Opinion
Civil Action No. 00-2902 (RWR).
March 22, 2004
MEMORANDUM OPINION AND ORDER
Plaintiff Mabel Jones, as the personal representative of the estate of her son Prince Carmen Jones, Jr. (the "decedent"), brought this action against Prince George's County, Maryland ("PG County"), PG County Police Chief John Farrell, and Alexandre Bailey and Carlton Jones, members of the PG County Police Department ("PGCPD"), following Carlton Jones's fatal shooting of plaintiff's son in Virginia. Plaintiff set forth claims of wrongful death, deprivation of decedent's civil rights under 42 U.S.C. § 1983 (2000), use of excessive police force, assault and battery, negligent training and supervision, and intentional and negligent infliction of emotional distress. She also alleged that defendants engaged in a civil conspiracy and in stalking decedent.
Defendants have moved for summary judgment on all claims against them. In moving for summary judgment on plaintiff's civil conspiracy claim, defendants argue that plaintiff cannot establish that defendants conspired to violate decedent's civil rights, thus making this district an improper venue for this action and removing any bases for personal jurisdiction over defendants in this district. Plaintiff does not place any material facts in dispute with respect to certain elements of her prima facie case for her civil conspiracy and stalking claims, and defendants are entitled to judgment as a matter of law on those claims. Because proper venue in this district rests upon claims for which plaintiff has failed to establish a prima facie case, it is now apparent that venue for plaintiff's claims properly lies with the United States District Court for either the District of Maryland or the Eastern District of Virginia. Accordingly, the parties will be directed to file memoranda addressing which district would be the appropriate transferee district.
BACKGROUND
On or about June 16, 2000, a PG County police officer's gun was stolen. (Def.'s Mem. Supp. Summ. J., Stmt. Fact at ¶ 9.) The PGCPD suspected that Darryl Gilchrest possessed the stolen weapon (id. at ¶ 10), and also suspected that Gilchrest twice assaulted police officers with sport utility vehicles ("SUVs"), using a black Jeep Cherokee during the first alleged assault and a Red Dodge Durango during the second alleged assault. (Id. at ¶¶ 12-14.) The PGCPD identified Chernier Hartwell as being a passenger in the Jeep Cherokee during the first alleged assault (id. at ¶ 13), and had information that Gilchrest and Hartwell had allegedly robbed a confidential informant at gunpoint just before September 1, 2000. (Id. at ¶ 15; id. at Ex. 1 at 61-62, Ex. 2 at 42, 126-27.) The PGCPD also suspected that Gilchrest and Hartwell engaged in drug trafficking together. (Id. at Ex. 1 at 61-63, Ex. 2 at 42-43.)
Defendants submitted an 81-paragraph statement of material facts in support of their motion for summary judgment. Local Civil Rule 7 provides in relevant part:
[A]n opposition to [a summary judgment motion] shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated. . . . [T]he court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.
LCvR 7(h). Plaintiff submitted a response to defendants' statement of material facts, but did not controvert the facts asserted in paragraphs 1 to 35, 37 to 40, 42 to 49, 53 to 63, 66 to 73, 76, 77, 80 or 81 of defendants' statement of facts. Thus, defendants' uncontroverted facts will be deemed admitted, while disputed facts will be construed in the light most favorable to plaintiff. Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998).
Carlton Jones described Hartwell as being Gilchrest's "best friend," testifying that "they are such good friends that when Mr. Gilchrest is not driving his vehicle, Mr. Hartwell is allowed to drive his vehicle and go about his business." (Defs.' Mem. Supp. Summ. J., Ex. 1 at 61.) Bailey described Hartwell as being Gilchrest's "running partner." (Id., Ex. 2 at 42.)
In order to try to recover the stolen gun, the PGCPD decided to obtain a search warrant for Gilchrest's residence. (Id., Stmt. Fact at ¶ 17; id., Ex. 1 at 72.) Because prior surveillance of Gilchrest's mother's house demonstrated that he did not live there (id., Stmt. Fact at ¶ 21; id., Ex. 1 at 53, 72; Pl.'s Opp'n at 45-46), the PGCPD needed to learn where Gilchrest was actually staying in order to complete the warrant application. (Id., Stmt. Fact at ¶ 18.)
In August and September 2000, Carlton Jones and Bailey were assigned to the PGCPD District I Narcotics Enforcement Team. (Id. at ¶ 6.) Carlton Jones's duties included conducting narcotics investigations. (Id. at ¶ 8.) Acting on confidential source information obtained on August 31, 2000 that Gilchrest frequented the area of 5th and Kennedy Streets in the District of Columbia (id. at ¶ 23), Carlton Jones and Bailey began surveillance activities in the early morning hours of September 1, 2000 in the District of Columbia (id. at ¶¶ 20, 23-24, 35, 37), and later in Maryland and Virginia (id. at ¶¶ 29-30, 34, 38), just to try to determine Gilchrest's address. (Id. at ¶ 36.)
Plaintiff does not dispute defendants' statement of fact that Bailey's and Carlton Jones's only intent with respect to their surveillance activity was "to locate an address [for Gilchrest's residence] for the search warrant." (Compare Defs.' Mem. Supp. Summ. J., Stmt. Fact at ¶ 36, with Pl.'s Resp. to Defs.' Stmt. Fact at ¶ 36.)
