Wade v. Foster
MEMORANDUM AND ORDER denying 18 Plaintiff's Motion for Partial Dismissal; and denying 28 Plaintiff's Second Motion for Partial Dismissal. Signed by Magistrate Judge J. Mark Coulson on 8/21/2017. (bmhs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ERIN CHANEY FOSTER,
Civil Case No. 17-01371-JMC
MEMORANDUM AND ORDER
Plaintiff, Mr. Bret Wade, filed 1 a “Complaint for Defamation” against Defendant, Ms.
Erin Colleen Foster, following a sexual encounter that occurred on the evening of July 29, 2016
between Mr. Wade, Ms. Foster, and others. In his Complaint, Mr. Wade alleges that following
their sexual encounter, Ms. Foster knowingly made false and defamatory representations to the
“Kink Community” 2 that Mr. Wade had violated her consent during the sexual encounter.
(COMPLAINT, ¶ 33; ECF No. 2). Those misrepresentations, Mr. Wade alleges, destroyed his
reputation in the Kink Community and caused him damages in the amount of $1,500,000.00.
(COMPLAINT, ¶ 50).
In response to those allegations, Ms. Foster filed her Answer, 3 (ANSWER; ECF No. 11), in
which she generally denied Mr. Wade’s claims of defamation and asserted several affirmative
defenses. Further, Ms. Foster stated that on the night in question, she was “so intoxicated that she
Mr. Wade originally filed his Complaint in the Circuit Court for Howard County, Maryland. The case was
subsequently removed to this Court on the basis of diversity jurisdiction. (ECF Nos. 1-2).
The pleadings describe the “Kink Community” as a “closely-knit group of adults who engage in erotic practices
including, but not limited to: bondage, discipline, dominance, submission, and other adult-themed activities.”
(COMPLAINT, ¶ 33; ECF No. 2)
This filing is labeled as “Corrected Answer” on the docket because of minor and insignificant corrections made to
an earlier submission.
was unable to voluntarily consent to sexual activity,” and that following that sexual encounter,
Mr. Wade made false statements to others that Ms. Foster had lied about what had occurred.
(ANSWER, pg. 9-10). Thus, she included with that Answer a Counterclaim section (hereinafter,
“original Counterclaim”), in which she set forth five (5) claims, including: (1) battery, (2)
assault, (3) intentional infliction of emotional distress, (4) abuse of process, and (5) defamation.
(ORIGINAL COUNTERCLAIM; ECF No. 11).
Thereafter, Mr. Wade filed a “Motion for Partial Dismissal of [Ms. Foster’s]
Counterclaim.” (MOTION FOR PARTIAL DISMISSAL; ECF No. 18). In that motion, Mr. Wade
argues that pursuant to Federal Rule of Civil Procedure 12(b)(6), Ms. Foster’s claims of
intentional infliction of emotional distress (Count 3), abuse of process (Count 4), and defamation
(Count 5) must be dismissed as a matter of law because those claims, Mr. Wade avers, “contain
nothing more than bald allegations, conclusory statements, and hyperbole,” and as a result, do
not “rise to the level of a formulaic recitation of the appropriate elements of the causes of action
she has alleged.” (MOTION FOR PARTIAL DISMISSAL, pg. 1). Rather than responding directly to
that motion, Ms. Foster filed an Amended Counterclaim, (AMENDED COUNTERCLAIM; ECF No.
25), in which she dropped her abuse of process claim and provided additional details in support
of her intentional infliction of emotional distress and defamation claims. That same day, Ms.
Foster filed a “Motion for Extension of Time,” (MOTION FOR EXT. OF TIME; ECF No. 26), asking
this Court to clarify whether she is required to respond directly to Mr. Wade’s Motion for Partial
Dismissal, now that her Amended Counterclaim addressed the purported defects identified in Mr.
