Mathis v. Goldberg et al

Filing 27

MEMORANDUM OPINION (c/m to Plaintiff 2/12/13 sat). Signed by Chief Judge Deborah K. Chasanow on 2/12/13. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
BURMAN Y. MATHIS
:
v.

:

Civil Action No. DKC 12-1777

:
DAVID S. GOLDBERG, ET AL.
:
MEMORANDUM OPINION
Presently pending and ready for review in this breach of
contract

and

fraud

case

are

the

motions

to

dismiss

or

for

summary judgment filed by Defendants David Goldberg (ECF No. 5)
and Stuart Skok (ECF No. 16).

The issues have been briefed, and

the court now rules, no hearing being deemed necessary.
Rule 105.6.

Local

For the following reasons, the motions will be

granted.1
I.

Background
A.

Factual Background

Unless
construed
Mathis.

otherwise

in

the

noted,

light

most

1

facts

favorable

outlined
to

here

Plaintiff

are

Burman

This action arises out of the arbitration proceedings

to resolve Plaintiff’s divorce.
Defendant

the

David

Goldberg

as

Plaintiff and his wife retained
both

mediator

and

arbitrator.

Plaintiff also filed a motion to file a surreply.
(ECF
No. 22). Because he does not demonstrate a need for a surreply,
that motion will be denied.

Plaintiff signed the arbitration agreement with Mr. Goldberg on
the

morning

of

July

9,

2009.

Throughout

the

divorce

and

arbitration proceedings, Plaintiff was represented by counsel.
The arbitration occurred on July 9, and Mr. Goldberg entered an
arbitration

award

on

July

proceedings,

Defendant

Skok,

family

testified

to

law,

24.
a

the

During

local

the

expert

arbitration

practitioner

reasonableness

of

of

Plaintiff’s

wife’s attorney’s fees.
1.

Background of Previous Proceedings

After Mr. Goldberg filed the arbitration award with the
Montgomery

County

Circuit

Court

(“Circuit

Court”),

Plaintiff

moved to vacate it, filing three separate memoranda in support
of his position:

(1) on August 12, 2009, a “Petition to Vacate

Arbitrator’s Opinion and award, and Motion to Relieve Plaintiff
from Contractual Obligations”; (2) on August 28, a “Supplemental
Motion with Points and Authorities in Support of Plaintiff’s
Motion to Hold Arbitration Agreement Unenforceable”; and, (3)
also on August 28, a “Supplemental Petition with Points and
Authorities

in

Support

Arbitrator’s

Opinion

and

of

Plaintiff’s

Award.”

The

Petition
Circuit

to

Court

Vacate
held

a

hearing on October 9, 2009 on Plaintiff’s motions, rejected his
arguments, and entered an order affirming the arbitration award.
On December 11, 2009, Plaintiff and his wife entered into a
consent order regarding payments to me made pursuant to the
2

arbitration award, including attorney’s fees and child support
payments.
Plaintiff filed a second petition to vacate the arbitration
award on July 22, 2011.

The matter was heard in the Circuit

Court, and Plaintiff and his wife entered into a second consent
order

regarding

the

arrears

and

ongoing

pursuant to the arbitration award.

monthly

payments

The court issued an order

affirming the terms of the agreement and dismissing Plaintiff’s
claims with prejudice.
2.
In

Background of Allegations
Plaintiff’s

first

petition

to

vacate

and

supporting

supplemental memoranda, Plaintiff argued that the arbitration
agreement was invalid and that the circumstances surrounding the
arbitration

proceedings

were

improperly

conducted.

Specifically, he made a number of factual allegations:
arbitration

agreement

only

established

a

limited

(1) the

universe

of

issues to be resolved, which Mr. Goldberg exceeded; (2) Mr.
Goldberg

acted

prejudicially

toward

Plaintiff

by

considering

surprise documents and witnesses; (3) Mr. Goldberg exceeded his
jurisdiction by improperly considering evidence of attorney’s
fees connected to a Virginia criminal matter, which was outside
the

scope

of

unauthorized
misstated

the

pending

practice

and

of

refused

divorce
law
to

in

trial

Virginia;

identify
3

and

amounted
(4)

legal

Mr.

to

the

Goldberg

authority

for

overstepping

the

jurisdiction

of

the

divorce

proceeding

and

arbitration agreement; (5) Mr. Goldberg intentionally fabricated
both

fact

and

law

in

the

arbitration

award;

and

(6)

the

arbitration award clearly demonstrated Mr. Goldberg’s partiality
for

Plaintiff’s

wife

and

intentionally

Plaintiff’s financial situation.
Plaintiff

therefore

mischaracterized

(ECF No. 5-3)

requested

that

the

agreement

be

rescinded and the award be vacated under Md. Code Ann., Cts. &
Jud. Proc. § 3-224 based on Mr. Goldberg’s fraud, partiality,
misconduct,

violation

misstatement

of

law,

of

Plaintiff’s

breach

of

due

contract,

process
and

rights,

exceeding

his

jurisdiction.
In his second petition to vacate, Plaintiff expanded his
factual allegations to include:

(1) Mr. Goldberg improperly

refused to record the arbitration proceedings; (2) he improperly
refused

to

share

his

empirical

and

legal

research

with

Plaintiff; (3) he improperly refused to correct misstatements of
law;

(4)

Mr.

