UNPUBLISHED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Affirmed by unpublished per curiam opinion.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.
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Unpublished opinions are not binding precedent in this circuit.
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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
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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. 
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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 employeremployee 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).
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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