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Mangani-Kashkett v. Bouquet

United States District Court, Fourth Circuit

June 18, 2013

ELISABETH MANGANI-KASHKETT, Plaintiff,
v.
EDOUARD J.P. BOUQUET, et al., Defendants.

MEMORANDUM OPINION

PAUL W. GRIMM, District Judge.

This Memorandum Opinion addresses (1) the Motion to Dismiss Count IV: Intentional Infliction of Emotional Distress, ECF No. 9, and supporting Memorandum, ECF No. 9-1, that Defendants Brodsky, Renehan, Pearlstein, Lastra, & Bouquet, Chartered ("BRPLB") and Edouard J.P. Bouquet, Esquire (collectively, the "Bouquet Defendants") and Defendants Clifford, Debelius, Bonifant, Fitzpatrick & Hyatt ("CDBFH") and E. Joseph Fitzpatrick, Esquire (collectively, the "Fitzpatrick Defendants") filed; (2) Plaintiff Elisabeth Mangani-Kashkett's Acceptance of Rule 68 Offer of Judgment, ECF No. 15; and (3) the Motion to Compel Arbitration and to Stay Proceedings, ECF No. 10, and supporting Memorandum, ECF No. 10-1, that the Bouquet Defendants filed; Plaintiff's Opposition and supporting Memorandum, ECF No. 14; and the Bouquet Defendants' Reply, ECF No. 16, and Request for Hearing, ECF No. 17. A hearing is not necessary with regard to any of these filings. See Loc. R. 105.6. For the reasons stated herein, Defendants' Motion to Dismiss Count IV is GRANTED; the Bouquet Defendants' Motion to Compel Arbitration and to Stay Proceedings is GRANTED IN PART AND DENIED IN PART; and Plaintiff's Acceptance of Rule 68 Offer of Judgment is deemed not to be an acceptance of the Offer of Judgment.

I. BACKGROUND

Plaintiff filed this lawsuit against Defendants, claiming that she retained Mr. Bouquet to represent her before the Maryland Court of Special Appeals; Mr. Bouquet estimated that his services would cost about $10, 000; and BRPLB billed her for $55, 406.40, of which she paid $14, 117.29. Compl. ¶¶ 3, 5, 8, 17, ECF No. 2. Plaintiff disputed the remainder of the charges. Id. ¶¶ 18. According to Plaintiff, CDBFH, in a letter signed by Fitzpatrick, sent her a debt collection notice regarding the outstanding balance. Id. ¶¶ 28. Plaintiff's Complaint includes a claim for breach of contract against the Bouquet Defendants (Count I), claims for violations of the Maryland Consumer Debt Collection Act, Md. Code Ann., Com. Law §§ 14-201 - 14-204 ("MCDCA"), and the Federal Fair Debt Collections Practices Act, 15 U.S.C §§ 1692-1692p ("FDCPA"), against the Fitzpatrick Defendants (Counts II and III, respectively); and a claim for intentional inflict of emotional distress, against all Defendants (Count IV). Id. ¶¶ 48, 50, 52, 54.

II. MOTION TO DISMISS

All Defendants filed a Motion to Dismiss Count IV: Intentional Infliction of Emotional Distress. Plaintiff has not filed a response, and the time for doing so has passed. See Loc. R. 105.2.a. By failing to file a response within the time allotted, Plaintiff implicitly acknowledges that the Motion to Dismiss is meritorious. Moreover, a review of Plaintiff's allegations and the relevant case law shows that Plaintiff fails to state a claim for intentional infliction of emotional distress.

Federal Rule of Civil Procedure 12(b)(6) provides for "the dismissal of a complaint if it fails to state a claim upon which relief can be granted." Velencia v. Drezhlo, Civil Action No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012). This rule's purpose "is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.'" Id. (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)). To that end, the Court bears in mind the requirements of Rule 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009) when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), and must state "a plausible claim for relief, " as "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, " Iqbal, 556 U.S. at 678-79. See Velencia, 2012 WL 6562764, at *4 (discussing standard from Iqbal and Twombly ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663.