Wade’s Motion. 4
In that filing, Ms. Foster did not concede to the alleged errors outlined in the Motion for Partial Dismissal. Rather,
she stated that she submitted an Amended Counterclaim as “a matter of course.”
The Court then issued an order staying the deadline by which Ms. Foster was required to
file a response to the Motion for Partial Dismissal, (ECF No. 27), so that the Court would have
sufficient time to review these materials and render a decision. Following that order, Mr. Wade
filed a “Second Motion for Partial Dismissal of Counterclaim or, in the Alternative, Motion for
Summary Judgment,” (ECF No. 28), 5 and Ms. Foster followed with a response in opposition.
(ECF No. 31).
As a preliminary matter, the Court notes that there is no dispute about the timeliness or
procedural propriety of Ms. Foster’s Amended Counterclaim. As Ms. Foster notes, by operation
of Federal Rule of Civil Procedure 15(a)(1)(A), she was permitted “as a matter of course” (that
is, without leave of the Court) to amend her original Counterclaim following Mr. Wade’s Motion
for Partial Dismissal, and she timely did so by filing an Amended Counterclaim under the
twenty-one (21) day time frame permitted under Rule 15. Therefore, the sole issue presently
before the Court is whether the additions and clarifications that Ms. Foster has made in her
Amended Counterclaim address the alleged defects that are outlined in Mr. Wade’s Motion for
Partial Dismissal and reiterated in his Second Motion for Partial Dismissal. In making this
determination, the Court has reviewed the above materials, and finds that no hearing is
necessary. Loc. R. 105.6 (D. Md. 2016). For the reasons that follow, Mr. Wade’s Motion for
Partial Dismissal and his Second Motion for Partial Dismissal or, in the Alternative, for
Summary Judgment are denied.
Because Mr. Wade’s motions substantively make the same arguments, the Court will refer to these motions
collectively as Mr. Wade’s Motion for Partial Dismissal, though in doing so, the Court addresses the subtle
differences and caselaw contained in each. Moreover, given that the Court resolved this dispute without looking
outside of the pleadings, the Court views this motion as a Motion for Partial Dismissal, rather than a motion for
summary judgment. Accordingly, Mr. Wade is not precluded from filing a motion for summary judgment later in
The purpose of Federal Rule of Civil Procedure 12(b)(6) “is to test the sufficiency of a
complaint and not to resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Hejazi v. Oliveri & Assocs., LLC, No. CIV. CCB-14-02974, 2015
WL 3447660, at *2–3 (D. Md. May 27, 2015) (citing Presley v. City of Charlottesville, 464 F.3d
480, 483 (4th Cir.2006)) (internal quotation marks and alterations omitted). When ruling on a
Rule 12(b)(6) motion to dismiss, this Court “must ‘accept the well-pled allegations of the
complaint as true’ and ‘construe the facts and reasonable inferences derived therefrom in the
light most favorable to the plaintiff.’” Id. (citing Ibarra v. United States, 120 F.3d 472, 474 (4th
Cir.1997)). “Even though the requirements for pleading a proper complaint are substantially
aimed at assuring that the defendant be given adequate notice of the nature of a claim being
made against him, they also provide criteria for defining issues for trial and for early disposition
of inappropriate complaints.” Id. (citing Francis v. Giacomelli, 588 F.3d 186, 192 (4th
In order to “survive a motion to dismiss, the factual allegations of a complaint,” or here
the Counterclaim, “must be enough to raise a right to relief above the speculative level ... on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Accordingly, the one bringing such
claims—here Ms. Foster—must “set forth sufficiently the ‘grounds of his entitlement to relief,’
offering ‘more than labels and conclusions.’ Id. Consequently, “[i]t is not sufficient that the wellpled facts create ‘the mere possibility of misconduct.’” Id. (citing Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009)). “Rather, to withstand a motion to dismiss, ‘a [counterclaim] must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face,’
meaning the court could draw ‘the reasonable inference that the defendant is liable for the
misconduct alleged.’” Id. (citing Iqbal, 556 U.S. at 678).
