Conwell Law LLC v. Tung , 221 Md. App. 481 ( 2015 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 476
September Term, 2013
CONWELL LAW LLC
v.
MARY BETH TUNG, ET AL.
Eyler, Deborah S.
Nazarian,
Kenney, James A., III
(Retired, Specially Assigned),
JJ.
Opinion by Nazarian, J.
Filed: February 25, 2015
* Judge Timothy E. Meredith did not
participate, pursuant to Md. Rule 8-605.1, in
the Court’s decision to report this opinion.
This appeal arises from a suit brought in the Circuit Court for Anne Arundel County
by a law firm, Conwell Law LLC (the “Firm”), against its former employee, Mary Beth
Tung, an associated firm, BIO Intellectual Property Services LLC (“BIO”), and BIO’s
employee, Douglas Robinson.1 The suit arose from the Firm’s representation of Technical
Furniture Group, LLC (“Technical Furniture”) in matters before the United States Patent and
Trademark Office (the “USPTO”) Patent Trial and Appeal Board (the “Appeal Board”). Ms.
Tung, then an employee of the Firm, served as lead counsel in those matters and Mr.
Robinson as back-up counsel.2 The subject matter of the suit ends up not being important
for our purposes, though—between failures of service and failure to state a claim, and
notwithstanding the volume of paper filed in the case, the suit never got past the initial
pleading stage.
The circuit court dismissed the Firm’s claims against both appellees with prejudice
after finding that the Firm’s initial (and later amended) complaint failed to state a claim
against the BIO Defendants and that the Firm failed to effect service of process on Ms. Tung.
On appeal, the Firm challenges these findings and raises for the first time issues concerning
the appearance of impropriety in the circuit court. We find that the Firm failed to preserve
its impropriety argument, reject the Firm’s other arguments, and affirm.
1
Because the Firm’s claims against Mr. Robinson and BIO are tightly intertwined, we
refer to the parties together as the “BIO Defendants.”
2
A party represented before the Appeal Board is required to “designate a lead counsel
and a back-up counsel who can conduct business on behalf of the lead counsel.” 37 C.F.R.
§ 42.10(a).
I. BACKGROUND
The Firm filed its initial complaint against Ms. Tung, Mr. Robinson, and BIO on
December 16, 2011.3 It filed two versions of the complaint—one titled “COMPLAINT
(NON-CONFIDENTIAL)” (the “Non-Confidential Complaint”) and the other titled
“COMPLAINT (CONFIDENTIAL)” (the “Confidential Complaint”)—and explained in each
version that only the Non-Confidential Complaint, which contained only a brief description
of the parties and the claims, would be served on Ms. Tung and BIO. The Firm declined to
serve the Confidential Complaint, which it claimed to have filed under seal, because it
contained “extensive attorney-client and other extremely confidential information” regarding
Technical Furniture.4
3
The Firm raised the following causes of action against Ms. Tung: fraud, constructive
fraud, “Breach of Fiduciary Duty, the Duty of Confidentiality, and the Duty of Loyalty,”
“Unfair Competition: Misappropriation of Trade Secrets,” “Non-Disclosure, Concealment,
Negligent Misrepresentation,” “Injurious Falsehood,” tortious interference with contract,
tortious interference with business relations, replevin, and “Professional Negligence and
Legal Malpractice (Neglect of Reasonable Duty).” The BIO Defendants were named only
in the last count. This case represents only part of the parties’ dispute. We considered in a
separate appeal procedural issues raised in a professional neglience action filed by Technical
Furniture and others against Ms. Tung, Mr. Robinson, and BIO and others. There we
ultimately dismissed part of the appeal and affirmed the remainder of the circuit court’s
dismissal of Technical Furniture’s claims for insufficient service of process and failure to
state a claim. See Technical Furniture Group, LLC, et al. v. Mary Beth Tung, No. 95, Sept.
Term 2013 (Md. App. March 13, 2014).
4
Ms. Tung points out that the Firm’s attempt to file under seal violated Maryland Rule
16-1009, which requires that a motion to seal or motion for protective order first be filed with
the court to successfully seal a document. She argues that the Firm “circumvented the
Maryland Rules by deciding for itself that the ‘Confidential Complaint’ should be ‘filed
under seal.’” We agree, but this issue does not come into play in this appeal.
2
On December 21, 2011, the circuit court issued original process directed to each
defendant, which would expire 120 days after issuance (on April 19, 2012). The Firm,
however, made no effort to serve the defendants in that time frame or for two months after
the 120-day period expired. On May 24, 2012, as a result of the Firm’s failure to effect
service, the court issued a Notification of Contemplated Dismissal:
Pursuant to Maryland Rule 2-507, this [proceeding] will be
“DISMISSED FOR LACK OF JURISDICTION OR
PROSECUTION WITHOUT PREJUDICE,” 30 days after
service of this notice unless, prior to that time, a written motion
showing good cause to defer the entry of an order of dismissal
is filed.
On June 18, 2012, the Firm requested that the court reissue summonses, which it did that day.
Then, on June 22, the Firm filed a Notice of Service, explaining that each defendant had been
served with summons and the Non-Confidential Complaint. That same day, the Firm also
filed its Response to Rule 2-507 Notification and Motion to Defer Dismissal, in which it
explained that it intentionally delayed the filing of its complaint to protect the interests of its
client, Technical Furniture, and that it only filed the complaint when it did “because [filing]
was necessitated by the statute of limitations.” It continued that the Firm “was delayed in
proceeding [with service] . . . for the same reason as the delays in the initial filing, that it was
protecting client interests and advocating on their behalf, all on related matters that effected
[sic] and impacted the causes of action in the instant lawsuit.” On this basis, the Firm
requested that the court defer dismissal, recognize that the Non-Confidential Complaint had
been served, and stay the case.
3
On July 16, 2012, Ms. Tung filed a Motion to Dismiss pursuant to Rule 2-322(a),
alleging insufficiency of process and service. She contended that the Firm, on June 19, 2012,
delivered to her an incomplete copy of its complaint (the Non-Confidential Complaint), and
that she had yet to be served with a complete copy of the complaint (the Confidential
Complaint). She argued that as a party to the litigation, she was “entitled to access under
Maryland Rule 16-1002(f)” to a full and complete copy of the complaint. The Firm never
responded to this motion.
On July 24, 2012, the Firm filed a Motion to Stay, asking the court to stay the case
until a similar case, involving “joint clients of both [the Firm] and Defendants,” was
resolved. (Emphasis in original.) The Firm contended that the court in the related case
“issued an Order sealing all confidential client-related documents,” and that “[f]actual and
legal issues, including the amount of damages, are likely to be decided in [the related case],
that affect the issues to be resolved in the instant lawsuit.” Ms. Tung’s response to the Firm’s
Motion to Stay, filed on July 30, 2012, incorporated her previously-filed Motion to Dismiss,
noted that she still had not been served a complete copy of the complaint, and asked the court
to rule on her Motion to Dismiss instead of staying the case. The court denied the Motion to
Stay on August 6, 2012.
On August 20, 2012, Ms. Tung filed an opposition to the Firm’s Motion to Defer
Dismissal. She reiterated there much of what she had already argued: first, that the Firm had
made no effort to serve the defendants with process for six months after filing its complaint;
4
second, that the Firm only attempted to serve the defendants at all after the court issued the
Notice of Contemplated Dismissal; third, that the Firm still had not served a complete copy
of the complaint on the defendants; fourth, that the Firm had not demonstrated good cause
for its delay; and finally, that she had been prejudiced by the delay.
