Jarvis v. FedEx Office & Print Services, Inc., No. 8:2008cv01694 - Document 106 (D. Md. 2011)

Court Description: MEMORANDUM OPINION (c/m to Plaintiff 3/7/11 sat). Signed by Chief Judge Deborah K. Chasanow on 3/7/11. (sat, Chambers)

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Jarvis v. FedEx Office & Print Services, Inc. Doc. 106 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : DEREK N. JARVIS : v. : Civil Action No. DKC 08-1694 : FEDEX OFFICE AND PRINT SERVICES, INC. : MEMORANDUM OPINION Presently pending and ready for resolution in this race discrimination case is a motion for reconsideration filed by Plaintiff Derek N. Jarvis (ECF No. 72); a motion to strike filed by Defendant FedEx Office and Print Services, Inc. (ECF No. 77); Plaintiff s motion to strike discovery requests (ECF No. 80); Defendant s motion to dismiss or, in the alternative, for summary judgment (ECF No. 92); two motions to seal filed by Defendant (ECF Nos. 95, 101); two motions for sanctions filed by Plaintiff (ECF Nos. 96, 97); and Plaintiff s cross-motion for summary judgment (ECF No. 98). The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, Defendant s motion for summary judgment and its motions to seal will be granted. The remaining motions will be denied. Dockets.Justia.com I. Background A. Factual Background The following complaint. facts are alleged (ECF No. 35, Attach. 1). in Plaintiff s amended In the early morning hours of June 16, 2006, Plaintiff Derek Jarvis, an African-American, and his colleague, Jaime Zeas, a Caucasian, went to a FedEx Office store in Bethesda, Maryland ( Bethesda FedEx ), to work on the plaintiff s father[ ]s estate case and for Plaintiff to check his email and go on the internet. (Id. at 4). Upon their arrival, Plaintiff approached the entrance while Mr. Zeas gathered materials from his car. Plaintiff attempted to enter the store, but discovered the doors were locked. Inside, he saw Bethesda FedEx operations manager Roger Sindelar, a Caucasian, gesturing to Plaintiff in a manner suggesting that the store was closed. Plaintiff returned to the car and advised Mr. Zeas of this fact. Believing the Bethesda FedEx to be open on a twenty- four hour basis, Mr. Zeas approached the front door, rang a buzzer for late night access, and was promptly permitted to enter. He then opened the door for Plaintiff. Shortly after Plaintiff entered the store, Mr. Sindelar allegedly approached [him] in a menacing manner and yelled at [him] to leave the FedEx [i]mmediately several times. at 5). (Id. When Mr. Zeas advised the manager that Plaintiff had accompanied him to the store, Mr. Sindelar walked away. 2 Mr. Zeas subsequently experienced difficulty with a computer he was attempting to use and asked Plaintiff to seek assistance from Mr. Sindelar. When Plaintiff approached the manager and asked for help, Mr. Sindelar told him he would be right over. As Plaintiff walked back toward his colleague, he allegedly heard Mr. Sindelar state, help damn Mr. niggers. Zeas, but was (Id.). unable Mr. to Sindelar attempted to resolve the problem. Soon thereafter, he advised Plaintiff and Mr. Zeas that he needed to close the store temporarily, at which point the two men went to another FedEx Office location. B. Procedural Background After exhausting his administrative remedies, Plaintiff filed a pro se complaint in the Circuit Court for Montgomery County, alleging (1) violation of Article 49B of the Maryland Code and emotional 42 U.S.C. distress, § (3) 1981, (2) violation intentional of 42 infliction U.S.C. § 1983, of (4) negligent training and supervision, (5) spoliation of evidence, and (6) violation of Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a, et seq. million in punitive and (ECF No. 2). compensatory Plaintiff sought $50 damages, an award of attorney s fees, and declaratory and injunctive relief. Defendant timely removed to this court on the basis of federal question and diversity jurisdiction 2008, moved to dismiss (ECF No. 8). 3 and, on July 7, In response, Plaintiff moved for summary judgment. opinion and Defendant s order issued motion, (ECF No. 23). March dismissing 10, the 2009, By a memorandum the complaint, court but granted permitting Plaintiff to amend as to two counts, and denied Plaintiff s motion as moot. (ECF Nos. 28, 29). The court additionally found that Plaintiff could not recover punitive or compensatory damages under the facts alleged, nor could he recover attorney s fees, as he was representing himself. Soon amend, thereafter, attaching as Plaintiff an exhibit (ECF No. 28, at 18-19).1 filed a a motion proposed for amended leave to complaint raising four claims: (1) interference with the right to contract and (2) denial of access in violation of § 1981 and Md. Code Ann., Art. 49B, (3) negligent training and supervision, and (4) violation of Title II. (ECF No. 35, Attach. 