The opinion
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
INTERNATIONAL GROUND
TRANSPORTATION, INCORPORATED, t/a
White’s Taxi Service, Incorporated,
t/a White’s International Taxi,
Plaintiff-Appellant,
v.
MAYOR AND CITY COUNCIL OF OCEAN No. 05-1827
CITY, MARYLAND, a Maryland
Municipal Corporation; JAMES N.
MATHIAS, JR.; BERNADETTE DIPINO;
JAMES S. HALL, Member of Ocean
City Police Commission; JOSEPH T.
HALL, II,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William D. Quarles, Jr., District Judge.
(CA-04-248-WDQ)
Argued: October 27, 2006
Decided: January 22, 2007
Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.
Affirmed in part and reversed in part by published opinion. Judge
Shedd wrote the opinion, in which Judge Traxler concurred except as
to Part II(A). Judge Traxler wrote an opinion concurring in part and
concurring in the judgment. Judge Niemeyer wrote an opinion con-
curring in the judgment in part and dissenting in part.
2 INT’L GROUND TRANSP. v. MAYOR AND CITY COUNCIL
COUNSEL
ARGUED: Francis Raymond Laws, THOMAS & LIBOWITZ, P.A.,
Baltimore, Maryland, for Appellant. Bruce Frederick Bright, AYRES,
JENKINS, GORDY & ALMAND, P.A., Ocean City, Maryland, for
Appellees. ON BRIEF: Patrick J. Madigan, THOMAS &
LIBOWITZ, P.A., Baltimore, Maryland, for Appellant. Guy R. Ayres,
III, AYRES, JENKINS, GORDY & ALMAND, P.A., Ocean City,
Maryland, for Appellees.
OPINION
SHEDD, Circuit Judge:
International Ground Transportation, Inc. ("IGT")1 brought this
action under 42 U.S.C. § 1983 against the Mayor and City Council of
Ocean City, Maryland ("the City"), and against individual officials of
Ocean City ("the individual defendants"), seeking recovery for dam-
ages to its taxicab business incurred as a result of alleged unconstitu-
tional acts by the City and the individual defendants. A jury returned
a verdict in favor of IGT against the City and awarded $250,000 in
compensatory damages; however, the jury found the individual defen-
dants not liable. The City then moved for judgment as a matter of law,
arguing that a finding of no liability on the part of the individual
defendants precluded a finding that the City was liable and that IGT
failed to prove damages with sufficient particularity to support the
jury’s damages award. IGT also moved for judgment as a matter of
law, contending that the evidence established that the individual
defendants were liable as a matter of law. Without explanation, the
district court granted the City’s motion and denied IGT’s motion, and
IGT now appeals. For the reasons set forth below, we affirm in part
and reverse in part.
1
IGT also operates under the trade name of "White’s Taxi."
INT’L GROUND TRANSP. v. MAYOR AND CITY COUNCIL 3
I
IGT is a taxicab company that formerly operated in Ocean City.2
After opening in May 2002, IGT saw a steady increase in business
and revenue from advertisements in its vehicles, a voucher system
with a local hospital, and a promotional program driving patrons from
bars. By April 2003, IGT had grown from 14 to 60 taxicabs and was
the largest taxicab company in Ocean City.
To operate in Ocean City, a taxicab must pass two inspections.
First, the vehicle must be inspected by a station licensed by the Auto-
motive Safety Enforcement Division of the Maryland State Police.
After receiving an inspection certificate from the station, the taxicab
must be inspected by the Ocean City Police Department ("OCPD").
After the vehicle passes both inspections, OCPD issues an inspection
certification decal which must be displayed in the rear window of the
taxicab. Inspection certification decals expire on April 30 of each
year.
In April 2003, OCPD scheduled inspection for IGT’s fleet of taxi-
cabs, each of which had been inspected at state inspection stations at
a prior time. Shortly before the date of the OCPD inspection, how-
ever, OCPD notified IGT that the OCPD inspection must occur within
90 days of the state inspection. Because many of its vehicles had
undergone their state inspection more than 90 days before the sched-
uled OCPD inspection, IGT was forced to act quickly to have the
taxicabs reinspected at state stations. Unable to locate a station that
could handle the volume of inspections in the immediate area, IGT
had many of its taxicabs inspected at Oliver’s Automotive
("Oliver’s"), an inspection station in Waldorf, Maryland. The taxicabs
were then taken to OCPD, where they passed inspection and received
inspection certification decals.
Shortly thereafter, OCPD instructed IGT to bring several of its
vehicles to the OCPD station. Upon arrival, two Maryland state troop-
2
Because the district court granted judgment as a matter of law, we
must view the facts — and we recite them here — in a light most favor-
able to IGT (the non-moving party). Anderson v. Russell, 247 F.3d 125,
129 (4th Cir. 2001).
4 INT’L GROUND TRANSP. v. MAYOR AND CITY COUNCIL
ers inspected IGT’s taxicabs, apparently as part of an investigation
into Oliver’s. After inspecting several of IGT’s taxicabs, the state
troopers issued three safety equipment repair orders. All of IGT’s
licensed vehicles remained in operation.
On May 21, 2003, IGT received a letter from OCPD bearing the
signature of OCPD Chief Bernadette DiPino. This letter advised IGT
that "every vehicle you are currently operating in Ocean City is sus-
pended and is to be removed from service until such time as you have
each vehicle re-inspected by a certified inspection station." J.A. 799.
