Torkornoo v. Helwig Esq. et al
MEMORANDUM ORDER granting 60 Motion to Dismiss; dismissing 2 Amended Complaint; directing the Clerk to close this case. Signed by Judge Theodore D. Chuang on 10/27/2017. (c/m 10/27/2017 - jf3s, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
BISMARK KW AKU TORKORNOO,
NINA HELWIG, ESQ.,
JOHN MONAHAN, ESQ.,
MARY TORKORNOO, and,
JACQUELINE NGOLE, ESQ.,
Civil Action No. TDC-15-2652
On September 9, 2015, Plaintiff Bismark Kwaku Torkornoo ("Mr. Torkornoo") filed a
his former wife; Jacqueline Ngole, Esq., an attorney who represented
Torkornoo in divorce and child custody proceedings; Nina Helwig, Esq., the "best interest
attorney" for the Torkornoos' children; and John Monahan, Esq., the trustee for the sale of the
former marital home (collectively, "Defendants").
Second Amended Complaint, filed on October 13,2015, contains three counts: interference with
parental rights, fraudulent misrepresentation,
and unjust enrichment.
A review of the Second
Amended Complaint reveals that Mr. Torkornoo's claims generally consist of allegations of error
and misconduct relating to the proceedings in a state court family law case in the Circuit Court
County, Maryland ("the Circuit Court") between Mr. Torkornoo and Ms.
Torkornoo v. Torkornoo, No. 7l4l9FL
(Cir. Ct. Montgomery Cty. 2008) ("the
Family Case"), available at http://casesearch.courts.state.md.us/casesearch/.
This is not the first case filed by Mr. Torkomoo alleging claims arising from the Family
Case. On July 5, 2013, Mr. Torkomoo filed a state court action against the same Defendants in
the Circuit Court. See Torkornoo v. Torkornoo, No. 378782V (Cir. Ct. Montgomery Cty. 2013)
Torkomoo's Fourth Amended Complaint in the State Case, filed on November 15,2013, alleged
negligence, loss of property, misrepresentation of material facts, slander, abuse of process, fraud,
emotional abuse, and physical harassment claims against some or all of Defendants arising out of
actions taken during the Family Case or the subsequent sale of his marital horne by the courtappointed trustee. See Fourth Am. CompI. at 10-15, State Case (Docket No. 68).1 On November
27,2013, Judge Cynthia Callahan of the Circuit Court granted seven different motions to dismiss
and dismissed the case. Mr. Torkomoo appealed this decision, but the Court of Special Appeals
of Maryland dismissed the appeal on June 9, 2014 after Mr. Torkomoo failed to meet the
Mr. Torkomoo filed a petition for a writ of certiorari with the Court of
Appeals of Maryland, but that petition was denied.
Mr. Torkomoo has also contested issues arising from the Family Case in federal court.
On March 23, 2015, Mr. Torkomoo filed a Complaint in this Court against Ms. Torkomoo,
Ngole, Helwig, and Monahan-the
same Defendants in the present case-alleging
process, conspiracy, negligence, and fraud on the court arising from events in the Family Case,
including the award to Ms. Torkomoo of custody of their children and Monahan's
of the balance of a mortgage on the marital horne. See Torkornoo v. Ngole
("Torkornoo 1'), No. PJM-15-0839, slip op. at 2 (D. Md. Mar. 31, 2015) (ECF No.3).
1 The Court takes judicial notice of the filings and rulings in the State Case. See Fed. R. Evid.
201(b)(2); Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (stating that a
court may take judicial notice of matters of public record).
March 31, 2015, the Court (Messitte, J.) dismissed the case without prejudice, finding that the
Court lacked subject matter jurisdiction to decide what was, in effect, an appeal of a state court
decision. Id. at 4-5. On April 6, 2015, Mr. Torkomoo filed another Complaint against the same
Defendants, as well as Judge Callahan and Master Clark Wisor, two judicial officers connected
to the Family Case, alleging constitutional
process, and emotional
violations, battery, accounting
distress arising from the Family Case.
fraud, abuse of
Torkornoo v. Torkornoo
("Torkornoo IF'), No. PJM-15-0980, 2015 WL 1962271 at *2 (D. Md. Apr. 29,2015), aff'd 607
F. App'x 341 (4th Cir. 2015),
On April 29, 2015, the Court (Messitte, J.) dismissed the case
without prejudice, once again observing that the case "is essentially an attempt to appeal in this
federal court various state court rulings in divorce and custody proceedings in the Circuit Court
for Montgomery County." Id. at *3. On August 18,2015, Mr. Torkomoo filed yet another case
against the same judicial officers but not the named Defendants in this case, alleging what the
Court described as "a catalogue of the reasons why the outcome" of the Family Case was
"flawed and unjust."
