United States District Court, D. Maryland
DONALD J. CALLENDER and CONVERGENCE MANAGEMENT ASSOCIATES, LLC, Plaintiffs,
WADE CALLENDER, Defendant.
THEODORE A. CHUANG UNITED STATES DISTRICT JUDGE.
Donald J. Callender and Convergence Management Associates,
LLC ("CMA") filed this state law tort action
against Defendant Wade Callender arising from an intra-family
dispute relating to a previously dismissed lawsuit in this
Court. After the Court granted in part and denied in part
Wade Callender's Motion to Dismiss or, in the
Alternative, Motion for Summary Judgment, Wade Callender
filed state law tort counterclaims against Plaintiffs.
Presently pending before the Court is Plaintiffs' Motion
to Dismiss the Counterclaims. Having reviewed the submitted
materials, the Court finds that no hearing is necessary.
See D. Md. Local R. 105.6. For the reasons set forth
below, Plaintiffs' Motion is GRANTED IN PART and DENIED
factual and procedural background is recounted in this
Court's July 26, 2018 Memorandum Opinion. Callender
v. Callender, No. 17-3249, 2018 WL 3609536, at *1-4. (D.
Md. July 26, 2018). Wade Calender's counterclaims consist
of claims of abuse of process (Count 1), defamation (Count
2), breach of a partnership agreement (Count 3), and false
light (Count 4) under Maryland law arising out of the filing
of this lawsuit and the previous lawsuits among the
abuse of process claim, Wade Callender alleges that Donald
Calender's conduct since his divorce from Diane
Callender, Wade Callender's mother, has evidenced a
desire to "embarrass, humiliate, and generally cause
pain and inconvenience" to Wade Callender, and that the
current lawsuit is a use of process "without the support
of law, and in a manner not contemplated by law."
Def.'s Countercl. ¶¶ 6-7, ECF No. 23. In his
defamation and false light claims, Wade Callender asserts
that the "numerous unsavory allegations" Donald
Callender has made against Wade Callender, in both this
lawsuit and a criminal complaint filed in the District Court
of Maryland for Calvert County, constitute defamation and
have portrayed Wade Callender in a false or misleading light.
Id. ¶¶ 10, 28. Wade Callender points to
statements in which Donald Callender contends that Wade
Callender broke into Plaintiffs' business, stole multiple
items from the business, and commandeered bank accounts
belonging to Plaintiffs.
in his breach of a partnership agreement claim, Wade
Callender asserts that the Falkirk Family Limited Partnership
("Falkirk") owns and controls CMA. According to
Wade Callender, during a November 2016 meeting, a majority of
the owners of Falkirk stripped Donald Callender and CMA of
any management authority in Falkirk. He alleges that
Falkirk's controlling members then amended the Falkirk
Partnership Agreement (the "Agreement") to include
a dispute resolution provision which requires an affirmative
vote of more than 85 percent of the partners to instigate
litigation to resolve a dispute among Falkirk partners
regarding the Agreement or the ownership of the partnership.
Wade Callender asserts that since Plaintiffs' Complaint
claims that Wade Callender "unlawfully entered the
offices of CMA and removed Property to which he had no
right" and "improperly dismissed a prior lawsuit to
which CMA was the Plaintiff," Plaintiffs' suit
constitutes a dispute "relating to" Falkirk and is
subject to the dispute resolution provision of the Agreement.
Id. ¶¶ 22-23. Wade Callender alleges that
Plaintiffs have breached the Agreement by filing this
seek dismissal of all counterclaims. They argue that the
abuse of process claim should be dismissed because Wade
Callender has failed to allege an improper act or threat in
Donald Callender's use of process; that the defamation
and false light claims fail because the relevant statements
were time-barred or privileged; and that this Court's
previous ruling regarding the ownership of CMA forecloses
Wade Callender's breach of a partnership agreement claim.
defeat a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the complaint must allege enough facts to
state a plausible claim for relief. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible
when the facts pleaded allow "the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id. Legal conclusions or
conclusory statements do not suffice. Id. The Court
must examine the complaint as a whole, consider the factual
allegations in the complaint as true, and construe the
factual allegations in the light most favorable to the
plaintiff. Albright v. Oliver, 510U.S. 266, 268
(1994); Lambeth v. Bd. of Comm'rs of Davidson
Cty., 407 F.3d 266, 268 (4th Cir. 2005).
Abuse of Process
abuse of process claim requires a plaintiff to show that (1)
"the defendant willfully used process after it has
issued in a manner not contemplated by law"; (2)
"the defendant acted to satisfy an ulterior
motive"; and (3) "damages resulted from the
defendant's perverted use of process." One
Thousand Fleet L.P. v. Guerriero, 694 A.2d 952, 956 (Md.
1997). "In order to establish an abuse of process, there
must be a definite act or threat that is not authorized by
the process or aimed at an objective not legitimate in the
use of the process." Attorney Grievance Comm'n
of Md. v. Roberts, 904 A.2d 557, 571 (Md. 2006). The
archetypal abuse of process claim arises from the use of
criminal process to coerce an individual to pay a debt in
order to avoid arrest and prosecution. See Palmer Ford,
Inc. v. Wood, 471 A.2d 297, 311 (Md. 1984) (collecting
cases). A party is not liable for abuse of process where the
party "has done nothing more than pursue the lawsuit to
its authorized conclusion regardless of how evil [the] motive
may be." One Thousand Fleet, 694 A.2d at 956
(quoting Wells v. Orthwein, 670 S.W.2d 529, 533
(Mo.Ct.App. 1984)). As a result, "bad motive alone"
cannot be the foundation for an abuse of process claim.
that the other requirements for an abuse of process claim are
met, Wade Calender's claim fails because he does not
allege "a definite act or threat that is not authorized
by the process." Attorney Grievance Comm
'n, 904 A.2d at 571. In Berman v.
Karvounis, 518 A.2d 726 (Md. 1987), the plaintiffs
alleged that the defendants had engaged in improper use of
process where the defendants had filed 12 civil actions
against the plaintiffs and sought excessive punitive damages
to "harass and oppress" the plaintiffs through
extortion. Id. at 728. The Court of Appeals of
Maryland held that the plaintiffs had not sufficiently
alleged an abuse of process claim because they had not
articulated any facts that showed "how the process was
used for any purpose other than the normal one" of
litigating against the plaintiffs. Id. at 729. In
his counterclaim, Wade Callender states that Donald Callender
has engaged in a "pattern of behavior meant to
embarrass, humiliate, and generally cause pain and
inconvenience" to Wade Callender "in a manner not
contemplated by law." Def.'s Countercl. ¶¶
6-7. He does not identify any threats or other actions, not
legally authorized, in which Donald Callender engaged to
further the purpose of embarrassing Wade Callender. Like the
plaintiffs in Berman, Wade Callender has alleged
only that Donald Callender has filed a lawsuit against him.
Even if Donald Callender is motivated by an evil desire to
"harass and otherwise burden" Wade Callender,
id. ¶ 8, that is not enough for an abuse of
process claim. See One Thousand Fleet, 694 A.2d at
956. Plaintiffs' Motion will be granted as to Count 1.