Goldberg

fraudulently

included

a

waiver

of

Plaintiff’s rights to subpoena his notes from the proceedings in
the

arbitration

agreement;

and

(5)

Mr.

Goldberg

destroyed documents from the arbitration proceedings.
5-8).

4

improperly
(ECF No.

B.
On

Procedural Background
June

15,

2012,

Defendant Goldberg.

Plaintiff

(ECF No. 1).

filed

a

complaint

against

Mr. Goldberg filed a motion

to dismiss (ECF No. 5), which Plaintiff opposed and moved to
strike (ECF No. 9).
and

filed,

defendant.

an

Thereafter, Plaintiff moved for leave to,

amended

complaint

(ECF No. 15).

complaint (ECF No. 16).

that

added

Ms.

Skok

as

a

Ms. Skok moved to dismiss the amended
Plaintiff’s motion to strike was denied

(ECF No. 19), and he opposed Defendants’ motions to dismiss on
the

merits

(ECF

Nos.

19

&

20).

Mr.

Goldberg

replied

to

Plaintiff’s opposition (ECF No. 21), and Plaintiff moved to file
a surreply (ECF No. 22), which Mr. Goldberg opposed (ECF No.
23).
II.

Plaintiff replied to this opposition.

(ECF No. 24).

Standard of Review
Defendants have filed a motion to dismiss or for summary

judgment based on a variety of grounds, one of which is an
affirmative defense.

An affirmative defense may be raised by

way

dismiss,

of

a

motion

to

but

only

when

all

the

facts

necessary to the affirmative defense “‘clearly appear[] on the
face of the complaint.’” Goodman v. Praxair, Inc., 494 F.3d 458,
464 (4th Cir. 2007)(quoting Richmond, Fredericksburg & Potomac
R.R. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993).
parties

freely

refer

to

material

beyond

the

Here, the
face

of

the

complaint and, while it might be possible to consider evidence
5

that can be judicially noticed without converting the motion to
one for summary judgment, the collateral estoppel issue will be
considered under the summary judgment standard.
Summary judgment may be entered only if there is no genuine
issue as to any material fact and the moving party is entitled
to judgment as a matter of law.

Fed.R.Civ.P. 56(a); Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v. Johnson,
532

F.3d

291,

297

(4th

Cir.

2008).

Summary

judgment

is

inappropriate if any material factual issue “may reasonably be
resolved in favor of either party.”

Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Wash.
Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
“A party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or denials of
[his]

pleadings,’

but

rather

must

‘set

forth

specific

showing that there is a genuine issue for trial.’”

facts

Bouchat v.

Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.
2003) (quoting former Fed.R.Civ.P. 56(e)).
proof

.

.

.

will

not

suffice

to

prevent

“A mere scintilla of
summary

Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003).

judgment.”
“If the

evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.”
249–50 (citations omitted).

Liberty Lobby, 477 U.S. at

At the same time, the facts that

are presented must be construed in the light most favorable to
6

the party opposing the motion.

Scott v. Harris, 550 U.S. 372,

378 (2007); Emmett, 532 F.3d at 297.
Other

issues

present

a

straightforward

sufficiency of the complaint Rule 12(b)(6).
Charlottesville,

464

F.3d

480,

483

(4th

challenge

to

the

Presley v. City of
Cir.

2006).

A

plaintiff’s complaint need only satisfy the standard of Rule
8(a), which requires a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
8(a)(2).

Fed.R.Civ.P.

“Rule 8(a)(2) still requires a ‘showing,’ rather than

a blanket assertion, of entitlement to relief.”
v. Twombly, 550 U.S. 544, 555 n. 3 (2007).

Bell Atl. Corp.

That showing must

consist of more than “a formulaic recitation of the elements of
a cause of action” or “naked assertion[s] devoid of further
factual enhancement.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal citations omitted).
At this stage, all well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510 U.S. 266,
268 (1994), and all factual allegations must be construed in the
light

most

favorable

to

the

plaintiff,

see

Harrison

v.

Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).

In evaluating the complaint, unsupported legal

allegations

not

need

be

accepted.

Revene

Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
7

v.

Charles

Cnty.