Torkornoo v. Callahan ("Torkornoo IIF'), No. PJM-15-2445, slip op. at 3,
(D. Md. Sept. 16,2015) (ECF No.3), aff'd 627 F. App'x 183 (4th Cir. 2015). On September 16,
2015, the Court (Messitte, J.) dismissed that case with prejudice because the defendants had
judicial immunity. Id. at 6.
On May 6, 2016, this Court determined
that Mr. Torkomoo's
Complaint in the present case asserts claims that are "inextricably intertwined with the issues that
were before the state court" and ordered the case dismissed pursuant to the Rooker-Feldman
Mem. Order at 4, ECF No. 43. Mr. Torkomoo appealed the decision to the United
States Court of Appeals for the Fourth Circuit.
On June 28, 2016, the Fourth Circuit decided
Thana v. Bd. of License Commissioners for Charles County, Maryland, 827 F.3d 314 (4th Cir.
2016), which clarified the scope and application of the Rooker-Feldman doctrine. On December
8,2016, the Fourth Circuit vacated this Court's dismissal ofMr. Torkomoo's Second Amended
Complaint and remanded the case for reconsideration in light of Thana, noting that "tensions"
between state and federal proceedings involving a similar cause of action "should be managed
through the doctrines of preclusion, comity, and abstention."
Torkornoo v. Helwig, 671 F. App'x
130,131 (4th Cir. 2016) (quoting Thana, 827 F.3d at 320).
Defendants now move to dismiss all ofMr. Torkomoo's claims, arguing that the RookerFeldman doctrine still applies and that Mr. Torkomoo's claims in this suit are otherwise barred
by preclusion or estoppel. Res judicata, also known as claim preclusion, is a legal doctrine that
promotes judicial efficiency and the finality of decisions.
Litigation, 335 F.3d 322, 325 (4th Cir. 2004).
In re Microsoft Corp Antitrust
Under the doctrine of res judicata,
judgment on the merits in an earlier decision precludes the parties from relitigating issues that
were raised or could have been raised during that action. Pueschel v. United States, 369 F.3d
345,354 (4th Cir. 2004). This doctrine applies when there is: (1) a final judgment on the merits
in a prior lawsuit; (2) an identity of cause of action in both the earlier and later suits; and (3) an
identity of parties or their privies in the two suits. Id. at 354-55.
A federal court must give preclusive effect to a Maryland court judgment if a Maryland
court would do so if the second action had been brought before it. See 28 U.S.C. ~ 1738 (2012);
San Remo Hotel v. Cty. of San Francisco, 545 U.S. 323, 336 (2005).
Since Maryland courts
utilize the same res judicata elements as federal courts, the analysis of Mr. Torkomoo's claim is
the same as if his earlier claims had been brought in federal court. See Anne Arundel Cty. Bd. of
Ed. v. Norville, 887 A.2d 1029, 1037-38 (Md. 2005).
With respect to the third prong, identity of parties, Defendants in the present case were all
named as defendants in the State Case, Torkornoo 1, and Torkornoo 11. Of these cases,
Torkornoo 1 and Torkornoo 11were dismissed without prejudice and therefore do not satisfy the
first prong, that the prior case be finally decided on the merits. See, e.g., Mann v. Haigh, 120
F.3d 34, 36 (4th Cir. 1997). The State Case, however, was dismissed after consideration of "the
entire record" and after Judge Callahan granted seven Motions to Dismiss.
collectively asserted grounds including a lack of a legal or factual basis for Mr. Torkomoo's
claims and a failure to state a claim upon which relief can be granted. In particular, Monahan's
Motion to Dismiss Plaintiffs
Fourth Amended Bill of Complaint, which was granted, asserted
failure to state a claim as its only basis for dismissal. Dismissal on this basis operates as a final
judgment on the merits for res judicata purposes. See Boland v. Boland, 31 A.3d 529, 570 (Md.