During the surveillance, Carlton Jones saw a black Jeep Cherokee, similar to the one Gilchrest was known to drive, with Pennsylvania tags in the area of 5th and Kennedy Streets. (Id. at ¶ 27; id., Ex. 1 at 79.) Carlton Jones lost sight of the Jeep. (Id., Stmt. Fact at ¶ 28.) After a period of continued surveillance in the 5th and Kennedy Streets area, Carlton Jones radioed Bailey and then left the District of Columbia and drove to the Cyprus Creek Apartments in Hyattsville, Maryland, the suspected address for Hartwell which Carlton Jones had been given by a confidential informant on August 30, 2000. (Id., Stmt. Fact at ¶¶ 22, 29.) While there, Carlton Jones noticed the same black Jeep Cherokee that he had previously seen in the District of Columbia arrive at the Cypress Creek Apartments. (Id. at ¶ 30; id., Ex. 1 at 88-89.) After briefly observing the black Jeep and its driver (id., Ex. 1 at 88-94), Carlton Jones left to head back to the PGCPD station. (Id., Stmt. Fact at ¶ 33.)
Carlton Jones testified that the lighting made it difficult for him to determine the identity of the driver. (Defs.' Mem. Supp. Summ. J., Ex. 1 at 92-94.)
Some time thereafter, while driving back to the PGCPD station, Bailey saw near Chillum Road the black Jeep that Carlton Jones had seen earlier in the District of Columbia and in Maryland (Id. at ¶ 34.) Bailey began to follow the Jeep and notified Carlton Jones to rejoin the surveillance. (Id. at ¶¶ 34, 35.) Carlton Jones rejoined the surveillance in the District of Columbia, and he and Bailey followed the Jeep into Virginia. (Id. at ¶ 38.) At no time did either Carlton Jones or Bailey know that the Jeep's driver was decedent Prince Carmen Jones, Jr. (Id. at ¶ 72.)
It is unclear whether Bailey first observed the black Jeep Cherokee in Maryland or the District of Columbia, although defendants' statement of facts and Carlton Jones's testimony imply that it was in Maryland (See Defs.' Mem. Supp. Summ. J., Stmt. Fact at ¶ 35 ("Sgt. Bailey notified Cpl. Jones that he sees the vehicle, he is following it into the District. . . .");id., Ex. 1 at 99 ("[Bailey] said I've got the vehicle occupied, . . . we're heading into the District. . . .").)
In Virginia, after Carlton Jones followed the black Jeep into a residential neighborhood, the Jeep pulled out of a driveway and passed Carlton Jones going in the opposite direction on a residential street. (Id. at ¶¶ 42-47.) Carlton Jones began to make a three-point turn, but before he could complete it, the Jeep backed up to Carlton Jones's driver side door. (Id. at ¶¶ 48-49.) The Jeep's driver then began to drive away (id. at ¶ 52; Pl.'s Resp. to Defs.' Stmt. Fact at ¶ 52), leading Carlton Jones to believe the encounter had ended and that the driver was leaving. (Defs.' Mem. Supp. Summ. J., Stmt. Fact at ¶ 53.) Carlton Jones then heard tires spinning and saw the Jeep backing towards him. (Id. at ¶¶ 54-55.) The Jeep struck Carlton Jones's SUV (id. at ¶ 56), which rocked Carlton Jones inside his SUV. (Id. at ¶ 59.) The Jeep's driver then pulled the Jeep farther forward than he had been before the first collision (id. at ¶ 57), raced its engine and spun its wheels in reverse causing smoke to come from the Jeep's tires (id. at ¶ 58; id., Ex. 1 at 118-119), and struck Carlton Jones's SUV a second time. (Id., Stmt. Fact at ¶ 58.) The second collision was stronger than the first one. (Id. at ¶ 60.)
According to defendants, Bailey was no longer a part of the surveillance of the Jeep when it moved off Route 50 because he missed the exit taken by the Jeep's driver and Carlton Jones, and drove instead onto I-395. (See Defs.' Mem. Supp. Summ. J., Stmt. Fact at ¶ 41.) Plaintiff asserts that this fact is in dispute because Bailey told Carlton Jones he was right behind him when they got onto Route 50. (See Pl.'s Resp. to Defs.' Stmt. Fact at ¶ 41.) This is of little significance as the two assertions do not contradict each other. In any event, plaintiff admits that "Bailey was not at the scene of the shooting and did not know about the shooting until after it occurred" (Defs.' Mem. Supp. Summ. J., Stmt. Fact at ¶ 73; see Pl.'s Resp. to Defs.' Stmt. Fact at ¶ 73; Defs.' Mem. Supp. Summ. J., Ex. 4 at 182-83), which suggests that Bailey was not right behind Carlton Jones or in the immediate vicinity when Carlton Jones shot decedent.
Although they do not affect the disposition of plaintiff's civil conspiracy and stalking claims, disputed issues of fact exist regarding whether, after backing the Jeep up to Carlton Jones's driver's side door, decedent got out of the Jeep and ran toward Carlton Jones, and, if so, whether Carlton Jones identified himself as a police officer and warned decedent to get back into the Jeep. (Compare Defs.' Mem. Supp. Summ. J., Stmt. Fact at ¶¶ 50-52, with Pl.'s Resp. to Defs.' Stmt. Fact at ¶¶ 50-52.)
