Ross's application to foster through The Arc because "[t]he unresolved and high profile nature of your current situation with several entities determines that it is not a good time to proceed with a home study. Once your
On January 21, 2011, Ross, individually and as a representative of minor K.R., sued the CCDSS, Klesius, and Nicholas Riccuiti, CCDSS director, (collectively "the first defendants"), alleging federal civil rights violations, Maryland torts, and breach of contract. ECF No. 1.
On August 25, 2011, Ross filed an amended complaint against Klesius, Riccuiti, Cotton, Sutton, Compton, Linkous, Susan Bailey, assistant director of CCDSS, Barbara Siciliano, a CCDSS supervisor, and Murray-Miller (collectively "the defendants"). ECF No. 19. The new defendants were served on October 3 and 4, 2011. ECF No. 39.
On January 31, 2012, this Court allowed Ross to file a 10 count second amended complaint ("the complaint") against the defendants.
On February 21, 2012, the defendants moved to dismiss the second amended complaint, or in the alternative, for summary judgment. ECF No. 49. On March 19, 2012, Ross opposed the defendants' motion and cross-moved for summary judgment on count 10 (retaliation for First Amendment activity). ECF No. 54. The defendants have not opposed the cross-motion for summary judgment or replied to Ross's opposition to the motion to dismiss. See docket.
Under Fed.R.Civ.P. 12(b)(6), an action may be dismissed for failure to state a claim upon which relief can be granted. Rule 12(b)(6) tests the legal sufficiency of a complaint, but does not "resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir.2006).
The Court bears in mind that Rule 8(a)(2) requires only a "short and plain statement of the claim showing that the
This requires the plaintiff to do more than "plead[] facts that are `merely consistent with a defendant's liability'"; the facts pled must "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). The complaint must not only allege but also "show" that the plaintiff is entitled to relief. Id. at 679, 129 S.Ct. 1937. "Whe[n] the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not shown — that the pleader is entitled to relief." Id. (internal quotation marks omitted).
Under Rule 56(a), summary judgment "shall [be] grant[ed] ... if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).
The Court must "view the evidence in the light most favorable to ... the nonmovant, and draw all reasonable inferences in [its] favor," Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir.2002), but the Court must abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial," Bouchat v. Bait. Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir.2003) (citation and internal quotation marks omitted). A party opposing summary judgment "may not rest upon the mere allegations or denials of [her] pleadings, but rather must set forth specific facts showing that there is a genuine issue for trial." Id. at 525.
When cross motions for summary judgment are filed, "each motion must be considered individually, and the facts relevant to each must be viewed in the light most favorable to the non-movant." Mellen v. Bunting, 327 F.3d 355, 363 (4th Cir.2003) (citing Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.2003)).
To state a claim under 42 U.S.C. § 1983, the plaintiffs must "aver that a person acting under color of state law deprived... her of a constitutional right." Green v. Maroules, 211 Fed.Appx. 159, 161 (4th Cir.2006).
Government officials performing discretionary functions are shielded from liability for civil monetary damages under § 1983 when their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (internal quotation marks and citation omitted).
Qualified immunity must be pled by the defendant official. Id. at 815. Once the official raises a qualified immunity defense, the burden shifts to the plaintiff to show that the official's conduct violated the law. Bryant v. Muth, 994 F.2d 1082, 1086 (4th Cir.1993). The burden then shifts to the defendant to demonstrate that the right was not clearly established at the time of the incident. Henry v. Purnell, 501 F.3d 374, 378 (4th Cir. 2007).
Clearly established rights include specifically adjudicated rights as well as those manifestly included within more general applications of the core constitutional principles involved. Wilson v. Layne, 141 F.3d 111, 114 (4th Cir.1998). There are three ways in which law becomes clearly established in Maryland: (1) an authoritative decision by the United States Supreme Court; (2) an authoritative decision by the Fourth Circuit Court of Appeals; or (3) an authoritative decision by the Court of Appeals of Maryland. Id.
A constitutional right is clearly established "when its contours are sufficiently clear that a reasonable official would understand that what he is doing violates that right."
The Fourth Circuit has emphasized "the importance of resolving the question of qualified immunity at the summary judgment stage rather than at trial." Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir.2003). Wilson recognizes, however, that "the qualified immunity question can... at times require factual determinations
Qualified immunity analysis generally proceeds in two steps. The Court must decide whether the facts that the plaintiff has alleged or shown make out a violation of a constitutional right. Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009). The Court must also decide whether the right at issue was "clearly established" at the time of the alleged misconduct. Id. at 818 (the district courts may exercise their sound discretion in deciding which part of the qualified immunity analysis should be addressed first).