OCPD issued the letter to IGT after receiving information from the
state troopers who were investigating Oliver’s. The state troopers
informed OCPD that they doubted the sufficiency of the inspections
at Oliver’s and that any vehicles inspected there may be unsafe. The
troopers further informed OCPD that, of the six IGT taxicabs they had
inspected, five had "obvious defects" with respect to the suspension,
exhaust system, emissions, mirrors, seatbelts, steering, brakes, wipers,
and/or tires. J.A. 801. The troopers noted that
[a]ll of the defects, with the exception of the Tire [sic],
appeared to have been on the cabs for quite some time, and
would have certainly been present at the time they were
State Inspected [at Oliver’s]. Four of the vehicles with
defects were State Inspected at Oliver’s Automotive . . . .
Based on the quantity of defects found on a random sam-
pling of cabs inspected, there is a strong possibility that
many more cabs would also have defects still existing. All
of the defects found were obvious in nature and found with-
out the use of inspection tools.
Id.
On June 5, 2003, DiPino issued a letter inviting IGT to the next
regularly scheduled Police Commission meeting, set for June 11,
2003, "in an effort to resolve [its] licensing issue." J.A. 803. The own-
ers of IGT, Brian and Teresa Hamilton, attended the meeting along
with their counsel. The purpose of the meeting, however, was not to
provide a forum in which IGT could challenge the suspension of its
taxicab licenses through the presentation of argument and evidence.
At the meeting, OCPD officer Hugh Bean reported on IGT’s failure
INT’L GROUND TRANSP. v. MAYOR AND CITY COUNCIL 5
to pass some vehicle inspections and that IGT’s taxicabs had been
temporarily de-licensed pending reinspection.
IGT subsequently brought suit against the City and the individual
defendants: DiPino, Mayor James N. Mathias, and Police Commis-
sion members James S. Hall and Joseph T. Hall. IGT alleged that the
City and the individual defendants acted unilaterally to revoke their
taxicab licenses without following the provisions of the United States
Constitution and Maryland state law. Specifically, IGT alleged that
the City and the individual defendants violated its rights to procedural
and substantive due process, equal protection, the ability to engage in
interstate commerce, and various Maryland state constitutional provi-
sions. IGT sought actual and punitive damages, contending that its
business was decimated by the revocation of its taxicab licenses,
especially as the suspension of its taxicab fleet occurred shortly
before the busy Memorial Day weekend. IGT alleged that its voucher
revenue decreased from as much as $6,000 per month to $1,000 per
month, that it lost advertising revenue of $250,000 per year, that its
business went from a value of $4 million to become defunct, and that
it was faced with over $2 million in total debt.
The City and the individual defendants denied many of the allega-
tions made by IGT and asserted numerous defenses. The defendants’
principal argument was that they had acted in an emergency situation
to remove IGT’s unsafe taxicabs from the streets of Ocean City. They
maintained that the emergency nature of the threat presented by IGT’s
vehicles justified a de-licensing of the taxicabs without a pre-
deprivation hearing. They also asserted a defense of qualified immu-
nity.
The case was tried to a jury. At the close of evidence, the defen-
dants moved for judgment as a matter of law pursuant to Fed. R. Civ.
P. 50(a). The district court granted the motion as to IGT’s claims for
punitive damages on the state-law violations but denied the motion in
all other respects. The court instructed the jury extensively on the
constitutional issues involved in the case and specifically charged the
jury that it could find the individual defendants not liable based on
qualified immunity. The jury returned a verdict in favor of IGT
against the City but returned a verdict in favor of the individual defen-
dants. More specifically, the jury answered "No" when asked whether
6 INT’L GROUND TRANSP. v. MAYOR AND CITY COUNCIL
the individual defendants "deprived White’s Taxi of procedural due
process . . . substantive due process . . . equal protection . . . [or] its
ability to engage in interstate commerce." J.A. 826-27. The jury then
answered "Yes" when asked whether the City "deprived White’s Taxi
of procedural due process [or] substantive due process." J.A. 827.
Finally, the jury awarded IGT $250,000 in actual damages.
Following the verdict, both parties moved for judgment as a matter
of law pursuant to Fed. R. Civ. P. 50(b). IGT maintained that the evi-
dence presented at trial established as a matter of law that the individ-
ual defendants had deprived it of its rights to procedural and
substantive due process and that they had not established a qualified
immunity defense. The City opposed IGT’s motion and argued
instead that it was entitled to judgment as a matter of law. The City
presented two grounds in support of its motion: (1) the jury’s finding
that the individual defendants were not liable precluded a finding of
liability on the part of the City, and (2) IGT had failed to present evi-
dence establishing its entitlement to damages. The district court, with-
out issuing an opinion, granted the City’s motion and denied IGT’s
motion. This appeal followed.
II
We review de novo the grant or denial of a motion for judgment
as a matter of law. Anderson, 247 F.3d at 129. Judgment as a matter
of law is proper when the court determines that "there is no legally
sufficient evidentiary basis" for a reasonable jury to find for the non-
moving party. Fed. R. Civ. P. 50(a). When a jury verdict has been
returned, judgment as a matter of law may be granted only if, viewing
the evidence in a light most favorable to the non-moving party (and
in support of the jury’s verdict) and drawing every legitimate infer-
ence in that party’s favor, the only conclusion a reasonable jury could
have reached is one in favor of the moving party. Figg v. Schroeder,
312 F.3d 625, 635 (4th Cir. 2002).
IGT contends that the district court erred in granting the City’s
motion for judgment as a matter of law. The district court did not
explain its reasons for granting the motion but instead simply ordered
that the motion be granted. Because the City set forth two grounds in
INT’L GROUND TRANSP. v. MAYOR AND CITY COUNCIL 7
support of its motion, we must examine each to ascertain whether the
district court’s order can stand.