After the black Jeep struck his SUV a second time, Carlton Jones fired 16 shots from his gun into the back of the Jeep (id. at ¶ 64; id., Ex. 1 at 118-119), hitting the Jeep's driver five times. (Pl.'s Mem. P. A. in Opp'n at 2.) After the shooting, the Jeep's driver drove away. (Defs.' Mem. Supp. Summ. J., Stmt. Fact at ¶ 68.) No shots were fired as the Jeep drove away. (Id. at ¶ 69.) Carlton Jones drove to an intersection, called 911, and told the dispatcher he had just shot Hartwell. (Id. at ¶¶ 70-71.) In fact, Carlton Jones had shot decedent Prince Carmen Jones, Jr., who later died of his injuries.
PROCEDURAL HISTORY
After plaintiff filed her complaint, defendants filed motions to dismiss under Federal Rule of Civil Procedure 12(b) alleging, in part, that venue was not proper in this district and that the court lacked personal jurisdiction over defendants. (PG County and Farrell Mot. to Dismiss or, in the Alt., for Summ. J. (Feb. 6, 2001); Bailey Mot. to Dismiss or, in the Alt., for Summ. J. (March 2, 2001); Carlton Jones Mot. to Dismiss or, in the Alt., for Summ. J. (April 5, 2001).) Plaintiff responded that, due to her allegations of a civil conspiracy that was formed in this district, venue was proper in this district and the court had personal jurisdiction over each defendant. (Pl.'s Am. Opp'n to PG County and Farrell Mot. to Dismiss at 9-16.) Defendants' motions to dismiss were denied because plaintiff's complaint set forth facts which, if proven, could establish the existence of a civil conspiracy initiated and carried out partly in this district (see, e.g., Compl. at ¶¶ 12-13, 15-17, 42 (variously characterizing a conspiracy or plan hatched in this district to violate the decedent's civil rights or to initiate a confrontation with him that was partly carried out by following or stalking him here); Status Hearing Tr. (May 1, 2001) ("Tr.") at 5-6), which made venue proper here, see 28 U.S.C. § 1391(B)(2), and gave the court personal jurisdiction over all defendants. See D.C. Code § 13-423(A)(3). Left open was the question of whether venue would properly lie in this district if, after discovery, plaintiff could not establish her civil conspiracy claim. (Id. at 22.) Defendants now move for summary judgment under Federal Rule of Civil Procedure 56, arguing that plaintiff has not proven any civil conspiracy, and renewing their assertions that venue does not properly lie in this district and that this court lacks personal jurisdiction over defendants.
Carlton Jones did not move to dismiss for lack of personal jurisdiction. (See Carlton Jones Mot. Dismiss or, in the Alt., for Summ. J. (April 5, 2001).) Carlton Jones has therefore waived that argument. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999) ("Personal jurisdiction . . . `represents a restriction on judicial power . . . as a matter of individual liberty.' . . . Therefore, a party may insist that the limitation be observed, or he may forgo that right, effectively consenting to the court's exercise of adjudicatory authority.") (citations omitted). Carlton Jones's waiver, though, has no effect on this disposition of defendants' motion for summary judgment.
DISCUSSION
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998). The record must be viewed in the light most favorable to the nonmoving party. Aka, 156 F.3d at 1288.
The moving party carries the initial burden to either identify evidence that demonstrates the absence of a genuine issue of material fact, see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), or "point to the absence of evidence proffered by the nonmoving party." Baker v. Potter, 294 F. Supp.2d 33, 38 (D.D.C. 2003). Summary judgment is inappropriate if a reasonable factfinder could find in the non-moving party's favor. "The nonmoving party's opposition, however, `must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial.'"McCain v. CCA of Tenn., Inc., 254 F. Supp.2d 115, 119 (D.D.C. 2003) (citation omitted); see Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993) ("[M]ere unsubstantiated allegation . . . creates no `genuine issue of fact' and will not withstand summary judgment."); Sage v. Broadway Publ'ns, Inc., 997 F. Supp. 49, 53 (D.D.C. 1998) ("Conclusory allegations made in affidavits opposing a motion for summary judgment are insufficient to create a genuine issue of material fact."); Baker, 294 F. Supp. at 38 (nonmoving party may not rely solely on allegations or conclusory statements). "If the evidence `is merely colorable, or is not significantly probative, summary judgment may be granted.'"Baker, 294 F. Supp.2d at 38 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)).
