Opinion
CIVIL NO. CCB-06-2326.
February 7, 2007
MEMORANDUM
Now pending before the court is defendant William B. O'Neil, Jr.'s motion to dismiss claims of tortious interference with prospective advantage, malicious use of process, and civil conspiracy brought against him by David B. Runkle, d/b/a RyWest, t/a Chronicle Press, Inc. ("CPI") and Donna Runkle, t/a Custom Image Printing ("CIP") (collectively "the plaintiffs"). The motion has been fully briefed, and pursuant to Local Rule 105.6, no hearing is necessary. For the reasons set forth below, this motion will be denied.
The briefing schedule was slightly unorthodox, yet each side has been afforded full opportunity to explain its position. In response to the plaintiffs' preliminary opposition to his motion (docket entry no. 6), Mr. O'Neil, who is representing himself, filed a motion for extension of time (docket entry no. 8), to which he attached an "answer . . . in opposition to plaintiff's opposition to defendant's motion to dismiss," which was docketed as his reply brief (docket entry no. 10). The plaintiffs were permitted to file a supplemental opposition in response (docket entry no. 14), as Mr. O'Neil only focused the grounds on which his motion was based in his reply.
BACKGROUND
This event summary focuses on those facts which are relevant to the claims against defendant O'Neil; other facts are included to provide context as needed.
This suit stems from a feud over a commercial printing business (CPI) and a building which housed CPI and some rental units (107 South Seton Avenue, Emmitsburg, Frederick County, Maryland) ("the building"). (Compl. ¶¶ 13, 19.) The facts presented herein are taken from the plaintiffs' complaint, as is proper when considering a motion to dismiss. In early January 1999, Art Elder sold CPI to Mr. Runkle and the building to the Runkles jointly. ( Id. at ¶¶ 14, 18.) Mr. Elder covenanted not to compete with CPI for twenty-five years and also agreed to stay on to run CPI, yet he remained in the position only for several months rather than the contracted for eleven years. ( Id. at ¶¶ 16-17, 22.) A total of seven hundred and fifty thousand dollars was paid for both CPI and the building. ( Id. at ¶¶ 14-18.) Payment for CPI was in the form of loans from Mr. Elder to Mr. Runkle, and the former assured the latter that CPI would yield enough revenue to make the loan payments as well as some profit. ( Id. at ¶¶ 14-20.) This promised outcome failed to transpire, however, and Mr. Runkle had trouble making the loan payments. ( Id. at ¶ 23.) Mr. Elder agreed to reduce the loan amounts and the monthly payments, then changed his mind and demanded payment at a rate that Mr. Runkle could not meet. ( Id. at ¶¶ 24-28.) As CPI was failing, Mr. Runkle put the building up for sale. ( Id. at ¶¶ 28-29.) Mr. Elder suggested that he might foreclose on CPI and sell it, along with its equipment, to his cousin, Lisa Elder. ( Id. at ¶¶ 30-31.) At this time, Mr. Runkle requested the immediate removal of all of CPI's equipment from the building. ( Id. at ¶ 32.)
By the end of March 2003, CPI had become insolvent and ceased operations. ( Id. at ¶¶ 33-34.) Ms. Runkle then decided to open her own commercial printing business, CIP, and the Runkles renovated one of the building's rental units for CIP's use. ( Id. at ¶¶ 35-36.) Mr. Elder failed to comply with the equipment removal request, thereby causing Mr. Runkle to lose the rental revenue he could have otherwise had for the space that CPI had occupied. ( Id. at ¶¶ 37-38.) In November 2003, Mr. Runkle filed for bankruptcy. ( Id. at ¶ 39.)