Legal conclusions

couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
reference to actual events, United Black Firefighters v. Hirst,
604 F.2d 844, 847 (4th Cir. 1979).
III. Analysis
Plaintiff’s nineteen-count amended complaint asserts claims
against

Mr.

mistake

of

Goldberg
law

in

for:

the

(1)

rescission

arbitration

based

contract

on

(Count

mutual
I);

(2)

rescission based on unilateral mistake of law in the arbitration
contract (Count II; (3) four counts of fraud (Counts III, IV,
VIII, and XIV); (4) two counts of promissory fraud (Counts VII
and IX); (5) four counts of breach of contract (Counts V, VI, X,
and XV); (6) two generic “intentional tort” counts (Counts XI
and

XII);

(7)

intentional

infliction

of

emotional

distress

(“IIED”); (8) abuse of process (Count XIII); and (9) two § 1983
claims for violation of due process rights (Counts XVIII and
XIX).

Against Ms. Skok, Plaintiff asserts one claim of fraud

(Count

XVII).

process,

and

Broadly,
certain

of

Plaintiff’s
his

fraud

claims
claims

for

mistake,

argue

that

due
the

arbitration agreement should be rescinded, the award vacated,
and additional damages awarded because Mr. Goldberg mistakenly
and fraudulently induced Plaintiff to enter into a contract that
misstates

the

law.

Plaintiff’s

remaining

fraud,

breach

of

contract, and due process claims allege that Mr. Goldberg and
8

Ms. Skok acted improperly and illegally during and after the
arbitration

proceeding,

meriting

vacation

of

the

arbitration

award and additional damages.
Defendants

argue

that

(1)

Plaintiff

is

collaterally

estopped from bringing all of his claims, (2) Mr. Goldberg is
entitled to judicial immunity, and (3) Plaintiff fails to state
a claim upon which relief can be granted.
A.

Collateral Estoppel

Defendants
doctrine

of

maintain

defensive

that

Plaintiff

non-mutual

is

precluded,

collateral

by

estoppel,

the
from

bringing his mistake, fraud, due process, and breach of contract
claims because he has already received a full hearing before the
Circuit Court on these issues in connection with his efforts to
vacate the arbitration award.

“When an issue of fact or law is

actually litigated and determined by a valid and final judgment,
and

the

determination

determination
Crane,

Inc.

omitted).

is
v.

is

essential

conclusive
Puller,

169

in

a

to

the

subsequent

Md.App.

1,

26

judgment,
action.”

(2006)

the
John

(citations

Collateral estoppel is rooted in common law, and its

scope is determined by the appropriate state law.

Housley v.

Holquist, No. 10-1881, 2012 WL 3239887, at *3 (D.Md. Aug. 3,
2012)

(citing

collateral
parties,

Janes

estoppel

Maryland

v.

State,

350

traditionally

allows

for

the
9

Md.

284

(1984)).

requires

mutuality

doctrine

of

While
of

defensive

the
non-

mutual
preclude

collateral
the

estoppel,

plaintiff

from

where

“the

relitigating

defendant
an

issue

seeks

to

that

the

plaintiff . . . previously litigated unsuccessfully in another
action against one or more different parties.”

Burruss v. Bd.

Of Cnty. Comm’rs of Frederick Cnty., 427 Md. 231, 250 (2012).
“[A] federal court must give to a state-court judgment the
same preclusive effect as would be given that judgment under the
law of the State in which the judgment was rendered.”

Migra v.

Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81 (1984).
Thus, if a Maryland state court would preclude Plaintiff from
bringing these claims based on the circuit court’s rejection of
his claims, he is similarly precluded here.
In Maryland, the defense of collateral estoppel depends on
the answers to four questions:
“(1) Was the issue decided on the prior
adjudication
identical
with
the
one
presented in the action in question?
(2) Was there a final judgment on the
merits?
(3) Was the party against whom the plea is
asserted a party or in privity with a party
to the prior adjudication?
(4) Was the party against whom the plea is
asserted given a fair opportunity to be
heard on the issue?”
Bryan v. State Farm Mut. Auto. Ins. Co., 205 Md.App. 587, 592
(2012) (quoting Colandrea v. Wilde Lake Cmty. Ass’n, 361 Md. 371
(2000)).

As an affirmative defense, Defendants bear the burden

of proof to demonstrate that these elements are met.
10

Plaintiff disputes the first, second, and fourth elements,
arguing that he didn’t make all of the arguments raised in his
complaint at the hearing before the Circuit Court, that there
was never a final judgment on the merits, as he and his wife
entered into a consent agreement after the circuit court entered
its

order,

and

that

fairness

requires

that

he

be

able

to

relitigate these issues.
1.

Issues Actually Litigated

Collateral estoppel requires that the issue was “actually
litigated and determined” in the prior proceeding.
Md. at 295.

Janes, 350

A claim may be collaterally estopped even if a

plaintiff did not raise that particular legal theory in the
prior proceeding.

“[T]he concern of collateral estoppel law is

with the preclusion of duplicative fact-finding . . . [it] is
concerned only coincidentally with what happened legally.”

John

Crane, Inc. v. Puller, 169 Md.App. 1, 27-28 (2006) (quotations
and citations omitted).

Thus, once a finding of fact has been

made adversely to a party, that party may not relitigate that
fact “even in the trial of a different case.”

Id. at 28.