I. CIVIL CONSPIRACY
Plaintiff alleges that Bailey and Carlton Jones conspired to violate decedent's civil rights "by bringing about his murder." (Compl. at ¶ 17; see id. at ¶¶ 12, 13, 15 and 16.) "In the District of Columbia, civil conspiracy has four elements: `(1) an agreement between two or more persons; (2) to participate in an unlawful act, or a lawful act in an unlawful manner; (3) an injury caused by an unlawful overt act performed by one of the parties to the agreement; (4) which overt act was done pursuant to and in furtherance of the common scheme.'" Second Amendment Found. v. United States Conf. of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001) (quoting Halberstam v. Welch, 705 F.2d 472, 477 (D.C. Cir. 1983)); see Okusami v. Psychiatric Inst. of Washington, Inc., 959 F.2d 1062, 1066 (D.C. Cir. 1992). A plaintiff must prove that the alleged conspirators' wrongful conduct in furtherance of the agreement proximately caused the injury associated with the wrongful acts. See Furash Co., Inc. v. McClave, 130 F. Supp.2d 48, 54-55 (D.D.C. 2001) (recognizing that, for a civil conspiracy claim, if a plaintiff can establish that a defendant participated in or induced alleged wrongful actions of the tortfeasor, the defendant "is a conspirator and is liable for the damages proximately caused by these wrongs") (citation omitted); Int'l Underwriters, Inc. v. Boyle, 365 A.2d 779, 784 (D.C. 1976) (same).
The complaint plainly alleges conspiracy, but not in a distinct count which would call for its own findings of liability and damages in a verdict. Plaintiff had proposed to, but did not, amend her complaint to more clearly set forth her conspiracy claim. (See Tr. at 21-23.) Her conspiracy claim, then, simply alleges a theory of liability which is advanced, in part, in support of her choice of venue.
A. Agreement Between Two or More Persons
Defendants assert in their motion for summary judgment that plaintiff has not established the first element of her prima facie case for civil conspiracy. (Defs.' Mem. Supp. Summ. J. at 14.) Defendants correctly argue that plaintiff put forth no evidence that Bailey and Carlton Jones agreed to murder the decedent. However, the evidence shows that Bailey and Carlton Jones agreed to undertake some concerted action, even though it was just to conduct surveillance on the morning of September 1, 2000 to learn Gilchrest's address. Thus, the existence of that agreement satisfies plaintiff's burden of showing that Bailey and Carlton Jones agreed to act in concert. B. Participation in an Unlawful Act, or a Lawful Act in an Unlawful Manner
Plaintiff includes in her memorandum in opposition to the defendants' motion for summary judgment a "Statement of Relevant Facts," but it merely repeats the allegations contained in her complaint (compare Pl.'s Mem. P. A. in Opp'n at 2-4, with Compl. at ¶¶ 10-19) and is unsupported by any citations to record evidence from which a reasonable factfinder could conclude that Bailey and Carlton Jones conspired to murder decedent.
Defendants assert that plaintiff has not established that the surveillance by Bailey and Carlton Jones was unlawful or that they conducted surveillance in an unlawful manner. (See Defs.' Mem. in Reply at 2-3, 6-7 and n. 2; Defs.' Mem. Supp. Summ. J. at 16-17.) The uncontroverted record evidence is that Carlton Jones and Bailey agreed only to conduct surveillance for the limited purpose of determining the residential address for Gilchrest, whom PG County police believed to be in possession of a police officer's gun that was stolen. Defendants assert that there was nothing unlawful about Bailey's and Carlton Jones's investigative surveillance activities. (See id.)
Plaintiff neither controverted these statements of fact, nor offered evidence from which a contrary inference reasonably can be drawn.
In response, plaintiff alleges that Bailey and Carlton Jones agreed to undertake unlawful conduct because their investigative surveillance activities were beyond the authority granted them by Maryland law. (See Pl.'s Mem. P. A. in Opp'n at 10-11.) Under Maryland law in effect in August and September 2000, a police officer in the State of Maryland was authorized "to make arrests, conduct investigations and otherwise enforce the laws of this State throughout the State without limitations as to jurisdiction." Maryland Code, Art. 27, § 594B(m)(2)(i) (2000). However, § 594B also limited this otherwise broad grant of police authority:
A police officer may exercise the powers . . . if: (i) 1. The police officer is participating in a joint investigation with officials from any other State, federal, or local law enforcement agency, at least one of which has local jurisdiction; 2. The police officer is rendering assistance to a police officer; 3. The police officer is acting at the request of a local police officer or a State Police officer; or 4. An emergency exists; and (ii) The police officer is acting in accordance with regulations adopted by the police officer's employing agency. . . .
Plaintiff also alleges that Bailey's and Carlton Jones's conduct violated PGCPD General Orders 4/110.05 and 4/111.05. (See Pl.'s Mem. P. A. in Opp'n at 10-11.) General Order 4/110.05 provides that, "[e]xcept in situations described elsewhere in this section, officers shall not patrol or be dispatched to calls for service beyond the borders of Prince George's County." (Defs.' Mem. Supp. Summ. J., Ex. 10, General Orders.) One explicit exception to that general rule is that "[o]fficers may respond outside the County for administrative or investigative purposes[,]" with non-uniformed personnel being permitted to "travel throughout the Washington Metropolitan area without prior supervisory approval for official purposes only." Plaintiff's reliance on General Order 4/110.05 to advance her civil conspiracy claim fails since it is uncontroverted that Bailey and Carlton Jones were non-uniformed officers (see Pl.'s Mem. P. A. in Opp'n at 9), and were conducting PGCPD investigative surveillance activities on the morning of September 1, 2000. Similarly, General Order 4/111.05, which requires any PGCPD "officer who discovers an incident requiring police attention in another jurisdiction" to notify the police agency in that other jurisdiction (Defs.' Mem. Supp. Summ. J., Ex. 10, General Orders), does not advance plaintiff's civil conspiracy claim. General Order 4/111.05 pertains to officers who discover a crime being committed in another jurisdiction. (Id., Ex. 10 at 22-23.) None appears in this record on September 1, 2000 before decedent began striking Carlton Jones's SUV with his Jeep. Moreover, plaintiff does not offer any evidence to refute Bailey's and Carlton Jones's testimony that they had no intention of initiating activity that would have required notification to District of Columbia or Virginia law enforcement authorities on September 1, 2000. (See Defs.' Mem. Supp. Summ. J., Ex. 1 at 35-36, 52, 101, 107-08; id., Ex. 2 at 35, 64-65, 75-76, 147-48.)