As Ms. Foster correctly notes, “an amended complaint ... generally moots any pending
motions to dismiss because the original complaint is superseded.” Due Forni LLC v. Euro Rest.
Sols., Inc., No. PWG-13-3861, 2014 WL 5797785, at *2 (D. Md. Nov. 6, 2014) (citations
omitted). “Yet, a pending motion to dismiss is not mooted under all circumstances, and [the party
that filed the motion to dismiss] should not be required to file a new motion to dismiss simply
because an amended pleading was introduced while their motion was pending.” Due Forni, 2014
WL 5797785, at *2 (citations, quotations and brackets omitted). “Rather, if some of the defects
raised in the original motion remain in the new pleading, the court simply may consider the
motion as being addressed to the amended pleading. To hold otherwise would be to exalt form
over substance.” Id. (citations, quotations and brackets omitted).
Accordingly, as a general matter, it is possible that Ms. Foster’s Amended Counterclaim,
which sought to address the defects alleged by Mr. Wade, has rendered Mr. Wade’s first Motion
for Partial Dismissal moot. However, given that Mr. Wade filed a second motion for Partial
Dismissal, the Court will review the original Counterclaim at issue, the defects alleged in both of
Mr. Wade’s Motions for Partial Dismissal, and the corrected status of Ms. Foster’s claims as set
forth in her Amended Counterclaim. In doing so, the Court’s review will be limited only to the
claims intentional infliction of emotional distress (Count 3) and defamation (Count 5), as Ms.
Foster’s other claims were either voluntarily dropped or were not subjects of Mr. Wade’s Motion
for Partial Dismissal.
Intentional Infliction of Emotional Distress
In order to bring a claim for intentional infliction of emotional distress under Maryland
law, the claimant must plead facts showing that: (1) The conduct at issue is intentional or
reckless; (2) the conduct is extreme and outrageous; (3) there is a causal connection between the
wrongful conduct and the emotional distress; and (4) the emotional distress is severe. Hejazi,
2015 WL 3447660, at *6; see also Harris v. Jones, 380 A.2d 611, 614 (Md. 1977). “Recovery
under this theory of liability has been severely limited in Maryland to the most extreme cases of
uncivilized behavior.” Bryant v. Better Bus. Bureau of Greater Maryland, Inc., 923 F. Supp. 720,
746 (D. Md. 1996). Maryland courts have explained that “‘[i]n developing the tort of intentional
infliction of emotional distress, whatever the relationship between the parties, recovery will be
meted out sparingly, its balm reserved for those wounds that are truly severe and incapable of
healing themselves.’” Figueiredo–Torres v. Nickel, 584 A.2d 69, 75 (Md. 1991) (quoting
Hamilton v. Ford Motor Credit Co., 502 A.2d 1057, 1065 (Md. App. 1986)); see also Hejazi,
2015 WL 3447660, at *6 (“The tort of intentional infliction of emotional distress is ‘rarely
viable, and is to be used sparingly and only for opprobrious behavior that includes truly
outrageous conduct’”) (citing Snyder v. Phelps, 580 F.3d 206, 231 (4th Cir.2009)).
In her original Counterclaim, Ms. Foster alleged that Mr. Wade, without her consent,
“tied and bound [her] while [she] was unconscious,” and then proceeded to engage in
“penetrative sexual activity with [her]” while she remained unconscious. (ORIGINAL
COUNTERCLAIM, pg. 9). Further, Ms. Foster stated that following this sexual encounter, Mr.