The factual issues here and in Plaintiff’s previous case
are

identical.

In

both

circumstances

surrounding

agreement

the

and

instances,

the

execution

of

conduct

during

arbitrator’s

arbitration proceedings.

he

discusses
the
and

the

arbitration
after

the

As discussed above, Plaintiff’s first
11

petition

to

vacate

the

arbitration

award

and

rescind

arbitration contract characterize the facts at issue as:
whether

Mr.

agreement;

Goldberg
(2)

exceeded

whether

Mr.

the

scope

Goldberg

of

the

acted

the
(1)

arbitration

in

a

highly

prejudicial manner in favor of Plaintiff’s wife by submitting
and considering surprise documents and witnesses; (3) whether
Mr. Goldberg acted outside the scope of his jurisdiction by
considering

attorney’s

fees

arising

from

a

Virginia

criminal

matter; (4) whether Mr. Goldberg was improperly evasive with
respect

to

the

law

forming

the

basis

of

his

authority;

(5)

whether Mr. Goldberg intentionally corrupted the process; and
(6) the amount of attorney’s fees awarded.2

(ECF No. 5-3).

Plaintiff’s first supplemental motion in support of the petition
outlines the facts supporting his breach of contract theories,
and attaches ten exhibits, including the arbitration agreement

2

Counts VI, VII, and VIII address Mr. Goldberg’s failures
to produce notes from the arbitration proceedings and to submit
to a deposition in connection with Plaintiff’s second petition
to vacate the arbitration agreement.
Specifically, Plaintiff
alleges that Mr. Goldberg breached the terms of the arbitration
contract that allowed for discovery from him to be taken if his
conduct violated Md. Code Ann., Cts. & Jud. Proc. § 3-224, which
allows the arbitration award to be vacated in instances of the
arbitrator’s fraud, prejudice, or exceeding jurisdiction.
Even
though Mr. Goldberg’s refusal to submit to discovery occurred in
2011, he did so on the basis that the circuit court explicitly
ruled that his conduct in 2009 did not violate § 3-224.
Therefore, the underlying facts relate back to Mr. Goldberg’s
conduct in 2009, which were addressed in the circuit court’s
ruling. For the reasons discussed below, Plaintiff is therefore
precluded from asserting these claims.
12

and

award.

These

same

documents

provide

the

basis

of

Plaintiff’s amended complaint.

“When the subsequent litigation

requires

the

of

identical

doctrine

of

estoppel

may

presentation
collateral

evidence,

apply.”

then

the

Housley

v.

Holquist, No. 10-1881, 2012 WL 3239887, at * 4 (D.Md. Aug. 3,
2012) (applying Maryland law).
Even though Plaintiff offers new legal theories in support
of recovery on some of his fraud, due process, and contract
claims, he already presented the dispositive facts alleged in
the Amended Complaint to the Circuit Court, and it found them to
be

adverse

to

Plaintiff’s

position.

After

a

hearing

on

Plaintiff’s petition, the circuit judge refused to rescind the
arbitral contract.

Further, he concluded that “there is no

mutual mistake of fact.

There is no mutual mistake of law,

there is no fraud in the inducement.”

(ECF No. 5-6, at 49).

In

refusing to vacate or alter the arbitration award, the court
concluded

that

there

information

that

corruption,

fraud

the
or

judicially defined.”
Mr.

Goldberg

did

was

“no

congnizable

arbitral
undue

means

(Id. at 51).

not

act

evidence

[award]
as

was

those

or

other

procured

terms

have

by
been

He further concluded that

partially,

miscalculate

attorney’s

fees, or exceed his powers.
Because the facts alleged in support of these claims are
identical

to

those

previously

decided
13

by

the

Circuit

Court,

Plaintiff

cannot

contend

that

the

claims

were

not

actually

litigated.
2.

Final Judgment

Maryland recently articulated the requirement of finality
in

the

context

of

collateral

estoppel:

“‘final

judgment’

includes any prior adjudication of an issue in another action
that

is

determined

conclusive

effect.”

Restatement

(Second)

to

be

sufficiently

Bryan,
of

205

Judgments

firm

Md.App.
§

to

13).

The

accorded

594

at

be

(quoting

Bryan

court

further instructed that a court should consider whether the:
decision to be carried over was adequately
deliberated and firm, even if not final in
the sense of forming a basis for a judgment
already entered. Thus preclusion should be
refused
if
the
decision
was
avowedly
tentative. On the other hand, that the
parties were fully heard, that the court
supported its decision with a reasoned
opinion, that the decision was subject to
appeal or was in fact reviewed on appeal,
are factors supporting the conclusion that
the decision is final for the purpose of
preclusion. The test of finality, however,
is whether the conclusion in question is
procedurally definite and not whether the
court might have had doubts in reaching the
decision.
Id.

at

596

Comment g).
application

(citing

Restatement

(Second)

of

Judgments

§

13

As Mr. Goldberg suggests, Bryan supports a broad
of

the

doctrine

of

collateral

estoppel

that

precludes litigating issues that have already been subject to a
sufficiently definite ruling.
14

The circuit court’s October 9, 2009 ruling and order on
Plaintiff’s

petitions

sufficiently

definite

merits.

to
to

vacate

the

constitute

arbitration

a

final

award

judgment

on

are
the

The circuit court judge issued a ruling from the bench

after considering Plaintiff’s arguments.

