United States District Court, D. Maryland
MEMORANDUM AND ORDER
Mark Coulson United States Magistrate Judge
Mr. Bret Wade, filed 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 Communitythat 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,
response to those allegations, Ms. Foster filed her Answer,
(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).
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.
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),  and Ms. Foster followed with a response in
opposition. (ECF No. 31).
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.
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
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).
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
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.
Infliction of Emotional Distress
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
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.”
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.
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 ...