Wade “falsely told others that [she] made false statements about him.” This conduct, she
asserted, was “wrongful, extreme and outrageous and caused [her] extreme and severe emotional
In his Motion for Partial Dismissal, Mr. Wade argues that Ms. Foster has not sufficiently
pled the fourth element for a claim of intentional infliction of emotional distress: the severity of
the emotional distress. In so arguing, Mr. Wade points to Cuffee v. Verizon Commc'ns, Inc.,
wherein this Court explained that “[t]o satisfy this [fourth] element, [the claimant] must plead
facts showing that she suffered a ‘severely disabling emotional response,’ so acute that ‘no
reasonable man could be expected to endure it.’” 755 F. Supp. 2d 672, 680–81 (D. Md. 2010)
(citing Moniodis v. Cook, 494 A.2d 212, 219 (Md.App.1985)). Mr. Wade contends that Ms.
Foster’s Counterclaim contains only conclusory allegations about the harm she suffered, and that
without more those allegations do not meet the required showing of a severely disabling
Seeking to cure any deficiencies in her original pleading, Ms. Foster’s Amended
Counterclaim expounds on the emotional distress that she claims to have suffered as a result of
the alleged conduct. Specifically, she explains that: following the incident, she “suffered from
anxiety and depression” which included daily “flashbacks and intrusive thoughts about the
assault”; she experienced “difficulty focusing on her work” and “has been less productive at
work”; she had difficulty sleeping because of nightmares about the alleged sexual assault; she
has been unable to leave her house “to visit family, friends or even to buy groceries”; she is
scared of being home alone and has now developed a fear of men; she has difficulty performing
in Burlesque shows, which was an activity she had done professionally, because of feelings of
vulnerability and anxiety; and she has been seeing a psychotherapist who diagnosed her with
post-traumatic stress disorder from the sexual assault. (ECF No. 25, ¶¶ 15-23).
“To show that the alleged distress was sufficiently ‘severe,’” as the fourth element for a
claim of intentional infliction of emotion distress requires, parties bringing such claims “must
plead specific facts regarding the nature, intensity, and duration of the alleged emotional
trauma.” Smith v. Aita, No. CIV.A. ELH-14-3074, 2014 WL 7359503, at *3 (D. Md. 2014)
(citing Chin v. Wilhelm, CCB–02–01551, 2006 WL 827343, at *9 (D. Md. 2006). Such facts
“must give rise to the inference that [plaintiff was] ‘severely emotionally disabled,’” which is to
say that [she was] rendered “unable to function” or “attend to necessary matters.” Smith, 2014
WL 7359503, at *3 (citing Pemberton v. Bethlehem Steel Corp., 502 A .2d 1101, 1115 (Md.
App. 1986)). In other words, Maryland law recognizes “[s]evere distress [as] that which ‘no
reasonable man could be expected to endure,’” Takacs v. Fiore, 473 F. Supp. 2d 647, 652 (D.
Md. 2007) (citing Harris, 380 A.2d at 616), and this standard is met where the “emotional
distress is so severe as to have disrupted [the individual’s] ability to function on a daily basis.”
Takacs, 473 F. Supp. 2d at 652 (citing Bryant, 923 F.Supp. at 750).
Nonetheless, “[w]hile the emotional distress must be severe, it need not produce total
emotional or physical disablement.” Figueiredo-Torres v. Nickel, 584 A.2d 69, 76 (Md. 1991)
(internal citations omitted). Moreover, in evaluating the severity of the emotional distress,
Maryland law requires that courts consider not only the alleged harm and emotional distress
itself, but also the egregiousness of the conduct giving rise to such harms. See B.N. v. K.K., 538
A.2d 1175, 1182 (Md. 1988) (“The nature of the conduct itself may provide evidence of the
severity of the distress. That is, if the acts of the defendant are so horrible, so atrocious and so
barbaric that no civilized person could be expected to endure them without suffering mental
distress, [a] jury may find as a matter of fact that ‘severe’ emotional distress resulted”) (internal
citations and quotations omitted). Additionally, Maryland law recognizes that “[i]n cases where
the defendant is in a peculiar position to harass the plaintiff, and cause emotional distress,” such
“conduct will be carefully scrutinized by the courts.” Figueiredo-Torres, 584 A.2d at 75.