Count 2 alleges that Ross and K.R. had a reasonable expectation of privacy in Ross's house, and Sutton, Cotton and Compton — acting on behalf of all defendants — entered the house without probable cause to believe the children were in "immediate danger of serious injury," the entry was an unreasonable intrusion and invasion into Ross's home, and as a result, Ross and K.R. suffered harm. ECF No. 46 ¶¶ 46-49. The second amended complaint concedes that the search was conducted "based on allegations of neglect," but suggests that the allegations were unreliable and pretextual. Id. ¶¶ 18, 20.
The defendants contend that count 2 should be dismissed because the entry was constitutionally reasonable, and if it was not, the defendants are protected by qualified immunity. ECF No. 49-1 at 5. The defendants argue that the Fourth Amendment does not protect foster homes against entry by county officials, and the defendants entered Ross's home based on an allegation of neglect of noncustodial children. Id. at 6-7. Ross counters that unsubstantiated allegations of neglect do not justify an entry into a private home under the Fourth Amendment. ECF No. 54-1 at 6-9.
The Fourth Amendment protects against unreasonable searches and seizures, but the reasonableness of a search depends on the circumstances: "investigative home visits by social workers are not subject to the same scrutiny as searches in the criminal context." Wildauer v. Frederick Cnty., 993 F.2d 369, 372 (4th Cir. 1993).
"The [Fourth] Circuit ... has never articulated a clear [constitutional] standard by which social workers' investigations should be judged." Word of Faith Fellowship v. Rutherford Cnty. Dep't of Social Servs., 329 F.Supp.2d 675, 688 (W.D.N.C.2004) (finding that defendants were entitled to qualified immunity on Fourth Amendment claims). It is clear that a "state has a legitimate interest in protecting children from neglect ... and in investigating situations that may give rise to such neglect and abuse." Martin v. Saint Mary's Dep't of Social Servs., 346 F.3d 502, 506 (4th Cir.2003). A "dependent child's needs are paramount" and almost always take precedence over an adult's asserted rights. Wyman v. James, 400 U.S. 309, 318, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971). On the other hand, it is clear that if the state knew there was no reasonable concern for the child's needs, it may not rely on that legitimate interest to justify infringing Ross's constitutional rights.
The defendants' affidavits, stating that Klesius, Compton, Cotton, and Sutton decided to remove the children "solely due to allegations of neglect," do not address Ross's claim that the defendants knew or should have known that the allegations of neglect were unreliable. ECF No. 49-8 ¶ 2; ECF No. 46 ¶ 18. Accordingly, the defendants are not entitled to summary judgment based on the affidavits.
Count 3 alleges that the defendants should have notified her, investigated the allegations, and required "evidence of abuse or immediate danger" before removing the foster children from Ross's home and taking K.R. from Ross. It also alleges that Murray-Miller took Ross's "property right to be considered as an applica[nt] for a private foster care license." ECF No. 46 ¶ 56. Count 4 alleges that Ross "had a protected liberty interest in her relationship with K.R." when the defendants took K.R. from Ross's home. Id. ¶ 60.
The defendants argue that Ross and K.R. had no property interest in a continued relationship. ECF No. 49-1 at 9. Ross argues, but did not allege in the complaint, that the defendants did not afford her procedural due process because they ignored Maryland's procedural rules when removing the children. Compare ECF No. 54-1 at 17 (The "[d]efendants violated ... procedural [due process] because Maryland State law was not followed in any manner in the removal of ... K.R. and the foster children.") with ECF No. 46 (complaint, silent as to Maryland procedure for removing foster child).
The Fourteenth Amendment protects against the deprivation, without proper pre-deprivation proceedings, of "life, liberty, or property." U.S. Const. Amend. XIV § 1. Accordingly, to state a procedural or substantive due process claim, Ross must establish that she and K.R. have been deprived of a liberty or property interest.
"[I]n the Fourth Circuit it is settled that a foster parent does not have a liberty ... interest protected by the Due Process Clause in a continued relationship with a foster child [because a] liberty interest attaches only to a custodial relationship." Lee v. Children's Servs. of Va., Inc., No. 05-0153, 2005 WL 1279173, *2 (E.D.Va. May 27, 2005), aff'd, No. 05-1639, 2007 WL 174715 (4th Cir.Jan. 24, 2007).
