HOPE VITALE                                              *          IN THE

            Plaintiff                                               *          CIRCUIT COURT

v.                                                                     *          FOR

JAMES C. SEXTON                                     *          BALTIMORE CITY

            Defendant                                          *          CIVIL ACTION NO.:

            *          *          *          *          *          *          *          *          *          *          *

PLAINTIFFS' OPPOSITION TO DEFENDANTS'
MOTION TO DISMISS FOR IMPROPER VENUE

            Plaintiff, Hope Vitale, by her undersigned attorneys, respectfully requests that this Court deny Defendant’s Motion to Dismiss for Improper Venue.  In support, Plaintiff states as follows:

                                                            I.  INTRODUCTION

            This is an auto accident in which Plaintiff, Hope Vitale (“Vitale”) contends that the negligence of the Defendant, James C. Sexton (“Sexton”) caused substantial personal injuries property damages.  (See Plaintiff’s Complaint, attached hereto as Exhibit 1.)  Plaintiff further alleges that Defendant engages in regular business in Maryland, specifically Baltimore City. Id. at Paragraph 3.

            Defendant engages in the regular business in Baltimore City and earns income from work that he does in Baltimore City.  Accordingly, venue is entirely proper in Baltimore City.  Because Defendant cannot meet their burden of showing that Defendant does not conduct regular business in Baltimore City, his motion to dismiss should be denied.

                                                        II.  LEGAL ARGUMENT

A.     Plaintiffs' Choice of Venue in Baltimore City is Proper

                                                                                                

            Section 6-201 of the Courts and Judicial Proceedings Article of the Maryland Code provides as follows:

 

                        Subject to the provisions of §§6-202 and 6-203 and unless otherwise provided by law, a civil action shall be brought in a county where the Defendant resides, carries on a regular business, is employed, or habitually engages in a vocation.  In addition, a corporation also maybe sued where it maintains it principal offices in the state.

Md. Code (1974, 1995 Repl. Vol.), §6-201.

            Defendant seek a dismissal on the grounds of improper venue.  This request should fail because Defendant carries on a regular business and habitually engages in his vocation in Baltimore City, Maryland.  See Sexton Affidavit, Defense Exhibit #1.  Moreover, it is apparent that Defendant earns income from services provided in Baltimore City.  Even if the Defendant maintains his primary offices elsewhere, venue is still proper in Baltimore City because the Defendant carries on regular business there.  See Dodge Park Enters. v. Welsh, 237 Md. 570 (1965) (holding that a law firm may be sued in Montgomery County, even if their primary office is in Prince George's County, if they habitually engage in the practice of law in Montgomery County.) 

            Mr. Sexton has freely chosen to conduct business in Baltimore City, presumably he can earn income as a result of providing services to individuals and/or companies who reside in Baltimore City.  The "regular business" language of the venue rules includes the "continuous pursuit of some calling or profession, such as ordinarily engaged in as a means of livelihood or for the purpose of gain or profit."  Id. at 572. Having elected to work, conduct business, and profit in Baltimore City, the Defendant may not now complain when he is subject to a lawsuit in Baltimore City.

            B.         Defendant Does Not Deny That He Conducts Regular Business in Baltimore City

                        1.         Plaintiff’s Admission Constitutes Regular Business

            Defendant does not deny that he engages in regular business in Baltimore City.  Instead, he contends that he does “less than 10%” of his business in Baltimore City.  This fact supports Plaintiff’s contention that he engages in regular business in Baltimore City.  See Sexton Affidavit, Defense Exhibit #1. In Dodge Park, the court found that venue was proper in Prince George’s County because the defendant lawyers practiced in that county even though they resided and primarily practiced law in Montgomery County.  Dodge Park at 572-573.   The facts in this case are similar:  Defendant carries on regular business in Baltimore City even the majority of his work is elsewhere.

                       2.         Defendant’s Affidavit Is Fatally Vague and Unsupported by Evidence

            Defendant’s affidavit also fails to defeat Plaintiff’s choice of venue because it is not specific and is not supported by evidence.  Defendant does not indicate how long ten percent of his business has come from Baltimore City, a critical question in evaluating this issue.  Accordingly, it leads to more questions than answers.  For what time period was it ten percent?   Was it fifty percent last year?  Does this mean ten percent of his profits or ten percent of his time?  Plaintiff also could not produce any records in response to a subpoena duces tecum that supported his estimation of ten percent (which he conceded was just an estimation in an informal telephone deposition).  Interestingly, Plaintiff’s private investigator was able to find Defendant working in Baltimore City after observing him for only four and a half hours.  See Affidavit of Sheryl Gionet, attached as Exhibit 2.  This calls into question the accuracy of Plaintiff’s estimation.

            "Under Maryland law, improper venue is a defense with the duty of averment and the burden of proof falling on the defendant."  Odenton Development Co. v. Lamy, 320 Md. 33, 39 (1990).  Defendant’s vague and unsubstantiated affidavit does not meet its burden that Defendant did not engage in regular business in Baltimore City.

            Accordingly, Plaintiff request that this Court deny Defendant’s Motion to Dismiss for Improper Venue.

 

                                                                                                                                                
                                                                        Ronald V. Miller, Jr.
                                                                        7310 Ritchie Highway
                                                                        Suite 615
                                                                        Glen Burnie, Maryland 21061

 

                                                                        Attorneys for Plaintiff

 

 

CERTIFICATE OF SERVICE

            I HEREBY CERTIFY that on October 15, 2003 a copy of the foregoing was sent via first class mail, postage prepaid to:

Neal S. Wadler
Nationwide Insurance
8600 LaSalle Road
Oxford Building, Suite 620
Towson, Maryland 21286-5955
Attorney for Defendants

                                                                                                           

                                                                        Ronald V. Miller, Jr.

                                                                                                                                        


HOPE VITALE                                              *          IN THE

            Plaintiff                                               *          CIRCUIT COURT

v.                                                                     *          FOR

JAMES C. SEXTON                                     *          BALTIMORE CITY

            Defendant                                          *          CIVIL ACTION NO.:

*          *          *          *          *          *          *          *          *          *          *          *

           

                                                                       ORDER

 

            Having considered Defendant's Motion to Dismiss for Improper Venue and Plaintiffs' Opposition thereto, it is             day of                          , 2003

            ORDERED that Defendants' Motion to Dismiss is hereby denied.

                                                                                                                                                 

                                                                        Judge

cc:       Neal S. Wadler
Nationwide Insurance
8600 LaSalle Road
Oxford Building, Suite 620
Towson, Maryland 21286-5955

Attorney for Defendants

Ronald V. Miller, Jr.
7310 Ritchie Highway
Suite 615
Glen Burnie, Maryland 21061