In Batson v. Shiflett, 602 A.2d 1191 (Md. 1992), the Court of Appeals discussed at great
length the level of distress and type of egregious conduct that is required for a tort of intentional
infliction of emotional distress. In that decision, the Court of Appeals cited three cases where it
upheld such claims: Figueiredo-Torres v. Nickel, 584 A.2d 69 (Md. 1991) (where a psychologist
had sexual relations with the plaintiff's wife during the time when he was treating the couple as
their marriage counselor); B.N. v. K.K., 538 A.2d 1175 (Md. 1988) (where a physician did not
inform a nurse, with whom he had sexual intercourse, that he had herpes); and Young v. Hartford
Accident & Indemnity, 492 A.2d 1270 (Md. 1985) (where a worker's compensation insurer's
“sole purpose” in insisting that claimant submit to psychiatric examination was to harass the
claimant and force her to abandon her claim or to commit suicide). In particular, in B.N, the
Court of Appeals upheld a claim of intentional infliction of emotional distress where a physician
did not inform a nurse, with whom he had sexual intercourse, that he had herpes. 538 A.2d 1175
(Md. 1988). In doing so, the Court explained that the alleged conduct was sufficiently egregious
because: “We are not dealing here with mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities. We do not have the simple rudeness and annoying collection
efforts that were found not outrageous…, or the bad taste and poor judgment.” B.N., 538 A.2d at
1181. By contrast, the Court of Appeals also mentioned several cases where they “have refused
to recognize the cause of action provide” because the alleged conduct was not sufficiently
egregious. In particular, the Court pointed to Gallagher v. Bituminous Fire & Mar. Ins., 492 A.2d
1280 (Md. 1985) (where the wrongful conduct involved an insurer's failure to make timely
benefit payment) and Vance v. Vance, 408 A.2d 728 (Md. 1979) (where the defendant
misrepresented that he was divorced at the time of his marriage to the plaintiff).
In light of the above principles and caselaw, the Court is satisfied that these new
assertions in Ms. Foster’s Amended Counterclaim disperse of any deficiencies outlined in Mr.
Wade’s Motion for Partial Dismissal. Here, the alleged conduct—that Ms. Foster, who was a
house guest of Mr. Wade’s at the time, was bound up and sexually assaulted without her consent
as she was unconscious— is quite disturbing, and it falls more in line with the three cases
discussed above where the Court of Appeals upheld claims for intentional infliction of emotional
distress, especially when Mr. Wade called into question the veracity of Ms. Foster’s account.
As warned in B.N., Ms. Foster’s allegations are not trivial, nor are they mere
inconveniences or the result of simple annoyances. If true, such conduct could result in
persistent, life-altering, and debilitating consequences for Ms. Foster, which as she alleges, have
already occurred. Indeed, in describing the “nature, intensity, and duration” of her emotional
distress, Ms. Foster has explained that she has become recluse and unable to function or attend to
daily life without significant difficulty. For instance, she alleges her inability to work, sleep,
leave her house, or visit family members and friends. She also notes that she has obtained
professional help to deal with these issues, which has led to a diagnosis of post-traumatic stress
disorder. Accordingly, the Court finds that Ms. Foster has plead sufficient facts to survive Mr.
Wade’s Motion for Partial Dismissal on the count of intentional infliction of emotional distress.
Mr. Wade also relies on this Court’s decision in Takacs v. Fiore, 473 F.Supp.2d 647 (D.