1).2 The amended 1 Plaintiff moved for reconsideration of this decision (ECF No. 30) and, before that motion could be decided, filed a notice of appeal (ECF No. 33). The court denied his motion for reconsideration on April 2, 2009 (ECF No. 45), and the United States Court of Appeals for the Fourth Circuit affirmed the decision granting Defendant s motion to dismiss on October 23, 2009. See Jarvis v. FedEx Office & Print Services, Inc., 334 The appellate Fed.Appx. 571 (4th Cir. 2009) (per curiam). court s mandate was stayed, however, upon Plaintiff s filing of a petition for rehearing en banc. (ECF No. 61). That petition was denied on December 1, 2009 (ECF No. 67), and the Fourth Circuit s mandate took effect on December 9, 2009 (ECF No. 68). 2 Since the time the amended complaint was filed, Article 49B has been repealed in its entirety and replaced, in pertinent part, by Md. Code Ann., State Gov t § 20-304 (2009). The language of this statute generally tracks the language of § 4 complaint sought an award of $10 million in compensatory damages, $25 million in punitive damages, as well as injunctive and declaratory relief. On April 2, 2009, the court issued a memorandum opinion and order granting in part and denying in part Plaintiff s motion. (ECF Nos. 44, 45). The court determined that Plaintiff sufficiently pled the first two counts of the amended complaint, but that he could not proceed on the remaining counts. It further found that the amended complaint, like the original, failed to allege sufficient facts supporting an award of punitive or compensatory damages. (ECF No. 44, at 7). Defendant answered the amended complaint on April 16, 2009, and subsequently filed a motion for summary judgment. Several days pending later, Plaintiff moved resolution of his appeal. to stay the proceedings In addition to seeking a stay, this motion also requested, inter alia, judgment on the pleadings as a sanction for Defendant s alleged spoliation of video evidence. The court denied all requested relief and ordered Plaintiff to respond to fifteen days. Defendant s motion (ECF No. 58). for summary judgment within Plaintiff filed an opposition to Defendant s motion and cross-motion for summary judgment (ECF No. 59), along with a separate motion for sanctions related to 1981. Jarvis v. Staples, Inc., Civ. No. PJM 10-244, 2010 WL 4942010, at *3 n. 1 (D.Md. Nov. 30, 2010). 5 Defendant s alleged spoliation of video evidence (ECF No. 60). The cross-motions for summary judgment and Plaintiff s motion for sanctions were denied. (ECF Nos. 69, 70). On March 22, 2010, Plaintiff moved for reconsideration of the order denying his motion for sanctions. On April Plaintiff s Services 2010, Response Regarding challenging 26(a)(1) 8, the (ECF No. 72). Plaintiff to Defendant Damages content disclosures. filed and and (ECF a Fed Refusal document Ex to Office Submit entitled & Documents, sufficiency of Defendant s No. On April 74). Defendant filed a motion to strike this document. Print 20, Rule 2010, (ECF No. 77). Plaintiff responded by moving to strike Defendant s discovery requests evidence. as a sanction for the alleged spoliation of video (ECF No. 80). On September 17, 2010, Defendant filed the pending motion to dismiss or, in the alternative, for summary judgment (ECF No. 92), followed by a motion to seal an attached exhibit (ECF No. 95). Plaintiff responded by filing two motions for sanctions (ECF Nos. 96, 97) and a cross-motion for summary judgment (ECF No. 98). Defendant moved Plaintiff s cross-motion. to seal an (ECF No. 101). 6 exhibit attached to II. Plaintiff s Evidence Motions Related to Alleged Spoliation of During the administrative case that preceded the filing of Plaintiff s complaint, an issue arose regarding a surveillance video taken at the Bethesda FedEx on the date of the incident. When an investigator from the Montgomery County Office of Human Rights ( MCOHR ) requested to view the video, Defendant advised that the DVD containing the footage had been damaged and, as a result, only approximately one minute of the recording could be viewed. viewed Defendant further asserted that the video had been previously by Bethesda FedEx manager Michael Frasier before it was damaged, and Mr. Frasier provided a statement describing what it depicted, i.e., an apparently innocuous interaction between Mr. Sindelar, Mr. Zeas, and Plaintiff. No. 24, Ex. E-3, D-2). Defendant s explanation In its determination, the MCOHR credited that the DVD adopted Mr. Frasier s account of events. The Human Rights (ECF Commission Case had been damaged and (ECF No. 8, at 7-8). Review Board ( CRB ) subsequently issued an order remanding the case back to MCOHR, due primarily to its concern that a negative inference was