A.
The City first asserts that it is entitled to judgment as a matter of
law because a finding that the individual defendants were not liable
precludes a finding that the City is liable. We disagree.
In support of its position that it cannot be held liable, the City relies
primarily on City of Los Angeles v. Heller, 475 U.S. 796 (1986), and
Grayson v. Peed, 195 F.3d 692 (4th Cir. 1999). In Heller, the
Supreme Court held that a municipality may not be found liable for
a constitutional violation in the absence of an unconstitutional act on
the part of at least one individual municipal actor. 475 U.S. at 798-99.
We reaffirmed this principle in Grayson and have applied it many
times in the context of § 1983 actions.
Nevertheless, we recognize that, despite the general bar to munici-
pal liability set out in Heller, a situation may arise in which a finding
of no liability on the part of the individual municipal actors can co-
exist with a finding of liability on the part of the municipality.
Namely, such a verdict could result when the individual defendants
successfully assert a qualified immunity defense. This case presents
exactly this situation.
While individual defendants are protected by qualified immunity,
municipalities are not. Owen v. City of Independence, 445 U.S. 622
(1980). This distinction has an important ramification on liability: i.e.,
even when a constitutional violation has been committed, individual
defendants may escape liability based on a qualified immunity
defense. See Robles v. Prince George’s County, 302 F.3d 262 (4th
Cir. 2002) (finding constitutional violation but immunity for individ-
ual defendants). However, because municipalities are not entitled to
assert a qualified immunity defense, a finding of a constitutional vio-
lation is conclusive as to their liability. Thus, a jury could find that
a constitutional violation has occurred but that the individual defen-
dants are entitled to qualified immunity. Yet the jury could also return
a verdict against a municipality based on the same constitutional vio-
lation. As other circuits have found, "If the jury based its verdict on
8 INT’L GROUND TRANSP. v. MAYOR AND CITY COUNCIL
the ground that the officers were entitled to qualified immunity, the
Heller rule precluding liability is inapplicable." Myers v. Oklahoma
County Bd. of County Com’rs., 151 F.3d 1313, 1317 (10th Cir. 1998);
see also, e.g., Barber v. City of Salem, 953 F.2d 232, 237-38 (6th Cir.
1992). In this situation, there is no "inherent inconsistency" in the
jury’s verdict. Myers, 151 F.3d at 1317. Indeed, the Supreme Court
implicitly recognized this possibility in Heller when it noted that the
fact that the Heller jury was not charged on a qualified immunity
defense ruled out the possibility of liability on the part of the munici-
pality once the individual defendants were found not liable. 475 U.S.
at 797-98. We hold, therefore, that when a jury, which has been
instructed on a qualified immunity defense as to the individual defen-
dants, returns a general verdict in favor of the individual defendants
but against the municipality, the verdict is consistent and liability will
lie against the municipality (assuming the verdict is proper in all other
respects).3
In this case, the verdict form shows that the jury found that the City
deprived IGT of procedural and substantive due process but that the
individual defendants did not. The City argues that these findings trig-
ger application of the Heller rule and require that judgment as a mat-
ter of law be entered in its favor. However, the jury was instructed
that it could find the individual defendants not liable based on quali-
fied immunity. Thus, the jury could have found that constitutional
violations were committed but that the individual defendants were
entitled to immunity. Indeed, this is the only way the jury’s verdict
may be read consistently, and we must "harmonize seemingly incon-
sistent verdicts if there is any reasonable way to do so." Atlas Food
3
We do not intend our holding here to approve the submission of quali-
fied immunity to juries. Entitlement to qualified immunity is a legal
question to be decided to the court, although factual issues underlying the
qualified immunity analysis may be submitted to a jury. Willingham v.
Crooke, 412 F.3d 553, 558-59 (4th Cir. 2005). This being the case, "the
district court should submit factual questions to the jury and reserve for
itself the legal question of whether the defendant is entitled to qualified
immunity on the facts found by the jury." Id. at 560. Nonetheless, we
find it necessary to hold as we do here because the parties do not main-
tain that the district court erred in submitting qualified immunity to the
jury.
INT’L GROUND TRANSP. v. MAYOR AND CITY COUNCIL 9
Systems and Services, Inc. v. Crane Nat. Vendors, Inc., 99 F.3d 587,
599 (4th Cir. 1996).
For this same reason, we cannot accept the City’s argument that the
precise language of the verdict form necessitates a finding of no lia-
bility on the part of the City. Although it is true that the questions
asked whether the jury found that the individual defendants, e.g., "de-
prived White’s Taxi of procedural due process" and not simply
whether the individual defendants were liable, we find the distinction
made meaningless by the submission of qualified immunity to the
jury. The jury was specifically instructed that it could find the individ-
ual defendants not liable based on qualified immunity. However, the
verdict form submitted to the jury allowed the jury to find that the
individual defendants committed constitutional violations but were
entitled to qualified immunity only by checking the "No" answers to
the questions asked regarding the individual defendants (e.g. "Do you
find that the following persons deprived White’s Taxi of procedural
due process?"). The City, in fact, conceded at oral argument that there
was no way for the jury to find that qualified immunity applied except
by answering "No" to the questions asking whether the individual
defendants had committed constitutional violations. Moreover,
because the jury made specific findings that the City had committed
constitutional violations, the only way to read the jury’s verdict con-
sistently is to read the questions asked of the individual defendants as
encompassing qualified immunity. As we are required "to determine
whether a jury verdict can be sustained, on any reasonable theory,"
id., we must conclude that the language of the verdict form permitted
the jury to find that the individual defendants committed constitu-
tional violations but were entitled to qualified immunity.
