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Wade v. Foster

United States District Court, D. Maryland

August 21, 2017

BRET WADE, Plaintiff


          J. Mark Coulson United States Magistrate Judge

         Plaintiff, Mr. Bret Wade, filed[1] a Complaint for Defamation against Defendant, Ms. Erin Colleen Foster, following a sexual encounter that occurred on the evening of July 29, 2016 between Mr. Wade, Ms. Foster, and others. In his Complaint, Mr. Wade alleges that following their sexual encounter, Ms. Foster knowingly made false and defamatory representations to the Kink Community[2]that Mr. Wade had violated her consent during the sexual encounter. (Complaint, 33; ECF No. 2). Those misrepresentations, Mr. Wade alleges, destroyed his reputation in the Kink Community and caused him damages in the amount of $1, 500, 000.00. (Complaint, 50).

         In response to those allegations, Ms. Foster filed her Answer, [3] (Answer; ECF No. 11), in which she generally denied Mr. Wade's claims of defamation and asserted several affirmative defenses. Further, Ms. Foster stated that on the night in question, she was “so intoxicated that she was unable to voluntarily consent to sexual activity, ” and that following that sexual encounter, Mr. Wade made false statements to others that Ms. Foster had lied about what had occurred. (Answer, pg. 9-10). Thus, she included with that Answer a Counterclaim section (hereinafter, “original Counterclaim”), in which she set forth five (5) claims, including: (1) battery, (2) assault, (3) intentional infliction of emotional distress, (4) abuse of process, and (5) defamation. (Original Counterclaim; ECF No. 11).

         Thereafter, Mr. Wade filed a “Motion for Partial Dismissal of [Ms. Foster's] Counterclaim.” (Motion for Partial Dismissal; ECF No. 18). In that motion, Mr. Wade argues that pursuant to Federal Rule of Civil Procedure 12(b)(6), Ms. Foster's claims of intentional infliction of emotional distress (Count 3), abuse of process (Count 4), and defamation (Count 5) must be dismissed as a matter of law because those claims, Mr. Wade avers, “contain[] nothing more than bald allegations, conclusory statements, and hyperbole, ” and as a result, do not “rise to the level of a formulaic recitation of the appropriate elements of the causes of action she has alleged.” (Motion for Partial Dismissal, pg. 1). Rather than responding directly to that motion, Ms. Foster filed an Amended Counterclaim, (Amended Counterclaim; ECF No. 25), in which she dropped her abuse of process claim and provided additional details in support of her intentional infliction of emotional distress and defamation claims. That same day, Ms. Foster filed a “Motion for Extension of Time, ” (Motion for Ext. of Time; ECF No. 26), asking this Court to clarify whether she is required to respond directly to Mr. Wade's Motion for Partial Dismissal, now that her Amended Counterclaim addressed the purported defects identified in Mr. Wade's Motion.[4]

         The Court then issued an order staying the deadline by which Ms. Foster was required to file a response to the Motion for Partial Dismissal, (ECF No. 27), so that the Court would have sufficient time to review these materials and render a decision. Following that order, Mr. Wade filed a “Second Motion for Partial Dismissal of Counterclaim or, in the Alternative, Motion for Summary Judgment, ” (ECF No. 28), [5] and Ms. Foster followed with a response in opposition. (ECF No. 31).

         As a preliminary matter, the Court notes that there is no dispute about the timeliness or procedural propriety of Ms. Foster's Amended Counterclaim. As Ms. Foster notes, by operation of Federal Rule of Civil Procedure 15(a)(1)(A), she was permitted “as a matter of course” (that is, without leave of the Court) to amend her original Counterclaim following Mr. Wade's Motion for Partial Dismissal, and she timely did so by filing an Amended Counterclaim under the twenty-one (21) day time frame permitted under Rule 15. Therefore, the sole issue presently before the Court is whether the additions and clarifications that Ms. Foster has made in her Amended Counterclaim address the alleged defects that are outlined in Mr. Wade's Motion for Partial Dismissal and reiterated in his Second Motion for Partial Dismissal. In making this determination, the Court has reviewed the above materials, and finds that no hearing is necessary. Loc. R. 105.6 (D. Md. 2016). For the reasons that follow, Mr. Wade's Motion for Partial Dismissal and his Second Motion for Partial Dismissal or, in the Alternative, for Summary Judgment are denied.

         The purpose of Federal Rule of Civil Procedure 12(b)(6) “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.” Hejazi v. Oliveri & Assocs., LLC, No. CIV. CCB-14-02974, 2015 WL 3447660, at *2-3 (D. Md. May 27, 2015) (citing Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir.2006)) (internal quotation marks and alterations omitted). When ruling on a Rule 12(b)(6) motion to dismiss, this Court “must ‘accept the well-pled allegations of the complaint as true' and ‘construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff.'” Id. (citing Ibarra v. United States, 120 F.3d 472, 474 (4th Cir.1997)). “Even though the requirements for pleading a proper complaint are substantially aimed at assuring that the defendant be given adequate notice of the nature of a claim being made against him, they also provide criteria for defining issues for trial and for early disposition of inappropriate complaints.” Id. (citing Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir.2009)).