Maryland does not confer custodial rights on foster parents. See Md.Code, Fam. Law § 5-504 (Rights of Foster Parents). Ross did not have custodial rights over the foster children, including K.R., because K.R. had not yet been adopted and Maryland had not conferred parental rights on Ross as to K.R. See id.; ECF No. 46 ¶ 55 (K.R. had not been adopted, though she was in Ross's physical custody and under her "full legal care"). CCDSS, which obtained termination of K.R.'s natural parents' rights, ECF No. 46 ¶ 60.b-.c, maintained legal custody
Ross has not shown that she had a property interest in continuing as a foster parent to K.R., the other foster children in her care, or for The Arc. See Lee, 2005 WL 1279173, *2.
Ross identifies no authority for the principle that K.R. had a protectable
Because Ross did not have a protected liberty interest in foster parenting or continuing her relationship with K.R., and K.R. had no property or liberty interest in a continued relationship with Ross, when the defendants took the foster children, they have not stated Fourteenth Amendment substantive or procedural due process claims.
Count 10 alleges that the "[defendants' actions of removing ... Ross's children and promulgating false, confidential, and damaging information against her were in retaliation against ... Ross's expression of her opinion of the financial conduct of CCDSS that she believed was illegal." ECF No. 46 ¶ 124.
The defendants contend that they are entitled to summary judgment because count 10 only specifically mentions Klesius, and Klesius's affidavit shows that she decided to remove the foster children from Ross's care "out of concern for the[ir] safety," not in retaliation for Ross's speech. ECF No. 49-1 at 18-19. Ross responds that Murray-Miller's advice to The Arc not to license Ross was retaliatory, and Klesius's removal of the foster children "the day ... Ross was to be seated in her newly elected position as President of the Foster Care Association" supports an inference of retaliation, regardless of Klesius's affidavit. ECF No. 54-1 at 26-27.
To succeed on a claim for retaliation under § 1983, a plaintiff must show that: (1) she engaged in protected speech; (2) the defendant took an allegedly retaliatory action which adversely affected the plaintiff's constitutionally protected speech; and (3) "a causal relationship exists
When a public official's alleged retaliation takes the form of speech, the retaliation does not adversely affect a plaintiff's First Amendment rights unless it involves "a threat, coercion, or intimidation intimating that punishment, sanction, or adverse regulatory action will imminently follow." Suarez, 202 F.3d at 687 (distinguishing between public official's retaliatory termination of public benefits — which affects the speaker's First Amendment rights — with official's retaliatory recommendation that a third party end or withhold private benefits for the speaker — which does not).
The defendants challenge Ross's allegation that the removal of the children was retaliatory. ECF No. 49-1 at 18-19. "Proof of ... retaliatory intent rarely will be supported by direct evidence of such intent. Accordingly, claims involving proof of a defendant's intent seldom lend themselves to summary disposition." Holzemer v. City of Memphis, 621 F.3d 512, 525 (6th Cir.2010) (internal quotation marks and citations omitted).
Here, it is undisputed that the defendants removed the foster children from Ross's home on August 15, 2008, within one and one half months of her complaint to Ombudsman Bertulis. ECF No. 46 ¶¶ 14, 21. The defendants have not addressed Ross's allegation that their asserted justification, a neglect concern, was
Article 24 due process claims are read in pari materia with Fourteenth Amendment due process claims, except in limited circumstances in which Article 24 may be interpreted more broadly. Koshko, 398 Md. at 444 n. 22, 921 A.2d 171. It has not been interpreted more broadly with respect to the liberty interest of foster parents in relationships with their foster children. See id. (listing examples of broader interpretation of Article 24). As she has not stated Fourteenth Amendment due process claims, Ross has not stated claims under Article 24 of the Maryland Declaration of rights for substantive or procedural due process deprivations.
Count 5 alleges that Murray-Miller, acting on behalf of the defendants, disclosed false information to The Arc related to an issue which the defendants agreed to keep confidential, in breach of Ross's confidence. ECF No. 46 ¶¶ 68-73.
The defendants contend that count 5 should be dismissed because Maryland has not recognized a cause of action for breach of confidence, no confidential information was revealed, and Murray-Miller did not owe a duty to Ross. ECF No. 49-1 at 11. Ross counters that Hooper v. Gill, 79 Md.App. 437, 557 A.2d 1349 (Md.Ct. Spec.App.1989), recognized a cause of action for breach of confidence, and Ross pled all elements of the tort. ECF No. 54-1 at 19.