Finally, the City contends that even if the jury found that constitu-
tional violations were committed but that the individual defendants
were not liable by virtue of qualified immunity it cannot be held liable
because the doctrine of respondeat superior does not apply to claims
under § 1983. The City misunderstands IGT’s theory of liability. In
its complaint, IGT alleged direct liability against the City under
§ 1983, asserting that officials with final policymaking authority acted
to deprive IGT of its constitutional rights. See J.A. 21-22, 24. As
such, IGT alleged that the City itself — acting through its policymak-
ing officials — was liable. This is a viable theory of liability, see
10 INT’L GROUND TRANSP. v. MAYOR AND CITY COUNCIL
Monell v. Dept. of Social Services, 436 U.S. 658, 694 (1978)
("[W]hen execution of a government’s policy . . . whether made by
its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy . . . inflicts the injury . . . the government as
an entity is responsible under § 1983"), and it is adequately supported
by evidence in the record. DiPino, for example, testified that she pos-
sesses authority to promulgate rules and regulations governing taxi-
cabs in Ocean City, and she further stated that the Police Commission
is an arm of the City composed of several members of the city council
plus the mayor. The jury was free to use this testimony to find the
City liable, having been instructed that it must determine whether the
individual defendants acted in "their individual capacity or in their
capacity as officials of Ocean City." J.A. 605. Thus, the absence of
respondeat superior on IGT’s federal claims does not render the jury’s
verdict unsound.4
Accordingly, the City is not entitled to judgment as a matter of law
based on Heller or on any alleged inconsistency in the verdict.
B.
The City next maintains that it should be awarded judgment as a
matter of law because IGT failed to present evidence from which the
jury could reasonably infer any injury proximately caused by the
defendants’ conduct or from which the jury could reasonably calcu-
late any award of compensatory damages. We find the City’s argu-
ment unpersuasive.
In contending that the evidence presented at trial does not support
the jury’s award of compensatory damages, the City faces a "hefty
4
Of course, based on the wording of the verdict form, the jury also
could have found that the City violated IGT’s due process rights under
Maryland state law. Even so, the verdict would withstand scrutiny based
on our analysis of qualified immunity and direct liability. Alternatively,
because Maryland law holds municipalities vicariously liable for the torts
of their employees, Serio v. Baltimore County, 863 A.2d 952, 966 (Md.
2004), the verdict could also be upheld on the theory that the jury found
that a city employee not named as a defendant (such as Captain Parker)
violated IGT’s rights under Maryland law.
INT’L GROUND TRANSP. v. MAYOR AND CITY COUNCIL 11
burden." Price v. City of Charlotte, 93 F.3d 1241, 1249 (4th Cir.
1996). This is so because in determining whether the evidence sup-
ports a jury award, we review the evidence, and all reasonable infer-
ences to be drawn therefrom, in favor of the non-moving party. Id. at
1249-50. Recognizing that we may not substitute our judgment for
that of the jury or make credibility determinations, we will affirm if
there is evidence in the record on which a reasonable jury may return
a verdict in favor of the non-moving party. Id.; see also Duke v.
Uniroyal, Inc., 928 F.2d 1413, 1417 (4th Cir. 1991) ("If . . . a reason-
able jury could return a verdict in favor of [the] plaintiffs, the court
must defer to the judgment of the jury even if the court’s judgment
on the evidence differs.").
The record in this case contains ample evidence from which the
jury could have found actual injuries to IGT caused by the City and
the individual defendants. For example, Brian Hamilton testified that
IGT was worth approximately $4 million prior to the City’s revoca-
tion of its taxicab licenses and that it went out of business afterward.
Further, the jury heard that IGT had incurred $2 million in debt,
$5,565 in re-inspection costs, and $425,000 it used to purchase other
taxicabs. In addition, Hamilton’s testimony indicated that IGT lost
$4,500 per month in voucher revenues and $250,000 in annual gen-
eral advertising revenues. Finally, Hamilton stated that all of these
losses occurred after the City’s revocation of IGT’s taxicab licenses
just prior to the extremely busy Memorial Day weekend.
We believe Hamilton’s testimony and the other evidence presented
by IGT (e.g., asset purchase agreements and tax returns) constitutes
substantial evidence which supports the jury’s award of $250,000 in
compensatory damages. See Barnes v. Norfolk Southern Ry. Co., 333
F.2d 192, 195 (4th Cir. 1964) ("Only where there is a complete
absence of probative facts to support the conclusion reached does a
reversible error appear."). Whether IGT’s evidence in support of dam-
ages lacks credibility — as the City asserts — is a determination that
was within the province of the jury. Therefore, the verdict does not
fail due to lack of damages.5
5
Because IGT would be entitled to nominal damages under § 1983 and
under Maryland law, the City could not be awarded judgment as a matter
12 INT’L GROUND TRANSP. v. MAYOR AND CITY COUNCIL
C.
In sum, although the district court did not specify its rationale for
granting judgment as a matter of law to the City, we have examined
the two possible bases upon which it could have relied. We find that
neither supports the City’s argument that the jury’s verdict is legally
unsound and that it is entitled to judgment as a matter of law. Accord-
ingly, the district court erred when it granted the City’s motion.6
III
Based on the foregoing, we affirm the denial of IGT’s motion for
judgment as a matter of law against the individual defendants but
reverse the entry of judgment as a matter of law in favor of the City.