The Runkles sold the building to James Hess in the spring of 2004 and negotiated a lease so that CIP could remain in the building. ( Id. at ¶¶ 42-43, 45, 47-49.) Around the same time, to avoid having to move CPI's equipment himself, Mr. Elder sold it to his cousin and Christopher Price, former CPI press operator. ( Id. at ¶¶ 44, 46.) Hoping to encourage Mr. Hess to evict CIP so CPI could easily resume operations, Mr. and Ms. Elder apprised Mr. Hess of Mr. Runkle's financial difficulties, causing Mr. Hess to breach his lease agreement with the Runkles. ( Id. at ¶¶ 49-51.) As of the end of June 2004, CIP was unable to remain in the building, and CPI reopened there under the ownership of Ms. Elder and Mr. Price. ( Id. at ¶¶ 55, 72.)
CIP moved to a new location in Emmitsburg and sought the permit necessary for doing business in its new space. ( Id. at ¶ 88.) Mr. O'Neil, Jr. ("the defendant" or "Mr. O'Neil"), commissioner of the Emmitsburg Town Council since 2004 and founder of political action committee COPE (Citizens Organized to Preserve Emmitsburg), of which the Elders were also members, then inserted himself into the permit process. ( Id. at ¶¶ 8, 10, 12, 89-93.) Mr. O'Neil, along with Mr. Elder, pushed the town planner, Mike Lucas, to investigate CIP for alleged permit violations, urging him to take measures such as "'unannounced inspections'" of CIP and referring to Runkle as a "sleeze" who needed to be "'shut down'". ( Id. at ¶¶ 83, 89-93.) After CIP obtained the required permit, Mr. O'Neil and Mr. Elder nonetheless maintained their attack against CIP while "us[ing] the prestige of their offices to provide unfair competitive advantage to CPI." ( Id. at ¶¶ 96-97.)
Note that the complaint puts the time of CIP's move and permit application as July 2002, but this appears to be a typographical error, as all other alleged events in the same sequence are dated 2004. Ms. Runkle did not even start CIP until 2003. (Compl. ¶¶ 33-35.)
It is unclear whether Mr. Elder is a commissioner as well. He is described as such at some points ( see, e.g., Compl. ¶¶ 96, 114) but not others ( see id. at ¶¶ 8-9 (describing Mr. Elder as the owner of a local car wash and the former owner of CPI but not as a commissioner, even though Mr. O'Neil's commissioner status is listed in his description in the same section)).
Mr. O'Neil, along with Mr. and Ms. Elder and Mr. Hess, also maliciously wrote or caused the filing of a complaint with the U.S. Trustee's Office requesting reversal of Mr. Runkle's bankruptcy discharge for, inter alia, fraud. ( Id. at ¶¶ 102, 105.) The ultimate decision was in favor of Mr. Runkle. ( Id. at ¶ 106.) This filing was part of a plan between Mr. O'Neil and Mr. and Ms. Elder to force the closure of CIP, the only printing operation besides CPI in the town. ( Id. at ¶¶ 109, 111, 116.) Actions taken in furtherance of this plan include interference with Ms. Runkle's lease with Mr. Hess ( id. at ¶ 110); libel and slander against the Runkles and CIP in order to boost the business of CPI ( id. at ¶ 111); attempts to influence public officials "to investigate, harass, and embarrass" the Runkles ( id. at ¶ 114); and use of COPE as a platform to attack the Runkles ( id. at ¶ 115).
The court notes that while the plaintiffs repeatedly make allegations of slander ( see, e.g., Compl. ¶¶ 96, 111), no claim for defamation has been brought.