Article 27, § 594B(m) has since been recodified without material change at Maryland Code, Criminal Procedure, § 2-102 (2003).
Maryland Code, Art. 57, § 594B(m)(3)(i)-(ii).
By its plain language, § 594B is an authorizing statute. The statute does not purport to make unlawful a police officer's police activities conducted outside of his police agency's jurisdiction or outside of the state. Miller v. State, 824 A.2d 1017, 1023 (Md.Ct.Spec.App. 2003) (stating that Maryland Code, Criminal Procedure, § 2-102, the current recodified version of § 594B(m), "was intended not to control or limit police activity, but to enhance and expand upon it. Its purpose, as stated in the legislative summary of its senate progenitor, was to `foster greater efficiency and cooperation among law enforcement officers in fighting crime on a multi-jurisdictional level'") (quotingLimited Extrajurisdictional Authority for Police Officers, 1993 Leg. (Md. 1993) (summary of S.B. 344)). A Maryland police officer acting beyond his jurisdiction merely "loses his cloak of authority" and, "[b]arring exigent circumstances, . . . acts as a private citizen." Horn v. City of Seat Pleasant, 57 F. Supp.2d 219, 225 (D. Md. 1999).
Bailey and Carlton Jones admit that they were acting without police authority on the morning of September 1, 2000 when they were in the District of Columbia and Virginia conducting surveillance. (See Pl.'s Mem. P. A. in Opp'n, Att. 1 at 93-94, Att. 2 at 55.) The facts establish merely that Bailey and Carlton Jones were acting with no power beyond that of private citizens when they conducted surveillance outside of Prince George's County, Maryland, see Horn, 57 F. Supp.2d at 225, but do not, without more, establish that defendants' conduct was unlawful. Cf. Horn, 57 F. Supp.2d at 226 (recognizing that a police officer acting beyond his territorial jurisdiction does not, by that fact alone, violate the Constitution); Madsen v. Park City, 6 F. Supp.2d 938, 945 (N.D. Ill. 1998) (same). Because the record does not reveal Bailey's and Carlton Jones's surveillance to have been unlawful, plaintiff must meet her burden of establishing the second element of her prima facie case for civil conspiracy by demonstrating that Bailey and Carlton Jones accomplished their otherwise lawful investigative surveillance activities in an unlawful manner.
Plaintiff thus argues that Bailey and Carlton Jones conducted their surveillance in an unlawful manner because they "stalked" decedent throughout the District of Columbia, Maryland and Virginia. (See Compl. at ¶¶ 15, 17, 38, 42, 44.) In September 2000, stalking was defined under District of Columbia law as requiring willful, malicious and repeated conduct that occurs on more than one occasion:
Any person who on more than one occasion engages in conduct with the intent to cause emotional distress to another person or places another person in reasonable fear of death or bodily injury by willfully, maliciously, and repeatedly following or harassing that person, or who, without a legal purpose, willfully, maliciously, and repeatedly follows or harasses another person, is guilty of the crime of stalking. . . .
D.C. Code Ann. § 22-504(b)(1998); see United States v. Smith, 685 A.2d 380, 385 (D.C. 1996) (holding that a "perpetrator . . . must follow or harass someone `repeatedly,' and therefore one act of following or harassment would not constitute stalking" under the D.C. Code); Washington v. United States, 760 A.2d 187, 198 (D.C. 2000) (holding that stalking "is defined as a series of incidents that are part of a course of conduct extending over a period of time"). Virginia's stalking law similarly required a showing of repeated conduct:
Section 22-504 has since been recodified at D.C. Code Ann. § 22-404 (2001).
Any person who on more than one occasion engages in conduct directed at another person with the intent to place, or with the knowledge that the conduct places, that other person in reasonable fear of death, criminal sexual assault, or bodily injury to that other person or to that other person's family or household member shall be guilty of a Class 1 misdemeanor.
Va. Code Ann. § 18.2-60.3 (2000); Parker v. Commonwealth, 485 S.E.2d 150, 152 (Va.Ct.App. 1997) (holding that "in order to obtain a conviction under Code § 18.2-60.3, the Commonwealth must prove . . . [that] the defendant engaged in multiple instances of conduct directed at a person or that person's spouse or child"). As well, stalking under Maryland law as applicable in September 2000, required proof of both malice and more than one act:
Section 18.2-60.3 has since been recodified to also criminalize repeat conduct directed at another person which the perpetrator "reasonably should know . . . places that other person in reasonable fear of death, criminal sexual assault, or bodily injury. . . ." Va. Code Ann. § 18.2-60.3 (2002).