Hooper v. Gill considered the standard for finding a breach of fiduciary duty based on alleged legal malpractice. 557 A.2d at 1351. Dr. Hooper sued his former attorney, Gill, after Gill allegedly revealed confidential information about Hooper to the Maryland Assistant Attorney General while the Assistant Attorney General was prosecuting Hooper for Medicaid fraud. Id. After holding that Hooper's claims failed because he did not prove damages, the Court of Special Appeals noted that, arguably, "even though actual damages were not shown, [Hooper] is nevertheless entitled to nominal damages as a result of the breach of confidence" by Gill. Id. at 1353. The Court of Special Appeals implied that Hooper "is nevertheless entitled to nominal damages" in the breach of fiduciary duty action, not an independent breach of confidence cause of action. See id. It did not recognize a cause of action for breach of confidence. See id.
Further, if Maryland had recognized a cause of action for breach of confidence, Ross has not alleged all the elements of such a claim, because she relies solely on a contractual obligation for the duty of confidentiality. See ECF No. 46 ¶¶ 69-71. In Maryland, a "contractual obligation, by itself, does not create a tort duty. Instead, the duty giving rise to a tort action must have some independent basis." Mesmer v. Md. Auto. Ins. Fund, 353 Md. 241, 253, 725 A.2d 1053, 1058 (1999).
Count 6 alleges that the defendants owed Ross a duty not to violate K.R.'s and Ross's constitutional rights, and breached that duty when they: entered Ross's property and took the foster children, relying on an unsubstantiated neglect allegation "to advance the scheme of [the] Defendants to retaliate against ... Ross," and violated Ross's due process rights. ECF No. 46 ¶¶ 82-87.
The defendants contend that they are entitled to statutory immunity because Maryland state employees enjoy immunity from negligence claims unless gross negligence is alleged.
In Maryland, state employees "are immune from ... liability in tort for a tortious act or omission that is within the scope of the[ir] public duties ... and is made without malice or gross negligence." Md.Code Ann., Courts & Jud. Proc. § 5-522(b). "[W]ell-pled facts showing ill-will or evil or wrongful motive are sufficient to take a claim outside of the immunity and non-liability provisions of the MTCA." Barbre v. Pope, 402 Md. 157, 182, 935 A.2d 699, 714 (2007) (internal quotation marks omitted). The complaint need not expressly assert that the defendants acted with malice or gross negligence if it "alleges facts that ... could establish actual malice if ultimately supported by evidence and believed by a fact finder." Muhammad v. Maryland, No. 11-3761-ELH, 2012 WL 987309, *2 (D.Md. Mar. 20, 2012).
The complaint does not state that the defendants acted maliciously or were grossly negligent. See ECF No. 46 ¶¶ 83-87. However, the well-pled facts "show[] ill-will or ... wrongful motive." Barbre, 402 Md. at 182, 935 A.2d at 714. The
Counts 7 and 8 allege that the defendants are liable for the torts of false light and defamation because their agent, Murray-Miller, told The Arc that Ross had "unresolved issues" with CCDSS that would prevent The Arc from granting Ross a foster parent license, knowing that information to be false. ECF No. 46 ¶ 94. The defendants contend that counts 7 and 8 should be dismissed because the communication would not have been defamatory, or "highly offensive to a reasonable person," and count 7 should be dismissed because Ross has not alleged that the information became public knowledge. ECF No. 49-1 at 15-16.
In Maryland, to succeed on a claim for false light, the plaintiff must show that: (1) the defendant "g[ave] publicity to a matter concerning [the plaintiff] that place[d] the [plaintiff] before the public in a false light," (2) the false light "would be highly offensive to a reasonable person," and (3) the defendant knew of or recklessly disregarded "the falsity of the publicized matter and the false light in which the [Plaintiff] would be placed." Ostrzenski v. Seigel, 177 F.3d 245, 252 (4th Cir.1999) (internal citations omitted). A false light claim "may not stand unless the claim also meets the standards for defamation." Crowley v. Fox Broad. Co., 851 F.Supp. 700, 704 (D.Md.1994).
To recover for defamation in Maryland, a plaintiff must show, among other things, that the defendant made a defamatory statement about the plaintiff to a third person.
Murray-Miller's statements that Ross had "unresolved issues" with CCDSS, and the State of Maryland did not think a private foster home license was appropriate, do not "tend[] to expose [Ross] to public scorn"
Count 9 alleges that "Murray-Miller, acting as an agent of ... MDDHR and the CCDSS foster care authority, communicated to The Arc the false information, supplied to her by CCDSS," that Ross had unresolved issues with CCDSS, breaching CCDSS's settlement agreement with Ross, and the "Maryland Foster Parents Bill of Rights."