The complaint contains the following six counts against four defendants — Mr. and Ms. Elder, Mr. O'Neil, and Mr. Hess — although only those brought against the first three will go forward at this time: (1) Ms. Runkle sues Mr. and Ms. Elder for tortious interference with contractual relations for their involvement in destroying CIP's lease agreement with Mr. Hess ( id. at ¶¶ 57-70); (2) Ms. Runkle sues Ms. Elder for tortious interference with prospective advantage for her actions against CIP for CPI's benefit ( id. at ¶¶ 72-80); (3) Ms. Runkle sues Mr. O'Neil and Mr. Elder for tortious interference with prospective advantage for their attempts to use the local government of Emmitsburg as well as COPE to harass CIP and benefit CPI ( id. at ¶¶ 82-100); (4) Mr. Runkle sues Mr. and Ms. Elder, Mr. O'Neil, and Mr. Hess for malicious use of process for filing or causing to be filed the complaint with the U.S. Trustee's Office ( id. at ¶¶ 102-07); (5) the Runkles sue Mr. and Ms. Elder and Mr. O'Neil for civil conspiracy to commit various tortious acts ( id. at ¶¶ 109-17); and (6) Ms. Runkle sues Mr. Hess for breach of the commercial lease contract ( id. at ¶¶ 119-31). Each count alleges some form of economic harm ( id. at ¶¶ 69-70, 79-80, 98-100, 107, 117, 131), and all counts except count six request punitive damages as well ( id. at ¶¶ 70, 80, 100, 107, 117).
Although the complaint, filed September 7, 2006, contains allegations against Mr. Hess, the plaintiffs do not appear to have included him in the case caption or on any other paperwork filed with the court or, most importantly, to have served him. The court will thus assume that the plaintiffs no longer wish to proceed against Mr. Hess, and all claims against him will be dismissed without prejudice, unless reason to the contrary is shown within 14 days. See Fed R. Civ. P. 4(c)(1) and 4(m) (requiring service within 120 days of filing the complaint).
The complaint was filed in this court pursuant to federal diversity jurisdiction, as the plaintiffs now reside in Pennsylvania, all the defendants reside in Maryland, and the amount in controversy is five-hundred thousand dollars. 28 U.S.C. § 1332(a)(1). Mr. and Ms. Elder filed answers (docket entry nos. 3 11), and Mr. O'Neil filed an answer (docket entry no. 4), as well as the current motion to dismiss (docket entry no. 5), which incorporated the grounds raised in his answer.
ANALYSIS
"The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint; importantly, a Rule 12(b)(6) motion does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999) (internal quotation marks and alterations omitted). When ruling on such a motion, the court must "accept the well-pled allegations of the complaint as true," and "construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff." Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). Consequently, a motion to dismiss under Rule 12(b)(6) may be granted only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Edwards, 178 F.3d at 244. To survive a motion to dismiss, however, a complaint must "in light of the nature of the action . . . sufficiently allege each element of the cause of action so as to inform the opposing party of the claim and its general basis." Chao v. Rivendell Woods, Inc., 415 F.3d 342, 348 (4th Cir. 2005). In addition, because the court is testing the legal sufficiency of the claims, the court is not bound by the plaintiff's legal conclusions. See, e.g., Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001) (noting that the "presence . . . of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6)" when the facts alleged do not support the legal conclusions).
Mr. O'Neil offers various arguments in support of his motion, including that complete diversity is lacking because the plaintiffs were Maryland residents when the events giving rise to the complaint occurred (Mot. Dismiss at ¶ 3); plaintiffs fail to state claims upon which relief could be granted ( id. at ¶ 2); and the applicable statutes of limitations bar plaintiffs' claims ( id. at ¶ 4). The chief argument upon which the defendant relies — indeed, the only one he briefed in any form — is that he has "public official immunity" for the actions he allegedly took. (Answer Def. O'Neil Opp'n Pl.'s Opp'n Def.'s Mot. Dismiss [hereinafter "Reply"] at 1.) Although the plaintiffs urge the court to deny the motion summarily because it was not accompanied by a memorandum (Pl.'s Preliminary Opp'n Mot. Dismiss [hereinafter "Opp'n"] at 3), the court finds it more appropriate, in light of Mr. O'Neil's pro se status, to consider on the merits any grounds which Mr. O'Neil explained sufficiently such that their bases were conveyed to the plaintiffs for response as well as to the court for consideration. See Sado v. Leland Mem'l Hosp., 933 F. Supp. 490, 493 (D. Md. 1996) (explaining that " pro se litigants are held to a less stringent standard than trained attorneys"). The immunity argument was the only one adequately set forth ( see Court Order, dated Dec. 5, 2006 (docket entry no. 13)), thus it is the only ground upon which this motion will be decided. As the defendant did attempt to raise three additional grounds, however, I will briefly comment on them.
