CARRILLO v. CARRILLO et al

Filing 19

MEMORANDUM AND OPINION. Signed by Judge Ellen S. Huvelle on July 25, 2013. (AG)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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Plaintiff,
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v.
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OSCAR CARRILLO, et al.
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Defendants.
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_________________________________________ )
SUSAN CARRILLO,

Civil Action No. 13-0416 (ESH)

MEMORANDUM OPINION
Plaintiff Susan Carrillo, proceeding pro se, has filed suit against defendants Oscar
Carrillo, her former husband, and Dr. Alice Dvoskin, alleging injuries relating to a child custody
dispute between the Carrillos in which Dr. Dvoskin served as a court-appointed expert. (See
Compl., Apr. 3, 2013 [ECF No. 1].) The Court will grant defendants’ motions to dismiss1
because plaintiff has not established personal jurisdiction over Dr. Dvoskin, and because the
doctrine of collateral estoppel bars plaintiff’s claims against both defendants.
BACKGROUND
On December 5, 2012, Susan and Oscar Carrillo appeared before Judge Anne K. Albright
in the Circuit Court for Montgomery County, Maryland, for a Modification of Custody Hearing.
(See Compl., Ex. 3 (Tr. of 12/5/2012 Custody Modification Hrg.), at 2-74 (“Tr.”) .) Prior to the
hearing, Judge Albright had appointed Dr. Dvoskin to complete a custody evaluation and submit
her findings to the court for the purposes of the hearing. (Dvoskin Mot. at 2.) Dr. Dvoskin, after

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See Dvoskin Mot. to Dismiss, May 7, 2013 [ECF No. 8] (“Dvoskin Mot.”); Carrillo Mot. to
Dismiss, Apr. 25, 2013 [ECF No. 4] (“Carrillo Mot.”).

conducting several interviews with and psychological tests of both Carrillos, interviewing their
children, and speaking with several individuals familiar with the children, concluded that until
plaintiff’s “psychiatric condition is addressed and her behavior normalized, her access to the
boys must be restricted.” (Dvoskin Reply, Ex. B. (“Custody “Eval.”), at 16, Jul. 18, 2013 [ECF
No. 18-2]; see generally id. at 1-17.)
Susan Carrillo filed two motions prior to the hearing in Montgomery County Circuit
Court challenging Dr. Dvoskin’s evaluation, one on the ground that Dr. Dvoskin’s report and
testimony was inadmissible under the Maryland Rules of Evidence, and the other alleging that
Dr. Dvoskin “had been bias [sic] in favor of [Oscar Carrillo], had been negligent in her conduct
of the evaluation, and had not abided by court ordered stipulations.” (See Compl. at 14-15.)
Judge Albright denied both motions. (Dvoskin Mot. at 3.) At the hearing, despite Susan
Carrillo’s objections to Dr. Dvoskin’s report and testimony, Judge Albright accepted them both,
finding that Dr. Dvoskin’s opinion was well-supported, consistent with the other evidence in the
case, and credible. (See Tr. at 7-12, 60.) Based on Dr. Dvoskin’s opinion and the rest of the
evidence in the record, Judge Albright found that Susan Carrillo’s mental health treatment
regimen had been ineffective. (Id. at 45.) She ordered that it would be in the best interests of the
two children for Oscar Carrillo to continue to have sole legal and physical custody, id. at 45, 71,
but that Susan Carillo be allowed supervised visitation with her children. (Id. at 60.) The Court
of Special Appeals of Maryland upheld the Circuit Court’s decision on June 6, 2013, finding that
the court did not err in accepting Dr. Dvoskin as a credible witness, and that Ms. Carrillo’s
challenges to the decision lacked merit. (Dvoskin Reply, Ex. C (Md. Appellate Court Decision),
at 9-10 (“App. Ct. Decision”).)
Susan Carrillo filed the above case on April 3, 2013. She alleges that Dr. Dvoskin has

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committed medical malpractice or caused personal injury to plaintiff and that Oscar Carrillo has
caused personal injury to plaintiff and committed civil rights violations. (Pl.’s Opp. to Dvoskin
Mot. at 2, July 10, 2013 [ECF No. 16]; Pl.’s Opp. to Carrillo’s Mot. at 25, Jul. 15 2013 [ECF No.
17]). Before the Court are Oscar Carrillo’s pro se motion to dismiss, Dr. Dvoskin’s motion to
dismiss, and Oscar Carrillo’s motion to join Dr. Dvoskin’s motion.
ANALYSIS
I.

