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Plaintiffs Forum Shop and Lose Entire Case: New Maryland Court of Special Appeals Opinion

On Christmas Eve, the Maryland Court of Special Appeals issued a treatise of an opinion written by retired Judge Charles E. Moylan in Antar v. Eagan. I’m not going to give you a complete analysis because it is Christmas, but this case is worth talking about for Maryland personal injury attorneys, as it highlights the perils of filing suit where there are two possible jurisdictions. The plaintiffs really got a raw deal in this case, although I think they probably could have avoided the problem with more careful treading. Whether Maryland law truly reflects the court’s holding here is something for the Maryland Court of Appeals to decide.

Plaintiff sued Defendant in Pennsylvania, despite the fact that they had jurisdiction in Baltimore City. Why leave Baltimore City, a jurisdiction that the anti-lawsuit folks tell us is “Easy Street” for Maryland plaintiffs? Well, this was a fire insurance case where the plaintiff alleged first party bad faith. Maryland’s first party bad faith law is somewhat of a joke, so they went to Philadelphia (which is considered more favorable than Baltimore for plaintiffs anyway as it turns out).

The Philadelphia County court dismissed the case for forum non conveniens with leave to refile their lawsuit in Maryland. Plaintiffs instead appealed and lost. Then, they came back to Maryland and filed suit. Defendant won (again), this time on the statute of limitations.


Plaintiff’s thinking was (with some logic) that the running of the limitations period in
Maryland should have been tolled for while the lawsuit was pending in Pennsylvania. Judge Moylan framed it this way:

    It is their argument that the limitations clock in Maryland was frozen and did
    not continue to tick (or in this case did not even begin to tick) as of the moment the suit was
    filed in Philadelphia County. Their position is that time went into suspended animation and
    that the clock only resumed ticking after the litigation in Pennsylvania was finally concluded.

Personally, I think plaintiffs thinking was reasonable. They read Maryland case law – specifically Bertonazzi v. Hillman – the way I did. What arguably was not reasonable was having – with apologies to John Boehner – no Plan B. Just file suit in Maryland as a precaution. What is the harm? Judge Moylan put it in harsher terms:

    For these non-diligent and incautious appellants, the curfew bell did ring. With rare,
    rare exceptions not here applicable, once a cause of action accrues and limitations begin to
    run, time marches on.

It will be interesting to see if the Maryland Court of Appeals agrees. You can find the full opinion here.

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  • Michael Carin

    Let me see if I understand the logic of Justice Moylan: a Statute of Limitation is a legislative device (that is such a statute does not exist in nature) with the intended purpose of judicial economy (no stale claims). Therefore to accomplish judicial economy, a claimant must file an identical complaint in every relevant jurisdiction so as to beat each statute. A claimant must file the lawsuits in all the possible jurisdictions even where, as with the Maryland statute, the actual statute only states “a civil action at law shall be filed within three years…” with no mention as to the scope of the jurisdictional requirements. Antar filed the civil action within three years. The Defendants had notice and participated with the lawsuit within 12 months of the fire! How could evidence become stale? They had actual notice of the claim!

    Is the statute of limitations the real issue? Or, is this opinion additional evidence of the bias against claimants without a substantial political contribution pedigree?

    How is filing a motion to dismiss pursuant to forum non conveniens distinct from forum shopping? We need to dismiss this case right now because my client doesn’t think this forum is proper…even though my client conducts business in this forum…