AFFIRMED IN PART AND REVERSED IN PART
TRAXLER, Circuit Judge, concurring in part and concurring in the
judgment:
I concur in Parts I, II(B), II(C), and III, and in the result reached
in Part II(A). Because I look at the issues somewhat differently, I
write separately to explain my views.
I.
To fully appreciate the jury’s decisions in this case, we must exam-
of law even had IGT failed to prove actual damages. Randall v. Prince
George’s County, 302 F.3d 188, 208 (4th Cir. 2002) (noting the avail-
ability of nominal damages under Maryland Declaration of Rights); Gray
v. Spillman, 925 F.2d 90, 93 (4th Cir. 1991) ("Having proven the consti-
tutional violation . . . § 1983 requires nothing more to establish the
defendants’ liability.").
6
IGT contends that the district court erred not only in granting the
City’s motion for judgment as a matter of law but also in denying IGT’s
own motion for judgment as a matter of law against the individual defen-
dants. We have reviewed the record and find the denial of IGT’s motion
to be proper.
INT’L GROUND TRANSP. v. MAYOR AND CITY COUNCIL 13
ine the verdict form and the jury charges.* This jury was asked to
report its verdict through answers to specific questions pursuant to
Federal Rule of Civil Procedure 49(a). This Rule permits the district
court to submit various questions to the jury in lieu of a general ver-
dict and gives the court wide discretion in fashioning appropriate
inquiries. The following questions, at issue in this appeal, were sub-
mitted:
INDIVIDUAL DEFENDANTS
Please answer "Yes" or "No" with respect to each person.
1. Do you find that the following persons deprived
White’s Taxi of procedural due process?
Chief Bernadette DiPino Yes ____ No X
James N. Mathias, Jr. Yes ____ No X
James Hall Yes ____ No X
Joseph T. Hall Yes ____ No X
2. Do you find that the following persons deprived
White’s Taxi of substantive due process?
Chief Bernadette DiPino Yes ____ No X
James N. Mathias, Jr. Yes ____ No X
James Hall Yes ____ No X
Joseph T. Hall Yes ____ No X
***
MAYOR AND CITY COUNCIL OF OCEAN CITY
5. Do you find that Ocean City deprived White’s Taxi
of procedural due process?
*This case is made more difficult by the unusual way the jury charge
was structured and by the way the verdict form was configured. Since no
appeal is taken as to the charge and no objection was made to the rele-
vant portions of the verdict form, I express no opinion on the validity of
either.
14 INT’L GROUND TRANSP. v. MAYOR AND CITY COUNCIL
Yes X
No
6. Do you find that Ocean City deprived White’s Taxi
of substantive due process?
Yes X
No
J.A. 826.
The jury’s finding of no liability on the part of city officials and
its finding of liability on the part of the City itself seem, at first blush,
to be inconsistent. In such a situation courts must examine the record
to see if there is a legitimate way to reconcile the decisions made by
the jury. The Supreme Court has told us: "Where there is a view of
the case that makes the jury’s answers to special interrogatories con-
sistent, they must be resolved that way." Atl. & Gulf Stevedores, Inc.,
v. Ellerman Lines, Ltd., 369 U.S. 355, 364 (1962). Thus, "[w]hen the
use of a special verdict form leads to apparently conflicting jury find-
ings, the court has a duty under the seventh amendment to harmonize
the answers, if it is possible to do so under a fair reading of them."
Gosnell v. Sea-land Serv., Inc., 782 F.2d 464, 466 (4th Cir. 1986). In
our efforts to reconcile the verdicts, we "must view the evidence in
the light most favorable to upholding the jury’s decision by a finding
of consistency." Ellis v. Weasler Eng’g Inc., 258 F.3d 326, 343 (5th
Cir. 2001). In examining the jury’s answers, we must be mindful that
a jury can take its own view of the evidence presented to it, regardless
of the theories argued by the parties, so long as the jury’s view is sup-
ported by the evidence and is consistent with the law as charged.
II.
A.
The first possible reading of the verdict is that the jury found that
there were no constitutional violations by any of the individual defen-
dants. If that is the case, the question then would be how the jury
could find that none of the named individual defendants committed
INT’L GROUND TRANSP. v. MAYOR AND CITY COUNCIL 15
any constitutional violations themselves, but still find the City itself
liable for depriving White’s Taxi of procedural and substantive due
process.
One possible explanation concerns an individual who was not sued
and on whose actions the jury was not called upon to pass judgment.
Captain Parker was a police officer with the Ocean City Police
Department and head of the patrol division which had control over the
traffic safety unit. Captain Parker was neither named as a defendant
nor called to testify. However, Bernadette DiPino, the Chief of Police
of Ocean City, testified that she was out of the office and Parker was
in charge when the shut-down letter was sent to White’s Taxi.
According to Chief DiPino, it was Captain Parker who composed and
sent the shut-down letter. Although Chief DiPino said she was gener-
ally aware that action was going to be taken, she did not specifically
remember being told about the letter before it went out and she did
not sign it. Officer Ronnie Townsend testified that he remembered
Chief DiPino being out that day and that Captain Parker was acting
as Chief.
Under these circumstances, the jury could logically find that Cap-
tain Parker was the person who took the action that led to the closing
of White’s Taxi and that he was responsible for the denial of proce-
dural due process. Such a finding would explain why the jury decided
that none of the individual defendants named in the complaint
(DiPino, Mathias, Hall and Hall) were liable for this claim. Since
Captain Parker was not sued, his name was not on the verdict form,
and the jury had no place to report its belief that he was the one
responsible. This would explain how the jury could find a police offi-
cer of Ocean City responsible for a violation of procedural due pro-
cess and still give a verdict in favor of DiPino, Mathias, James Hall,
and Joseph Hall.