(ECF No. 5-6).

The

same day, he entered an order and judgment denying Plaintiff’s
request to vacate the arbitration agreement.

(ECF No. 5-7).

Plaintiff then filed an appeal of this judgment, which he later
withdrew with prejudice.

(ECF No. 20-5).3

Judgment was entered against Plaintiff on October 9, 2009,
which he appealed and withdrew with prejudice.

This judgment of

the circuit court therefore serves as a final judgment on the
merits.
3.

Fairness

Finally, Plaintiff argues that his fragile health condition
at

the

time

surrounding

his

divorce

3

merits

allowing

him

to

Plaintiff also contends that the consent orders that
followed the October 9 order and Plaintiff’s second petition to
vacate the arbitration award do not constitute a final judgment,
rendering an application of collateral estoppel inappropriate.
Pursuant to the first consent agreement, Plaintiff withdrew his
appeal of the circuit court’s October order with prejudice.
(ECF No. 20-5).
Pursuant to the order entering the second
consent agreement, Plaintiff’s petition to vacate was dismissed
with prejudice. (ECF No. 5-9). Even if the order hadn’t been
entered, in Maryland, a voluntary dismissal with prejudice
constitutes a basis for collateral estoppel on the same and
related claims.
Bryan, 205 Md.App. at 603-04 (citing Welsh v.
Gerber Prods., Inc., 315 Md. 510, 519 (1989)).
15

relitigate these claims.

As noted above, nonmutual collateral

estoppel will not apply unless Plaintiff had a “fair opportunity
to

be

heard.”

Bryan,

205

Md.App.

at

592.

Indeed,

“[t]he

foundation of the rule of nonmutual collateral estoppel is that
the party to be bound must have had a full and fair opportunity
to litigate the issues in question.”

Gerber Prods., 315 Md. at

518.
Here, Plaintiff has presented no reason to question his
ability

to

be

heard

and

to

litigate

all

of

the

underlying

factual issues during the circuit court’s judicial proceedings
in the prior litigation.

Plaintiff filed numerous researched

briefs with the circuit court in support of his positions.

He

was provided a full opportunity to, and did, present arguments
before the judge in open court.
In

sum,

because

the

requirements

of

collateral

have been satisfied, the doctrine is applicable here.

estoppel
Plaintiff

has had his day in court, and after he has had this opportunity
to be heard, litigation on Plaintiff’s fraud, due process, and
contract

claims

regarding

the

arbitration

contract

must

end.

Therefore, summary judgment in Defendants’ favor is appropriate
on Counts I through X, XIV, XV, and XVII through XIX.

16

B.

Failure to State a Claim

1.

Section 1983 Due Process Claims

Plaintiff asserts two claims against Mr. Goldberg alleging
violations of his constitutional procedural and substantive due
process

rights

under

the

Fourteenth

Amendment.

Plaintiff

alleges his procedural due process rights were violated when Mr.
Goldberg refused to record the arbitration proceedings, and that
his substantive due process rights were violated by the bias Mr.
Goldberg

exercised

against

him.

To

state

a

claim

under

42

U.S.C. § 1983, a plaintiff must allege the violation of a right
secured by the Constitution, and must also show that the alleged
deprivation was committed by a person acting under color of
state law.

Allen v. Columbia Mall, Inc., 47 F.Supp.2d 605, 609

(D.Md. 1999) (quoting West v. Atkins, 487 U.S. 42, 48 (1988)).
Thus “the party charged with the deprivation must be a person
who may fairly be said to be a state actor . . . .

because he

is a state official, because he has acted together with or has
obtained significant aid from state officials, or because his
conduct

is

otherwise

chargeable

to

the

State.”

Lugar

v.

Edmondson Oil Co., 457 U.S. 922, 937 (1982).
Assuming Plaintiff’s § 1983 procedural due process claims
are not barred by the doctrine of collateral estoppel, they must
be dismissed because Goldberg, a private arbitrator, is not a
state actor.

See Singleton v. Pittsburgh Bd. Of Educ., No. 1117

1431, 2012 WL 4063174, at *6 (W.D.Pa. Aug. 24, 2012) (concluding
that arbitrator is not state actor and dismissing § 1983 due
process

claims)

(citing

Clay

v.

Nix,

No.

08–1371,

2008

WL

2607769, at *5 (D.S.C. July 1, 2008) (decision by arbitrator
does

not

Weinraub

constitute
v.