"Stalking" means a malicious course of conduct that includes approaching or pursuing another person with the intent to place that person in reasonable fear . . . of serious bodily injury or death. . . .
Maryland Code, Art. 27, § 124(a)(3)(i) (2000). The statute defined a "course of conduct" to mean "a persistent pattern of conduct, composed of a series of acts over time, that shows a continuity of purpose." Id. § 124(a)(2).
The Maryland legislature has since recodified Article 27, § 124. See MD Code, Criminal Law, § 3-802 (2003). The 2003 codification additionally criminalizes a "course of conduct" directed at another person which the perpetrator "knows or reasonably should have known . . . would place another in reasonable fear of . . . serious bodily injury; . . . an assault in any degree; . . . or death." Id.
Bailey's and Carlton Jones's investigative surveillance activities began and ended in the early morning hours of September 1, 2000. Carlton Jones passively observed decedent's black Jeep Cherokee on two occasions on September 1 — first in the District of Columbia when he saw it in the area of 5th and Kennedy Streets, and second when he saw the same Jeep arrive at the Cypress Creek Apartments. On neither occasion did Carlton Jones take any overt actions toward the Jeep's occupant, such as confronting or approaching the driver. Carlton Jones ended his surveillance at the Cypress Creek Apartments and headed back to PGCPD headquarters. Bailey and Carlton Jones did not begin to actively follow decedent's Jeep until Bailey later observed the Jeep on Chillum Road as he too returned to PGCPD headquarters.
Plaintiff does not allege, and the record does not demonstrate, that Bailey and Carlton Jones followed decedent or his Jeep at anytime before September 1, 2000.
Bailey's and Carlton Jones's surveillance activities on September 1, 2000 were more akin to a continuous act undertaken on a single occasion than to the type of repeated acts necessary for their conduct to fall within the District of Columbia's, Virginia's or Maryland's stalking laws. Even if Bailey's and Carlton Jones's conduct constituted multiple acts that transpired on more than one occasion on September 1, 2000, there is no evidence in the record that they undertook their surveillance with malice, as required by the plain language of the District of Columbia and Maryland stalking statutes. Nor does plaintiff offer sufficient evidence by which a reasonable factfinder could determine that Bailey and Carlton Jones intended to place, or knew that their conduct would place, decedent in reasonable fear of death, criminal sexual assault or bodily injury as is required under Virginia's stalking law. The "reasonable fear" element of § 18.2-60.3 "proscribes repeated conduct that is either an express threat of physical harm or would be reasonably interpreted by the victim as a threat of impending physical harm in light of the history of the parties' relationship." Parker, 485 S.E.2d at 154. There is no evidence in the record that Bailey or Carlton Jones physically threatened decedent or made any threatening gestures toward decedent while following him. Nor is there any evidence to establish that decedent had a prior history with Bailey or Carlton Jones (or any other person) such that they would know that their otherwise benign act of following decedent would place him in reasonable fear of impending physical harm.
Because, as a matter of law, plaintiff cannot prove that Bailey and Carlton Jones stalked decedent, she cannot rely on those allegations to establish that they agreed to engage in lawful activity in an unlawful manner. Nor would her allegations of stalking incorporated by reference into each numbered count of the complaint and mentioned explicitly in Counts V through VII of the complaint provide an independent basis for venue in this district.
Plaintiff has also not shown that the surveillance violated the Fourth Amendment. Bailey and Carlton Jones did not unlawfully seize decedent when they observed and followed, but did not stop, decedent's Jeep on the morning of September 1, 2000. See Michigan v. Chestnut, 486 U.S. 567, 575 (1988) (holding that where the record "did not reflect that the police activated a siren or flashers; or that they commanded respondent to halt, or displayed any weapons; or that they operated the [police] car in an aggressive manner to block respondent's course or otherwise control the direction or speed of his movement," there had been no Fourth Amendment seizure); United States v. Felix-Felix, 275 F.3d 627, 635 (7th Cir. 2001) (holding that chasing a car "was certainly not a seizure — a show of authority, without any application of physical force, to which the suspect does not yield, is not a seizure"); Riley v. City of Montgomery, 104 F.3d 1247, 1252 (11th Cir. 1997) (holding that merely surveying or pursuing a car is not a seizure for purposes of the Fourth Amendment); United States v. Klinginsmith, 25 F.3d 1507, 1510 (10th Cir. 1994) (holding that following a car along a frontage road until it stopped was not a Fourth Amendment seizure); United States v. Thompkins, 998 F.2d 629, 633 (8th Cir. 1993) (holding that "[p]olice pursuit of a suspect is generally not a seizure. . . . Rather, for a seizure to occur, there must be a physical application of force by the officer or submission to the officer's show of force") (citations omitted).
See Compl. at ¶¶ 23, 25, 28, 33, 36, 39, 43.
See Compl. at ¶¶ 38, 42, 44 (alleging deprivation of civil rights under 42 U.S.C. § 1983, negligent training and supervision, and intentional and negligent infliction of emotional distress).