not drawn from Defendant s failure to produce the DVD and that the MCOHR appeared to accept (ECF No. 23, Ex. E, at 1). blindly Mr. Frasier s description. In response to the remand order, Defendant promptly submitted the damaged DVD to the CRB for 7 review. (ECF No. 23, Ex. C). On December 17, 2007, the MCOHR investigator advised the CRB, by a written memorandum, that she had received the DVD from FedEx Office and attempted to view it, but was only able to watch 10 seconds of nondescript footage. (ECF No. 24, Ex. E-8). Throughout this litigation, Plaintiff has repeatedly alleged impropriety on the part of Defendant related to the surveillance video. His initial complaint included freestanding claim alleging spoliation of video evidence. No. 2, at 16). Plaintiff (ECF After that claim was dismissed with prejudice, attempted complaint, a to relabeling revive it as it in his Obstruction Spoliation of Videotape Evidence. proposed of amended Justice and (ECF No. 35, Ex. 1, at 8). He requested that sanctions be imposed for spoliation of this evidence in his initial motion for summary judgment (ECF No. 23), which was denied as moot, and again in his motion to stay pending appeal (ECF No. pleadings as a sanction. 52), which sought judgment on the The court denied Plaintiff s motion for judgment on the pleadings, finding that such relief was improper at this stage of the proceedings. (ECF No. 57, at 6). Less than one week later, Plaintiff renewed his request for sanctions, inconsistent arguing that statements Defendant s regarding 8 the representatives video during made the administrative proceedings, which Plaintiff cited as evidence that Defendant intentionally damaged the DVD in order to prevent its content from coming to light in this litigation. 60). (ECF No. After restating the standard it set forth in the decision addressing Plaintiff s motion for judgment on the pleadings i.e., that the moving party must demonstrate that (1) the nonmoving party had an obligation to preserve the evidence, (2) the destruction or loss was accompanied by a culpable state of mind, and (3) the lost evidence was relevant the court explained: While it is undoubtedly true that Defendant had an obligation to preserve the surveillance video footage, Plaintiff offers nothing, aside from conclusory allegations, suggesting that the DVD was damaged by Defendant with a culpable state of mind. Indeed, Defendant has presented multiple declarations of its representatives unequivocally stating otherwise. Moreover, Plaintiff has failed to identify any change of circumstance occurring between the date the court issued its prior order, denying a virtually identical motion, and the date he filed the instant motion less than one week later. He appears simply to present the same substantive claim under a new label, requesting different sanctions. The court will not countenance such practices. Plaintiff s motion will be denied. (ECF No. 69, at 10). that decision. Federal Plaintiff now moves for reconsideration of (ECF No. 72). Rule of Civil Procedure 54(b) governs reconsideration of interlocutory orders that do not constitute 9 final judgments in a case. That rule provides that any order or other decision, however designated, that adjudicates fewer than all the claims . . . may be revised at any time before the entry of judgment adjudicating all the claims. 54(b). Fed.R.Civ.P. Because the court s order denying Plaintiff s motion for sanctions did not adjudicate all of his claims, his motion for reconsideration falls under the scope of Rule 54(b). See Am. Canoe Ass n v. Murphy Farms, Inc., 326 F.3d 505, 514 (4th Cir. 2003). In the Fourth Circuit, the precise standard governing a motion such as this one is somewhat unclear. See Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1472 (4th Cir. 1991). For instance, the Rule 60(b) standard does not bind the court on a motion to reconsider an interlocutory order. at 1470; Am. Canoe Ass n, 326 F.3d at 514. sometimes use the Rule 60(b) factors Id. Even so, courts newly discovered evidence, excusable neglect, etc. as guideposts in deciding when to reconsider Fountainhead 2008). Title an Group earlier Corp., decision. 252 F.R.D. Robinson 275, 291 v. (D.Md. Doctrines such as law of the case . . . have [also] evolved as a means of guiding [the court s] discretion. Am. Canoe Ass n, 326 F.3d at 515. Regardless of the standard applied, Plaintiff s motion for reconsideration cannot prevail. 