On August 28, 2012, the circuit court entered an order denying Ms. Tung’s Motion
to Dismiss, but found the Firm’s initial service attempt (of the Non-Confidential Complaint)
insufficient. Instead of dismissing the case, the court gave the Firm another opportunity to
serve Ms. Tung:
ORDERED, that [the Firm] shall re-serve a copy of the
Complaint and all accompanying papers upon [Ms. Tung] and
submit a new affidavit of service to the Court within ten (10)
days from the date this Order is docketed. If [the Firm] fails to
comply with this Order, this action will be dismissed.
(Emphasis added.) The BIO Defendants had also moved to dismiss on the same grounds
raised by Ms. Tung on August 22, 2012, and on September 5, 2012, the court entered an
identical order with respect to them. But despite these orders, the Firm never served Ms.
Tung or the BIO Defendants directly. Instead, on September 6 and 7, the Firm served
summons and the Confidential Complaint on counsel for each party.
On September 28, 2012, the court entered an order noting the Firm’s failure to comply
with its September 5, 2012 Order concerning the BIO Defendants and dismissing the case
without prejudice as to them:
Upon review of the file, the Court finds that an Order was
entered on September 5, 2012, requiring [the Firm] to file a new
5
affidavit of service on [the BIO Defendants]. [The Firm] has
failed to comply as directed. Therefore, this 26th day of
September, 2012, by the Circuit Court for Anne Arundel
County, hereby ORDERED, that [the Firm’s] Complaint is
dismissed without prejudice.
The court did not mention whether the case was being dismissed with respect to Ms. Tung.
On October 11, 2012, the Firm filed a Motion for Reconsideration requesting that the
court revisit its dismissal of claims against the BIO Defendants entered on September 26,
2012. The Firm argued that its service on the BIO Defendants’ counsel was sufficient and
that dismissal was inappropriate. The Firm reasoned that service on counsel was appropriate
because the BIO Defendants “accepted and acknowledged service, and that . . . Defendants
had responded to the Complaint.”
On October 24, 2012, Ms. Tung’s counsel wrote a letter to Judge Davis-Loomis, the
County Administrative Judge, asking that the case be specially assigned to a single judge to
hear all open motions.
On October 31, 2012, before the court specially assigned the case, Ms. Tung filed a
Motion to Dismiss for Failure to Comply with Terms of the Court’s August 28, 2012 Order.
The August 28, 2012 Order had directed the Firm to re-serve Ms. Tung with the
Confidential Complaint within ten days of entry, but, as we explained, the Firm served
counsel for Ms. Tung, not Ms. Tung herself. Ms. Tung argued that the Firm failed to comply
with the August 28, 2012 Order because she never agreed to allow her counsel to accept
service on her behalf, and that dismissal was appropriate.
6
The circuit court, through Judge Goetzke, entered an order on November 19, 2012,
addressing both the Firm’s Motion for Reconsideration of the September 26, 2012 Order
(filed on October 11, 2012) and Ms. Tung’s Motion to Dismiss for Failure to Comply with
the August 28, 2012 Order. Judge Goetzke explained that the court “determined that, as of
the date of this Order, it has no in personam jurisdiction over any defendant in [the] matter”
and gave the Firm another chance to effect service:
ORDERED, that this case is dismissed without prejudice as to
all [defendants]; and it is,
ORDERED, that [the Firm] may request one additional
summons pursuant to Rule 2-122 (a) for each Defendant,
provided the request is not made later than 7 days from the date
on which this Order is docketed[5] (“Final Summons”); and it is,
ORDERED, that this dismissal shall be stricken as to any
Defendant over whom the court acquires in personam
jurisdiction as a result of service pursuant to Rule 2-121 of the
Final Summons for that Defendant; and it is,
ORDERED, that on request of a Defendant, an order of
dismissal with prejudice shall be filed as to any Defendant over
whom the court has not acquired in personam jurisdiction as set
forth in the preceding paragraph.
(Underlining supplied.)
Shortly thereafter, on December 5, 2012, Judge Davis-Loomis entered an Assignment
Order assigning the case to Judge Caroom.
5
The Order was docketed on November 21, 2012.
7
On January 28, 2013, the Firm filed an Affidavit of Service stating that “the
Defendants were previously served the Confidential Complaint on September 6th and 7th,
2012,” and providing documentation of subsequent service on counsel between January 22
and 24, 2013. The Firm concluded that “[a]ll counsel have been served.” (Emphasis added.)
That same day, Judge Caroom, now specially assigned to the case, held a hearing on
the open motions.6 The parties discussed the November 19, 2012 Order issued by Judge
Goetzke that dismissed the case without prejudice and provided the Firm one additional
chance to serve the defendants:
[COUNSEL FOR MS. TUNG]: . . . I would point out . . . that
Judge Goetzke’s order from November 21 said that Judge
Goetzke had considered the motion for reconsideration and that
as of that date the Court determined that, as of November 21, it
had no in personam jurisdiction over any defendant after having
considered the motion for reconsideration.
And then went [on to] order [the Firm], with regard to all
Defendants, to have summonses reissued within seven days.
And then indicated that, upon request of the Defendant, an order
for dismissal with prejudice would be filed as to any defendant
as to whom service had not been acquired under, as Judge
Goetzke termed it, in a defined term, the final summons.
6
The court first addressed the Firm’s Motion for Reconsideration of the November
19, 2012 Order, which found that the court had no personal jurisdiction over any of the
Defendants. Judge Caroom offered the Firm an opportunity to request a hearing before Judge
Goetzke on issues flowing from the order he issued on November 19, 2012, and specifically
whether the Firm had complied with the order to complete service on all the defendants.
None of the parties sought to have their motions heard by Judge Goetzke.
8
THE COURT: And set a deadline of January . . . 28, meaning it
needed to be done before today?
[COUNSEL FOR MS. TUNG]: Right. Well, they needed to be
issued by [November 28] and . . . that has not occurred. The
same thing occurred with the motion for reconsideration. There
were exhibits from [the Firm] saying we mailed them to counsel
for Ms. Tung. Mailing to counsel of the summons is not service.
Judge Goetzke ordered that they be served pursuant to
Maryland Rule 2-121. And Maryland Rule 2-121 expressly
delineates the means of service, as I am sure you are aware, and
mailing them to counsel is not service.
(Emphasis added.) In response, the Firm argued that its service of the Confidential
Complaint and Final Summons shortly before the hearing satisfied Judge Goetzke’s Order:
[COUNSEL FOR THE FIRM]:[7] I served personally last week
via certified mail all the Defendants. I have green cards right
here with their signatures.
Last week, I did file an affidavit of service with the Court
for both cases, Conwell Law and Technical Furniture Group. I
have a copy of the Technical Furniture Group case with the date
stamped right here.
* * *
I would also like to point out, first of all, it was the confidential
complaint that was served in January to all Defendants. I would
also like to mention that this was not—
THE COURT: Meaning for which you have the green cards?
7
Although the transcript shows that counsel for Ms. Tung was speaking here, the
content of the statements made here show that counsel for the Firm was actually speaking.
The transcript is rife with similar errors, which we have reconciled in this opinion where
necessary.
9
[COUNSEL FOR THE FIRM]: Yes. Yes, that is what this is
from.
THE COURT: Okay, so let me invite you to show—I am not
sure if they have seen it any more than I have, the green cards
and the return of service that you are preparing to file today.
[COUNSEL FOR MS. TUNG]:[8] Your Honor, I think the
misunderstanding here is that these green cards show that—well,
read it. I don’t know if it is a misunderstanding or not. I
thought I made all positions clear. The green cards reflect
certified mail, me and my partner.
THE COURT: Not to the parties individually?
[COUNSEL FOR MS. TUNG]: Not to the party. And mailing
or delivery by a process server or by certified mail, the counsel
is not serviced.
THE COURT: Okay. So let me go back to [Counsel for the
Firm]. I thought you just said that it was—that these were green
cards signed by each of the Defendants individually.
[COUNSEL FOR THE FIRM]: I am sorry. It was not by the
Defendants, by defense counsel, given that—
THE COURT: By counsel.