Because plaintiff cannot establish that Bailey and Carlton Jones agreed to participate in unlawful activity, or that they agreed to undertake lawful activity in an unlawful manner, she cannot prove the second element of her prima facie case for civil conspiracy.
C. An Injury Caused by an Unlawful Overt Act Committed in Furtherance of the Scheme
Even if plaintiff could establish that agreeing to engage in surveillance was unlawful or was lawful but undertaken in an unlawful manner, she would still have to prove that either Bailey or Carlton Jones performed an overt act in furtherance of an agreement that proximately caused an injury to decedent. See Furash Co., 130 F. Supp.2d at 54-55; Int'l Underwriters, Inc., 365 A.2d at 784. Plaintiff characterizes Carlton Jones's shooting at decedent as an unlawful overt act which was done pursuant to and in furtherance of the common scheme, resulting in decedent's death. (See Compl. at ¶¶ 12-13, 15-17; Pl.'s Mem. P. A. in Opp'n at 3-4.)
As is discussed above, the facts demonstrate at most an agreement reached by Bailey and Carlton Jones to undertake surveillance on September 1, 2000. Plaintiff presented no facts refuting the claim by Bailey and Carlton Jones that they had no intention to confront the Jeep's driver, and there is no evidence in the record that either Bailey or Carlton Jones did instigate a confrontation with decedent. Indeed, no precipitating physical contact preceded the Jeep's movements toward Carlton Jones's SUV. Even if shooting decedent was an unlawful overt act, a reasonable factfinder could not conclude on this record that decedent's shooting was in furtherance of Bailey's and Carlton Jones's limited agreement to conduct surveillance activities.
Plaintiff argues that Carlton Jones "initiated the preplanned confrontation" with decedent in the Fairfax County, Virginia residential neighborhood, thereby causing decedent to try "to make his escape from the apparent trap being set by defendants Jones and Bailey." (Pl.'s Mem. P. A. in Opp'n at 4.) The allegation, though, is conclusory and unsubstantiated. Plaintiff offers no evidence, for example, that before the decedent drove his Jeep into Carlton Jones's SUV, Carlton Jones activated any siren or flashers, commanded decedent to halt, blocked the Jeep's path or otherwise tried to control the decedent's or the Jeep's movement.
Moreover, even if observing and following decedent's Jeep constituted an unlawful overt act, plaintiff would nevertheless have to prove that such unlawful conduct was a substantial factor in causing injury, or as plaintiff alleges, decedent's death. The District of Columbia and Maryland have both adopted the rule from the Restatement (Second) of Torts § 431 (1965) that an "actor's negligent conduct is a legal cause of harm to another if . . . his conduct is a substantial factor in bringing about the harm. . . ." See Majeska v. District of Columbia, 812 A.2d 948, 950-51 (D.C. 2002) (stating that "[p]roximate cause has two components: `cause-in-effect' and a `policy element' which limits a defendant's liability when the chain of events leading to the plaintiff's injury is unforeseeable or `highly extraordinary' in retrospect[,]" and citing Restatement (Second) of Torts § 431 in support of its cause-in-effect analysis) (citation omitted);Casey v. Grossman, 720 A.2d 959, 964 (Md.Ct.Spec.App. 1998) (stating that "Maryland has adopted the `substantial factor' rule" and citing § 431).
Considerations important in determining whether an actor's negligent conduct is a substantial factor in producing the harm complained of are (1) "the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it;" and (2) "whether the actor's conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible." Restatement (Second) of Torts § 433(a)-(b). As the commentary to Section 433 states with respect to the first consideration, "[s]ome other event which is a contributing factor in producing the harm may have such a predominant effect in bringing [the harm] about as to make the effect of the actor's negligence insignificant and, therefore, prevent it from being a substantial factor." Id. Comment d. Moreover, an "actor's conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor's negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm." Id. § 435(2); see Majeska, 812 A.2d at 951 ("[The court has] held that a defendant may not be held liable for harm actually caused where the chain of events leading to the injury appears `highly extraordinary in retrospect."); Wankel v. A B Contractors, Inc., 732 A.2d 333, 349 (Md.Ct.Spec.App. 1999) (noting that "Maryland courts have adopted the view found in § 435 of the Restatement (Second) of Torts . . . concerning proximate causation") (citation omitted).
Although Virginia does not follow the Restatement (Second) of Torts in defining causation, Virginia law does measure whether an actor's negligence is a proximate cause of another's injuries similarly. Under Virginia law, "[n]egligence carries with it liability for consequences that . . . could reasonably have been anticipated by a prudent person, but not for casualties which, though possible, were wholly improbable. . . . It is sufficient that an ordinary, prudent person ought, under the circumstances, to have foreseen that an injury might probably (not possibly) result from the negligent act." Interim Personnel of Central Va., Inc. v. Messer, 559 S.E.2d 704, 708 (Va. 2002) (internal citations omitted).
Because there is no record evidence that either Bailey or Carlton Jones had any intent to confront the Jeep's driver, their observing and following decedent's Jeep, even if negligent and wrongful, alone did nothing more than create a situation that was otherwise harmless. See Restatement (Second) of Torts § 433(b). There is no record evidence that Bailey's and Carlton Jones's surveillance activity alone caused any injury, and it was at most an insubstantial factor in decedent's death. See id. Comment d. Moreover, because Bailey's and Carlton Jones's pre-shooting conduct was otherwise benign, decedent's tragic death under those circumstances was highly extraordinary and was neither a probable (as opposed to possible) nor a foreseeable consequence of the surveillance activities. See id. § 435; Messer, 559 S.E.2d at 708.