Glen

an

Rauch

action
Sec.,

under
Inc.,

color
399

of

state

F.Supp.2d

law);

454,

463

(S.D.N.Y. 2005) (dismissing § 1983 due process claims because
arbitrators do not qualify as state actors), aff’d, 180 F. App’x
233 (2d Cir. 2006)).
Plaintiff’s § 1983 claims must also be dismissed because
they fail to raise cognizable federal questions.

Examining a

procedural

process

claim,

however,

requires

asking

“what

the

State provided, and whether it was constitutionally adequate.”
Zinermon v. Burch, 494 U.S. 113, 126 (1990).

The substantive

component of the Due Process Clause “bar[s] certain government
actions regardless of the fairness of the procedures used to
implement them.”

Daniels v. Williams, 474 U.S. 327, 331 (1986).

Assuming Plaintiff has a property and liberty interest in
the

outcome

of

his

divorce

proceedings,

“[p]rocedural

due

process is simply a guarantee of fair procedures — typically
notice

and

an

opportunity

to

be

heard.”

Mora

Gaithersburg, 519 F.3d 216, 230 (4th Cir. 2008).
provided

notice

arbitration

and

an

proceeding

opportunity
and

at

the
18

to

be

Circuit

v.

City

of

Plaintiff was

heard
Court.

both

in

the

Plaintiff

availed himself of those opportunities, so notice was clearly
adequate.

Neither

did

Plaintiff

receive

a

constitutionally

deficient opportunity to be heard.
Three factors are considered when assessing the adequacy of
a state’s procedures:

(1) “the private interest that will be

affected by the official action”; (2) “the risk of an erroneous
deprivation of such interest through the procedures used, and
the

probable

value,

if

procedural

safeguards”;

including

the

administrative

any,
and

function
burdens

of

(3)

additional

“the

involved

that

the

U.S. 319, 335 (1976).
second factor.
process.

substitute

Government’s
and

the

additional

procedural requirement would entail.”

or

interest,

fiscal
or

and

substitute

Mathews v. Edlridge, 424

Plaintiff’s claim clearly fails at the

His interests are well protected by the existing

Plaintiff

presented

evidence

and

arguments

at

the

arbitration proceeding, briefed his arguments and argued them at
a lengthy hearing before the Circuit Court judge, and appealed
that decision.

Plaintiff has cited no authority to demonstrate

that this process is likely to produce an erroneous deprivation
of

his

rights

and

is

thus

constitutionally

inadequate.

Therefore, this claim must be dismissed.
Substantive
action

so

due

arbitrary

circumstance

or

process
and

violations

irrational,

governmental

so

interest,
19

“run

only

to

unjustified
as

to

be

by

state
any

literally

incapable

of

avoidance

by

any

pre-deprivation

procedural

protections or of adequate rectification by any post-deprivation
remedies.”

Mora, 519 F.3d at 230 (quotations and citations

omitted).

Plaintiff’s substantive due process claim therefore

cannot survive.

The alleged injuries suffered are not the type

that cannot be avoided by adequate pre- or post- deprivation
remedies.

Indeed,

Plaintiff

raised

in

the

Circuit

Court

arguments that he now raises here.

Therefore, his substantive

claim

his

fails

for

the

same

reason

procedural

one

did:

“Maryland’s treatment of him is hardly arbitrary when the state
has given him the means to correct the errors he alleges.”

Id.

at 231.
With respect to both his procedural and substantive due
process claims brought through 42 U.S.C. § 1983, Plaintiff has
failed

to

state

a

claim

upon

which

relief

may

be

granted.

Counts XVIII and XIX will therefore be dismissed.
2.
In

Intentional Torts
Counts

“intentional

XI

tort”

and
against

XII,

Plaintiff

Mr.

asserts

Goldberg.

claims

Plaintiff

of

concedes

that Maryland law does not recognize a “generic” intentional
tort.

He

instead

asks

this

court

to

“jurisdictional trespass” cause of action.
any support in authority.

establish

a

new

This request lacks

“A federal court sitting in diversity

simply cannot compel a state to provide a cause of action in
20

Guy v. Travenol Labs., Inc., 812 F.2d 911, 915 (4th Cir.

tort.”

1987); see also Spencer v. Roche, 659 F.3d 142, 151 n. 6 (1st
Cir. 2011) (noting that it is inappropriate for a federal court
“to create new causes of action under state law”) (internal
citations and quotation marks omitted); Rice v. Paladin Enters.,
Inc.,

940

sitting

F.Supp.

in

836,

diversity

842

(D.Md.

1996)

cannot

create

new

(“A

federal

causes

of

court

action.”)

(citations omitted) rev’d on other grounds, 128 F.3d 233 (4th
Cir.

1997).

Accordingly,

Counts

XI

and

XII

are

subject

to

dismissal.
3.

Abuse of Process

In Count XIII, Plaintiff contends that Mr. Goldberg abused
civil

process

by

submitting

the

arbitration

award

that

circuit court later entered via order on October 9, 2009.

the
Mr.