[COUNSEL FOR THE FIRM]: —by counsel. That is correct.
(Emphasis added.) The parties then discussed whether service upon counsel satisfied Rule
2-121(a):
8
The transcript does not indicate which party’s counsel is speaking here, as the place
for counsel’s name after “Mr.” is left blank. However, again, we are able to recognize from
the statement’s content that counsel for Ms. Tung is speaking here.
10
[COUNSEL FOR THE FIRM]: Given that all counsel had
entered appearances with regard to each of those cases. It
seemed, under the rule, that counsel could be served directly.
Counsel of record, you know, in the system, and had to represent
their clients with regard to these cases.
[COUNSEL FOR MS. TUNG]: Well, let me just point out, Your
Honor, that only, as Maryland Rule 2-321(a) states, “Only
documents other than original pleadings in process can be
served on counsel, after counsel has entered an appearance.”
And Maryland Rule 2-121(a) specifically sets forth the
three types of in personam service. Delivery to the person to be
served, or leaving it at the person’s dwelling, house, or usual
place of abode with a person, the resident of a suitable age or
discretion, or mailing to the person to be served a copy of the
summons, complaint, et cetera, et cetera, by a certified mail
return receipt requested.
The Firm’s counsel argued in response that service on counsel was appropriate because he
had received letters from counsel for the Defendants “[t]hat specifically stated that they
would agree to accept [service],” and that counsel had been representing and acting as agents
for their clients in this case. But when asked by the court to produce the letters, counsel could
not do so, and Ms. Tung’s counsel pointed out that “there is no correspondence from [them]
agreeing to accept service.” At the same time, however, counsel for the BIO Defendants did
acknowledge such an agreement:
[COUNSEL FOR BIO DEFENDANTS]: We will accept service
of the [Firm] complaint, because we prefer to have it decided on
the merits. We are just going to move to dismiss, but at the
appropriate time. So that is fine. We will accept service and
move to dismiss at the appropriate time.
11
Ms. Tung then asked the court to dismiss the Firm’s claim with prejudice because the Firm
failed to comply with Judge Goetzke’s November 19, 2012 Order, which provided that a
defendant could request dismissal with prejudice if the Firm failed to complete service upon
that defendant. The court agreed to do so:
THE COURT: Okay. Obviously [the Firm’s counsel], your
position was that Ms. Tung’s counsel agreed to accept service
also, but since today is the motion hearing, we don’t have the
document confirming that. I am inclined to grant their motion
to make it as to this timely dismissal with prejudice and to direct
the Court to put in the hearing sheet that the [BIO Defendants]
. . . have agreed to accept service.
The court also noted that it would consider altering the order if the Firm’s counsel produced
the letter in which Ms. Tung’s counsel agreed to accept service on her behalf:
THE COURT: If [the Firm’s counsel] go back to the office and
they find the missing letters in which counsel for Mary Tung say
we agree to accept service of the full complaint, then there could
be a motion to reconsider on the motion to reconsider, but I am
not going to, at this point, hold my breath on that.
We will assume that the ruling that I just made is what is
going to be going on with this case going forward.
On January 30, 2013, Judge Caroom entered an order noting the court’s denial of the
Firm’s Motion for Reconsideration and the BIO Defendants’ Motion to Dismiss (reasoning
that counsel for each had “agreed to accept service on behalf of the defendants”), and its
decision to grant Ms. Tung’s Motion to Dismiss.
On February 20, 2013, the BIO Defendants filed a Motion to Dismiss, alleging that
the Firm failed to state a claim upon which relief could be granted, or in the alternative, that,
12
as a result of Ms. Tung’s dismissal, the Firm had failed to properly join a necessary party.
That same day, the Firm filed a Motion for Reconsideration of the January 30, 2013 Order,
arguing that dismissal of its suit against Ms. Tung was inappropriate. Ms. Tung filed an
Opposition to the Firm’s Motion for Reconsideration on March 8, 2013.9
The circuit court held a hearing on these motions on March 18, 2013. During the
hearing, the trial judge walked through the timeline of this case, found no justification for the
delay in service, presumed prejudice from the delay, and ultimately denied the Firm’s Motion
for Reconsideration and dismissed its suit against Ms. Tung with prejudice:
[THE COURT]: . . . In this case, the [Firm] case, the Court
thinks that it is very comparable to the situation in Reed v.
Cagan, 128 Md. App. 641, where there was no real explanation
for the initial delay [in service], as filed in late 2011.
Summonses are issued. Nothing happens for six months.
The Court issues the notice of contemplated dismissal. The
Defense moves to dismiss for lack of service. There are two
motions to dismiss, which are considered by the Court in August
and September for different Defendants, each giving additional
time for service. That additional time for service is not used.
There are two dismissals, September 28th, . . . November
21st. Those dismissals were [without] prejudice. But again,
potentially with the opportunity to seek to reopen and reserve.
So in effect the Court has given many, many warnings in
this case that the case could be dismissed, the [Firm] versus
Tung, for lack of adequate service.
9
The Firm also filed an amended complaint on March 8, 2013. The Firm failed to
include a comparison copy, as was required by Rule 2-341(e).
13
And in terms of whether there is some justification for
the delay, the Court really doesn’t find any justification for the
delay, because all of the problems were problems basically of
Plaintiffs’ own making.
The delay was your own making. The private [versus]
public version of the complaint, or confidential or non-
confidential version of the complaint, however you want to call
it, the issue was of your own making.
The, I think, misconstrue [sic] of the communications
with counsel as to whether they would accept service or serve
themselves and just take notice of what was in the Court’s file
instead of actually receiving it as required by the rules, was a
problem of your own making.
The Court asked if you had written documentation that
counsel had agreed to accept some other arrangement and that
has not been provided to the Court’s satisfaction.
So I think really there is no justification for the delay.
The prejudice is presumed—the Court could infer actual
prejudice in terms of all of the legal services that the Defense
has had to pay for, just litigating on this one issue, all of
Plaintiffs’ making.
So the Court is going to deny the motion to reconsider in
the Firm [versus] Tung case. . . . And recognize that that
dismissal has become one which is with prejudice after the
passage of more than 30 days.
(Emphasis added.) On March 22, 2013, Judge Caroom entered an order denying the Firm’s
Motion for Reconsideration, dismissing the Firm’s case against Ms. Tung, and dismissing
the Firm’s case against the BIO Defendants for failure to state a claim and based on the
dismissal of Ms. Tung, all dismissals with prejudice. The Firm appealed from that order.
14
II. DISCUSSION
The Firm raises the following questions for our review:
1. Whether the Appellees had been served and jurisdiction
had been conferred.
2. Whether the trial judge erred in his two orders dismissing
the case against all Appellees.
3. Whether the combined actions of two judges gave the
appearance of impropriety, partiality, and prejudicial
influence.
We affirm the circuit court’s decision to dismiss the Firm’s complaint against both
Ms. Tung and the BIO Defendants. The Firm did not effect proper service upon Ms. Tung,
and despite multiple opportunities, the Firm failed to cure this jurisdictional defect, so
dismissal was proper under both Rules 2-121(a) and 2-507(b). And although the Firm
effected service upon the BIO Defendants, the court appropriately dismissed its complaint
for failure to state a claim because the complaint failed to address a necessary predicate of
its legal malpractice claim—the existence of an attorney-client relationship between the Firm
and the BIO Defendants.10 Finally, the Firm failed to preserve the issue of judicial
impropriety for review.
10
Because, as we explain, the circuit court appropriately dismissed the Firm’s suit
against the BIO Defendants on the basis of the Firm’s failure to state a claim upon which
relief could be granted, we need not address whether Ms. Tung was a necessary party or, in
turn, whether the dismissal of the Firm’s suit against her warranted dismissal of its suit
against the BIO Defendants.