Md. 2007). Although it is true, as Mr. Wade points out, this was a case in which this Court
dismissed an intentional infliction of emotional distress claim where an employer sexually
assaulted one of his employees on numerous occasions. Nonetheless, contrary to Mr. Wade’s
suggestion, the Court did not dismiss that claim because of the conduct at issue. That is to say,
Takacs does not stand for the proposition that an intentional infliction of emotional distress claim
is generally not appropriate in cases of alleged sexual assault. Rather, the Court dismissed the
claim because, as we stated in that decision, “[w]hile Ms. Takacs alleges debilitating conditions,
including severe depression, anxiety, sleeplessness, headaches and [being] sick to her stomach,
she does not allege that she has been unable to function on a daily basis…”. Id. at 653 (citations
to the record and quotations omitted). As a result, Mr. Wade’s reliance is on this case is
misplaced because Ms. Foster, unlike the plaintiff in Takacs, has clearly pled debilitating
conditions that affect her life on a daily and routine basis as required under Maryland law.
“In order to plead properly a defamation claim under Maryland law, [the party bringing
the claim] must allege specific facts establishing four elements to the satisfaction of the factfinder: ‘(1) that the [alleged tortfeasor] made a defamatory statement to a third person, (2) that
the statement was false, (3) that the [the alleged tortfeasor] was legally at fault in making the
statement, and (4) that [the party bringing the claim] thereby suffered harm.’” Piscatelli v. Van
Smith, 35 A.3d 1140, 1147 (Md. 2012) (citing Indep. Newspapers, Inc. v. Brodie, 966 A.2d 432,
448 (Md. 2009)). For the first element, a defamatory statement is one that “tends to expose a
person to public scorn, hatred, contempt, or ridicule, which, as a consequence, discourages others
in the community from having a good opinion of, or associating with, that person.” Ruyter v.
Maryland CVS Pharmacy, LLC, No. CIV.A. TDC-14-2541, 2015 WL 759425, at *5 (D. Md.
Feb. 20, 2015) (citations and internal quotation marks omitted). As for the second element, “a
false statement is on that is not substantially correct.” Id. (citation and internal quotation marks
omitted). Establishing the third element—that an alleged tortfeasor is legally at fault—“requires
a showing that the party making the false statement acted negligently or with actual malice.” Id.
(citation and internal quotation marks omitted). Regarding the fourth and final element, “harm is
presumed if the statement was defamatory per se, in that the injurious character of the statement
is self-evident, and if the plaintiff can demonstrate actual malice,” which is “established by
showing that the speaker made the statement with actual knowledge that it was false or with
reckless disregard for its truth.” Id. (citation and internal quotation marks omitted).
To satisfy the federal pleadings standard, the party bringing the claim “must specifically
allege each defamatory statement.” Doe v. Salisbury University, 123 F. Supp. 3d 748, 757 (D.
Md. 2015) (citations omitted); English Boiler & Tube, Inc. v. W.C. Rouse & Son, Inc., 172 F.3d
862 (4th Cir. 1999) (“Each act of defamation is a separate tort that, in most instances, a plaintiff
must specifically allege”). That is to say, “a plaintiff should allege specific defamatory
comments [including] ‘the time, place, content, speaker, and listener of the alleged defamatory
matter.’” English Boiler, 172 F.3d at 862 (quoting Wiggins v. Phillip Morris, Inc., 853 F.Supp.
458, 465 (D.D.C.1994)). Ultimately, “[t]o determine whether a publication is defamatory, a
question of law for the court, the publication must be read as a whole: ‘words have different
meanings depending on the context in which they are used and a meaning not warranted by the
whole publication should not be imputed.’” Piscatelli, 35 A.3d at 1147 (citing Chesapeake Publ'g
Corp. v. Williams, 661 A.2d 1169, 1174 (Md. 1995)).
In her original Counterclaim, Ms. Foster states that
After the events which occurred on or about July 29, 2016 Plaintiff, acting directly
or through threatening letters sent by Plaintiff’s attorney, on Plaintiff’s behalf,
falsely claimed to others, orally and in writing, including (but not limited to) by
the mechanism of this lawsuit, that Defendant had lied about Plaintiff engaging in
unconsented sexual activity with Defendant.