Accordingly, because plaintiff has not established a prima facie case of civil conspiracy in the absence of proof of any unlawfulness of the surveillance or that it proximately caused injury, summary judgment will be granted to the defendants on that claim. Because plaintiff has not established a prima facie case of stalking under District of Columbia, Virginia or Maryland law, summary judgment will also be granted to the defendants on that claim.
II. IMPROPER VENUE
In their motion for summary judgment, defendants renew their argument that, because plaintiff cannot establish the existence of a civil conspiracy, venue does not properly lie in this district and the court does not have personal jurisdiction over defendants. During the May 1, 2001 hearing, defendants' motions to dismiss for improper venue or lack of personal jurisdiction were denied because plaintiff had sufficiently pled the elements of a civil conspiracy, which made venue in this district proper under 28 U.S.C. § 1391(b)(2), and conferred this court with personal jurisdiction over all defendants under § 423(a)(3) of the D.C. Code, Title 13. Defendants' motions to dismiss were denied at the pleading stage of the proceedings because plaintiff had sufficiently pled — as opposed to proved — the existence of a civil conspiracy carried out partly in this district.
Now that plaintiff has failed to prove at the summary judgment stage a prima facie case of civil conspiracy or stalking occurring or producing injury within this district, it is now clear that this district is not a proper venue for plaintiff's remaining claims which arise out of events which did not occur or cause injury in the District of Columbia.
However, because the merits of plaintiff's remaining claims are still in dispute, a motion under Rule 56 of the Federal Rules of Civil Procedure is not a proper means for disposing of those claims due to improper venue. See generally Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, Federal Practice Procedure: Civil 3d § 2713 (1998) (discussing the difference between dismissing claims without prejudice under Fed.R.Civ.P. 12(b) for improper venue, and dismissing claims on the merits with prejudice under Fed.R.Civ.P. 56). Accordingly, because the interest of justice will now be served by transferring plaintiff's remaining claims to another district in which her claims could have been brought, this case will be transferred under 28 U.S.C. § 1406(a) to the United States District Court for either the District of Maryland or the Eastern District of Virginia. See 28 U.S.C. § 1406(a) ("The district court of a district in which is filed a case laying venue in the wrong . . . district shall dismiss, or if it be in the interest of justice, transfer such a case to any district or division in which it could have been brought"); see also Porter v. Groat, 840 F.2d 255, 257-58 (4th Cir. 1988) (discussing the broad construction of § 1406(a) in sister circuits and holding that the statute "authorizes the transfer of a case to any district, which would have had venue if the case were originally brought there, for any reason which constitutes an impediment to a decision on the merits in the transferor district but would not be an impediment in the transferee district"); Martin v. Stokes, 623 F.2d 469, 474 (6th Cir. 1980) (holding that "§ 1406(a) provides the basis for any transfer made for the purpose of avoiding an obstacle to adjudication on the merits in the district court where the action was originally brought. That defect may be either improper venue or lack of personal jurisdiction"); cf. Noland Co. v. Lea, No. 90-1576, 1990 WL 183558, *1 (D.D.C. Nov. 2, 1990) (finding that where defendants did not waive their improper venue defense and raised it again in opposition to plaintiff's motion for summary judgment, rather than dismissing plaintiff's remaining claims, "`the interest of justice'" under 28 U.S.C. § 1404(a) would be served by transferring those claims to other courts).
Even though the court does not now have personal jurisdiction over PG County, Farrell or Bailey, such a transfer under § 1406(a) is nevertheless permissible. See Naartex Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C. Cir. 1983) (holding that "[a] court may transfer a case [under 28 U.S.C. § 1406(a)] to another district even though it lacks personal jurisdiction over the defendants").
CONCLUSION AND ORDER
Plaintiff does not place any material facts in dispute with respect to certain elements of her prima facie case for her civil conspiracy and stalking claims, and defendants are entitled to judgment as a matter of law on those claims. Defendants' motion will be denied without prejudice with regard to plaintiff's remaining claims. Because the interest of justice will be served by transferring plaintiff's remaining claims to a district court in which those claims could have been brought in the first instance, her remaining claims will be transferred to the United States District Court for either the District of Maryland or the Eastern District of Virginia. Accordingly, it is hereby
ORDERED that defendants' motion for summary judgment [#93-1] be, and hereby is, GRANTED in part and DENIED in part. Judgment is entered for defendants with respect to plaintiff's claims for civil conspiracy and stalking. Defendants' motion for summary judgment on all other claims set forth in plaintiff's complaint is DENIED without prejudice. It is further
ORDERED that plaintiff file a memorandum by April 12, 2004 regarding which district should be the transferee district and the reasons supporting that choice. Defendants shall respond by April 23, 2004, and plaintiff may reply by April 30, 2004. It is further
ORDERED that the pretrial conference set for May 11, 2004, and the trial set for May 18, 2004, be, and hereby are, CANCELLED.