Mr. O'Neil also states that he has no liability for any of the plaintiffs' claims. (Mot. Dismiss at ¶ 5.) Assuming that by this Mr. O'Neil means that he did not commit the alleged acts, this is a potential defense, not grounds for dismissal.
Public Official Immunity
Mr. O'Neil asserts that all of his alleged actions "were carried out in his capacity as an elected public official for the Town of Emmitsburg as a commissioner for the municipality and he, therefore, should be granted public official immunity." (Reply at 1.) In support of this proposition, he offers the description of the Board of Commissioners in the Town Charter for the Municipality of Emmitsburg to show that as a commissioner, he was a public official. ( Id. at 1-2.) He then cites to James v. Prince George's County, 418 A.2d 1173, 1177, 288 Md. 315, 322 (Ct.App. 1980), superseded in part by statute as stated in Prince George's County v. Fitzhugh, 519 A.2d 1285, 308 Md. 384 (Ct.App. 1987), for the definition of a public official as opposed to an employee. As the plaintiffs correctly observe, however, the status that being a commissioner confers on Mr. O'Neil — be it official or employee — does not decide the issue of whether Mr. O'Neil may be accorded immunity for his alleged actions. (Pls.' 2d Opp'n Mot. Dismiss [hereinafter "2d Opp'n"] at 2.)
Neither side has addressed whether the Local Government Tort Claims Act, Md. Code Ann., Cts. Jud. Proc. § 5-301 et seq. (2006), applies to this suit.
Even assuming that as a commissioner Mr. O'Neil would be a public official, he would only be entitled to immunity for a tort "committed while performing a duty which involves the exercise of discretion" and only then "in the absence of malice". James, 418 A.2d at 1178. First, it is not clear that he was acting in his capacity as an official during all of the alleged events. It is not obvious that it would be the duty of a town commissioner to become involved with the bankruptcy proceedings of a local resident, as Mr. O'Neil allegedly did. (Compl. ¶ 102.) It is not even clear that Mr. O'Neil's interactions with Mr. Lucas regarding CIP's permit status fell under his official duties. Mr. O'Neil claims — and the plaintiffs tentatively agree — that he was acting in his official capacity during these communications (Compl. ¶ 89; Answer Def. O'Neil ¶ 89), yet he also admits that he "has no authority as commissioner to take code enforcement actions against any business, as this falls under the purview and powers of the executive branch" (Answer ¶ 93). If Mr. O'Neil was acting outside of his role as commissioner, immunity would not be available to him. See Lovelace v. Anderson, 785 A.2d 726, 739, 366 Md. 690, 714 (Ct.App. 2001) (explaining that "[o]ne is entitled to public official immunity only when he is acting as 'a public official rather than' in some other capacity") (citations omitted; italics in original).
Although the plaintiffs initially characterize Mr. O'Neil's actions as within the scope of his official duties (Compl. ¶ 93), they subsequently argue that he might not in fact have been acting in his elected capacity (Opp'n ¶ 2).
Second, and most importantly, the plaintiffs allege that Mr. O'Neil acted with malice, the existence of which precludes immunity even if he was acting in his official capacity. Under Maryland law, which this court must apply when sitting in diversity, see Erie R.R., Co. v. Tompkins, 304 U.S. 64, 78 (1938), the type of actual malice which renders immunity unavailable requires "'act[ing] without legal justification or excuse, but with an evil or rancorous motive influenced by hate,' the purpose being to deliberately and wilfully injure the plaintiff." Shoemaker v. Smith, 725 A.2d 549, 560, 353 Md. 143, 163 (Ct.App. 1999) (approving this construction, employed by the Court of Special Appeals, when "defining 'malice' for purposes of public official immunity under common law" torts) (internal citations omitted).