2011) (noting that resolution of a case based on a failure to state a claim is on the merits); see
also 46 Am. Jur. 2d Judgments
542-43, Westlaw (database updated Oct. 2017) (noting that
dismissals based on a failure to state a claim or lack of a factual foundation have preclusive
effects). Moreover, Mr. Torkomoo appealed the Circuit Court's dismissal order to the Maryland
Court of Special of Appeals and the Maryland Court of Appeals.
Under Maryland law, a trial
court's ruling is only appealable if it is a final judgment on the merits, absent narrow exceptions
not applicable here. See Monarch Acad. Bait. Campus, Inc. v. Bait. City Bd. of Sch. Comm'rs,
153 A.3d 859, 870-71 (Md. Ct. Spec. App. 2017); see also Deer Auto. Grp., LLC v. Brown, 163
A.3d 176, 183-84 (Md. 2017) (stating that only a final judgment may be appealed); Cook v.
State, 381 A.2d 671, 674 (Md. 1978) (noting that the standard of finality for res judicata
purposes is similar to the standard of finality for purposes of appeal).
satisfies the first and third prongs of the res judicata analysis.
Therefore, the State Case
The second prong, whether the present case and the State Case arise out of the same
cause of action, is also satisfied. Cases involve the same "cause of action" if they "arise out of
the same transaction or series of transactions or the same core of operative facts." Pueschel, 369
F.3d at 355 (quoting In re Varat Enters., Inc., 81 F.3d 1310, 1316 (4th Cir. 1996)). Even if a
plaintiff is proceeding under a different legal theory, "[a]s long as the second suit arises out of
the same transaction or series of transactions as the claim resolved by the prior judgment, the
first suit will have preclusive effect." Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d
177, 210 (4th Cir. 2009) (internal citation omitted). Notably, res judicata bars not only claims
actually litigated in the first case, but also claims that could have been litigated in that
proceeding. Pueschel, 369 F.3d at 355-56.
Although not easily construed, Mr. Torkornoo's
claims of interference with parental
rights, fraudulent misrepresentation, and unjust enrichment are all based on Defendants' actions
throughout the Family Case.
For example, here, Mr. Torkornoo claims that Ms. Torkornoo,
Ngole, and Helwig all conspired to use false testimony against him during a July 30, 2012
hearing in the Family Case. Similarly, the Fourth Amended Complaint in the State Case alleges
that these same defendants "willfully misled the court" during the same July 30, 2012 hearing.
Mr. Torkornoo's Second Amended Complaint does not cite any factual basis for his claims aside
from the Family Case proceedings and the sale of his marital home, the same facts that form the
basis of the State Case. None of Defendants' allegedly wrongful acts referenced in the Second
Amended Complaint took place after November
15, 2013, the date the Fourth Amended
Complaint in the State Case was filed. Accordingly, Mr. Torkornoo's claims in the present case
arise out of the same core of operative facts as the State Case and are thus precluded by res
The precluded claims include not only the misrepresentation claim actually litigated in
the State Case, but also the intentional interference with parental rights and unjust enrichment
claims because they could have been brought in the State Case as well. See Pueschel, 369 F.3d
The Court will therefore dismiss with prejudice Mr. Torkomoo's
Finally, the Court notes that Mr. Torkomoo has filed four federal actions and at least one
state action arising out of the same set of facts, all of which have been dismissed.
dismissals should signal to Mr. Torkomoo that future attempts to litigate issues surrounding his
will not succeed.
The Court reiterates its recommendation
Torkomoo review Federal Rule of Civil Procedure 11(b)-(c), which provides that the Court may
impose monetary sanctions against a party for filing frivolous or baseless claims.
Accordingly, it is hereby ORDERED that:
1. Defendants' Motion to Dismiss, ECF No. 60, is GRANTED.
Second Amended Complaint is DISMISSED WITH PREJUDICE.
3. The Clerk shall MAIL a copy of this order to Mr. Torkomoo.
4. The Clerk is directed to CLOSE this case.
Date: October 27,2017
THEODORE D. CH
United States District Judge
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