         In order to “survive a motion to dismiss, the factual allegations of a complaint, ” or here the Counterclaim, “must be enough to raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Accordingly, the one bringing such claims-here Ms. Foster-must “set forth sufficiently the ‘grounds of his entitlement to relief, ' offering ‘more than labels and conclusions.' Id. Consequently, “[i]t is not sufficient that the well-pled facts create ‘the mere possibility of misconduct.'” Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). “Rather, to withstand a motion to dismiss, ‘a [counterclaim] must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, ' meaning the court could draw ‘the reasonable inference that the defendant is liable for the misconduct alleged.'” Id. (citing Iqbal, 556 U.S. at 678).

         As Ms. Foster correctly notes, “an amended complaint ... generally moots any pending motions to dismiss because the original complaint is superseded.” Due Forni LLC v. Euro Rest. Sols., Inc., No. PWG-13-3861, 2014 WL 5797785, at *2 (D. Md. Nov. 6, 2014) (citations omitted). “Yet, a pending motion to dismiss is not mooted under all circumstances, and [the party that filed the motion to dismiss] should not be required to file a new motion to dismiss simply because an amended pleading was introduced while their motion was pending.” Due Forni, 2014 WL 5797785, at *2 (citations, quotations and brackets omitted). “Rather, if some of the defects raised in the original motion remain in the new pleading, the court simply may consider the motion as being addressed to the amended pleading. To hold otherwise would be to exalt form over substance.” Id. (citations, quotations and brackets omitted).

         Accordingly, as a general matter, it is possible that Ms. Foster's Amended Counterclaim, which sought to address the defects alleged by Mr. Wade, has rendered Mr. Wade's first Motion for Partial Dismissal moot. However, given that Mr. Wade filed a second motion for Partial Dismissal, the Court will review the original Counterclaim at issue, the defects alleged in both of Mr. Wade's Motions for Partial Dismissal, and the corrected status of Ms. Foster's claims as set forth in her Amended Counterclaim. In doing so, the Court's review will be limited only to the claims intentional infliction of emotional distress (Count 3) and defamation (Count 5), as Ms. Foster's other claims were either voluntarily dropped or were not subjects of Mr. Wade's Motion for Partial Dismissal.

         Intentional Infliction of Emotional Distress

         In order to bring a claim for intentional infliction of emotional distress under Maryland law, the claimant must plead facts showing that: (1) The conduct at issue is intentional or reckless; (2) the conduct is extreme and outrageous; (3) there is a causal connection between the wrongful conduct and the emotional distress; and (4) the emotional distress is severe. Hejazi, 2015 WL 3447660, at *6; see also Harris v. Jones, 380 A.2d 611, 614 (Md. 1977). “Recovery under this theory of liability has been severely limited in Maryland to the most extreme cases of uncivilized behavior.” Bryant v. Better Bus. Bureau of Greater Maryland, Inc., 923 F.Supp. 720, 746 (D. Md. 1996). Maryland courts have explained that “‘[i]n developing the tort of intentional infliction of emotional distress, whatever the relationship between the parties, recovery will be meted out sparingly, its balm reserved for those wounds that are truly severe and incapable of healing themselves.'” Figueiredo-Torres v. Nickel, 584 A.2d 69, 75 (Md. 1991) (quoting Hamilton v. Ford Motor Credit Co., 502 A.2d 1057, 1065 (Md.App. 1986)); see also Hejazi, 2015 WL 3447660, at *6 (“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'”) (citing Snyder v. Phelps, 580 F.3d 206, 231 (4th Cir.2009)).

         In her original Counterclaim, Ms. Foster alleged that Mr. Wade, without her consent, “tied and bound [her] while [she] was unconscious, ” and then proceeded to engage in “penetrative sexual activity with [her]” while she remained unconscious. (Original Counterclaim, pg. 9). Further, Ms. Foster stated that following this sexual encounter, Mr. Wade “falsely told others that [she] made false statements about him.” This conduct, she asserted, was “wrongful, extreme and outrageous and caused [her] extreme and severe emotional distress.”

         In his Motion for Partial Dismissal, Mr. Wade argues that Ms. Foster has not sufficiently pled the fourth element for a claim of intentional infliction of emotional distress: the severity of the emotional distress. In so arguing, Mr. Wade points to Cuffee v. Verizon Commc'ns, Inc., wherein this Court explained that “[t]o satisfy this [fourth] element, [the claimant] must plead facts showing that she suffered a ‘severely disabling emotional response, ' so acute that ‘no reasonable man could be expected to endure it.'” 755 F.Supp.2d 672, 680-81 (D. Md. 2010) (citing Moniodis v. Cook, 494 A.2d 212, 219 (Md.App.1985)). Mr. Wade contends that Ms. Foster's Counterclaim contains only conclusory allegations about the harm she suffered, and that without more those allegations do not meet the required showing of a severely disabling emotional response.

         Seeking to cure any deficiencies in her original pleading, Ms. Foster's Amended Counterclaim expounds on the emotional distress that she claims to have suffered as a result of the alleged conduct. Specifically, she explains that: following the incident, she “suffered from anxiety and depression” which included daily “flashbacks and intrusive thoughts about the assault”; she experienced “difficulty focusing on her work” and “has been less productive at work”; she had difficulty sleeping because of nightmares about the alleged sexual assault; she has been unable to leave her house “to visit family, friends or even to buy groceries”; she is scared of being home alone and has now developed a fear of men; she has difficulty performing in Burlesque shows, which was an activity she had ...

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