HOPE
VITALE
*
IN THE
Plaintiff
*
CIRCUIT COURT
v.
*
FOR
JAMES
C. SEXTON
*
BALTIMORE CITY
Defendant
*
CIVIL ACTION NO.:
*
*
*
*
*
*
*
*
*
*
*
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:
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
Back to Sample Motions