PERSONAL JURISDICTION
Dr. Dvoskin seeks to dismiss the claims against her pursuant to Federal Rule of Civil

Procedure 12(b)(2) for lack of personal jurisdiction. A plaintiff bears the burden of establishing
a factual basis for personal jurisdiction over a defendant. Rossmann v. Chase Home Finance,
LLC, 772 F. Supp. 2d 169, 171 (D.D.C. 2011) (citing Crane v. N.Y. Zoological Society, 894 F.2d
454, 456 (D.C. Cir. 1990)). The Court need not treat all of a plaintiff’s allegations as true when
determining whether personal jurisdiction exists. Instead, the Court “may receive and weigh
affidavits and any other relevant matter to assist it in determining the jurisdictional facts.”
United States v. Philip Morris, Inc., 116 F. Supp. 2d 116, 120 n.4 (D.D.C. 2000) (citing 5A
Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1351 (1990)). Any
factual discrepancies with regard to the existence of personal jurisdiction should be resolved in
plaintiff’s favor. See Crane, 894 F.2d at 456.
The Court has set forth a two-part inquiry for establishing personal jurisdiction over a
nonresident defendant. GTE New Media Servs. v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C.
Cir. 2000). First, a court must “examine whether jurisdiction is applicable under the state’s longarm statute,” and second, “determine whether a finding of jurisdiction satisfies the constitutional
requirements of due process.” Id. The applicable long-arm statute states in relevant part:

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(a) A District of Columbia court may exercise personal jurisdiction over a person,
who acts directly or by an agent, as to a claim for relief arising from the
person’s—
(1) transacting any business in the District of Columbia;
(2) contracting to supply services in the District of Columbia;
(3) causing tortious injury in the District of Columbia by an act or
omission in the District of Columbia;
(4) causing tortious injury in the District of Columbia by an act or
omission outside the District of Columbia if he regularly does or solicits
business, engages in any other persistent course of conduct, or derives
substantial revenue from goods used or consumed, or services rendered, in
the District of Columbia[.]
D.C. Code § 13–423(a). Where jurisdiction is predicated solely upon the long-arm statute, “only
a claim for relief arising from acts enumerated in this section may be asserted against [a
defendant].” D.C. Code § 13–423(b).
Susan Carrillo argues that this Court may exercise personal jurisdiction over Dr. Dvoskin
because Carrillo contracted with Dr. Dvoskin for medical services, and that Dr. Dvoskin was
therefore “obligated to the Plaintiff, a resident of the District of Columbia, to supply medical
services and Dr. Dvoskin also caused tortious injury to the Plaintiff . . . Dr. Dvoskin agreed to
the stipulations of the Circuit Court June 4, 2012 Interim Consent Order Agreement, and a home
visit to the Plaintiff’s residence in the District of Columbia.” (Pl.’s Opp. to Dvoskin Mot. at 7.)
However, plaintiff did not contract with Dr. Dvoskin for medical services. On the
contrary, Dr. Dvoskin was appointed by the Maryland court, and “the parties were ordered and
agreed to cooperate with the access evaluation to the extent necessary to complete . . . the access
evaluation as directed by the evaluator.” (Tr. at 34.) The Circuit Court order that plaintiff refers
to states that the “access evaluator . . . shall be able to . . . visit the parent’s homes.” (Id. at 81
(emphasis added).) Therefore, the notion that Dr. Dvoskin was obligated to perform services at
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the plaintiff’s residence in the District of Columbia is incorrect. Indeed, Dr. Dvoskin never
visited Susan Carrillo’s home in the District of Columbia to conduct an interview. Because there
was no contract to supply medical services, and because all of the actions of Dr. Dvoskin took
place outside of the District of Columbia, plaintiff has failed to meet her burden to establish
personal jurisdiction over Dr. Dvoskin.
II.

COLLATERAL ESTOPPEL
Dr. Dvoskin and Oscar Carrillo also seek dismissal on the ground that Susan Carrillo’s

claims are barred by the doctrine of collateral estoppel. Collateral estoppel, also known as issue
preclusion, bars the relitigation of specific issues actually litigated in a prior action. United Book
Press, Inc. v. Maryland Composition Co., Inc., 786 A.2d 1, 10 (Md. App. 2001). A federal court
must accept the rules followed by the State where the judgment was issued in assessing a claim
of collateral estoppel. Kremer v. Chemical Const. Corp., 456 U.S. 461, 481–82 (1982); see also
Casco Marina Dev., LLC v. M/V Forrestall, 384 F. Supp. 2d 154, 158 (D.D.C. 2005). In this
case, the judgment on which defendant relies is from Maryland. In Maryland, to successfully
invoke collateral estoppel, a party must establish that:
(1) the issue sought to be precluded is identical to one previously litigated; (2) the
issue must have been actually determined in the prior proceeding; (3)
determination of the issue must have been a critical and necessary part of the
decision in the prior proceeding; (4) the prior judgment must be final and valid;
and (5) the party against whom estoppel is asserted must have had a full and fair
opportunity to litigate the issue in the previous forum.
Campbell v. Lake Hallowell Homeowners Ass’n, 852 A.2d 1029, 1037–38 (Md. App. 2004).
Collateral estoppel is not limited to subsequent actions involving the same parties. “Defensive
use of nonmutual collateral estoppel occurs when a defendant seeks to prevent a plaintiff from
relitigating an issue which the plaintiff previously litigated unsuccessfully in another action