The plaintiffs adequately allege that this type of malice motivated Mr. O'Neil. In addition to stating simply that malice drove Mr. O'Neil ( see Compl. ¶¶ 97, 105, 109), which in and of itself might not be sufficient to survive a motion to dismiss, the plaintiffs allege actions and statements which, if taken together and ultimately proven, could result in a finding of malice sufficient to preclude immunity. First, Mr. O'Neil allegedly pushed for an aggressive investigation into CIP's potential permit violations while not doing the same for CPI (Compl. ¶ 93.) Targeting one business over another when both may have been committing the same infractions raises an inference of malice towards the targeted entity and/or its owners. Second, statements allegedly made by Mr. O'Neil suggest that in promoting investigation into CIP and in filing or causing to be filed an investigation into Mr. Runkle's bankruptcy proceeding, Mr. O'Neil acted from animosity towards Mr. Runkle and an intentional desire to harm him and his business interests. ( See id. at ¶ 92 (alleging that O'Neil called Runkle a "sleeze" and a "slimeball" and indicated that he "want[ed] him shut down" and would personally cause that to occur.)). Seeking to destroy an individual's business interests, rather than acting neutrally to make sure that an individual's compliance with local regulations or bankruptcy procedures is being enforced by appropriate authorities, is a malicious motivation. Mr. O'Neil is thus not entitled to dismissal based on immunity grounds at this time.
As a claim of civil conspiracy is predicated on the existence of an underlying tort, pleading facts sufficient to show actual malice with respect to the tortious interference with prospective advantage and malicious use of process counts suffices to render the immunity defense inapplicable to the conspiracy count as well. See Alleco, Inc. v. Weinberg Found., Inc., 665 A.2d 1038, 1044-45, 340 Md. 176, 189-91 (Ct.App. 1995).
It should be noted, however, that malice requires acting "'without legal justification or excuse'", Shoemaker, 725 A.2d at 560 (internal citation omitted), and it is possible that Mr. O'Neil might be in a position to argue that he had such justification at a later point during litigation. For instance, if facts emerge to show that CIP was in fact committing permit violations (and CPI was not) and that addressing those in any way fell into Mr. O'Neil's legitimate realm of concern and duties as a commissioner, then he could renew his argument for immunity. In this context, it might be possible to construe Mr. O'Neil's comments as unpleasant overzealousness directed towards the lawful purpose of monitoring town rules. Without putting any weight on these materials for the purposes of this motion, the court observes that Mr. Lucas's emails (attached to Mr. O'Neil's Reply) suggest that CIP might not have been in full compliance with local regulations. ( See Email from Mike Lucas, Aug. 25, 2004 (stating, seemingly in reference to CIP, that "there is no doubt some people are playing fast and loose with the regulations"); but see generally Emails from Bill O'Neil, Aug. 25-27, 2004 (offering persistent suggestions for aggressive investigation into CIP)). Furthermore, the plaintiffs do not actually state that CIP never operated without a permit, although they imply as much in their reference to the revenue lost prior to the permit being granted (Compl. ¶ 99).
The court may not consider materials outside the pleadings when deciding a motion to dismiss. Fed.R.Civ.P. 12(b)(6).
There is also some confusion as to who exactly was in charge of CIP. The plaintiffs allege that Ms. Runkle opened the enterprise ( id. ¶ 35), yet later state that they jointly applied for the requisite home use permit to move CIP to a new location ( id. at ¶ 88). In addition, one of the three claims against Mr. O'Neil is brought only by Ms. Runkle (tortious interference with prospective advantage), yet the plaintiffs seek to show that Mr. O'Neil acted maliciously based in part on his statements about Mr. Runkle ( see 2d Opp'n at 2-3), whose precise role in CIP has not been established. A related point of potential confusion is the circumstances surrounding CIP's creation; it is interesting that Ms. Runkle (or possibly the Runkles together) opened a new printing business (CIP), bearing the same initials as Mr. Runkle's previous one (CPI), as the equipment for CPI sat, unused, in the same building as CIP, and Mr. Runkle filed for bankruptcy in part as a result of CPI's failure. ( See Compl. ¶¶ 33-39.) What impact, if any, clarification of these facts might have does not need to be resolved at this time, however, as it is clear that Mr. O'Neil cannot now claim official immunity as grounds for dismissal. As he neglected to present them sufficiently, Mr. O'Neil's arguments based on other grounds — lack of complete diversity, failure to state a claim, and statute of limitations — will not be finally resolved in this opinion, however, they will be discussed briefly for the guidance of the parties.