10 Plaintiff initially contends that the underlying decision has contradicted Fourth Circuit precedent, (ECF No. 72, at 1 (citing Silvestri v. General Motors Corp., 271 F.3d 583 (4th Cir. 2001)), and then reasserts the same argument he presented in his prior motions i.e., [t]he fact that this videotape evidence is relevant to this litigation justifies spoliation period (id. at 2); FedEx has made several inconsistent statements with respect to the videotapes which should constitute bad faith (id. at 4). He does not specify the manner in which the court s prior decision conflicts with Sylvestri, however, nor does it appear to do so. Moreover, he has not presented any new evidence, identified any intervening change in the law, or shown clear error of law or manifest injustice warranting the extraordinary relief he seeks. Rather, he essentially asks the court to change its mind based on the same information he presented before. That is not a proper basis for a motion for reconsideration. See Jarvis v. Enterprise Fleet Services and Leasing Co., Civ. No. DKC 07-3385, 2010 WL 1929845, at *2 (D.Md. May 11, 2010). Accordingly, this motion will be denied. Plaintiff discovery seeking has requests an order additionally as that a result Defendant filed of is a motion spoliation not to of entitled strike evidence, to any countervailing evidence which includes but [is] not limited to discovery . . . [a]s a result of spoliation of surveillance 11 tape(s). for (ECF No. 80, at 4). imposition of Also pending is another motion sanctions for spoliation of videotape evidence in which Plaintiff appears to ask the court to enter default judgment in his favor because Defendant refused to provide material and relevant evidence, i.e., the surveillance video. (ECF substantively No. 97, at identical 8). to Both of these Plaintiff s motions motion are for reconsideration and prior filings on this subject, and will be denied for the same reasons. III. Defendant s Motion to Strike Upon receiving Defendant s initial disclosures, Plaintiff filed a document entitled Plaintiff s Response to Defendant Fed Ex Office & Print Services Regarding Damages and Refusal to Submit in which he complains that Defendant erroneously stated in its disclosures that Plaintiff s claim for damages had been dismissed, and did not disclose information or documents with respect to civil rights violations or complaint[s] they have received at the Bethesda, Maryland[,] facility, or other information required in initial disclosures concerning racial discrimination required by Rule [26(a)]. (ECF No. 74, at 1). Plaintiff additionally asked the court to clarify [its] order concerning damages in this action. (Id. at 2). Defendant has moved to strike this document, arguing that it fails to comply with Local Rules and/or prior orders in this 12 case. (ECF No. 77). Defendant purports to bring its motion pursuant to Local Rule 105, but that rule provides no basis for a motion to strike. a motion In fact, the only potential basis for such Federal Rule that [t]he court provides is of Civil may Procedure strike from 12(f), a which pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. pleading. See The document filed by Plaintiff is not a Fed.R.Civ.P. 7(a) (listing documents that qualify as pleadings); Manson v. Inge, 13 F.2d 567, 568 (4th Cir. 1926) parties to definitely between (defining a civil presenting them ). pleadings or criminal the issue Consequently, challenged document. as allegations case, to the be for tried court made the and cannot by purpose the of determined strike the See Hrivnak v. NCO Portfolio Mgmt, Inc., 723 F.Supp.2d 1020, 1029 (N.D.Ohio 2010) ( While some courts have employed Fed.R.Civ.P. 12(f) to strike an affidavit or a brief, or portions thereof, there is no basis in the Federal Rules for doing so. ); see also MJ Harbor Hotel, LLC v. McCormick & Schmick Rest. Corp., 599 F.Supp.2d 612, 623 (D.Md. 2009); Thomas v. Bet Sound-Stage Restaurant/BrettCo, Inc., 61 F.Supp.2d 448, 458 (D.Md. 1999). motion to strike will be denied. 13 Accordingly, Defendant s IV. Defendant s Motion to Dismiss or, in the Alternative, for Summary Judgment Defendant contends that a live controversy is no longer presented in this case, rendering it moot, or that Plaintiff cannot demonstrate standing to declaratory remedies he seeks. seek the injunctive or Given the stage of the case, application of the summary judgment standard is appropriate. A. Standard of Review It is well established that a motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). In other words, if there clearly exist factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party, summary judgment is inappropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also JKC Holding Co. LLC v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. See Scott v. Harris, 550 U.S. 372 (2007); Emmett, 532 F.3d at 297. 14 A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. 323. Celotex Corp., 477 U.S. at [A] complete failure of proof concerning an essential element . . . necessarily renders all other facts immaterial. Id. Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence in order to show the existence of a genuine issue for trial. See Anderson, 477 U.S. at 254; Celotex Corp., 477 U.S. at 324. A mere scintilla of proof, however, will not Jenney, suffice 327 F.3d to 307, prevent 314 summary (4th judgment. Cir. 2003). Peters There must v. be sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Anderson, 477 U.S. at 249. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Id. at 249-50 (citations omitted). B. Analysis In the memorandum opinion addressing Plaintiff s motion for leave to amend his complaint, the court concluded that Plaintiff s requests for monetary damages under § 1981 must fail. (ECF No. 44, at 7). Thus, the only remedies remaining in the amended complaint are declaratory and injunctive relief related to alleged violations of 15 § 1981 and the state law analog. act(s) Specifically, Plaintiff seeks a declaration that the and practices of FedEx Office complaint, violate 42 U.S.C. [§] 1981[.] 1, at 11). and as alleged in this (ECF No. 35, Attach. As injunctive relief, he seeks an order enjoining permanently restraining future violations and requiring Defendant to take affirmative steps . . . to remedy the effects of the illegal discriminatory conduct alleged in the complaint, and to prevent repeated occurrences in the future. 12). (Id. at 11- At his deposition, he clarified that these steps include requiring Defendant to (1) terminate Mr. Sindelar s employment, (2) provide all employees with diversity training and a copy of the company s employee handbook, and (3) close the Bethesda FedEx pending proof of compliance with other requirements. (ECF No. 92, Attach. 4, Plaintiff Dep., at 144-45). In its moving papers, Defendant argues that Plaintiff s requested equitable allegations of relief wide-spread is either moot, discrimination of related which only to Plaintiff admits he has no evidence, or beyond the power of the [c]ourt to grant. be (ECF No. 92, Attach. 1, at 12). characterized, standing. generally, Indeed, even as if a the These arguments may challenge issue was to Plaintiff s not raised by Defendant, the court has an independent obligation to examine the standing of [a plaintiff] 16 as a matter of the case-or- controversy requirement of Article III of the United States Constitution. Article courts Allen to v. Juidice v. Vail, 430 U.S. 327, 331 (1977). III of the adjudicating Wright, 468 Constitution actual U.S. confines cases 737, 750 and the federal controversies. (1984). An essential component of the case or controversy requirement is that a litigant have standing to challenge the action sought to be adjudicated in the lawsuit. Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To satisfy the requirement for constitutional standing, a plaintiff must demonstrate that: (1) [he] has suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Doe v. Obama, 631 F.3d 157, 160 (4th Cir. 2011) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)). The party invoking federal jurisdiction bears the burden of establishing Albermarle, Va., these 524 elements. F.3d Lujan, 504 U.S. at 561). 485, 491 Stephens (4th Cir. v. County 2008) of (quoting A plaintiff may establish standing in 17 the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. Id. (quoting Lujan, 504 U.S. at 561). stage, the plaintiff exist[ence] of bears standing the by At the summary judgment burden affidavit or of proving other the evidence. Levinson-Roth v. Parries, 872 F.Supp. 1439, 1445 (D.Md. 1995). Here, the sole allegations of injury contained in Plaintiff s amended complaint relate to Mr. Sindelar s alleged conduct on June 16, 2006. As a result of that conduct, Plaintiff asserts, he has suffered, continues to suffer, and in the future [will] suffer emotional distress, . . . [was] greatly humiliated[,] suffered . . . bodily distress, was greatly injured in his character and reputation, and generally suffered damages by reason of the foregoing. 7). (ECF No. 35, Attach. 1, at At his deposition, he explained, [t]here has [sic] been physical manifestations of high blood pressure, I ve got back issues, had back issues but because of the stress of that causes more of that sort of situation to happen, insomnia from that. It causes headaches when you think of that. I ve had bad experiences, bad dreams about that situation which I won t explain in detail. But that is all of the effects on that. . . . And the name FedEx it just always brings about a stressful reaction from me, just the FedEx name because of that issue. 18 (ECF No. 98, Attach. 