Whenever you get a business card, jot down on the back the date you received the card, the location and something about the person. Input this information when you return to the office in an excel spreadsheet "rolodex" where you keep track of your contacts. A shelf full of business cards isn't particularly useful nor an effective way to stay in touch with folks you meet. Consider adding information about the contact as you meet with her in the future. This will faciliate future conversations about common interests, family and upcoming events. Once you've turned a person from whom you received a business card into an actual contact you follow up with, consider adding her to your firm's e-mail list and to your holiday card list. Also ask if they want to become friends on facebook or follow you on twitter.
WMATA immunity does not extend to failure to adhere to its own policies.
On July 3, 2012, Plaintiff, Latasha Verdiner was a passenger on a Green Line metro train, near College Park. The train lost power and came to a sudden stop. After a period of time waiting for guidance or assistance from the Washington Metropolitan Area Transit Authority (“WMATA”) employees, Plaintiff and the other passengers began to disembark the train. The train did not have ladders or other egress equipment. As Plaintiff was disembarking, she wrenched her knee and fell into the adjacent concrete wall.
Verdiner then brought a three count complaint against WMATA in the Circuit Court for Prince George’s County, alleged Defendant failed to comply with industry standards by failing to have, implement, follow, and oversee policies and procedures for evacuating passengers trapped on the rail system; that WMATA was vicariously liable for its employees violations of federal, state, local, and industry standards; and WMATA was negligent in hiring, training, and supervising its employees. WMATA removed the case to the United States District Court for the District of Maryland. WMATA also filed a preliminary motion to dismiss the Complaint under Fed. R. Civ. Proc. 12(b)(1) and (6), arguing that it was immune from suit and therefore, the court lacked subject matter jurisdiction. In opposition, Plaintiff attached documents and argued, inter alia, that WMATA had a policy in place for evacuations, but that policy was not followed.
Judge Chasanow first noted WMATA was granted immunity for certain claims as a result of its formation under the interstate Compact. Specifically, WMATA was protected from claims that arose from the governmental function of the organization or was a discretionary decision. Plaintiff conceded that the hiring and supervisory aspects of her claims against WMATA were precluded as discretionary actions and withdrew Count III of her complaint.
The Court noted that providing transportation was not an essential governmental function, but also held that “Defendant cannot be sued for failure to have a policy or procedure because such a decision is discretionary, but it can be sued if there was a mandatory evacuation policy or procedure in place that was not followed.” Id. at 4. The Court stated, while it could rely upon outside facts in finding a dispute as to the jurisdictional issued under Fed. R. Civ. Proc., 12(b)(1), it was limited to the pleadings in determining the adequacy of the allegations in the complaint pursuant to Fed. R. Civ. Proc. 12(b)(6). The Court held that the Complaint was too conclusory and failed to allege sufficient facts to determine what specific duty was owed to Plaintiff. Thus, the Court granted the motion to dismiss, but permitted the Plaintiff leave to file an amended complaint within 21 days.
Verdiner v. Washington Metropolitan Area Transit Authority, No. 8:2015cv02612, Slip Copy
Publicly available at http://law.justia.com/cases/federal/district-courts/maryland/mddce/8:2015cv02612/326955/14/
Submitted By: Marisa A. Trasatti and Gregory Emrick, Semmes Bowen & Semmes
We all receive calls asking for referrals. Develop a list of lawyers in different practice areas in diffrent jurisdictions to whom you would refer a case. These are lawyers you know that you would trust with your own case if you were a party to a lawsuit. Let them know they're on your list. Don't ask to be on theirs. Let them know when you provide their name to someone looking for an attorney in a practice area. One of the best way to get referrals is to make referrals. Refer an attorney a case or two and they will work to refer you cases. Help others find the lawyers they need and your assistance may lead to referrals to you in the future.
By: Francisco Ramos Jr
Allegation in Complaint That Car Was a Total Loss Struck, but Allegations Regarding Seatbelt Usage and Drug Charges against Defendant Were Proper
In a recent opinion, the United States District Court for the District of Maryland granted a motion to strike the allegation in a complaint that a vehicle was declared a total loss, but denied the motion to the extent it sought to strike allegations regarding: (1) the plaintiffs’ seatbelt usage; and (2) drug charges filed against the defendant.
On May 9, 2013, Plaintiffs, Dana Blevins and Garrett Brackins, were involved in a car accident with Defendant Jacob Piatt. As a result of the accident, Plaintiffs sued Defendant for negligence, alleging that Defendant struck a vehicle driven by a third party and then struck Plaintiffs’ vehicle. Defendant subsequently moved to strike all or part of four (4) paragraphs contained in Plaintiff’s Complaint. The allegations at issue in Defendant’s motion are underlined in the following paragraphs:
14. The damage done to Mr. Brackins’ vehicle was substantial, resulting in a total loss to the vehicle. As a result of the heavy impact, Mr. Brackins, Ms. Blevins and Ms. Mahala, who were all wearing seatbelts were violently thrown about and against the interior of the vehicle.
