Lance McCoy v. Amateur Athletic Union of the United States, Inc.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1114
LANCE MCCOY,
Plaintiff – Appellant,
v.
AMATEUR ATHLETIC UNION OF THE UNITED STATES, INC.,
Defendant – Appellee,
and
BRYANT NEWMUIS; FREDDIE HENDRICKS TRACK CLUB, An Affiliate
Organization of The Amateur Athletic Union,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District
Judge. (1:13-cv-03744-MJG)
Submitted: August 10, 2015 Decided: September 3, 2015
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Edward Smith, Jr., LAW OFFICE OF EDWARD SMITH, JR., Baltimore,
Maryland, for Appellant. Angela W. Russell, Peter A. Coleman,
WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP, Baltimore,
Maryland, for Appellee.

-- 1 of 6 --

2
Unpublished opinions are not binding precedent in this circuit.

-- 2 of 6 --

3
PER CURIAM:
Lance McCoy appeals the district court’s order granting the
Amateur Athletic Union of the United States, Inc.’s (“AAU”)
motion for summary judgment and dismissing his action.
Specifically, McCoy contends that the district court erred in
contradicting rulings by a Maryland state court made prior to
removal and holding that AAU was not vicariously liable for the
sexually abusive conduct of McCoy’s former track coach (“the
coach”). McCoy also argues that the district court erred in
denying his motion to remand the case to state court because AAU
failed to timely file its notice of removal. We affirm.
We first review de novo the district court’s order denying
remand. Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 815-16 (4th
Cir. 2004) (en banc). Here, because McCoy failed to assert
before the district court that AAU’s notice of removal was
untimely, he has forfeited his right to do so on appeal. See
Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 199
(4th Cir. 2008) (internal quotation marks omitted) (“Procedural
defects in removal are . . . similar to the lack of personal
jurisdiction and other shortcomings that may be waived or
forfeited.”) (quoting Matter of Cont’l Cas. Co., 29 F.3d 292,
294 (7th Cir. 1994)); see also Caterpillar, Inc. v. Lewis, 519
U.S. 61, 75 n.13 (1996) (noting that an argument concerning
§ 1446(b)’s one-year time limit counts as a “nonjurisdictional

-- 3 of 6 --

4
argument” that “may be deemed waived” under Supreme Court Rule
15.2 when not raised in a respondent’s brief in opposition to a
petition for a writ of certiorari).
We next review de novo the district court’s grant of
summary judgment. Blake v. Ross, 787 F.3d 693, 696-97 (4th Cir.
2015). All facts and reasonable inferences are viewed “in the
light most favorable to the non-moving party.” Dulaney v.
Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012).
Summary judgment is only appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
In challenging summary judgment, McCoy first argues that
the district court was bound by res judicata, collateral
estoppel, and the Supreme Court’s decision in Erie R.R. Co. v.
Tompkins, 304 U.S. 64 (1938), to deny AAU’s motion for summary
judgment so as to not conflict with the Maryland court’s prior
denial of AAU’s previous motion to dismiss. McCoy is mistaken.
Aside from the fact that the standards for motion to dismiss and
summary judgment are quite distinct, both res judicata and
collateral estoppel require a “final judgment” to bar
relitigation. See Anne Arundel Cty. Bd. of Educ. v. Norville,
887 A.2d 1029, 1037 (Md. 2005) (res judicata); Rourke v. Amchem
Prods., Inc., 863 A.2d 926, 933 (Md. 2004) (collateral
estoppel). Here, there was no final judgment in state court.

-- 4 of 6 --

5
Further, Erie is inapplicable here because this case involves no
conflict between state and federal law. Therefore, we conclude
that the district court did not err to the extent that it
deviated, in granting summary judgment, from the Maryland
court’s order denying AAU’s prior motion to dismiss.
Finally, McCoy contends that summary judgment was improper
because genuine disputes of material fact exist as to whether
the coach was AAU’s agent and was acting within the scope of the
principal-agent relationship when he sexually assaulted McCoy.
Under Maryland law, principals are liable for the conduct of
their agents only when the conduct is within the scope of the
principal-agent relationship. See S. Mgmt. Corp. v. Taha, 836
A.2d 627, 638 (Md. 2003) (stating rule with respect to employer-
employee relationship). “[W]here an [agent]’s actions are
personal, or where they represent a departure from the purpose
of furthering the [principal]’s business, . . . even if during
normal duty hours and at an authorized locality, the [agent]’s
actions are outside the scope of his [agency].” Sawyer v.
Humphries, 587 A.2d 467, 471 (Md. 1991). “[W]here the conduct
of the [agent] is unprovoked, highly unusual, and quite
outrageous, courts tend to hold that this in itself is
sufficient to indicate that the motive was a purely personal one
and the conduct outside the scope of [agency].” Id. (internal
brackets and quotation marks omitted).

-- 5 of 6 --

6
Even assuming that the coach was AAU’s agent, we hold that
AAU cannot be vicariously liable for his conduct, which was well
outside of the principal-agent relationship. McCoy’s claim that
AAU negligently supervised and vetted the coach and provided him
with the environment in which he committed sexual assault is
irrelevant to whether AAU can be held vicariously liable for his
conduct. We therefore find that summary judgment was
appropriate.
Accordingly, we affirm the district court’s orders denying
McCoy’s motion to remand, granting AAU’s motion for summary
judgment, and dismissing McCoy’s case. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED

-- 6 of 6 --