15
A. The Circuit Court Properly Dismissed The Firm’s Claims Against
Ms. Tung For Insufficient Service Of Process.
“‘It is fundamental that before a court may impose upon a defendant a personal
liability or obligation in favor of the plaintiff or may extinguish a personal right of the
defendant it must have first obtained jurisdiction over the person of the defendant.’”
Flanagan v. Dep’t of Human Res., 412 Md. 616, 623-24 (2010) (quoting Lohman v. Lohman,
331 Md. 113, 125 (1993)). A court obtains in personam jurisdiction over a defendant when
that defendant is “‘notified of the proceedings by proper summons.’” Id. at 624 (quoting
Lohman, 331 Md. at 130). “[T]he court has no jurisdiction over [a defendant] until such
service is properly accomplished,” or until service “‘is waived by a voluntary appearance by
the defendant, either personally or through a duly authorized attorney.’” Id. A party’s failure
to comply with the Maryland Rules governing service of process “constitutes a jurisdictional
defect that prevents a court from exercising personal jurisdiction over the defendant.” Id.
(citing Lohman, 331 Md. at 130).
“The ‘abuse of discretion’ standard of review is applicable to the issue of whether an
appellate court should reverse the Circuit Court’s decision to dismiss an action for ‘lack of
jurisdiction.’” Hariri v. Dahne, 412 Md. 674, 686 (2010). “‘[T]here is an abuse of discretion
where no reasonable person would take the view adopted by the [trial court] . . . or when the
court acts without reference to any guiding principles.’” Id. at 687 (internal quotation marks
omitted) (quoting Pasteur, Inc. v. Skevofilax, 396 Md. 405, 418 (2007)). “In sum, to be
reversed ‘[t]he decision under consideration has to be well removed from any center mark
16
imagined by the reviewing court and beyond the fringe of what that court deems minimally
acceptable.’” Id. (quoting Pasteur, Inc., 396 Md. at 419).
1. The Firm did not effectively serve process on Ms. Tung.
The Firm contends that no jurisdictional defect existed, and that dismissal was
improper, because Ms. Tung and her counsel had been personally served with summons. The
Firm made three attempts to serve Ms. Tung: first, on June 19, 2012, by delivery of the Non-
Confidential Complaint to Ms. Tung; second, on September 6 and 7, 2012, by delivery of the
Confidential Complaint to Ms. Tung’s counsel; and third, on January 18, 2013, again by
delivery of the Confidential Complaint to Ms. Tung’s counsel. But for the circuit court to
obtain personal jurisdiction over Ms. Tung, the Firm was required to effect service of process
in accordance with Rule 2-121(a). See Lohman, 331 Md. at 130:
Service of process may be made . . . (1) by delivering to the
person to be served a copy of the summons, complaint, and all
other papers filed with it; (2) if the person to be served is an
individual, by leaving a copy of the summons, complaint, and all
other papers filed with it at the individual’s dwelling house or
usual place of abode with a resident of suitable age and
discretion; or (3) by mailing to the person to be served a copy of
the summon, complaint, and all other papers filed with it by
certified mail requesting: “Restricted Delivery—show to whom,
date, address of delivery.”
Md. Rule 2-121(a). None of the Firm’s attempts to serve Ms. Tung complied with this rule.
The Firm’s first attempt to serve Ms. Tung—delivery of the summons and Non-
Confidential Complaint to her—did not amount to effective service. Effective service under
Rule 2-121(a) requires delivery of “a copy of the summons, complaint, and all other papers
17
filed with it.” Md. Rule 2-121(a) (emphasis added). Delivery of the Non-Confidential
Complaint did not satisfy this rule because that version of the complaint was not the complete
version of the complaint filed with the court. Service of the complaint filed with the court
is necessary because “‘[t]he purpose of service of process is to give the defendant fair notice
of the action against him and the resulting fair opportunity to be heard.’” Mooring v.
Kaufman, 297 Md. 342, 350 (1983) (quoting 1964 Md. Laws, Chap. 95); see also West Coast
Theater Corp. v. City of Portland, 897 F.2d 1519, 1529 (9th Cir. 1990) (“[S]ervice of an
incomplete draft complaint which was seven pages shorter than the complaint filed cannot
be deemed to constitute compliance with [Fed.R.Civ.P. 4(m)11 ] because that Rule requires
service of the filed complaint.”). The Non-Confidential Complaint, although also filed with
the court, contained only “a description of the parties and the claims for notice purposes,”
and could not provide Ms. Tung with fair notice of the action against her. Only the
Confidential Complaint could provide such notice.
The Firm’s second and third attempts to serve Ms. Tung—delivery of the summons
and Confidential Complaint to her counsel—also did not amount to effective service.
Although a plaintiff, in certain circumstances, can serve an individual by service upon an
11
The Ninth Circuit, in West Coast Theater, found that service of a draft complaint
did not comply with Federal Rule 4(j), the predecessor rule to current Rule 4(m). 897 F.2d
at 1529. Rule 4(m) mirrors Rule 2-507(b): each rule provides that a plaintiff’s failure to
serve a defendant precludes a court from obtaining jurisdiction over that defendant, and that
the failure to serve a defendant within 120 days of filing of the complaint warrants dismissal
of the case without prejudice.
18
agent, that agent must be “authorized by appointment or by law to receive service of process
for that individual,” Md. Rule 2-124(b) (emphasis added), and no such authorization existed
here. Although, at the January 28, 2013 hearing, the Firm claimed to have received a letter
from Ms. Tung’s counsel agreeing to accept service on her behalf, the Firm could not
produce evidence of Ms. Tung’s authorization when the court asked for it:
THE COURT: Let me ask you to go—and if you are saying that
there is correspondence from counsel by which they agree to
accept service, go ahead and pull that out and we can make that
an exhibit for today. Show it to opposing counsel and see if they
agree or have anything else that the Court should consider.
(Pause.)
[COUNSEL FOR THE FIRM]: Your Honor, obviously we have
a lot of paperwork to go through.
* * *
[COUNSEL FOR THE FIRM]: It appears we don’t have the
letter with us in Court right now, Your Honor. However, we
would be happy to go back to our office with the more complete
record and provide that to you.
[COUNSEL FOR MS. TUNG]: On behalf of my firm, Your
Honor. This represents Ms. Tung. You know, there is no
correspondence from us agreeing to accept service.
And without authorization from Ms. Tung that her counsel could be served on her behalf, the
Firm’s attempts to serve her counsel were ineffective.
The Firm also argues that service of the Confidential Complaint on Ms. Tung’s
counsel was proper because counsel had entered a general appearance. This argument flows
19
from an incorrect legal premise. An attorney’s appearance on behalf of a client affects only
filing of pleadings other than original pleadings. Service of an original pleading, “the first
pleading filed in an action against a defendant,” Md. Rule 1-202(s), is governed by Rule 2-
121(a), the rule applicable to service of process. See Francz v. Francz, 157 Md. App. 676,
688 (2004). Service of pleadings and papers other than original pleadings, on the other
hand, is governed by Rule 1-321, which does, in fact, permit service upon an attorney who
has entered an appearance. See Rule 1-321(a).
Here, the Firm argues that its service of the Confidential Complaint, its original
pleading, was properly made on counsel because counsel had entered an appearance. But,
as we explained, the rules governing service of process (applicable to service of original
pleadings, see Francz, 157 Md. App. at 688) do not permit service of an individual by service
upon counsel without prior authorization. See Md. Rule 2-124(b). So even if Ms. Tung’s
counsel had entered an appearance, and we make no findings in that regard, the Firm still
needed to serve the Confidential Complaint on Ms. Tung herself.