Plaintiff's fourth count is for intentional infliction of emotional distress. "In Maryland, the tort of intentional infliction of emotional distress is "rarely viable, and is to be used sparingly and only for opprobrious behavior that includes truly outrageous conduct.'" Bestkoff v. Bank of America, N.A., No. CCB-12-1998, 2012 WL 4960099, at *5 (D. Md. Oct. 15, 2012) (citing Snyder v. Phelps, 580 F.3d 206, 231 (4th Cir. 2009) (Shedd, J., concurring) (citation omitted)). To plead this cause of action, a plaintiff must show that (1) the defendants' conduct was "intentional or reckless, '" as well as "extreme and outrageous'"; (2) there was "a causal connection between the wrongful conduct and the emotional distress'"; and (3) the emotional distress was "severe.'" Lasater v. Guttmann, 5 A.3d 79, 89 (Md. Ct. Spec. App. 2010) (quoting Harris v. Jones, 380 A.2d 611, 614 (Md. 1977)). "Extreme and outrageous'" conduct is such that is ""so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."'" Id. (quoting Harris, 380 A.2d at 614 (internal citation omitted)).

Defendants insist that "Plaintiff has failed to allege any actions by Defendants that constitute extreme and outrageous conduct.'" Defs.' Mem. 3. Plaintiff attributes her emotional distress to "the imposition of charges equaling more than five times the amount she'd expected, against her account"; "the imposition of charges which were too costly for her to pay and which were made in violation of her contract for retaining Mr. Bouquet's services"; "the imposition of charges against her account, which she had no practical means to oppose, since her billing disputes went unaddressed by the defendants"; and the "imposition of late-fee interest and... charges made to the account subsequent to the completion of legal work performed in her case." Compl. ¶¶ 19-21. These purported actions do not rise to the level of conduct in Dick v. Mercantile-Safe Deposit 7 Trust Co., 492 A.2d 674, 677 (Md. Ct. Spec. App. 1985), in which a defendant threatened to "attach [the plaintiffs'] home and wages, " called the plaintiffs and shouted at them, and inquired about their marital status. The Maryland Court of Special Appeals concluded that the defendant's conduct was "rude, discourteous, uncivil, and even to some extent unreasonable, " but not "extreme and outrageous." Id. Nor are Defendants' alleged acts as offensive as the defendant's conduct in Bestkoff, 2012 WL 4960099, at *5, in which Bank of America refused "to return the $1100 it withdrew" even after the plaintiff "explained his dire need for the money to pay a fine and avoid arrest." Plaintiff has failed to allege extreme and outrageous conduct by Defendants. See Bestkoff, 2012 WL 4960099, at *5; Dick, 492 A.2d at 677. This insufficiency in Plaintiff's pleading is enough to "defeat the cause of action." Gibbons v. Bank of Am. Corp., No. JFM-08-3511, 2012 WL 94569, at *8 (D. Md. Jan. 11, 2012). Therefore, Defendants' Motion to Dismiss Count IV is GRANTED. See Fed.R.Civ.P. 12(b)(6).

III. OFFER OF JUDGMENT

Defendants Fitzpatrick and CDBFH (the "Fitzpatrick Defendants") filed an Offer of Judgment on April 30, 2013, offering $1, 500 to "include[] any and all damages, of any style or sort, available under any Federal or State cause of action, as well as costs, and reasonable attorney's fees accrued... that Plaintiff and her counsel may obtain from these Defendants." ECF No. 12. The filing is a clear and unambiguous offer of judgment as to all claims against the Fitzpatrick Defendants, i.e., Plaintiff's claims against the Fitzpatrick Defendants for violations of the MCDA and the FDCPA and for the Maryland common law tort of intentional infliction of emotional distress.

Plaintiff filed "Plaintiff's Acceptance of Rule 68 Offer of Judgment" on May 14, 2013. Pl.'s Acceptance 3. It is styled as an acceptance of the Fitzpatrick Defendants' Offer of Judgment, but it is anything but an acceptance, as it appears to require the Court to construe the Offer of Judgment. In Plaintiff's view,

The Offer of Judgment is open to interpretation: It offers an amount pursuant to statutory requirements of the Federal Fair Debt Collections Practices Act and with regard to that amount states: "This amount includes any and all damages, of any style or sort, available under any Federal or State cause of action", a statement which is not true, since additional damages are indeed available under Maryland law and Federal law and additional causes of action have been plead.

Id. ¶ 8. Plaintiff asks the Court to "[c]onstrue the ambiguity in Defendants' Offer of Judgment in favor of the Plaintiff, " such that "this Offer of Judgment is only with regard to Plaintiff's claims under the Federal Fair Debt collections ...


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