Lack of Complete Diversity
Whether diversity of citizenship exists is assessed at the time the complaint is filed, not at the time the events giving rise to the complaint allegedly occurred. See Lyons v. Weltmer, 174 F.2d 473, 473 (4th Cir. 1949) (stating that "questions of jurisdiction are determined on the basis of conditions existing at the time the action was instituted") (internal references omitted). The plaintiffs state, and Mr. O'Neil does not seem to contest, that they were residents of Pennsylvania at the time the suit was filed, thus complete diversity of citizenship appears to be established.
Failure to State a Claim
A brief examination of the relevant causes of action suggest that the plaintiffs may have failed to state a claim for malicious use of process, but seem to have adequately stated claims for tortious interference with prospective advantage and civil conspiracy.
Malicious Use of Process
In order to maintain a cause of action for malicious use of process, the plaintiff must adequately plead facts showing that the following transpired:
(1) A prior civil proceeding was instituted by the defendant. (2) The proceeding was instituted without probable cause. (3) The proceeding was instituted with malice. (4) The proceeding terminated in favor of the plaintiff. (5) Damages were inflicted upon the plaintiff by arrest or imprisonment, by seizure of property, or other special injury which would not necessarily result in all suits prosecuted to recover for a like cause of action.Keys v. Chrysler Credit Corp., 494 A.2d 200, 205, 303 Md. 397, 407 (Ct.App. 1985) (internal references omitted). Even assuming that Mr. Runkle pleads sufficient facts with respect to the first four prongs, he does not appear to have pled the requisite type of damages to maintain the action. No mention is made of what damages he suffered, other than a bald assertion that there were damages. (Compl. ¶ 107.) Under Maryland law, an allegation of unspecified and generalized damages will not suffice to proceed under this tort. See One Thousand Fleet Ltd. v. Guerriero, 694 A.2d 952, 955, 959, 346 Md. 29, 37, 44 (Ct.App. 1997) (stating that Maryland law has "steadfastly adhered" to a requirement of specific damages for this cause of action and that such suits have long been disfavored in this state) (internal references omitted).
Tortious Interference with Prospective Economic Advantage
In order to state a claim for tortious interference with prospective economic advantage, the plaintiff must allege: "(1) intentional and wilful acts; (2) calculated to cause damage to the plaintiffs in their lawful business; (3) done with the unlawful purpose to cause such damage and loss, without right or justifiable cause on the part of the defendants (which constitutes malice); and (4) actual damage and loss resulting." Audio Visual Assocs., Inc. v. Sharp Elec. Corp., 210 F.3d 254, 261 (4th Cir. 2000) (citing Alexander Alexander, Inc. v. B. Dixon Evander Assocs., Inc., 650 A.2d 260, 269, 336 Md. 635, 652 (Ct.App. 1994)). An action for this type of interference is predicated on the existence of three parties — the plaintiff, the third party with whom the plaintiff has some sort of business relationship, and the alleged tortfeasor. See K K Mgmt., Inc. v. Lee, 557 A.2d 965, 973, 316 Md. 137, 154-55 (Ct.App. 1989). The defendant's alleged conduct must be "independently wrongful or harmful, quite apart from its effect on the plaintiff's business relationships." Alexander, 650 A.2d at 657. Actions falling into this category include, inter alia, "common law torts and . . . defamation, injurious falsehood or other fraud . . . the institution or threat of groundless civil suits . . ." Id. (internal citations and quotation marks omitted). Furthermore, "'actual malice,' in the sense of ill will, hatred or spite, may be sufficient to make an act of interference wrongful where the defendant's malice is the primary factor that motivates the interference." Id. (internal citation omitted). This standard of actual malice is very similar to that which renders immunity inapplicable, as discussed above; thus it seems likely that a claim for tortious interference with prospective advantage has been stated, as the plaintiffs allege facts suggesting that Mr. O'Neil intentionally and with actual malice acted to cause harm to CIP and succeeded in so doing.