The Firm’s failure to effect service on Ms. Tung left the circuit court without personal
jurisdiction over her. The only other possible avenue through which the court could obtain
personal jurisdiction was through a waiver of service and consent by Ms. Tung. See
Flanagan, 412 Md. at 624 (“[T]here can be no judgment nor decree in personam unless the
defendant has been notified of the proceedings by proper summons, for the court has no
jurisdiction over him until such service is properly accomplished, or is waived by a voluntary
20
appearance by the defendant, either personally or through a duly authorized attorney.”
(quoting Lohman, 331 Md. at 130)). As we explain next, no such waiver or consent
occurred.
2. Ms. Tung did not consent to jurisdiction or waive her right
to service of process.
The Firm argues next that “[j]urisdiction is conferred [and objections to service issues
are waived] when a party makes a voluntary appearance,” and that Ms. Tung entered a
voluntary appearance through two avenues: first, by failing to comply with Rule 2-322(a),
which, according to the Firm, “requires that no motion or pleading . . . be filed before any
motion to dismiss is filed”; and second, by filing “a pleading addressing in any way any
subject other than jurisdiction.” The Firm’s arguments are premised upon both an incorrect
timeline of this case and a misunderstanding of the law.
Assuming for the moment that the Firm was correct (which, as detailed below, is not
the case), the Firm would have to establish that Ms. Tung filed a pleading or motion 12 before
she filed her Rule 2-322(a) Motion to Dismiss. In support of this argument, the Firm
contends that “the first pleading filed by [Ms.] Tung was an Opposition to Motion to Defer
Dismissal. Thus, as of August [20], 2012 when that motion was filed and served, [Ms.] Tung
had waived Rule 2-322(a) defenses and had voluntarily consented to the jurisdiction of the
court.” The docket tells a different story: Ms. Tung filed her Motion to Dismiss, raising Rule
12
As we explain later, filing an answer waives the defenses listed in Rule 2-322(a).
21
2-322(a) defenses, on July 16, 2012, more than a month before she filed her Opposition to
the Firm’s Motion to Defer Dismissal on August 20, 2012.13 So on this basis alone, the
Firm’s argument that Ms. Tung consented to jurisdiction by failing to raise Rule 2-322(a)
defenses in a motion to dismiss filed before any other pleading or motion fails.
But we don’t even get to that hypothetical because the Firm is wrong about the law.
The Firm argues that a defendant waives Rule 2-322(a) defenses by filing any motion or
pleading before a motion to dismiss raising those defenses. The Firm is incorrect. Instead,
a party waives the defenses listed in Rule 2-322(a) only when that party files an answer
before raising those defenses. See Md. Rule 2-322(a) (“The following defenses shall be
made by motion to dismiss filed before the answer . . . : (1) lack of jurisdiction over the
person, . . . (3) insufficiency of process, and (4) insufficiency of service of process. If not
so made and the answer is filed, these defenses are waived.” (Emphasis added.)).14
13
The Firm also cannot plead ignorance here—it filed a motion in response to Ms.
Tung’s Motion to Dismiss on August 17, 2012, before she filed her Opposition to the Firm’s
Motion to Defer Dismissal.
14
The Firm relies on Chapman v. Kamara, 356 Md. 426 (1999), and LVI
Environmental Services, Inc. v. Academy of IRM, 106 Md. App. 699 (1995), in support of
its waiver argument. But Chapman does not stand for the proposition that the filing of any
pleading waives the defenses listed in Rule 2-322(a), see 356 Md. at 438 (“Once a party files
an answer without raising the defense of insufficient service of process, that defense
ordinarily is waived.” (citing Md. Rule 2-322(a)). As to LVI (and a prior case on which the
LVI Court relied, McCormick v. St. Francis de Sales Church, 219 Md. 422, 428 (1959)),
these cases suggest simply that under some circumstances, a party may be estopped
from asserting lack of personal jurisdiction when that party has sought affirmative
relief from the court that could only be granted if the court were to have jurisdiction.
(continued...)
22
We recognized this principle in Smith v. Cylus, 147 Md. App. 78 (2002), and rejected
the same argument the Firm raises now. In Smith, the appellant argued that the appellee had
“waived the defense of improper venue when [the appellee] served [appellant] with a request
for admissions” because “[p]ursuant to Rule 2-322, the issue of venue is a mandatory defense
which must be plead before any initial filing by the defendant.” Id. at 80 (emphasis added)
(internal quotation marks omitted). We rejected this argument because only an answer
waives the mandatory defenses listed in Rule 2-322(a):
While appellant is correct that Rule 2-322 governs mandatory
defenses, she misunderstands the rule. Rule 2-322(a) reads:
“The following defenses shall be made by motion to dismiss
filed before the answer, if an answer is required: (1) lack of
jurisdiction over the person, (2) improper venue[, (3)
insufficiency of process, and (4) insufficiency of service of
process].” (Emphasis added.) In the case sub judice, appellee
never filed an answer. Therefore, she has not waived the
defense of improper venue.
Id. at 81 (emphasis added).15 So even if Ms. Tung had filed her Motion to Dismiss after the
Opposition Motion, which she didn’t, she still would not have waived her right to assert
jurisdictional defenses because she had yet to file an answer.
14
(...continued)
This decision simply prohibits a litigant from using certain defenses as a shield even
as he or she seeks dismissal wielding the sword of a jurisdictional attack.
15
We pointed out in Smith that this understanding of Rule 2-322 is premised upon “a
predecessor to that rule that required a motion to dismiss [asserting a mandatory defense] be
made prior to filing of any pleading.” 147 Md. App. at 81 n.1.
23
3. The Firm’s failure to serve Ms. Tung warranted dismissal.
The Firm contends next that dismissal of its case against Ms. Tung was improper even
if its attempts to serve her were insufficient. It raises three arguments: first, that dismissal
was an inappropriate remedy; second, that the circuit court improperly considered Rule 2-507
in denying its Motion for Reconsideration; and third, that Ms. Tung failed to demonstrate
sufficient prejudice to support dismissal.
i. Dismissal is an appropriate remedy.
The Firm’s first contention, that dismissal was improper even if its service on Ms.
Tung was insufficient, fails as a matter of law.16 Quoting Flanagan v. Department of Human
Resources, 412 Md. 616 (2010), the Firm argues that “[d]ismissal is not an automatic remedy
for delayed service.” Id. at 631. The Firm reads Flanagan selectively and ignores the context
of the language it quotes. In Flanagan, the Court of Appeals was not reviewing a circuit
court’s decision to dismiss a suit for service defects, as we are here—it was responding to
a request for dismissal for insufficient service raised for the first time on appeal. The Court
recognized that although the appellant was not served in a timely manner under Rule 2-
507(b), an appellate court is not empowered to dismiss a case for untimely service because
“[d]ismissal is not an automatic remedy for delayed service.” Id. The Court explained
instead that the decision whether to dismiss for delayed service “rests in the sound discretion
16
The Firm’s argument on this point is limited. In support, it provides only brief
quotations from three cases and it does not apply the law it cites to the facts.
24
of a trial judge in the first instance, based on his or her weighing of the balance of the rights,
interests, and reasons of the parties for the delay and the public demand for prompt resolution
of litigation.” Id. (citing Langrall, Muir & Noppinger v. Gladding, 282 Md. 397, 400-01
(1978)); see also Reed v. Cagan, 128 Md. App. 641, 650 (1999) (“Appellee was not served
with process for approximately two years from the time the complaint was filed and the
original process was issued against him. Thus, there is no question that the case was subject
to dismissal, in the court’s discretion.” (Emphasis added.)). The circuit court, finding that
the Firm had not served Ms. Tung, was empowered in its discretion to dismiss the case, and
we see no abuse of that discretion here.
ii. Dismissal under either Rule 2-121(a) or Rule 2-507(b)
was proper.