15. As a result of the subject incident, Mr. Piatt was charged with the following violations of Maryland law: (1) [controlled dangerous substance (“CDS”)] possession of Paraphernalia; (2) CDS Possession of Marijuana; (3) Failure to Obey Traffic Control Device; (4) Driving in Excess of Reasonable and Prudent Speed; and (5) Failure to Drive on Right Half of Road.
16. On or about November 18, 2013, in the District Court of Maryland for Harford County, Mr. Piatt was found guilty and was granted probation before judgment on the charge of CDS Possession of Marijuana; was found guilty of 3 Failure to Obey Traffic Control Device, and was granted Stets on the remaining three charges.
20. e. failing to obey the laws and statutes of the State of Maryland, including, but not limited to: failing to yield the right of way, failing to obey a traffic control device, failing to drive within the marked lanes on a highway, failing to drive on the right half of the road, failing to control speed to avoid an accident, driving in excess of reasonable and prudent speed, driving under the influence of drugs and/or alcohol, possession of controlled dangerous substance paraphernalia, and possession of marijuana.
Judge Ellen L. Hollander, writing for the Court, granted, in part, and denied, in part, Defendant’s motion. With respect to the allegation that Plaintiffs’ vehicle was deemed a “total loss,” Defendant argued that: (1) the issue of property damage settled solely between the parties’ insurers; (2) a settlement made by an insurer cannot be construed as an admission of liability; and (3) because Plaintiffs did not seek property-related damages, the allegation was irrelevant. Plaintiffs responded that the evidence of physical damage was relevant to the force of the impact at issue, and that in any event, Defendant’s arguments were improper at this stage because they involved evidentiary issues.
The Court initially rejected Defendant’s argument that the evidence was not relevant, stating that “[t]he force of the impact is obviously relevant to the suit.” The Court noted, however, that an insurance company’s declaration that a vehicle is a total loss “has no bearing on the force of the impact,” and is instead “an economic decision.” Quoting extensively from both Maryland case law and secondary materials, the Court explained that the decision regarding whether a car is declared a loss involves the question of whether the repairs to the car would exceed the car’s total value. Because this issue is based on the type of damages and the market value of the car, it is not relevant to the issue of the force of the impact. Consequently, the Court granted Defendant’s motion to strike the allegation regarding the vehicle’s status as a total loss.
Defendant next contended that the allegation that Plaintiff were wearing their seatbelts was prejudicial because it made “an impermissible implication concerning the impact of or damages resulting” from the accident. The Court rejected this argument, noting that, in Maryland, contributory negligence bars a plaintiff’s recovery. Because this allegation was therefore relevant to Plaintiffs’ ability to recover damages in this case, and because the Court also concluded that the allegation was neither scandalous nor prejudicial, the Court denied Defendant’s motion to strike this allegation. The Court suggested that Defendant’s arguments regarding the admissibility of evidence regarding Plaintiffs’ seatbelt usage was more properly the subject of a motion in limine.
Finally, Defendant argued that all references to criminal charges against Defendant should be struck from the Complaint. Furthermore, he contended that the charges filed against him as a result of the accident did not include a charge that he was under the influence of drugs or alcohol, and thus that Plaintiffs’ allegation in that regard was without factual support and should also be struck. The Court rejected these arguments. Although it noted that “the Complaint may contain some factual details beyond those necessary to meet the pleading standards of Fed. R. Civ. P. 8(a),” that alone was not grounds for a motion to strike. Moreover, the Court emphasized that Defendant failed to articulate the prejudice he would suffer in having to respond to the allegations regarding criminal charges against him. Despite that Defendant may very well have arguments against the admissibility of such evidence, those were evidentiary, not pleading, issues. As such, they were not properly the subject of a motion to strike. Accordingly, the Court denied Defendant’s motion to strike those allegations.
Dana Blevins, et al. v. Jacob Piatt, et al. (December 4, 2015)
United States District Court for the District of Maryland
Submitted By: Marisa A. Trasatti and Matthew J. McCloskey, Semmes, Bowen & Semmes
Saturday morning, before heading out for the day's activities, consider the following:
1) E-mail a friend or former colleague and suggest getting together for coffee or lunch.
2) Scroll through your Libkedin contacts and send one or more message about getting together.
