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Callender v. Callender

United States District Court, D. Maryland

May 3, 2019

DONALD J. CALLENDER and CONVERGENCE MANAGEMENT ASSOCIATES, LLC, Plaintiffs,
v.
WADE CALLENDER, Defendant.

          MEMORANDUM OPINION

          THEODORE A. CHUANG UNITED STATES DISTRICT JUDGE.

         Plaintiffs 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 IN PART.

         BACKGROUND

         Relevant 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 Callenders.

         In his 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.

         Finally, 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 lawsuit.

         DISCUSSION

         Plaintiffs 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.

         I. Legal Standard

         To 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).

         II. Abuse of Process

         An 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. Id.

         Assuming 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.

         III. Defamation ...


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