The parties disagree over the rule upon which the circuit court relied in dismissing the
case. The Firm claims that dismissal pursuant to Rule 2-322(a) (for insufficiency of service)
was all that was at issue in its Motion for Reconsideration and that the court erred by denying
its motion after the March 18, 2013 hearing on the basis of Rule 2-507(b) (for lack of
jurisdiction). Ms. Tung counters that the Firm re-raised issues relating to Rule 2-507(b) in
its Motion for Reconsideration. Although the court could perhaps have stated more clearly
the rule on which it relied, we need not resolve the question because the Firm loses both
ways: at no point did the Firm effect service upon Ms. Tung in compliance with Rule 2-
121(a), which supports dismissal under Rule 2-322(a), and the Firm’s service failure created
a jurisdictional defect, which supports dismissal under Rule 2-507(b).
25
Dismissal pursuant to Rule 2-322(a) was proper because, as we established above, the
Firm never properly served Ms. Tung in accordance with Rule 2-121(a). The Firm’s first
service failure (delivery of the Non-Confidential Complaint to Ms. Tung) was the basis for
Ms. Tung’s first Rule 2-322(a) Motion to Dismiss, filed on July 16, 2012. Although it is
undisputed that this service attempt did not comply with Rule 2-121(a), the court had the
authority to “dismiss the action or grant such lesser or different relief as may be appropriate,”
Md. Rule 2-322(c), and, in the August 28, 2012 Order, the court elected to grant different
relief. Specifically, the court denied Ms. Tung’s Motion but ordered, first, that the Firm was
to “re-serve a copy of the Complaint and all accompanying papers upon [Ms.] Tung, and
submit a new affidavit of service to the Court within ten (10) days from the date this Order
is docketed,” and second, that if the Firm again failed to serve Ms. Tung, the action would
be dismissed. The Firm conceded at oral argument that it never personally served Ms. Tung
after this point, but it argues that its delivery of the summons and Confidential Complaint to
Ms. Tung’s counsel shortly thereafter in September 2012 satisfied the August 28, 2012
Order. It did not, and the circuit court properly made this finding in its November 21, 2012
order. Even so, the court gave the Firm one more chance:
[T]he Court having determined that, as of the date of this Order,
it has no in personam jurisdiction over any defendant in this
matter, it is this 19th day of November 2012, by the Circuit
Court for Anne Arundel County:
ORDERED, that this case is dismissed without prejudice
as to all persons named as a defendant to this action as of the
date of this order (individually, “Defendant”); and it is,
26
ORDERED, that Plaintiff may request one additional
summons pursuant to Rule 2-112(a) for each Defendant,
provided the request is made not later than 7 days from the date
on which this Order is docketed (“Final Summons”); and it is,
ORDERED, that this dismissal shall be stricken as to any
Defendant over whom the court acquires in personam
jurisdiction as a result of service pursuant to Rule 2-121 of the
Final Summons for that Defendant; and it is,
ORDERED, that on request of a Defendant, an order of
dismissal with prejudice shall be filed as to any Defendant over
whom the court has not acquired in personam jurisdiction as set
forth in the preceding paragraph . . . .
But the Firm again delivered the summons and Confidential Complaint to Ms. Tung’s
counsel on January 18, 2013, and the court, after the January 28, 2013 hearing, reached the
same conclusion. Following up on its November 21, 2012 Order, the court entered an order
on January 30, 2013, dismissing the Firm’s case with prejudice, an appropriate remedy under
Rule 2-322(a).17
The court would also have been justified in dismissing the Firm’s case pursuant to
Rule 2-507(b), which governs dismissal for lack of jurisdiction.18 On appeal, however, the
17
Although the order doesn’t note this explicitly, the court also declared as moot the
motions to dismiss for failure to comply with Rule 2-507.
18
Rule 2-507(b) governs dismissal for lack of jurisdiction and reads as follows:
An action against any defendant who has not been served or
over whom the court has not otherwise acquired jurisdiction is
subject to dismissal as to that defendant at the expiration of 120
days from the issuance of original process directed to that
defendant.
(continued...)
27
Firm argues that the court’s consideration of Rule 2-507(b) during the March 18, 2013
hearing on its Motion for Reconsideration was inappropriate for two reasons: first, because
the court considered the issues despite finding them to be moot in its January 30, 2013 Order,
and second, because dismissal pursuant to Rule 2-507(b) cannot be pursued by a party, as it
is only a procedural tool to be used by the clerk of the court. Each argument is unavailing.
It was the Firm that re-raised arguments relating to Rule 2-507(b) in its Motion for
Reconsideration of the January 30, 2013 Order, despite the court’s finding in that order that
Rule 2-507(b) issues were moot. In its motion, the Firm argued that the court “should not
require dismissal in the instant case, regardless of whether the multiple personal and
representative services made were proper, because Defendant Tung has not been prejudiced
pursuant to Rule 2-507.” Presumably in response to this argument, the court, at the hearing
on the Motion for Reconsideration, addressed several issues relevant to a Rule 2-507(b)
analysis—specifically the Firm’s justification for delay and prejudice to Ms. Tung as a result
of the delay.
The Firm also argues that the court wrongly mingled consideration of the Rule 2-507
and Rule 2-322(a) motions to dismiss. Specifically, the Firm relies on Thomas v. Ramsburg,
99 Md. App. 395, 399 (1994), and contends that the court erred by considering Rule 2-507(b)
as “an offensive weapon for the defendants, instead of an administrative procedure for the
18
(...continued)
Md. Rule 2-507(b).
28
clerk.” It reasons, again relying on Thomas, that the language of Rule 2-507 does not
contemplate motions filed by parties directly with the court. The Firm’s contention fails for
two reasons: first, Rule 2-507 did not arise here from a motion Ms. Tung filed with the court,
and second, even if it had, the court’s consideration of Rule 2-507(b) in the scope of a Rule
2-322(a) motion to dismiss would have been appropriate.
With respect to the first basis, the Firm overlooks that fact that Ms. Tung never used
Rule 2-507 as an “offensive weapon,” as she never filed a motion to dismiss raising issues
concerning Rule 2-507(b). Rule 2-507(b) was only considered by the court through its own
initiative and through arguments raised by the Firm. That rule arose initially in the
Notification of Contemplated Dismissal that the court issued administratively. Ms. Tung’s
first Motion to Dismiss, filed on July 16, 2012, was filed pursuant to Rule 2-322(a) and
concerned insufficiency of service under Rule 2-121(a), not jurisdictional defects, and her
second Motion to Dismiss, filed on October 31, 2012, relied exclusively on the Firm’s failure
to comply with the court’s order entered on August 28, 2012. Only after the court entered the
January 30, 2013 Order dismissing the case with prejudice pursuant to Rule 2-322(a) did the
court look to Rule 2-507. And it only did so because the Firm raised the issue in its Motion
for Reconsideration.
Also, even if Ms. Tung had raised Rule 2-507(b) arguments in a Rule 2-322(a) motion
to dismiss, the court could have properly considered such a motion. The Firm reads Thomas
too broadly to the contrary. Thomas provides that “[t]he plain language of Rule 2-507 does
29
not directly anticipate parties to an action filing motions to dismiss for lack of prosecution,”
and that “only . . . the clerk of the court should initiate such dismissal proceedings.” 99 Md.
App. at 399. But Thomas refers to subsection (c) of Rule 2-507, governing lack of
prosecution, whereas, here, the court’s consideration of Rule 2-507 was focused upon
subsection (b), governing lack of jurisdiction. A nearly identical argument arose in Reed v.
Cagan,128 Md. App. 641 (1999), and the Court’s reasoning in rejecting the Firm’s argument
applies equally here:
Appellant argues that appellee had no right to file a motion to
dismiss [pursuant to Rule 2-322(a)] directly with the court based
on Rule 2-507(b), and that for the Rule to have any application
to appellee’s motion to dismiss, the clerk must have initiated the
dismissal, either on its own, or after a request by appellee.
