Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Demery v. Montgomery County

March 18, 2009

JOHNATHAN MANUEL DEMERY, ET AL., PLAINTIFFS,
v.
MONTGOMERY COUNTY, MARYLAND, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Richard W. Roberts United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiffs Jonathan Demery, Tijuana*fn1 Demery, and Wayne Mabry bring this action against Detective Katherine Fumagalli and Montgomery County, Maryland, alleging federal and state constitutional violations and several common law torts arising out of Johnathan Demery's arrest and confinement. The defendants have moved to dismiss certain counts for failure to state a claim, or to transfer this case to the United States District Court for the District of Maryland. Because the defendants have not shown that transfer is proper, their motion to transfer will be denied. Because the plaintiffs have adequately pled causes of action for a federal constitutional violation, and governmental immunity does not bar plaintiffs' claims of false arrest and negligence, but plaintiffs have conceded dismissal of the claim under Article 24 of the Maryland Constitution and Montgomery County is immune from the plaintiffs' claim of malicious prosecution under Maryland law, the defendants' motion for partial dismissal will be granted in part and denied in part.

BACKGROUND

On June 21, 2007, three men assaulted Mark Tobias in Bethesda, Maryland, and stole his car. (Compl. ¶ 6.) Tobias described one of the three men who assaulted him as being 5'10" to 5'11" in height, black, weighing 200 pounds, and wearing dark knee-length shorts, a dark hooded sweatshirt and Adidas brand tennis shoes. (Compl. ¶ 7.) Fumagalli, a Montgomery County police detective, was assigned to be the lead detective on the case. On June 22, 2007, Montgomery County detectives recovered Tobias' car parked in an alley located at 10th and Monroe Streets N.W., in Washington D.C. (Compl. ¶¶ 8-9.) On June 26, 2007, Fumagalli and Detective David Davis saw Johnathan Demery ("Johnathan") standing near the intersection of 10th Street and Spring Road N.W. The detectives photographed Johnathan, and asked him for his name, address, date of birth, social security number, and the name of the high school he attended. Johnathan provided the officers with the information they requested. (Compl. ¶¶ 10-11.)

On June 27, 2007, Detective Fumagalli applied to the Montgomery County District Court for an arrest warrant charging Johnathan with the felony of carjacking. In the affidavit supporting the application, Fumagalli alleged that:

On Tuesday June 26, 2007, detectives from the Montgomery County Police, Robbery Section responded to the area of 10th and Monroe where the vehicle was recovered. Located nearby at the Raymond Rec Center was a group of males matching the above suspect [sic] description. Specifically, one male in the group was observed to closely match the surveillance video image of suspect #1. Metropolitan Police was [sic] contacted and the group was Field Interviewed. [Johnathan] Demery was identified by his District of Columbia driver's license. Demery can be identified as the suspect in the surveillance images, was wearing tennis shoes identical to the ones in the surveillance images, and was located only a few blocks from the location where the stolen vehicle was recovered, and provided an address which was only one block from the rec center where he was identified. Demery's physical description matches that provided by the victim and when viewed, he matches the images on the surveillance tape.

(Compl. ¶ 11.) Johnathan was arrested and questioned in a recorded interview on June 27, 2007, and said he was at home with his parents and siblings at the time of the carjacking. He was held at a jail in the District of Columbia until July 3, 2007, when Fumagalli transported him to Montgomery County, Maryland. She questioned him and he again maintained his innocence. On July 4, 2007, Johnathan was released on a bond for which Tijuana Demery and Wayne Demery paid a bondsman $1,500. (Compl. ¶¶ 15-18.) On July 27, 2007, the county prosecutor declined to prosecute Johnathan for the carjacking. (Compl. ¶ 18.)

The plaintiffs allege that several of Fumagalli's assertions in her affidavit were knowingly false and misleading or demonstrated a reckless disregard for the truth, that Fumagalli lacked probable cause to believe that Johnathan participated in the carjacking and assault of Tobias, and that she failed to determine before and after his arrest whether Johnathan had a legitimate alibi. (Compl. ¶¶ 13-14.) The complaint alleges seven counts against the defendants: unlawful arrest and detention in violation of the Fourth Amendment under 42 U.S.C. § 1983 (Count 1); malicious prosecution under 42 U.S.C. § 1983 (Count 2); unconstitutional search and seizure of the plaintiffs' home and cell phones in violation of the Fourth Amendment under 42 U.S.C. § 1983 (Count 3); common law malicious prosecution (Count 4); common law false arrest and imprisonment (Count 5); unreasonable arrest and search in violation of Articles 24 and 26 of Maryland's Constitution (Count 6); and negligence under the common law of the District of Columbia (Count 7). (Compl. ¶¶ 23-33.)

The defendants move to transfer this case to the United States District Court for the District of Maryland. (See Defs.' Mot. to Change Venue.) Alternatively, the defendants move to dismiss Count 2 of the complaint, Counts 4, 5, and 7 against Montgomery County, and all claims in Count 6 that arise under Article 24 of the Maryland Constitution.*fn2 (See Defs.' Mot. for Partial Dismissal at 1-2.)

DISCUSSION I. TRANSFER

A case may be transferred to another venue under 28 U.S.C. § 1404(a) "[f]or the convenience of parties and witnesses, in the interest of justice[.]" 28 U.S.C. § 1404(a). See also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253 (1981). The moving party carries the burden of demonstrating that a transfer is warranted. Montgomery v. SGT Int'l, Inc., 532 F. Supp. 2d 29, 32 (D.D.C. 2008); Onyeneho v. Allstate Ins. Co., 466 F. Supp. 2d 1, 3 (D.D.C. 2006). Because "it is perhaps impossible to develop any fixed general rules on when cases should be transferred[,] . . . the proper technique to be employed is a factually analytical, case-by-case determination of convenience and fairness." SEC v. Savoy Indus. Inc., 587 F.2d 1149, 1154 (D.C. Cir. 1978) (quoting Starnes v. McGuire, 512 F.2d 918, 925 (1974)).

"Any transfer under § 1404(a) is restricted to a venue where the action 'might have been brought.'" See 28 U.S.C. § 1404(a); Robinson v. Eli Lilly Co., 535 F. Supp. 2d 49, 51 (D.D.C. 2008).

When, as here, jurisdiction is not based solely on diversity of citizenship, [a] civil action . . . may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.

28 U.S.C. ยง 1391(b). Here, Montgomery County is a chartered county of the State of Maryland and Fumagalli resides in Maryland. (See Defs.' Mem. in Supp. of Defs.' Mot. to Change Venue at 4.) Therefore, this action ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.