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Moawad v. Rogero

United States District Court, D. Maryland

May 30, 2018

JASMINE MOAWAD, et al., Plaintiffs,
v.
GERALD ROGERO, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          PAULA XINIS UNITED STATES DISTRICT JUDGE.

         Pending before the Court in this tort action are three Motions to Dismiss, the first filed by Defendant Alicia Stern (ECF No. 11) and the second and third by Defendant Gerald Rogero (ECF Nos. 20 & 27). The matters are briefed, and no hearing is necessary. See D. Md. Loc. R. 105.6. Upon consideration of the parties' arguments, the Court GRANTS Stern's motion, GRANTS IN PART and DENIES IN PART Rogero's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (ECF No. 20), and DENIES Rogero's Motion to Dismiss under Federal Rule of Civil Procedure 41(b) (ECF No. 27).

         I. BACKGROUND

         On December 5, 2014, Stern met her ex-husband, Edward Moawad (“Mr. Moawad”), to exchange custody of their child. ECF No. 11-1 at 1. Mr. Moawad's current wife, Jasmine Moawad (“Moawad”), and her son, Alexandro Farooq, the plaintiffs in this action, accompanied Mr. Moawad to the meeting. ECF No. 1 ¶ 9.

         At Stern's apartment building, Rogero, an off-duty Special Agent of the Federal Bureau of Investigation (FBI), allegedly pushed Farooq, causing him to fall, suffer a concussion, and injure his wrist, back, and kidney.[1] ECF No. 1 ¶¶ 7, 23. Plaintiffs allege that Rogero then drew his FBI-issued service weapon, pointed it at Farooq, shouted racially charged threats, threatened to arrest Farooq, and told Farooq that he would shoot him. ECF No. 1 ¶¶ 7, 8, 14. Plaintiffs assert that by drawing his weapon, Rogero illegally detained Farooq. ECF No. 1 ¶ 41. Moawad was present throughout the incident. ECF No. 1 ¶ 12. Plaintiffs claim to have suffered emotional distress and physical injuries as a result of Rogero's conduct. ECF No. 1 ¶¶ 11-12. Plaintiffs also allege that on or before the December 5, 2014, incident, Stern and Rogero conspired to harm Farooq and to cause Moawad emotional distress. ECF No. 1 ¶ 7.

         Plaintiffs bring six[2] claims: conspiracy to commit and commission of assault and battery (Count I), battery (Count II), conspiracy to commit and commission of intentional infliction of emotional distress (Count III), conspiracy to commit and commission of negligent infliction of emotional distress (Count IV), “temporary restraining order and preliminary injunction” (Count VI), and conspiracy to commit and commission of false imprisonment (Count VII).

         Both Defendants move to dismiss Plaintiffs' conspiracy claims because Plaintiffs allege insufficient facts to state a claim upon which relief can be granted. ECF No. 11-1 at 4-9; ECF No. 20-1 at 5-8. Additionally, Defendants each argue that Plaintiffs' negligent infliction of emotional distress and “preliminary injunction” claims must be dismissed because they are not recognized causes of action. ECF No. 11-1 at 9, 10-11; ECF No. 20-1 at 11-13. Defendants also each assert that Plaintiffs' intentional infliction of emotional distress and false imprisonment claims should be dismissed for failure to plead facts sufficient to state a claim. ECF No. 11-1 at 7-11; ECF No. 20-1 at 9-12. Rogero argues in his first motion to dismiss that Moawad lacks standing to pursue claims on behalf of Farooq, who is now an adult. ECF No. 20-1 at 4 n.2. In his second motion to dismiss, Rogero argues that the Complaint should be dismissed for failure to prosecute. ECF No. 27-1 at 2-3.

         For the reasons stated below, the Court dismisses all claims against Stern and Counts III- VI against Rogero. Moawad is also dismissed as a Plaintiff from the case. The Court denies Rogero's motion to dismiss for failure to prosecute.

         II. STANDARD OF REVIEW

         Because Plaintiffs are proceeding pro se, the Court construes the Complaint liberally to ensure that potentially meritorious claims proceed. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). That said, the Court cannot ignore a pro se plaintiff's clear failure to allege facts setting forth a cognizable claim. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate. Only those questions which are squarely presented to a court may properly be addressed.”). The Court, when reviewing pro se complaints, must not abdicate its “legitimate advisory role” to become an “advocate seeking out the strongest arguments and most successful strategies for a party.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

         When reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court must determine whether the complaint includes facts sufficient to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). A plaintiff must plead facts to support each element of the claim to satisfy the standard. See McCleary-Evans v. Md. Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015). In so assessing, the Court takes as true all well-pleaded factual allegations and makes all reasonable inferences in the plaintiff's favor. Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). The Court does not credit conclusory statements of law, even when couched as allegations of fact. See Iqbal, 556 U.S. 678-79; Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008).

         Pursuant to Federal Rule of Civil Procedure 41(b), an action may be dismissed “[i]f the plaintiff fails to prosecute or to comply with . . . a court order.” Fed.R.Civ.P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (holding that a district court may invoke Rule 41(b) sua sponte). Unless otherwise stated, dismissal under Rule 41(b) “‘operates as an adjudication on the merits, ' that is, with prejudice.” Rahim, Inc., v. Mindboard, Inc., No. GLR-16-1155, 2017 WL 1078409, at *2 (D. Md. Mar. 22, 2017) (quoting Fed.R.Civ.P. 41(b)). A dismissal with prejudice under Rule 41(b) is “a harsh sanction which should not be invoked lightly, ” particularly because the United States Court of Appeals for the Fourth Circuit has recognized “the sound public policy of deciding cases on their merits.” Id. (internal quotation marks and citations omitted).

         III. DISCUSSION

         A. Standing

         As a preliminary matter, the Court addresses whether Moawad can bring claims on behalf of Farooq. See ECF No. 20-1 at 4 n.2. In the Complaint, Plaintiffs assert that they bring claims “individually and as representative of other party plaintiff.” ECF No. 1 ¶ 3. Farooq and Moawad are both named Plaintiffs, and both signed the Complaint. ECF No. 1 at 1, 13. Although at the time of the incident Farooq was a minor, he is now over the age of eighteen. See ECF No. 1 ΒΆΒΆ 6-7. Consequently, Farooq has articulated that he is proceeding on his own behalf. As the allegedly injured party, Farooq has standing to pursue his own claims. Moawad, on the other hand, cannot ...


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