Appellant relies on Thomas v. Ramsburg, 99 Md. App. 395
(1994), for this proposition. We find Thomas to be inapposite
and disagree with appellant’s conclusion.
* * *
In Thomas, this Court addressed the appropriate procedure when
a defendant moved to dismiss a case for lack of prosecution
under Rule 2-507(c).
* * *
In Thomas, the plaintiff filed his complaint, defendant answered,
and discovery ensued. See Thomas, 99 Md. App. at 397. When
more than a year had passed without any docket entries in the
case, the defendant moved to have the case dismissed pursuant
to Rule 2-507(c). See id. The trial court granted the motion and
the plaintiff appealed. See id. We held that a defendant seeking
to have a case dismissed for lack of prosecution under
subsection (c) had no right to file a motion directly with the
court, and that the dismissal had to be initiated by the clerk’s
30
filing a notice of contemplated dismissal pursuant to Rule 2-
507(d). See id. at 410-11.
* * *
The distinction between the present case and Thomas lies in . . .
the difference between a dismissal under subsection (c) for lack
of prosecution, and one under subsection (b) for lack of
jurisdiction . . . . Thomas involved a dismissal under subsection
(c) of Rule 2-507, for the plaintiff’s failure to prosecute the case.
A dismissal under subsection (b) of Rule 2-507 for lack of
jurisdiction arising from a failure to serve the defendant raises
different concerns, and should be governed by different
standards than a dismissal for lack of prosecution under
subsection (c).
Id. at 649-52. A Rule 2-507(b) defense for lack of jurisdiction could, therefore, have been
raised through a motion filed pursuant to Rule 2-322(a), see id. at 655, but that never
happened here. Ms. Tung’s motions to dismiss relied exclusively on the Firm’s failure to
comply with the service requirements of Rule 2-121(a).
The court nevertheless considered Rule 2-507(b) during the March 18, 2013 hearing,
and the Firm argues that the court failed to require a showing of prejudice by Ms. Tung. As
before, we addressed a similar set of circumstances in Cagan,128 Md. App. 641. In that
case, like here, the appellant argued “that the trial court erred in dismissing his suit on the
ground of a delay in service pursuant to Rule 2-507(b) because appellee failed to prove
prejudice.” Id. at 647. Although the trial court in that case “did not identify the specifics of
how the prejudice to appellee from the two-year delay in service manifested itself,” the Court
31
“[did] not consider a specific demonstration of prejudice to be required.”19 Id. at 648. We
explained that a “more specific delineation and thereby a stronger showing of prejudice
might be appropriate had appellant identified any justification for his failure to serve
appellant for two years.” Id. at 649 (emphasis added). We found that “appellant did not
proffer any justification for his two-year delay in service” or any “reason why he would have
had any difficulty serving appellee,” despite the fact “that he was aware of appellee’s status
as a practicing attorney in Baltimore with offices within a few blocks of the circuit court.”
Id. at 648.
The same circumstances are present here. The Firm was well aware of Ms. Tung’s
status as a practicing attorney and knew her address, but it still did not provide a valid
justification for failing to serve her. And like Cagan, the trial court did not explain its
finding of prejudice, but presumed prejudice from the circumstances. (The court stated that
it “could infer actual prejudice in terms of all the legal services that the Defense has had to
pay for, just litigating on this one issue, all of Plaintiffs’ making.”) Moreover, like Cagan,
the Firm brought suit shortly before the expiration of the statute of limitations, but unlike
Cagan, where the appellee was served two years from filing of the complaint, id. at 649,
service never occurred here. We do not require a more specific delineation of prejudice: as
19
In Cagan, the Court found that prejudice existed as a result of the fact that appellee
missed opportunities to engage in discovery undertaken by other parties to that litigation and
“from the fact that suit was not filed until three days before expiration of the statute of
limitations, and thus service was not achieved until almost two years after the limitations
period.” Cagan, 128 Md. App. at 648-49.
32
we held in Cagan, “[i]n the absence of any justification for [the Firm’s] lengthy delay, . . .
the trial court acted within its discretion in drawing an inference of prejudice from the delay
itself.” Id.20
B. The Circuit Court Properly Dismissed The Firm’s Suit Against The
BIO Defendants For Failure To State A Claim.
The circuit court dismissed the Firm’s cause of action against the BIO Defendants for
“professional negligence and legal malpractice” after finding that the complaint failed to state
20
We recognize that the language of Rule 2-507(e) provides that when an action is
dismissed for a violation of Rule 2-507, “the dismissal entered on the docket be ‘without
prejudice,’” Hariri v. Dahne, 412 Md. 674, 684 (2010) (holding dismissal with prejudice to
be inappropriate under the circumstances because the statute of limitations on the original
claim had not yet run at the time of dismissal). But although the Firm does not challenge the
dismissal with prejudice on that ground, there are circumstances that warrant dismissal with
prejudice, and this is such a case. In Hariri, we noted that dismissal with or without
prejudice is “of no consequence” when the applicable statute of limitations period has long
since concluded at the time of service:
[Cagan] involved the dismissal of a negligence action asserted
by the appellant, who was born on May 6, 1975, and—under the
“coming of age rule” established in Mason v. Board of
Education, 375 Md. 504, 514 (2003)—“attained 18 years of
age” by May 5, 1993. That action was (1) filed by the appellant
on May 3, 1996, (2) not served on the appellee until April 6,
1998, and (3) dismissed “with prejudice” on July 6, 1998.
Because the applicable statute of limitations had expired at the
end of the day on May 5, 1996, it was of no consequence
whether the dismissal was “with prejudice” or “without
prejudice.”
Id. at 685-86 (emphasis added) (citing Cagan, 128 Md. App. 641). So even if the court had
dismissed without prejudice, the Firm would have been barred by limitations from trying
again in any event.
33
a claim upon which relief could be granted. Our standard of review on this posture is well-
understood:
“In considering a motion to dismiss for failure to state a claim
under Maryland Rule 2-322(b)(2), a court must assume the truth
of all well-pleaded material facts and all inferences that can be
drawn from them.” Rossaki v. NUS Corp., 116 Md. App. 11, 18
(1997). The material facts setting forth the cause of action
“‘must be pleaded with sufficient specificity. Bald assertions
and conclusory statements by the pleader will not suffice.’”
Adamson v. Correctional Med. Servs., Inc., 359 Md. 238, 246
(2000) (quoting Bobo v. State, 346 Md. 706, 708-09 (1997)).
On appeal, we view the well-pleaded facts of the complaint “in
the light most favorable to the appellant,” Parker v. Kowalsky &
Hirschhorn, P.A., 124 Md. App. 447, 458 (1999), to determine
whether the trial court was legally correct in dismissing the
complaint. Adamson, 359 Md. at 246. “The grant of a motion
to dismiss is proper [only] if the complaint does not disclose, on
its face, a legally sufficient cause of action.” Rossaki, 116 Md.
App. at 18 (citation omitted).
Tavakoli-Nouri v. State, 139 Md. App. 716, 725 (2001).
It is, appropriately, not hard to withstand a motion to dismiss, but the complaint must
“contain a clear statement of facts necessary to constitute a cause of action and a demand for
judgment for the relief sought.” Md. Rule 2-305. Both the complaint and first amended
complaint21 raise one cause of action against the BIO Defendants—professional negligence
21
There are few differences between the legal malpractice claims raised in the original
and amended complaint, so we refer to them together as the “complaint,” and will only make
distinctions between the two versions when necessary.