(ECF No. 11, ¶ 15). Elsewhere, in that original Counterclaim, she asserts:
[Mr. Wade] made oral and published written statements to others tending to
expose [her] to public scorn, hatred, contempt, or ridicule to third persons who
reasonably recognized the statement as being defamatory; these statements were
false; [Mr. Wade] was at fault in communicating the statements; and [she]
suffered harm because of the statements.
(ECF No 11, ¶ 35).
In his Motion for Partial Dismissal, Mr. Wade points to these two assertions and argues
that “it is wholly unclear as what – if any – statements made by [Mr. Wade] are to be construed
as defamatory.” Further he argues that “[Ms.] Foster’s Counterclaim fails to reference the
allegedly defamatory statements, [she] failed to specify who made the comments, when they
were made, the context in which they were made, whether the statements were made to a third
party, whether the statements were written or oral, and, generally, failed to set forth any manner
whatsoever the words which [Ms. Foster claimed] were actionable so as to give [him] notice of
the statements at issue.” (ECF No. 18-1, page 12-13). Similarly, he argues that Ms. Foster has
failed to show any such statements had subjected her to scorn, hatred, contempt, ridicule, or that
she suffered any actual harm. Furthermore, Mr. Wade asserts that the statements that he made as
a part of the Complaint in the instant litigation cannot serve as the basis of a Counterclaim for
defamation because such statements are protected by the doctrine of absolute judicial privilege.
Again seeking to cure these alleged deficiencies, Ms. Foster’s Amended Counterclaim
added several critical allegations to her claim for defamation. Specifically, she asserted that
24. After the events which occurred on or about July 20, 2016 Wade’s attorney,
acting under Wade’s direction and instructions, sent letters to three persons, none
of whom is a party to this lawsuit, falsely claiming that Foster had lied about
Wade engaging in unconsented sexual activity with Wade. At least one of these
letters was sent in the first half of May 2017. That letter referred to Foster’s
statements about the sexual assault as “lies.”
25. In about the first half of 2017 on his “FetLife” page, an internet forum, Wade
personally posted the following statement referring to the sexual assault incident:
“[Foster’s] allegation is false. She told a lie to her husband, and it grew into
something bigger.” The post further stated that “[s]he [Foster] crafted her story
well, and spun the details skillfully to suit her lie.”
26. On information and belief, during the period from August 2016 through the
present Wade has made other written false statements (other than statements to his
attorneys or to a court) asserting that Foster falsely asserted that he sexually
27. On information and belief, during the period from August 2016 through the
present Wade has made false oral statements to persons (other than statements to
his attorneys or a court) asserting that Foster falsely asserted that he sexually
31. Because of Wade’s conduct Foster suffered severe damages, including severe
emotional distress which required significant professional mental health treatment,
harm to reputation and economic injuries.
(ECF No. 25-Amended Counterclaim, ¶¶ 24-27, 31).
The Court finds that these new additions meet the federal pleading standards and cure the
defects outlined in Mr. Wade’s Motion for Partial Dismissal. To begin with, Ms. Foster has
provided Mr. Wade with notice of specific facts of the alleged communications that serve as the
basis for her defamation claim. While paragraphs 26 and 27 of the Amended Counterclaim are
limited on the details and circumstances of the alleged statements contained therein, paragraph
25, on the other hand, sets forth in considerable detail the time, place/forum, content,
speaker/author, manner, and audience of these statements. Ms. Foster has also pled sufficient
facts showing that Mr. Wade knew the statements to be false and that she suffered emotional and
economic injuries/damages in the form of lost professional opportunities to perform in Burlesque
shows, costs associated with obtaining mental health treatment, as well as the pain and suffering
from an inability to take part in her daily activities and routine.
