Opinion
Civil Action No. DKC 2000-2236
June 25, 2001.
MEMORANDUM OPINION
Plaintiff filed a five count Amended complaint, seeking compensatory and punitive damages from Defendant. Count one is for breach of contract, count two for breach of warranty, count three for fraud, count four for negligent misrepresentation, and count five for punitive damages. Defendant has moved for summary judgment on counts three and five, arguing that Plaintiff cannot prove intentional misrepresentation and that, without count three and in the absence of evidence of malice, there is no basis for punitive damages. For the following reasons, the motion will be granted.
I. Standard of Review
It is well established that a motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In other words, if there clearly exist factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," then summary judgment is inappropriate.
Anderson, 477 U.S. at 250; see also Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir. 1979); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950). The moving party bears the burden of showing that there is no genuine issue as to any material fact. FED. R. CIV. P. 56(c); Pulliam Inv. Co., 810 F.2d at 128 (citing Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)).
When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir. 1985). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. "[A] complete failure of proof concerning an essential element . . . necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 323. Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence. Anderson, 477 U.S. at 256. In Celotex Corp., the Supreme Court stated:
In cases like the instant one, where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the "pleadings, depositions, answers to interrogatories, and admissions on file." Such a motion, whether or not accompanied by affidavits, will be "made and supported as provided in this rule," and Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial."
Celotex Corp., 477 U.S. at 324. However, "`a mere scintilla of evidence is not enough to create a fact issue.'" Barwick v. Celotex Corp., 736 F.2d 946, 958-59 (4th Cir. 1984) (quoting Seago v. North Carolina Theaters, Inc., 42 F.R.D. 627, 632 (E.D.N.C. 1966), aff'd, 388 F.2d 987 (4th Cir. 1967)). There must be "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
II. Analysis
A. Fraud
Plaintiff claims that Defendant fraudulently misrepresented the credentials of the temporary accounting help it provided to Defendant. Defendant argues that the record only — at best — supports a claim that it negligently failed to test its temporary workers sufficiently.
In order to recover damages for fraud,
plaintiff must prove 1) that the defendant made a false representation to the plaintiff, 2) that its falsity was either known to the defendant or that the representation was made with reckless indifference as to its truth, 3) that the misrepresentation was made for the purpose of defrauding the plaintiff, 4) that the plaintiff relied on the misrepresentation and had the right to rely on it, and 5) that the plaintiff suffered compensable injury resulting from the misrepresentation.
Nails v. SR, Inc., 334 Md. 398, 415, 639 A.2d 660, 668 (1994).
In opposing the summary judgment motion, Plaintiff misapprehends its burden at this stage of the proceedings. It is not enough merely to claim that evidence is available. It must be produced. If no one took the deposition of a necessary and available witness, then the party relying on that potential testimony must produce an affidavit from that witness. See Celotex Corp., 477 U.S. at 323 (finding that Rule 56 does not require moving party to support its motion with affidavits negating the opponent's claim). Plaintiff's burden on summary judgment mirrors its burden at trial: it must come forward now to forecast admissible evidence sufficient to sustain its burden of proof. It has not done so. Plaintiff presents absolutely no evidence that misrepresentations of Ms. Joseph's credentials were knowingly made to induce Plaintiff to accept Defendant's assistance. Rather, Plaintiff chastises Defendant for its failure to depose specific witnesses. Thus, this court will grant summary judgment on the misrepresentation count.
Defendant alleges that Plaintiff has no viable cause of action stemming from I.B. Wilson's placement, the first bookkeeper recommended to Plaintiff. Plaintiff offers no evidence to the contrary. Thus, for the purposes of this motion, the court will solely analyze the alleged misrepresentations surrounding Ms. Joseph's placement.
B. Punitive Damages
Under Maryland law, plaintiff must prove that Defendant had actual malice in order to obtain punitive damages. Montgomery Ward v. Wilson, 339 Md. 701, 728-29 n. 5, 664 A.2d 916, 930 n. 5 (1995) (finding actual malice, rather than implied malice is the Maryland standard for punitive damages). Actual malice is "characterized by evil motive, intent to injure, or fraud. . . ." Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 462, 601 A.2d 633, 653 (1992). Plaintiff alleges that Ms. Beachley, employee of Defendant, recommended Ms. Joseph as a "great candidate" while knowing that she did not possess the appropriate skills, thus, constituting malice on the part of Defendant. Not only does Defendant submit deposition testimony from Ms. Beachley refuting this notion, but Plaintiff fails to offer any evidence beyond its allegation. See Fed.R.Civ.P. 56(c) ("When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings."). Accordingly, Defendant's motion for summary judgment shall be granted on the punitive damages count.
III. Conclusion
This court shall grant Defendant's motion for partial summary judgment on counts III and V.
A separate Order will be entered.
ORDER
In accordance with the accompanying Memorandum Opinion, IT IS this day of June, 2000, by the United States District Court for the District of Maryland, ORDERED that:
1. Defendant's motion for partial summary judgment BE, and the same hereby IS, GRANTED as to counts III and V;
2. Judgment BE, and the same hereby IS, ENTERED against Plaintiff and in favor of Defendant on counts III and V;
3. A telephone scheduling conference will be held Tuesday, July 17 at 9 a.m. Counsel for Plaintiff is directed to arrange and initiate the call to counsel for Defendant and the court; and
4. The Clerk is directed to mail a copy of this Order and the accompanying Memorandum Opinion to counsel for the parties.