34
and legal malpractice.22 To properly state a claim for legal malpractice, the Firm had to
allege facts to support a finding of “strict privity,” which requires a showing of “‘(1) the
attorney’s employment, (2) [the attorney’s] neglect of a reasonable duty, and (3) loss to the
client proximately caused by that neglect of duty.’” Blondell v. Littlepage, 185 Md. App. 123,
138 (2009) (quoting Flaherty v. Weinberg, 303 Md. 116, 128 (1985)). At the risk of stating
the obvious, “to hold an attorney liable for legal malpractice, an attorney-client relationship
must exist between the parties.” Ferguson v. Cramer, 116 Md. App. 99, 112 (1997) (citing
Cavacos v. Sarwar, 313 Md. 248, 253 (1988)). “[A] non-client third party, who may have
some other type of contractual relationship with the attorney, ordinarily is unable to maintain
a malpractice action as a matter of law because the attorney’s professional obligations are
only to the client.” Blondell, 185 Md. App. at 138. Therefore, a co-counsel relationship will
not suffice. Id. at 140 (finding that the appellant could not prevail in an attorney malpractice
action against the appellee because it was co-counsel to, and not a client of, the appellee).23
22
The amended complaint was filed over a year after the original complaint, but filing
was proper despite the delay. Under Rule 2-341(a), “[a] party may file an amendment to a
pleading without leave of court by the date set forth in a scheduling order or, if there is no
scheduling order, no later than 30 days before a scheduled trial date.” Md. Rule 2-341.
Here, the circuit court neither issued a scheduling order nor set a trial date, so the filing of
the Amended Complaint complied with Rule 2-341(a).
23
In Blondell, we rejected a party’s claim for legal malpractice based in a co-counsel
relationship because that relationship did not satisfy the strict privity requirement:
Blondell does not style his suit as an attorney malpractice action,
and indeed he could not because he was not a client of
Littlepage. Rather, Blondell bases his claims on the co-counsel
(continued...)
35
The Firm has not pled any facts tending to show that it had anything more than a co-
counsel, as opposed to an attorney-client, relationship with the BIO Defendants.24 The record
demonstrates that the Firm’s client, Technical Furniture, had a matter before the USPTO
Appeal Board and was required to “designate a lead counsel and a back-up counsel who can
conduct business on behalf of the lead counsel.” 37 C.F.R. § 42.10(a).25 Ms. Tung, as the
23
(...continued)
relationship . . . . Nonetheless, the policy considerations
underlying the strict privity requirement apply with equal force
here. Blondell’s theory elevates co-counsel relationship to a
special status, allowing associated attorneys to sue one another,
seeking an affirmative recovery, as distinguished from
contribution or indemnification when sued as alleged joint
tortfeasors, on the basis of allegedly erroneous or improper
legal advice given to the client.
185 Md. App. at 140-41 (emphasis added).
24
The Firm also admits in its brief that its representation of Technical Furniture was
undertaken “jointly” with the BIO Defendants.
25
In promulgating 37 C.F.R. § 42.10, the USPTO explained the role of back-up
counsel:
The [USPTO] expects that lead counsel will, and back-up
counsel may, participate in all hearings and conference calls
with the [USPTO Board of Appeals] and will sign all papers
submitted in the proceeding. In addition, the role of back-up
counsel is to conduct business with the [USPTO] on behalf of
lead counsel when lead counsel is not available. Actions not
conducted before the [USPTO] (e.g., taking of depositions) may
be conducted by lead or back-up counsel.
Rules of Practice for Trials Before the Patent Trial and Appeal Board and Judicial Review
of Patent Trial and Appeal Board Decisions, 77 Fed. Reg. 48612, 48630 (Aug. 14, 2012) (to
(continued...)
36
Firm’s attorney in charge of legal representation and filings before the USPTO, served as
lead counsel for Technical Furniture, and the BIO Defendants were retained by the Firm to
serve as backup counsel. So for this claim to survive, the Firm would need to plead an
attorney-client relationship between the Firm and the BIO Defendants. But at most, the BIO
Defendants’ professional duties flowed to Technical Furniture, the joint client of the BIO
Defendants and the Firm. We agree, therefore, that the Firm cannot state a claim for legal
malpractice claim against the BIO Defendants.26
C. The Firm Did Not Preserve Its Arguments Relating To Judicial
Bias And The Appearance Of Impropriety.
Finally, the Firm argues for the first time on appeal that the special assignment of the
case to a single judge gave the appearance of “impropriety, partiality, and prejudicial
influence.” It contends that impropriety arose from two sources: first, the letter Ms. Tung’s
counsel sent to Judge Davis-Loomis asking that the pending motions be specially assigned
to one judge and the court’s agreement to make such an assignment; and second, the mutual
involvement of Judge Caroom (the judge to whom the case was specially assigned) and Ms.
Tung’s counsel in an event called Chambers Chat, a bench-bar event held monthly by the
Anne Arundel County Bar Association. But the Firm did not challenge the special assignment
25
(...continued)
be codified at 37 C.F.R. pt. 42, cmt. 39).
26
Beyond this, the allegations raised by the Firm in both the original and amended
complaints regarding the BIO Defendants’ purported breaches of their duties are conclusory
at best.
37
or seek recusal of Judge Caroom below, and by failing to do so failed to preserve these issues
for appellate review.
To initiate recusal procedures and preserve the recusal issue for appeal, “a party must
file a timely motion” with the trial judge that the party seeks to recuse. Miller v. Kirkpatrick,
377 Md. 335, 358 (2003); see also Surratt v. Prince George’s County, 320 Md. 439, 468
(1990) (“[I]n order to trigger the recusal procedure we here prescribe, a motion must be
timely filed.”). A timely motion is one that is “filed ‘as soon as the basis for it becomes
known and relevant,’” Miller, 377 Md. at 358 (quoting Surratt, 320 Md. at 469), and “is not
one that represents ‘the possible withholding of a recusal motion as a weapon to use only in
the event of some unfavorable ruling.’” Id. Therefore, “a litigant who fails to make a motion
to recuse before a presiding judge in circuit court . . . waiv[es] the objection on appeal.”
Halici v. City of Gaithersburg, 180 Md. App. 238, 255 n.6 (2008) (citing Miller, 377 Md. at
358); see also Md. Rule 8-131(a) (“Ordinarily, the appellate court will not decide any . . .
issue unless it plainly appears by the record to have been raised in or decided by the trial
court.”); compare Traverso v. State, 83 Md. App. 389, 394 (1990) (finding that “no issue
concerning the recusal [of the trial judge] has been preserved for [appellate review]” because
the appellant “never asked the trial judge to recuse himself”), with Miles v. State, 88 Md.
App. 360, 368 (1991) (finding the filing of an affidavit to the circuit court asserting bias and
prejudice of a trial judge to be “sufficient to preserve the recusal issue”).
38
At the January 18, 2013 hearing, after the case was specially assigned to Judge
Caroom, the Firm had an opportunity to challenge the assignment and to have Judge Caroom
recused. The Firm declined to do so:
[THE COURT:] Let me add one other thing, which is that
normally the Court would expect a reconsideration to be
considered by the same judge who issued the order; however,
subsequent to those orders being passed the case was specially
assigned to me.
I then contacted the administrative judge and Judge Goetzke to
discuss that question of who should rule on a motion to
reconsider after the special assignment to a different judge. And
the consensus that the Court got was that I should rule on them
and that Judge Goetzke had no objection by ruling on them.
So I am prepared to do that unless counsel wish to argue that we
should sort of unassign the case in terms of the special
assignment. Does anyone want to make that request, which
would have to be directed to the administrative judge, or are we
ready to go forward with that motion today if need be.
(Emphasis added.) We decline the Firm’s invitation that we remand the case and “require
that the case be set with a different circuit court judge chosen randomly in accordance with
the court’s standard procedure” when the circuit court never had the opportunity to consider
and decide this fact-specific and discretionary question in the first instance.
JUDGMENT OF THE CIRCUIT COURT
FOR ANNE ARUNDEL COUNTY
AFFIRMED. COSTS TO BE PAID BY
APPELLANT.
39