Docket – April 8, 2019

4th U.S. Circuit Court of Appeals

Berkenfeld v. Lenet (P), 4th Cir. (Wynn) from DMD at Baltimore (Xinis).

Because of Maryland’s high bar for taking questions of contributory negligence, the district court erred in finding that the plaintiffs were barred from recovery for their financial advisors’ alleged negligence.

The plaintiffs’ evidence offers a reasonable basis to determine that they justifiably relied on the defendants’ advice, resulting in less favorable tax distribution options on inherited annuities. The defendants represented that the plaintiffs’ financial advisor specialized in estate and trust planning. The record also shows that he’d served as the decedent’s personal financial advisor for several years prior to her death and that each plaintiff relied upon him for advice on financial matters; he actively sought to provide such advice, perhaps to advance his professional interests.

Just as a reasonable factfinder could find that a client who has been advised by a lawyer as to a particular legal issue is not contributorily negligent by failing to seek the advice of a second lawyer or by failing to read case law himself, so too a reasonable factfinder could find here that the plaintiffs acted reasonably in failing to seek a second opinion and in failing to conduct independent research as to their distribution options.

Because there was room for difference of opinion as to whether the plaintiffs were contributorily negligent, the district court improperly granted summary judgment for the defendants.

Reversed and remanded.

U.S. District Court – Virginia Eastern

Owusu-Boakye v. Barr, EDVA at Alexandria (Ellis).

Because of evidence that the plaintiff’s spouse had previously entered into a sham marriage for the purpose of evading U.S. immigration law, the Board of Immigration Appeals properly denied the plaintiff’s petition to grant his spouse a visa.

Record evidence amply supports the immigration agencies’ conclusions that the plaintiff’s wife previously entered into a fraudulent marriage as a business transaction. The fraudulent husband admitted in a sworn statement that he married the plaintiff’s spouse for money, didn’t live with her during marriage, and didn’t consummate the marriage. Investigators also found that their marriage was facilitated by a large-scale marriage-fraud ring.

Contrary to the plaintiff’s argument, the agencies did not rely on inadmissible evidence (such as the sworn statement) because the regulations applicable to U.S. Customs & Immigration Services don’t require the agency to produce the evidence or witnesses on which it intends to rely. The agencies complied with their obligations by providing summaries of their information at each stage of the proceeding.

The plaintiff also has not shown that the visa adjudication proceeding violated the plaintiff’s right to due process. Courts have rejected the theory that individuals have a fundamental right to live in the United States with an alien spouse. Even assuming such a right existed, the visa proceeding allowed the plaintiff to be heard at a meaningful time and in a meaningful manner.

While this is an unfortunate case, the plaintiff’s wife’s earlier choice to attempt to evade immigration laws dooms the plaintiff’s claims here.

Defendants’ motion for summary judgment granted.



Categories: Daily Dockets

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