3) Do a Google search for "legal marketing" and read an article or two on the topic.
4) Work on an article for publcation. 200 words each Satruday morning adds up to an article per month.
By Frank Ramos
Sometimes the best route between two dots is not a straight line. To that end, take time to make relationships with connectors -those individuals who work with your prospective clients. Think insurance agents, accountants and financial planners - individuals who work with the principals of companies who from time to time need legal help. These connectors have trade associations they belong to. Consider joining one. They have publications they read. Consider writing for one. What's great about connectors is that they connect you with multiple potential clients, several or more who may need you. So when networking, consider going beyond other lawyers as referral sources.
By: Francisco Ramos Jr
Take the time to educate your potential referral sources what you do, and just as importantly, what you don't do. Folks who may refer you cases should know what cases they should refer to you. Having them refer you anything and everything may sound like a boon but it results in phone calls with prospective clients you cannot help. Also, educate them about what your firm does. Perhaps you don't do employment law, but your partner is a leading FLSA lawyer. Help you referral sources help you. Likewise, get to know what business they're looking for and refer them only that business. They'll appreciate you for it.
By: Francisco Ramos Jr
University Owed No Duty to Protect Decedent from Self-Inflicted Harm, but May be Held Liable for False Arrest
In a recent opinion, the United States District Court for the District of Columbia held that a university owed no duty, under the circumstances of the case, to protect a student from his own self-inflicted harm, but that the university may be held liable for false arrest for calling the District of Columbia Metropolitan Police Department (“MPD”) in response to the student’s behavioral issues. Furthermore, although the Court held that the private university could not be held liable under the Americans with Disabilities Act (“ADA”), it held that the decedent’s parents could proceed on such claims against the District of Columbia due to the MPD’s alleged actions in wrongfully arresting and failing to reasonably accommodate the decedent.
In 2013, Plaintiffs’ son, Gianni Manganelli, was accepted into Gallaudet University. Due to the fact that Gianni was deaf and suffered from seizures, Plaintiffs engaged in conversations with Gallaudet’s Mental Health Center, housing department, and academic advisor department regarding Gallaudet’s ability to address their son’s health needs. Gallaudet allegedly assured Plaintiffs that it was adequately equipped to assist Gianni if necessary. Relying on these representations, Plaintiffs and Gianni relocated to the Washington, D.C. area so that Gianni could attend Gallaudet.
Unfortunately, Gianni began to suffer mental health issues almost immediately. In August of 2013, he was arrested at the United States Capitol building after approaching a member of the Capitol Police and demanding to speak with Congress. When he was returned to Gallaudet, campus police were called to his dorm room and reported that Gianni was “disproportionately ‘irate’” regarding pain in his wrists caused by being placed in handcuffs. Although Gallaudet’s Mental Health Center did meet with Gianni several times over the next few weeks, Gianni soon terminated the meetings.
In October 2013, several of Gianni’s instructors reported that he acted in a physically aggressive and bizarre manner. These reports continued until February or March 2014, and Plaintiff’s mental state appeared to deteriorate during that period of time. Plaintiffs were not notified of these reports, and Gallaudet did not take any action to provide Gianni with further treatment. Gianni’s behavior ultimately led to a confrontation with his roommate on March 28, 2014 in which Gianni once again exhibited odd behavior. As a result of the confrontation, Gallaudet’s police force detained Gianni and called the MPD. After observing Gianni staring blankly and refusing to respond to any questions, the MPD officers arrested Gianni and detained him for approximately twenty-four (24) hours. In that time frame, the MPD did not provide Gianni with any mental health treatment or an interpreter. After he was released, Gianni contacted his mother, who picked him up and observed further odd behavior. Tragically, later that day, Gianni killed himself.
Plaintiffs subsequently filed a lawsuit against Gallaudet and the District of Columbia, setting forth causes of action for wrongful death, survival, negligent infliction of emotional distress, false arrest, and violations of the ADA. Each defendant moved to dismiss Plaintiffs’ Complaint.
Judge Reggie B. Walton, writing for the Court, granted, in part, and denied, in part, Defendants’ motions. Addressing first Plaintiffs’ causes of action for wrongful death and survival, the
Court noted that these claims were predicated on the allegation that Gallaudet breached a duty of care it owed as a result of a special relationship with Gianni. Specifically, Plaintiffs alleged that Gallaudet represented to them that it was adequately equipped to serve Gianni’s health needs, and owed Gianni a duty to do so as a result of its representations. Although courts in some jurisdictions had applied this principle in holding that educational institutions owe a duty of care to protect students from self-inflicted harm, the Court declined to find such a duty in this case for two reasons. First, it noted that the Complaint alleged that Gallaudet did provide mental health treatment to Gianni, but Gianni refused further treatment. As a result, Gallaudet did not increase the risk of harm to Gianni, and Gianni did not rely to his detriment on any services provided and withdrawn by the school. Second, the Complaint did not allege that Gallaudet knew of Gianni’s suicidal ideations. However odd Gianni’s behavior, he never expressed suicidal thoughts to another individual. As a result, the Court dismissed Plaintiffs’ wrongful death and survival claims. Furthermore, because Plaintiffs’ cause of action for negligent infliction of emotional distress was predicated on the same alleged breach of duty, the Court dismissed that claim as well.