Goldberg contends that he did not issue any process, and that
the process that issued did not give rise to a claim for abuse
of process.
Under Maryland law, an action for abuse of process provides
a remedy “for those cases ‘in which legal procedure has been set
in motion in proper form, with probable cause, and even with
ultimate

success,

but

nevertheless

has

been

perverted

to

accomplish an ulterior purpose for which it was not designed.’”
One Thousand Fleet Ltd. P’ship v. Guerriero, 346 Md. 29, 38
(1997) (quoting W. Keeton, Prosser & Keeton on the Law of Torts
21

§ 121, at 897 (5th ed. 1984)).

To state a claim for abuse of

civil process, the plaintiff must set forth facts which, if
proven, would establish:
[F]irst, that the defendant willfully used
process after it has issued in a manner not
contemplated by law, Keys [v. Chrysler
Credit Corp., 303 Md. 397, 411 (1985)];
second, that the defendant acted to satisfy
an ulterior motive; and third, that damages
resulted from the defendant’s perverted use
of process, Berman [v. Karvounis, 308 Md.
259, 262 (1987)].
Id.

“[T]here is, in other words, a form of extortion, and it is

what

is

done

in

or

any

issuance

the

formal

constitutes the tort.”
512

(1984)

invoking

(quoting

civil

course

or

of

use

negotiation,

of

the

rather

process

than

itself,

the

which

Palmer Ford, Inc. v. Wood, 298 Md. 484,
Prosser,

criminal

supra,

process

at
is

857).

If

a

party

“content

to

use

the

particular machinery of the law for the immediate purpose for
which

it

was

intended,

he

is

not

ordinarily

notwithstanding a vicious or vindictive motive.”

Id.

liable,
“But the

moment he attempts to attain some collateral objective, outside
the scope of the operation of the process employed, a tort has
been consummated.”
The

proper

Id. at 512-13.
analysis

of

an

abuse

of

process

claim,

therefore, involves a comparison between the lawful purpose for
which the process in question was intended and the improper
purpose

for

which

it

was

actually
22

employed.

“The

improper

purpose

usually

takes

the

form

of

coercion

to

obtain

a

collateral advantage, not properly involved in the proceeding
itself, such as the surrender of property or the payment of
money, by the use of the process as a threat or club.”

Wood, 47

Md.App. at 706-07 (quoting Prosser, supra, at 857).
Given these parameters, Plaintiff’s abuse of process claim
cannot be maintained.
award

that

the

Here, Mr. Goldberg issued the arbitration

circuit

court

later

entered.

Plaintiff

contracted with Mr. Goldberg to act as the arbitrator for his
divorce proceedings.
clearly

The issuing of an arbitration award was

contemplated

by

the

contract,

and

Plaintiff

has

not

alleged any facts to support the conclusion that issuing the
arbitration

award

was

coercive

or

extortive

in

nature.

Accordingly, dismissal of Count XIII is appropriate.
4.

IIED

In

Count

advantage

of

XVI,
his

Plaintiff
position

emotional well-being.

alleges
of

that

power

to

Mr.

Goldberg

damage

took

Plaintiff’s

The tort of intentional infliction of

emotional distress was first recognized by the Court of Appeals
of Maryland in Harris v. Jones, 281 Md. 560 (1977).
for

such

a

claim,

a

plaintiff

must

show

that:

To recover
(1)

the

defendant’s conduct was intentional or reckless; (2) the conduct
was extreme or outrageous; (3) there is a causal connection
between the wrongful conduct and the emotional distress; and (4)
23

the emotional distress is severe.

Id. at 566.

“Each of these

elements must be pled and proved with specificity.

It is not

enough for a plaintiff merely to allege that they exist; [s]he
must set forth facts that, if true, would suffice to demonstrate
that they exist.”

Foor v. Juvenile Servs. Admin., 78 Md.App.

151, 175 (1989).

This tort is “rarely viable” and “is to be

used sparingly and only for opprobrious behavior that includes
truly outrageous conduct.”

Respess v. Travelers Cas. & Sur. Co.

of America, 770 F.Supp.2d 751, 757 (D.Md. 2011) (quoting Snyder
v. Phelps, 580 F.3d 206, 231 (4th Cir. 2009)).
Mr. Goldberg counters that Plaintiff does not allege any
facts that meet the “extreme or outrageous” element.
argues

that

power,

and

Mr.
his

Goldberg
acts

took

advantage

therefore

rise

of
to

his
the

Plaintiff

position
level

of
of

outrageousness to meet his pleading requirement.
To satisfy the second element, the conduct in question must
“completely violate human dignity,” and “strike to the very core
of one’s being, threatening to shatter the frame upon which
one’s emotional fabric is hung.”

Interphase Garment Solutions,

LLC v. Fox Television Stations, Inc., 566 F.Supp.2d 460, 466
(D.Md. 2008) (quoting

Hamilton v. Ford Motor Credit Co., 66

Md.App. 46, 59-60 (1986));

see also Kohler v. Shenasky, 914

F.Supp. 1206, 1212 (D.Md. 1995) (“For conduct to be ‘extreme and
outrageous,’ it must go beyond all possible bounds of decency,
24

and . . . be regarded as atrocious, and utterly intolerable in a
civilized community.”

