IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND
AMY WHITE, Plaintiff v BOBO HARMON, et al, Defendants |
CASE NO.: 05-C-06-6511 |
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
Plaintiff, Amy White, by and through
her attorneys, Ronald V. Miller, Jr., Laura G. Zois, and Miller
& Zois, LLC, requests that Defendants Bobo Harmon and Jack
F. Harmon’s (“at-fault Defendants”) Motion to
Dismiss be denied because (1) defendants have waived their right
to dismiss by filing an answer according to Maryland Rule 2-322(a),
(2) State Farm habitually conducts business in Baltimore City,
and (3) because the at-fault Defendants’ affidavits are
unsupported by any factual averments. In further support, Plaintiff
states as follows:
1. Plaintiff is a resident of Baltimore City.
2. Maryland Rule 2-322(a) states that a motion to dismiss for
improper venue must be made before defendant files an answer.
Defendants have already answered Plaintiff’s complaint and,
in fact, have already served discovery on Plaintiff. If an answer
has already been file, according to 2-322(a), the defense is waived.
Accordingly, Defendants have waived their right to contest venue.
3. Plaintiff’s Amended Complaint names State Farm as a defendant.
Plaintiff’s insurance policy with State Farm provides $250,000.00
in uninsured motorist coverage. Plaintiff has over $23,000.00
in medical bills and counting (she recently underwent surgery
for her herniated discs from the accident). Plaintiff does not
know the amount of the at-fault Defendants’ policy but was
told by the State Farm adjuster that the underlying policy “is
not big enough” to adequately compensate her for her injuries.
4. Maryland Rule 2-327(c) states that:
Convenience of the Parties and Witnesses. -- On motion of any party, the court may transfer any action to any other circuit court where the action might have been brought if the transfer is for the convenience of the parties and witnesses and serves the interests of justice. 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 may be sued where it maintains it principal offices in the state.
Md. Code (1974, 2004 Repl. Vol.), §6-201. There is no question that Defendant State Farm does business in Baltimore City.
5. Proper regard for the plaintiff's choice of forum is the
reason why "a motion to transfer [from the forum chosen by
the plaintiff] should be granted only when the balance weighs
strongly in favor of the moving party. Urquhart v. Simmons, 339
Md. 1, 18 n.7, 660 A.2d 412, 420 n.7 (1995) (citing Odenton, 320
Md. at 40, 575 A.2d at 1238). Commentators on Rule 2-327(c) have
recognized that "due consideration must . . . be given to
the plaintiff's selection of forum. . . ." P.V. Niemeyer
& L.M. Schuett, Maryland Rules Commentary 215-16 (2d ed. 1992)
(Niemeyer & Schuett).
6. To meet the burden of proving improper venue, the defendant
must do more than merely raise a 'bare allegation that venue was
improper, unsupported by affidavit or evidence.'" See Lambros
v. Gelb & Gelb, 153 Md. App. 447, 452 (2003) (emphasis added)
(citation omitted). In this case, two of the defendants have offered
cursory affidavits containing no facts, merely a legal conclusion
that they do not conduct business in Baltimore City. That affidavits
state only the bald legal conclusion that the at fault Defendants
did not “at the time this action was brought, or at anytime
thereafter reside in or carry on any business in, or habitually
engage in any avocation or employment in Baltimore City, as required
by this type of action.” In other words, Defendants are
not only making legal conclusions in the absence of facts, they
are actually averring to the appropriate conclusion, assuming
the role of judge, using the language “as required by this
type of action.” Clearly, such an affidavit should not be
considered. See Shipp v. Bevard, 291 Md. 590, 595 (1981); Wyand
v. Patterson Agency, Inc., 266 Md. 466, 460 (1972).
According, because Defendant have
waived their right to oppose venue, because State Farm is doing
business in Baltimore and is a defendant in this case, and because
Defendants affidavits are without any factual predicate, Plaintiff
requests that Defendants’ motion be denied. In the alternative,
Plaintiff request sixty (60) days for the opportunity to conduct
venue discovery.
Respectfully
submitted,
MILLER & ZOIS, LLC
Ronald
V. Miller, Jr.
Laura
G. Zois
Empire
Towers, Suite 615
7310
Ritchie Highway
Glen
Burnie, Maryland 21061
(410)553-6000
(410)760-8922
(fax)
Attorneys
for the Plaintiff
Certificate of Service
I hereby certify that the foregoing Opposition to Motion to Dismiss was sent via U.S. Mail, first-class, postage prepaid, this 18th day of July, 2005, to:
Kyle Blakeley, Esquire
H. Barritt Peterson, Jr., & Associates
One West Pennsylvania Avenue
Suite 500
Towson, Maryland 21204-5025
Attorney for Defendants Harmon
State Farm Insurance Company
Attn: Owings Mills Auto Claims
P. O. Box 953
Frederick, Maryland 21706
Ronald
V. Miller, Jr.
IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND
AMY WHITE, Plaintiff v BOBO HARMON, et al, Defendants |
CASE NO.: 05-C-06-6511 |
O R D E R
Having fully read and considered the Defendants, Bobo Harmon and Jack Harmon’s, Motion to Dismiss, it is this day of , 2005, by the Circuit Court of Baltimore City, Maryland; ORDERED, that the Defendant’s Motion be DENIED.
_________________________________
JUDGE
COPIES TO:
Ronald V. Miller, Jr., Esquire
Laura G. Zois, Esquire
Miller & Zois, LLC
Empire Towers, Suite 615
7310 Ritchie Highway
Glen Burnie, Maryland 21061
Attorneys for Plaintiff
H. Barritt Peterson, Jr., & Associates
One West Pennsylvania Avenue
Suite 500
Towson, Maryland 21204-5025
Attorney for Defendants Harmon
Back to Sample Motions