Regarding Plaintiffs’ claims for false arrest, the Court noted that Plaintiffs alleged that the MPD and Gallaudet Police lacked probable cause to arrest Gianni because he only stared blankly at them. Defendants, however, produced a police report from the MPD which contradicted Plaintiffs’ allegations. Because the presentation of this additional evidence converted Defendants’ motions into motions for summary judgment, the Court concluded that there was a dispute of material fact as to Plaintiff’s conduct prior to his arrest. Accordingly, the Court denied Defendants’ motions to dismiss the false arrest claims.
Turning to Plaintiffs’ ADA claim against Gallaudet, the Court stated that the ADA applies only to “public entit[ies],” i.e., “instrumentalit[ies] of a State or States or local government.” 42 U.S.C. § 12132. Although Gallaudet is a federally chartered institution, the Court had previously held that such institutions are nevertheless not public entities within the meaning of the ADA. Consonant with its prior ruling, the Court held that the ADA did not apply to Gallaudet.
As to Plaintiffs’ ADA claim against the District of Columbia, however, the Court reached the opposite conclusion. First, to the extent that Plaintiffs alleged the MPD violated the ADA by wrongfully arresting Gianni, the Court rejected the District’s argument that the police report sufficed to defeat Plaintiffs’ claim. Just as with its treatment of the District’s motion to dismiss the false arrest claim, the Court considered the District’s motion a motion for summary judgment and denied it due to a dispute of material fact.
Second, although there was a degree of conflicting authority as to what responsibilities police officers have to provide mentally ill individual with a reasonable accommodation, the Court believed that Plaintiffs had nevertheless stated a plausible claim that the MPD denied Gianni a reasonable accommodation. Specifically, the Court noted that there were factual issues as to whether the officers knew Gianni was mentally ill and/or disabled, whether Gianni informed the officers of that fact, and whether Gianni was even capable of doing so (as his hands were handcuffed behind his back and he was thus unable to communicate using sign language).
The Court, however, rejected Plaintiff’s argument that the District failed to adequately train its officers to deal with mentally ill individuals. As an initial matter, it was unclear as to whether such an allegation was sufficient to sustain a claim for an ADA violation. However, even if it were, Plaintiffs had alleged only conclusory allegations in this regard, not specific facts regarding the District’s conduct. As a result, the Court declined to let Plaintiffs proceed under this theory. Nevertheless, because Plaintiffs had set forth other valid theories of recovery under the ADA, the Court denied the District’s motion to dismiss Plaintiffs’ ADA claim against the District.
Terrylene Sacchetti, et al. v. Gallaudet University, et al. (April 20, 2016)
United States District Court for the District of Columbia
Submitted By: Marisa A. Trasatti and Matthew J. McCloskey, Semmes, Bowen & Semmes
When it comes to marketing, you want to seek out your audience - those who are in a position to refer you a case. They could be in house counsel. They could be outside counsel looking for local counsel or who have a conflict. They could be HR personnel with employment issues. Where do you find them? What organizations do they belong to? What are they involved with? Seek out client rich environments, such as national defense organizations, trade associations or chambers of commerce, and join. But don't simply join. Get involved. Start with doing those tasks no one else wants to do - like editing the newsletter, writing an article or marketing an event. Do the little things, and soon you'll be doing the big things, and meeting and getting to know clients along the way. Showing your compentence in organizations suggests to others your compentence in handling their matters. It all starts with seeking your audience.
By: Francisco Ramos Jr
You may have recently signed up for Twitter and are wondering "What in the world should I tweet?" Here are some suggestions:
Blog on this website and share a link to your blog post.
Share news stories relevant to your pracrtice area and comment on them.
Share recent cases and opine on their impact.
Retweet another's tweet with your own thoughts on the subject.
Share a link to an article you've written or a presentation you've given.
Share a book or movie review with your thoughts.
Share a press release.
Share motivational quotes.
Share about your hobby, whether it's golf, jazz or wine.
If you're going to start tweeting, make it part of your routine so that you tweet regularly and build a following.By Francisco Ramos