(internal quotations omitted).

“The mere

fact that the actor knows that the other will regard the conduct
as insulting, or will have his feelings hurt, is not enough.”
Kentucky Fried Chicken Nat’l Mgmt. Co. v. Weathersby, 326 Md.
663, 672 (1992).
In evaluating whether the identified conduct is extreme and
outrageous, courts should consider multiple factors, including
the context in which the conduct occurred, the personality of
the plaintiff and her susceptibility to emotional distress, and
the

relationship

between

the

defendant

and

plaintiff.

See,

e.g., Moniodis v. Cook, 64 Md.App. 1, 17, cert. denied, 304 Md.
631 (1985).

“[T]he extreme and outrageous character of the

defendant’s conduct may arise from his abuse of a position, or
relation with another person, which gives him actual or apparent
authority over him, or power to affect his interests.”
281

Md.

at

569

(citing

comment e (1965)).

Restatement

(Second)

of

Harris,

Torts

§

46

Furthermore, “[i]n cases where the defendant

is in a peculiar position to harass the plaintiff, and cause
emotional distress, his conduct will be carefully scrutinized by
the courts.”

Id. at 569 (citing 1 F. Harper & F. James, Jr.,

The Law of Torts § 9.1 at 666-67 (1956); W. Prosser, Handbook of
the

Law

of

Torts

Figueiredo-Torres

§
v.

12

at

56

Nickel,
25

(4th
321

ed.
Md.

1971));
642,

see

654

also
(1991)

(recognizing that a psychologist is in a unique position to
influence
must

be

a

patient’s

closely

emotional

scrutinized);

well-being
Kentucky

and

Fried

their

conduct

Chicken

Nat’l

Mgmt., 326 Md. at 677 (recognizing that the employer/employee
relationship may be significant factor in determining whether
there is liability for tort of IIED).

Where reasonable jurors

may differ as to whether the defendant’s conduct may be regarded
as extreme and outrageous, the question should be submitted to a
jury.

Harris, 218 Md. at 569; Jackson v. Kimel, 992 F.2d 1318,

1324-25

(4th

Cir.

1993).

Thus,

at

the

pleading

stage,

a

plaintiff need only allege conduct that a reasonable juror might
deem extreme or outrageous.
Here, no reasonable juror would find Mr. Goldberg’s conduct
outrageous.

He conducted an arbitration proceeding for which he

was contracted to serve as arbitrator.
in favor of Plaintiff’s wife.

That proceeding resolved

Notwithstanding Mr. Goldberg’s

position of power with respect to Plaintiff, that conduct does
not rise to the level of extreme or outrageous to sustain an
IIED claim.
5.

Therefore, count XVI will be dismissed.

Fraud Count against Defendant Skok

Ms. Skok contends that Plaintiff cannot maintain his fraud
claim against her.

In Maryland, the elements of fraud are:

(1)
that
the
defendant
made
a
false
representation to the plaintiff, (2) that
its
falsity
was
either
known
to
the
26

defendant or that the representation was
made with reckless indifference as to its
truth, (3) that the misrepresentation was
made for the purpose of defrauding the
plaintiff, (4) that the plaintiff relied on
the misrepresentation and had the right to
rely on it, and (5) that the plaintiff
suffered compensable injury resulting from
the misrepresentation.
Md. Envtl. Trust v. Gaynor, 370 Md. 89, 97 (2002).
The

allegations

do

not

support

a

claim

of

fraud.

Specifically, Plaintiff’s claim lacks any allegation concerning
reliance.

The record shows that Plaintiff protested Ms. Skok’s

testimony at every opportunity.

Indeed, Mr. Goldberg agreed

with some of Plaintiff’s arguments and consequently reduced the
award for attorney’s fees in the arbitration award.

(ECF No. 5-

4,

Ms.

at

22).

Because

Plaintiff

did

not

rely

on

Skok’s

testimony, he cannot maintain a claim of fraud against her.

See

Sass v. Andrew, 152 Md.App. 406, 441 (2003) (explaining that
fraud claims require proof that “the plaintiff relied on the
misrepresentation and had the right to rely on it”); see also
Coulibaly v. J.P. Morgan Chase Bank, N.A., No. 10-3517, 2011 WL
3476994, at *19 (D.Md. Aug. 8, 2011) (applying Maryland law and
concluding
element

of

defendant’s

that

the

fraud

plaintiff

claim

actions).

where

could
the

Therefore,

dismissal.

27

not

establish

plaintiff

Count

XVII

reliance

protested
is

subject

the
to

IV.

Conclusion
For the foregoing reasons, the motions to dismiss or for

summary judgment filed by Defendants Goldberg and Skok will be
granted.

A separate Order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

28