The question that follows is how this view of the evidence and the
verdict could translate into liability for the City. To answer that ques-
tion, we must examine what theories of liability against the City were
charged to the jury.
White’s Taxi brought federal claims and state law claims against
Ocean City. The federal law claims were based on the due process
16 INT’L GROUND TRANSP. v. MAYOR AND CITY COUNCIL
clause, the equal protection clause, and the interstate commerce
clause of the United States Constitution. The state law claims were
based on the Maryland Constitution, and more specifically on its Dec-
laration of Rights. The rights and protections that exist under proce-
dural and substantive components of the due process clause of the
United States Constitution also exist under the Maryland Constitution.
Under federal law, municipalities cannot be held liable under prin-
ciples of respondeat superior for the actions of their employees. See
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). Instead, a
municipality may be held liable under § 1983 only if it causes a depri-
vation of a constitutional right through an official policy or custom.
See Board of the County Comm’rs v. Brown, 520 U.S. 397, 403
(1997).
Maryland law, however, does provide for municipal liability under
the doctrine of respondeat superior if an employee has committed a
violation of Maryland’s constitutional rights in the performance of his
job, see Branch v. McGeeney, 718 A.2d 631, 639 (Md. Ct. Spec. App.
1998), and the district court so charged the jury. Thus, if the jury con-
cluded that Captain Parker was the real culprit in the denial of proce-
dural due process, it would be permissible under Maryland law for the
jury to impose liability on the City even while exonerating all of the
named defendants. Cf. Southern Mgmt. Corp. v. Taha, 769 A.2d 962,
976-78 (Md. Ct. Spec. App. 2001) (explaining that the jury’s exonera-
tion of the employees named as defendants would not invalidate ver-
dict against employer if there was evidence that an employee who
was not named as a defendant committed the tort alleged by the plain-
tiff), vacated on jurisdictional grounds, 790 A.2d 11 (Md. 2002). This
view, which is supported by the evidence and the law as charged to
the jury, renders the verdicts consistent as to the procedural due pro-
cess claim and requires that the verdict against the City be sustained.
The jury’s decision as to a substantive due process violation against
the City is also sustainable based on the judge’s charge. Liability for
the City would have been present under federal law on a finding by
the jury that the sham hearing before the Police Commission was, as
the court charged, "the direct result of Ocean City’s ordinance, regu-
lation, decision, policy or custom." J.A. 607.
INT’L GROUND TRANSP. v. MAYOR AND CITY COUNCIL 17
B.
The second possible reading of the verdicts is similar to that
advanced by Judge Shedd. That is, the jury believed the individual
defendants violated the constitutional rights of White’s Taxi, but
found that the individual defendants were protected by qualified
immunity. Under the district court’s charge such findings would make
the City liable under Maryland law pursuant to principles of
respondeat superior since there was no dispute that all of the city offi-
cials was acting within the scope of their employment. See Town of
Port Deposit v. Petetit, 688 A.2d 54, 65 (Md. Ct. Spec. App. 1997).
III.
The City resists this result, urging that the district court was correct
to grant it a judgment as a matter of law. Its view is basically that the
jury found no individual violated any constitutional rights and if no
one committed a violation, then the City cannot be liable. Thus, the
City concludes the district court was in effect compelled to direct
entry of judgment for the City regardless of the verdict. There are sev-
eral things wrong with this argument. First, we have two sets of
verdicts—one against the City and one in favor of the individual
defendants. The premise of the City’s argument is that the verdict in
favor of the individuals was the one correctly found by the jury, and
therefore the verdict against the City was the jury’s mistake. But the
argument can just as easily be made by White’s Taxi that the verdict
against the City was the one correctly found by the jury, and therefore
the verdict in favor of the individual defendants was the jury’s mis-
take. In truth, we have no way of knowing which verdict controls so
we treat the two verdicts as potential inconsistencies and approach the
problem from that perspective. And second, for the reasons discussed
above, I do not believe the jury’s verdicts are inconsistent.
The City also contends that the City of Los Angeles v. Heller, 475
U.S. 796 (1986), and Grayson v. Peed, 195 F.3d 692 (4th Cir. 1999),
obligated the district court to grant the motion for judgment as a mat-
ter of law. I find those cases inapposite.
In Heller, the Supreme Court considered a situation where a law-
suit against an individual officer and a municipality was bifurcated for
18 INT’L GROUND TRANSP. v. MAYOR AND CITY COUNCIL
trial, with the claims against the officer being tried first. When the
jury found the officer had committed no constitutional violation, the
Supreme Court held that as a matter of law there could be no liability
on the municipality which was "sued only because [it was] thought
legally responsible for [the officer’s] actions." Heller, 475 U.S. at
799. The facts of Grayson are similar—because there was no consti-
tutional violation by the individual defendant, the municipality could
not be held liable. See Grayson, 195 F.3d at 697.
Heller does not stand for the broad proposition that where munici-
pal employees and the municipality are sued together a finding of
individual liability is necessary to a finding of municipal liability. As
stated by the Eighth Circuit,
The appropriate question under Heller is whether a verdict
or decision exonerating the individual governmental actors
can be harmonized with a concomitant verdict or decision
imposing liability on the municipal entity. The outcome of
the inquiry depends on the nature of the constitutional viola-
tion alleged, the theory of municipal liability asserted by the
plaintiff, and the defenses set forth by the individual actors.