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against a different party.” Leeds Fed. Savs. & Loan Ass’n v. Metcalf, 630 A.2d 245, 249 n.4
(Md. App. 1993).
Plaintiff asserts that the claim brought against Dr. Dvoskin involves a new issue, namely
“medical malpractice” or “personal injury.” (Pl.’s Opp. to Dvoskin Mot. at 2.) However,
labeling Dr. Dvoskin’s actions as “medical care” misrepresents what in fact took place: a custody
evaluation. (Tr. at 67.) Dr. Dvoskin helpfully summarizes the substance of plaintiff’s
allegations as follows: (1) Dr. Dvoskin was not qualified to offer an expert opinion in the prior
action; (2) Dr. Dvoskin did not abide by the trial court’s orders in conducting her evaluation or in
submitting her report; (3) Dr. Dvoskin conspired to deny plaintiff due process and to interfere
with court orders; and (4) Dr. Dvoskin discriminated against plaintiff due to her medical
disability. (Dvoskin Mot. at 6.) Plaintiff raised each of these issues in the Maryland custody
proceeding (Compl. at 14-19; Tr. at 1-72), and these issued were determined by Judge Albright
when she denied plaintiff’s two motions to strike Dr. Dvoskin’s testimony and report, and when
she rejected plaintiff’s challenge to Dr. Dvoskin’s testimony at the hearing. (See Compl. at 1419.) This determination was a critical and necessary part of the proceeding, as the judge made
her custody determination “based on how overwhelming [Dr. Dvoskin’s report] was and how
comprehensive it was and how based on the fact that it was a custody evaluation that Ms.
Carrillo agreed to have happen.” (Tr. at 68.) The Court of Special Appeals of Maryland upheld
the Circuit Court’s decision and specifically found that that the trial judge did not err in
accepting Dr. Dvoskin as a credible witness. (App. Ct. Decision at 9-10.) Since the Maryland
judgment was final and plaintiff had a fair and full opportunity to litigate the issues, this suit
against Dr. Dvoskin is barred by the doctrine of collateral estoppel.

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Plaintiff’s claims against Oscar Carrillo are also barred for the same reason.2 Susan
Carrillo seeks to bring a personal injury claim against Oscar Carrillo based on her allegation that
he “harassed and maliciously prosecuted the Plaintiff to illegally obtain sole legal and physical
custody of the minor children [and] the Plaintiff and minor children have been irreparably
harmed due to the loss of a good, nurturing parent-child relationship with the Plaintiff.” (Pl.’s
Opp. to Carrillo’s Mot. at 2.)  Susan Carrillo additionally argues that there was not a final
judgment on the merits of these issues, as Judge Albright “stopped [Susan Carrillo] from
testifying regarding [Oscar Carrillo’s] malicious prosecution, harassment, or discrimination
against [Susan Carrillo].” (Id. at 25.) Although Susan Carrillo labels her claim as one for
personal injury, the substance of her claim against Oscar Carrillo relates to and arises from the
child custody determination made by Judge Albright. (See id. at 2-11.) These issues have
already been litigated in the Circuit Court of Montgomery County. (See id. at 25; Tr. at 1-72.)
That Court considered an extensive record before making its custody determination, a final and
valid judgment, which was reviewed and upheld by the Court of Special Appeals, was entered,
and plaintiff had a full opportunity to litigate these issues in Maryland. Thus, plaintiff cannot
raise this issue again in this Court.

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It is well established that pleadings filed by pro se litigants are liberally construed, and are held
to less stringent standards than are applied to pleadings prepared by attorneys. See Haines v.
Kerner, 404 U.S. 519, 520 (1972) (per curiam); Moore v. Agency for Int'l Dev., 994 F.2d 874,
877 (D.C. Cir. 1993) (allowing pro se litigants “more latitude than litigants represented by
counsel to correct defects in service of process and pleadings”). Oscar Carrillo does not
specifically assert the defense of collateral estoppel, but instead states that plaintiff’s claims
“have been investigated . . . by the District and Circuit Courts for Montgomery County . . . and
have proven to be unfounded.” (Carillo Mot. at 3.) Applying the above standard to Oscar
Carrillo’s motion to join Dr. Dvoskin’s motion to dismiss, the Court concludes that he has
adequately raised the defense of collateral estoppel.
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CONCLUSION
Because the Court concludes that plaintiff has not established personal jurisdiction over
Dr. Dvoskin, and because collateral estoppel precludes plaintiff’s substantive claims against both
defendants, defendants’ motions to dismiss will be granted. A separate Order accompanies this
Memorandum Opinion.

/s/
ELLEN SEGAL HUVELLE
United States District Judge
DATE: July 25, 2013

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