1, Plaintiff Dep., at 14-15). He acknowledged, however, that he not seen a doctor related to these symptoms, and that he has no other documentation to support his claims with regard to physical manifestations of injury. (Id. at 15-16). Assuming, arguendo, that Plaintiff has suffered an injury in fact that is fairly traceable to Mr. Sindelar s conduct on the evening in question, he has failed to establish that his injury is likely injunctive relief to he be redressed seeks. by Equitable the declaratory relief, by its or very nature, is incapable of redressing a wrong that has occurred strictly in the past. Env t, 523 U.S. 83, See Steel Co. v. Citizens for a Better 108 (1998) (injunctive relief cannot conceivably remedy any past wrong but is aimed at deterring [a party] from violating [the relevant law] in the future ); Am. Postal Workers Union v. Frank, 968 F.2d 1373, 1376 (1st Cir. 1992) ( a prospective remedy will provide no relief for an injury that is, and likely will remain, entirely in the past ). Plaintiff has presented nothing, aside from his own conclusory allegations, suggesting that racial discrimination has occurred at any FedEx facility on any other occasion, much less that Defendant maintains acknowledged at his a discriminatory deposition, his policy. request As for Plaintiff injunctive relief is based upon his belief that racial discrimination is 19 ongoing at the Bethesda FedEx. That belief, in turn, is based solely upon on[e] incident that happened to [him] four years (ECF No. 92, Attach. 4, at 113).3 ago. In Los Angeles v. Lyons, 461 U.S. 95, 111 (1983), the Supreme Court explained that past exposure to harm does not confer standing upon a litigant to obtain equitable relief [a]bsent a sufficient likelihood that he will again be wronged in a similar way. upon stopping In that case, the plaintiff alleged that, him for unconstitutionally a traffic applied violation, a chokehold, unconscious and resulting in physical injury. police officers rendering him He sued the City of Los Angeles and four officers and obtained a preliminary injunction barring use of the chokehold procedure except when death or serious bodily injury was threatened. The Supreme Court failed reversed, demonstrate a finding case or that the controversy 3 plaintiff with the City that to would In opposing a prior motion for summary judgment filed by Plaintiff, Defendant attached the declaration of Mr. Sindelar, in which the manager denied, inter alia, refusing to permit Plaintiff to enter the store, adding that [i]n the more th[an] six years that I have been employed third shift at the Bethesda store, I have only denied access to one person and he was being chased by the Montgomery County police at the time. (ECF No. 24, Attach. 4, at ¶ 6). At his deposition, Plaintiff assum[ed] this individual was African-American and repeatedly cited this admission as evidence that the alleged racial discrimination has occurred on multiple occasions. (ECF No. 92, Attach. 4, at 148). The record clearly does not support this claim. 20 justify the equitable relief sought. Lyons, 461 U.S. at 105. His standing to seek such relief, the Court held, depended upon whether he was realistically threatened by a repetition of his experience of October 1976. Id. at 109. In other words, because Lyons could not show that an injunction barring future use of the chokehold would provide relief to him, personally, he had no standing to seek that remedy. Am. Postal Workers Union, 968 F.2d at 1376.4 Similarly, Plaintiff cannot show how the equitable relief he seeks would redress the injury he allegedly suffered. He acknowledged at his deposition that he has only been to the Bethesda FedEx on one occasion and that he is unlikely to return in the future. (Id. at 14, 144). Thus, there is virtually no likelihood that Plaintiff, himself, will experience the alleged discrimination again. See Lujan, 504 U.S. at 564 (even some day return] intentions [to without any description of concrete plans, or indeed even any specification of when the some day will be do not support a finding of the actual or imminent injury that our cases require ); Proctor v. Prince George s Hosp. Center, 32 F.Supp.2d 4 830, 833 (D.Md. 1998) Although Lyons, and cases cited therein, considered injunctive relief exclusively, the same principles apply with respect to declaratory judgments, which are authorized only [i]n a case of actual controversy. Am. Postal Workers, 968 F.2d at 1377 n. 4 (citing 28 U.S.C. § 2201; Golden v. Zwickler, 394 U.S. 103, 108 (1969)); see also Levinson-Roth, 872 F.Supp. at 1446. 21 (dismissing for lack of standing where [t]he present record neither reflects any on-going discrimination against Plaintiff, nor suggests that he is likely to return to [Defendant hospital] in the near future ). Although he claims that he has patronized another location FedEx Office more frequently (ECF No. 98, Attach. 