Speer v. City of Wynne, 276 F.3d 980, 986 (8th Cir. 2002).
Heller and Grayson do not control in this situation because in those
cases the liability of the municipalities under federal law was patently
dependent on their officers having committed a constitutional viola-
tion. Upon a finding that the officer had committed no wrongdoing,
the municipality was exonerated. Here, as to the due process claims,
municipal liability could have been found in one of two ways. Either
the jury could have decided that an employee did commit a constitu-
tional violation for which the City could be held liable under Mary-
land law, or the jury could have found a basis for municipal liability
under federal law that did not require a finding of individual liability
by any particular employee.
While this jury’s rationale was admittedly murky, a number of
legitimate explanations for the jury’s decisions can be found. In such
a situation the law is clear as to what courts must do—we should
reach a reconciliation if it can reasonably be done. I believe that it is
INT’L GROUND TRANSP. v. MAYOR AND CITY COUNCIL 19
possible to reconcile the verdicts, as outlined above. Accordingly, I
would also reverse the district court’s grant of judgment as a matter
of law.
NIEMEYER, Circuit Judge, concurring in the judgment in part and
dissenting in part:
I concur in the judgment insofar as it affirms the district court’s
order denying plaintiff’s motion for judgment as a matter of law
against the individual defendants.
I also concur in the judgment insofar as it reverses the district
court’s order granting Ocean City’s motion for judgment as a matter
of law on liability. In so concurring, I agree that our task is to attempt
to harmonize the apparently inconsistent verdicts if there is a logical
way to do so. Both Judge Shedd and Judge Traxler provide plausible
explanations by which the apparently inconsistent verdicts can be har-
monized.
Finally, I dissent from the judgment insofar as it upholds the jury’s
verdict on damages because the damages portion of the verdict was
unsupported by the evidence at trial. As I show herein, no reasonable
jury could have concluded, based on the evidence in the record, that
IGT sustained $250,000 in damages as a result of Ocean City’s con-
duct. See Price v. City of Charlotte, 93 F.3d 1241, 1249 (4th Cir.
1996).
A closer reading of the record reveals that the numbers relied on
by the majority to affirm the damages verdict were crude numbers
tossed around by Brian Hamilton, the owner of IGT, as estimates,
feelings, and "should-be’s" about the amount of his company’s losses,
without any accounting for expenses or giving attention to the tradi-
tional requirements of valuing a business. There was no evidence that
actually proved any damages caused by the temporary suspension of
IGT’s business license.
First with respect to the drop in IGT’s voucher business from
$6,000 per month to $1,000 per month that the majority opinion refers
to, Brian Hamilton testified:
20 INT’L GROUND TRANSP. v. MAYOR AND CITY COUNCIL
A. I seen, you know — again, I don’t have the exact num-
bers. But if it was $5,000 a month in vouchers, I seen
our vouchers drop down to maybe a thousand a month.
Q. And that continued through all of 2003 and into 2004?
A. Into 2004, right.
Testifying further with respect to vouchers, first those from the Board
of Education and then all vouchers in the aggregate, Brian Hamilton
stated:
Q. Approximately how much were you doing on a
monthly basis in that work prior to May 21, 2003?
A. I don’t know. I mean total vouchers, like I said, total
vouchers . . . there might have been five or $6000 a
month between them all.
***
I mean during the school season, a lot of times we did
more with the Board of Education, and some months
could be higher. I mean I’m saying five or six. It could
be eight one month and three the next. But on the aver-
age, I would say five or $6,000.
Q. And that dropped down to about a thousand?
A. Yes.
Yet, for every month from its beginning until its license was sus-
pended, IGT lost money, losing $281,000 in the aggregate. There was
no prognosis, forecast, or pro forma introduced at trial that showed
that IGT could or would make a profit at any time in the future. As
Brian Hamilton testified:
Q. Okay. That company, based on its P and L, had nega-
tive income for the months from October 2002 through
April of 2003, correct?
INT’L GROUND TRANSP. v. MAYOR AND CITY COUNCIL 21
A. That’s correct, but you’re not looking at the deprecia-
tion and the actual expenses that were put into doing
this. It’s not just, it’s not just your ongoing day-to-day
operation. I mean there was a lot put in up front.
Phones, we had $1,500 phones that were bought to put
in hotels all around the City. That’s up-front cost that
was booked and expensed out at one time. That phone
would have been there for five years, ten years.
Q. But the net income each month from November, from
October 2002 through April 2003 was a negative num-
ber, correct?
A. Correct. But it’s going to show a negative number if
you’re —
***
Q. And the net income is minus, net taxable income is
minus $281,000, correct?
A. Yes.
Hamilton never advanced a theory of reliance damages or sought to
demonstrate that a reduction in vouchers increased the company’s
losses for any given month. Rather, the record simply shows a contin-
uum of monthly losses beginning months before IGT’s license was
suspended.
Second, with respect to the loss of $250,000 in advertising revenue
referred to by the majority opinion, Brian Hamilton testified:
Q. With respect to the advertising revenues that the cab
company was experiencing to May the 21st of 2003,
can you tell us what that was either on an annual basis,
monthly basis?
A. Well, what we had in contract was probably 50 to
$75,000 under contract annual. But, you know, based
22 INT’L GROUND TRANSP. v. MAYOR AND CITY COUNCIL
on the amount of cabs that we had, with the advertising
we should have had, it should have generated about
$250,000 a year.