To succeed on a breach of contract claim, the defendant must owe — and have breached — a contractual obligation to the plaintiff. Polek v. J.P. Morgan Chase Bank, N.A., 424 Md. 333, 362, 36 A.3d 399, 416 (2012). Thus, if a defendant is not bound by a contract with the plaintiff, she cannot be liable for breach of contract. See id.
The settlement agreement states that CCDSS will "make no negative statements regarding ... Ross," and that the parties agreed to keep the terms of the settlement agreement confidential. ECF No. 46-1.
Like the Department of Human Resources, CCDSS is a state agency within the Maryland Department of Human Services. Md.Code Ann., Hum. Servs. § 3-201; Md.Code Ann., State Gov't § 12-101. However, CCDSS, not the entire Department of Human Services, agreed to be bound by the settlement agreement. See ECF No. 46-1. As Murray-Miller was not an agent of CCDSS, the settlement agreement's "no negative statements" clause did not bind her, and she could not have breached the settlement agreement.
Ross has also alleged that the Maryland Foster Parents Bill of Rights was a contract between CCDSS and Ross. ECF No. 46 1116. The defendants contend that the Bill of Rights is not a contract and, if it is, they are entitled to sovereign immunity because no state employee executed the contract. ECF No. 49-1 at 17. Ross abandoned her Bill of Rights contract claim when she did not respond to the defendants' argument. Ferdinand-Davenport v. Children's Guild, 742 F.Supp.2d 772, 777 (D.Md.2010) (a party abandons her claim by failing to respond to an argument).
The defendants are entitled to summary judgment on the breach of contract claim.
Finally, the defendants contend that the federal claims against the defendants not sued in the original complaint must be dismissed as untimely because the original complaint would not have put the later-added defendants on notice that they might be sued, and the First Amended Complaint was filed beyond the limitations period for federal claims. ECF No. 49-1 at 22.
Under Fed.R.Civ.P. 15(c)(1), an amendment to a pleading relates back to — and is treated, for timeliness purposes, as if it was filed on — the date of the original pleading if an amendment: (1) adds defendants and asserts a claim that arose out of the same conduct, transaction, or occurrence set out in the original pleading, (2) the new defendants received notice of the action such that they will not be prejudiced, and (3) knew or should have known
The original complaint states all the conduct alleged in the second amended complaint, and gives fair notice to "agent[s] of CCDSS" and the person who communicated with The Arc that they were the alleged wrongdoers and may be sued in the action. See ECF No. 1 ¶¶ 8-87.
Ross moves for summary judgment on Count 10 based on Murray-Miller's statement that, because of Ross's "recent public criticism of CCDSS,"
Ross is not entitled to summary judgment because there is a genuine dispute of material fact: based on the limited evidence before the court, it is not clear whether Murray-Miller's speech was coercive: she says that she "told" Dianne Ross, of The Arc, that a home study was "not... appropriate" for Betsy Ross. ECF No. 49-10 ¶ 5; Suarez, 202 F.3d at 687-88. There is no evidence of Murray-Miller's exact words — whether she forbade The Arc from issuing a license or merely stated her opinion that a license was not a good idea — or, more importantly, her office's authority — if any — over The Arc's licensing decisions.
For the reasons stated above, the defendants' motion to dismiss or for summary judgment will be granted in part and denied in part. Ross's motion for summary judgment on count 10 will be denied.
The verified complaint alleges that Murray-Miller "communicated to The Arc the false information," and "The Arc ... is a large, regional organization." ECF No. 46 ¶¶ 94, 96. Murray-Miller — who, unlike Ross, personally knows to whom she communicated the allegedly false information (the complaint notes that this allegation was made on Ross's "information and belief," not her personal knowledge. ECF No. 46 194) — submitted an affidavit stating that she told one person, Dianne Ross, to deny Ross's home study. ECF No. 49-10 15. Ross has not identified contrary evidence or filed a Rule 56(d) affidavit seeking discovery. As Ross lacks personal knowledge of the recipient of Murray-Miller's communication, there is no real dispute of fact: the evidence is that Murray-Miller communicated the information to one person, not every member of The Arc. There is also no dispute that Dianne Ross — the recipient of the communication — also wrote the letter to Ross denying the home study. ECF No. 46-2. Accordingly, there is no evidence that the information was disclosed to anyone other than Dianne Ross; it did not reach the public. The defendants are entitled to summary judgment.