United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER
XINIS UNITED STATES DISTRICT JUDGE.
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).
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.
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. 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.
bring six 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).
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.
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.
STANDARD OF REVIEW
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).
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).
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
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 ¶¶ 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 ...