As it relates to paragraph 24 of the Amended Counterclaim, however, the Court will
reserve judgment on whether the statements that were allegedly offered via letter correspondence
by Mr. Wade’s attorney, at Mr. Wade’s request, to persons who are not currently parties to the
litigation, may serve as the basis for a claim of defamation. The Court is reluctant to rule on this
issue at this juncture because the application of the judicial privilege doctrine varies significantly
based upon considerations not yet established by the record in this case, such as who were the
parties to the communication, what was the nature of the communication, and was the
communication related to the ongoing litigation.
The Maryland Court of Appeals has explained that “the application of an absolute
privilege differs depending on whether the putative tortfeasor is a witness/ party/ judge, or an
attorney of record in the case.” Norman v. Borison, 17 A.3d 697, 708 (Md. 2011). There are “at
least three situations implicating” this protection of absolute privilege: (1) statements made in a
judicial proceeding, (2) statements made in a quasi-judicial proceeding, and (3) statements made
extrinsic to a quasi-judicial proceeding. Id. at 708-711. Here, the alleged communications,
which Ms. Foster states were made by Plaintiff’s counsel at the behest of Mr. Wade, could
implicate either the first or third situations, as at the time of these communications (at least one
of them was made in the first half of May 2017) the present law suit, which was commenced on
May 17, 2017, was already on going.
As it relates to the first of these categories (statements made in a judicial proceeding), the
Court of Appeals has observed that “for witnesses, parties, and judges,” the “English rule” is
employed, whereby “the putative tortfeasor enjoys absolute immunity from civil liability, even if
the statement is wholly unrelated to the underlying proceeding.” Id. at 708-709. However, “[f]or
attorneys whose appearances are entered in a case,” Maryland law follows the majority
“American rule,” and requires “that the defamatory statement have some rational relation to the
matter at bar before unfurling the umbrella of absolute privilege.” Id. at 709. This privilege, the
Maryland Court explained, “extends not only to defamatory statements made in the courtroom
during the course of the trial, but also to such statements published in documents which have
been filed in a judicial proceeding.” Id. (citing Adams v. Peck, 415 A.2d 292, 293 (Md. 1980)).
As it relates to this third category or situation (where absolute privilege may apply to
some statements made extrinsic to a judicial or quasi-judicial proceeding) the Court of Appeals
has explained that these privileged extrinsic statements occur in three sub-categories: (1)
statements made with the direct purpose or effect of producing a judicial or quasi-judicial
proceeding; (2) statements “prepared for possible use in connection with a pending judicial
proceeding, but which remain unfiled at the time of the alleged injury”; and (3) statements that
are not designed necessarily to produce a proceeding or cause one to be “filed,” but which are
connected contextually to a pending or ongoing proceeding. Long v. Welch & Rushe, Inc., 28 F.
Supp. 3d 446, 459 (D. Md. 2014) (citing Norman, 17 A.3d at 711-715).
Without delving into further explanation of these sub-categories or the doctrine of
absolute judicial privilege, and unable to determine the exact nature and circumstances of the
communications alleged in paragraph 24 of the Amended Counterclaim, the Court will reserve
judgment on whether the alleged communications are protected by the doctrine of absolute
judicial privilege. As stated above, the exact nature and circumstances of the communications
alleged in paragraph 24—who they involved and what significant they may have had—is not yet
In sum, the Court finds that Ms. Foster’s Amended Counterclaim contains sufficient facts
that address the deficiencies set forth in Mr. Wade’s Motion for Partial Dismissal. As a result,
Mr. Wade’s first Motion for Partial Dismissal (ECF No. 18) is MOOT, and Mr. Wade’s second
Motion for Partial Dismissal (ECF No. 28) is DENIED. However, as indicated above, the Court
casts no judgment on whether the communications alluded to in paragraph 24 of the Amended
Counterclaim implicate the doctrine of absolute judicial privilege. The parties are invited to raise
this issue again, once details about these communications become available.
Dated: August 21, 2017
J. Mark Coulson
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?