                               UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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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




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