The relationship need not be based on a specific contract; customers — prospective or established — may serve as the third party. See K K Mgmt., Inc. v. Lee, 557 A.2d 965, 974-75, 316 Md. 137, 157 (Ct.App. 1989) (discussing proof of actual loss based on prospective customers).
Actual malice is necessary to recover punitive damages for this tort. Alexander, 650 A.2d at 269.
Civil Conspiracy
"A civil conspiracy is a combination of two or more persons by an agreement or understanding to accomplish an unlawful act or to use unlawful means to accomplish an act not in itself illegal, with the further requirement that the act or the means employed must result in damages to the plaintiff." Green v. Washington Suburban Sanitary Comm'n, 269 A.2d 815, 824, 259 Md. 206, 221 (Ct.App. 1970) (internal references omitted). Such a conspiracy is not, however, an independent tort; it is predicated on the existence of underlying conduct which is in itself tortious. See Alleco, 665 A.2d at 1044-45. If it is determined that a claim for tortious interference with prospective advantage against Mr. O'Neil has been stated, the court would then turn to whether there was the type of agreement or understanding between Mr. O'Neil and his alleged co-conspirator, Mr. Elder, sufficient to give rise to a claim of civil conspiracy. It has been recognized that "[c]onspirators do not voluntarily proclaim their purposes; their methods are clandestine." Western Maryland Dairy, Inc. v. Chenowith, 23 A.2d 660, 664, 180 Md. 236, 243 (Ct.App. 1942). Given the various means through which an agreement or understanding may be proven, see id. at 243-44, the court would likely have cause to hold that sufficient facts were alleged to give rise to the inference of such an agreement or understanding. ( See Compl. ¶¶ 91, 84-5, 89-90, 12 (Mr. O'Neil and Mr. Elder spoke with Mr. Lucas together about his investigation of CIP's alleged infractions, as well as approached him separately with attempts to bolster CPI and/or damage CIP; Mr. O'Neil and Mr. Elder served together on COPE, suggesting the existence of a personal relationship, as well as an interest in Emmitsburg's development generally and the fate of CPI, the business of a fellow COPE member and Mr. Elder's cousin, particularly).
As it appears unlikely that a claim for malicious use of process has been stated, that cause of action is not considered in the conspiracy analysis.
Although Ms. Elder is also an alleged co-conspirator (Compl. ¶ 109), an individual count of tortious interference with prospective advantage has been brought against her (count 2). As the court has not had cause to analyze whether this count states a claim, and conspiracy cannot exist absent underlying tortious conduct, the court will limit its remarks to Mr. O'Neil, the movant, and Mr. Elder, his alleged co-conspirator in the alleged actions which seem likely to state a claim upon which relief could be granted (count 3, tortious interference with prospective advantage).
Statute of Limitations
Absent a developed argument or reference to any legal authorities, the court can only note that the general statute of limitations for filing a civil case is three years. Md. Code Ann., Cts. Jud. Proc. § 5-101 (2006). As the alleged acts giving rise to the claim for tortious interference with prospective advantage and civil conspiracy seem to have occurred in 2004 and after, and the complaint was filed in 2006, there does not at this point appear to be a statute of limitations defense available to Mr. O'Neil.
A separate order follows.
ORDER
For the reasons stated in the accompanying memorandum, it is hereby ORDERED that:
1. Mr. O'Neil's motion to dismiss (docket entry no. 5) is Denied; and
2. All claims against Mr. Hess will be Dismissed without prejudice unless a reason not to do so is shown by the plaintiffs within 14 days; and
3. A scheduling order will be issued in the near future.