1, at 5), he presents no evidence suggesting that the conduct about which he complains is threatened at this or any other location. Indeed, the specific relief he seeks, as clarified by his deposition testimony, relates largely to the Bethesda FedEx. Injury occurring exclusively in the past, such as that alleged here, is typically redressed by an award of monetary damages. See Lyons, 461 U.S. at 105. Such an award is unavailable in this case, however, and the court declines to exercise its discretion to permit further amendment at this late stage of the litigation.5 As to his claim for equitable relief, 5 The only remaining evidence in support of Plaintiff s version of events in this case is his own deposition testimony. Throughout this litigation, Plaintiff has relied on Mr. Zeas as a corroborating witness. Mr. Zeas deposition testimony, however, did not fully support Plaintiff s claims, and Plaintiff now asks that his colleague s deposition be stricken[] from the record, citing, inter alia, that Mr. Zeas acknowledged that his deposition was false[,] inaccurate and fraudulent ; that he has been unstable over the last 2-4 years and went to the deposition seeking a job by his own admission ; and that he was flirtatious with the FedEx attorney who[] happened to be . . . an attractive female [that] he was trying to impress. (ECF No. 98, at 20). 22 Plaintiff s standing depends on whether, in the future, he is likely to be refused service at any FedEx Office location based on his race. He has not come close to establishing that such future injury is threatened. Accordingly, Defendant s motion will be granted.6 V. Defendant s Motions to Seal Pursuant to the parties agreed protective order in this case (ECF No. 83, Ex. 1), Defendant has filed motions to seal an exhibit attached to its motion to dismiss or for summary judgment (ECF No. 95) and an exhibit attached to Plaintiff s cross-motion for summary judgment (ECF No. 101). Plaintiff has not opposed these motions. A motion to seal must comply with Local Rule 105.11, which provides: Any motion seeking the sealing of pleadings, motions, exhibits or other papers to be filed in the Court record shall include (a) proposed reasons supported by specific factual representations to justify the sealing and (b) an explanation why alternatives to sealing would not provide sufficient protections. The Court will not rule upon the motion until at least 14 days after it is entered on the public docket to permit the filing of objections by interested parties. Materials that are the subject of the motion shall remain temporarily sealed pending a ruling by the Court. If the motion is denied, the party 6 Because the court finds that Plaintiff lacks standing, his cross-motion for summary judgment and motion for sanctions will be denied as moot. (ECF Nos. 96, 98). 23 making the filing will be given opportunity to withdraw the materials. an There is a well-established common law right to inspect and copy judicial records and documents. See Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978). If competing interests outweigh the public s right of access, however, the court may, in its discretion, seal those documents from the public s view. See In re Knight Pub. Co., 743 F.2d 231, 235 (4th Cir. 1984). Prior to sealing any documents, the court must provide the non-moving party with notice opportunity to object. satisfied by either of Id. the request to seal and an This notice requirement may be notifying the persons present in the courtroom or by docketing the motion reasonably in advance of deciding the issue. Id. at 234. Finally, the court should consider less drastic alternatives to sealing, such as filing redacted versions of the documents. sealing is appropriate, it If the court decides that should also provide reasons, supported by specific factual findings, for its decision to seal and for rejecting alternatives. Id. at 235. In support of the motion to seal the exhibit attached to its motion for summary judgment, Defendant asserts that the document contains confidential and proprietary information that is classified for discovery purposes as Confidential Information, citing the parties agreed protective order. 24 (ECF No. 95, Attach. 1). handbook. The exhibit is a portion of an employee Defendant s motion to seal an exhibit attached to Plaintiff s cross-motion for summary judgment indicates that the exhibit in question contains personal identifier information. (ECF No. 101). While Defendant has not explicitly discussed any possible alternatives to sealing, these motions will be granted for privacy and security purposes and to protect confidential employee documents. VI. Conclusion For the foregoing reasons, Defendant s motion for summary judgment and its motions to seal remaining motions will be denied. will be granted, and the A separate order will follow. ________/s/_________________ DEBORAH K. CHASANOW United States District Judge 25

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