Thus, Hamilton did not testify to losing $250,000 per year. He said
"we should have had" that amount. The only hard number he gave
was that IGT had an existing annual contract paying $50,000 to
$75,000, and he did not testify that that contract came to an end or
ever stopped yielding income.
Finally, the majority opinion refers to testimony that IGT was
worth approximately $4 million prior to Ocean City’s revocation of
IGT’s taxicab licenses. This statement again was no more than a num-
ber pulled from the sky by Brian Hamilton. As Hamilton testified:
Q. Mr. Hamilton, as of May 2003, what value did White’s
taxi, International Ground Transportation have as a
company?
***
A. Like I said, the debt was $2 million, and based on the
cash flow projections that we had on actual numbers,
I would say the company was worth $4 million.
***
A. I’m saying based on cash flow projections. You’re ask-
ing me what do I feel the company was worth based on
historic numbers that were from White’s and Sunshine
and Delmarva and International combined. That’s what
I would say it was worth. If you’re asking me that,
that’s what I would say.
***
Q. But the net income each month from November, from
October 2002 through April 2003 was a negative num-
ber, correct?
INT’L GROUND TRANSP. v. MAYOR AND CITY COUNCIL 23
A. Correct.
***
Q. And the net income is minus, net taxable income is
minus $281,000, correct?
A. Yes.
Q. But your testimony is by May of 2003, this Company
is worth $4 million.
A. Yes, it is.
Q. You had $2 million in debt in relation to this company?
A. Right now that’s what I have, yes.
Q. What did you pay for the assets of Weimer, Inc.?
A. $350,000.
Q. You paid $350,000 for the assets of Weimer, Inc. and
those were the bulk of the assets for what became Inter-
national Ground Transportation, correct?
A. No. The big asset of Weimer, Inc. was, really, the
major asset I got was a phone number. I threw half the
cars away.
***
Q. Well, wasn’t there a value ascribed to the vehicles in
the purchase agreement?
A. No, not that I know of.
By authorizing such vague statements, speculations, and guesswork to
prove damages, the majority opinion all but undoes the universally
established standard for proving damages.
24 INT’L GROUND TRANSP. v. MAYOR AND CITY COUNCIL
The actual damages which will sustain a judgment must be
established, not by conjectures or unwarranted estimates of
witnesses, but by facts from which their existence is logi-
cally and legally inferable. The speculations, guesses, esti-
mates of witnesses, form no better basis of recovery than the
speculations of the jury themselves. Facts must be proved,
data must be given which form a rational basis for a reason-
ably correct estimate of the nature of the legal injury and of
the amount of the damages which resulted from it, before a
judgment of recovery can be lawfully rendered. These are
fundamental principles of the law of damages.
Central Coal & Coke Co. v. Hartman, 111 F. 96, 98 (8th Cir. 1901)
(overturning jury verdict on lost profits based solely on testimony of
company president).
While a plaintiff is free to prove damages by circumstantial evi-
dence, "the damages may not be determined by mere speculation or
guess." Story Parchment Co. v. Paterson Parchment Paper Co., 282
U.S. 555, 563 (1931). "Mathematical exactness as to the amount is
not required but the evidence must form a basis for a reasonable
approximation." United States v. Griffith, Gornall & Carman, Inc.,
210 F.2d 11, 13 (10th Cir. 1954) (overturning lost profits claim on
substantial evidence review when only testimony was the testimony
of company’s president). One searches the federal reporters in vain
for a case where the amount of evidence presented here was found
sufficient to support a damages award. See, e.g., Kassim v. City of
Schenectady, 415 F.3d 246, 250 (2d Cir. 2005) (plaintiff’s "vague,
conclusory assertions" of lost profits could not support compensatory
damages); Silor v. Romero, 868 F.2d 1419, 1422 (5th Cir. 1989) ("A
jury needs more to base its award of lost business profits than testi-
mony from the plaintiff that he has ‘suffered substantial damages’").
Had Brian Hamilton anticipated our lax attitude in this case, he
could have multiplied his value assessment several times over
because he was not required to provide any business records to cor-
roborate the company’s alleged damages by any objective standard.
His only limit on the inflation of his damages would have been his
own conscience. As it is, based on the company’s purchase price of
$350,000 and losses thereafter every month totaling $281,000, Hamil-
INT’L GROUND TRANSP. v. MAYOR AND CITY COUNCIL 25
ton was allowed to speculate that seven months later, the business was
worth $4 million, even though all projections were negative.
The majority opinion generously attempts to mend Hamilton’s
deficiencies, but without record support. The opinion presents IGT’s
$2 million in debt as though it was incurred after Ocean City’s sus-
pension of his license. In fact, as Brian Hamilton testified, the $2 mil-
lion in debt was incurred to capitalize the company long before Ocean
City’s action in suspending IGT’s license. The opinion also refers to
IGT’s asset purchase agreement (entered into to start the business), a
profit and loss statement, and a tax return as though they support,
rather than doom the claim that there were any damages. Contrary to
the majority opinion’s statement that these documents are "other evi-
dence presented by IGT," these documents were actually introduced
by the defense to refute Hamilton’s claim for damages. And rather
than show that IGT was worth $4 million, as Hamilton claimed, they
demonstrate the amount of IGT’s losses, speaking to the company’s
extremely weak financial condition prior to the license suspension.
Because the plaintiff failed to prove any damages in this § 1983
case, the district court should have entered a judgment in favor of the
plaintiff for nominal damages, "typically $1.00." Price, 93 F.3d at
1246. Accordingly, I would grant Ocean City’s motion for judgment
insofar as it relates to an award of damages in the amount of $250,000
and remand to the district court for entry of nominal damages.