Baker-Proctor v. PNC Bank, National Association

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

:

MARGARET BAKER-PROCTOR, et al.

:

v. : Civil Action No. DKC 21-3299

:

PNC Bank, N.A.

:

MEMORANDUM OPINION

Presently pending and ready for resolution in this defamation

case is the motion to dismiss filed by Defendant PNC Bank, N.A.

(“Defendant” or “PNC Bank”). (ECF No. 15). The issues have been

briefed, and the court now rules, no hearing being necessary.

Local Rule 105.6. For the following reasons, the motion to dismiss

will be granted.

I. Background1

On or about May 5, 2021, Plaintiff Margaret Baker-Proctor

drove with her elderly mother, Mary Baker, through a PNC Bank

“drive thru” in Maryland so that Ms. Baker, the mother, could

conduct a banking transaction.2 (ECF No. 14 at 2). Plaintiffs

1 This section describes the facts as alleged in the amended

complaint. (ECF No. 14).

2 Defendant has noted that there is a discrepancy in the

description of Plaintiffs and their relationships to one another

between the amended complaint and Plaintiffs’ response to

Defendant’s motion to dismiss. (ECF No. 18 at 1 n.1). According

to the amended complaint, the two plaintiffs, Margaret Baker-

Proctor and Catherine L. Dickerson are the daughters of non-party

allege that, unbeknownst to them, Defendant subsequently filed a

criminal report with the St. Mary’s County Sheriff’s Office,

alleging that Plaintiffs had committed theft and fraud. (ECF No.

14 at 4). In July 2021, Plaintiffs learned of an article published

on firstsheriff.blogspot.com that contained photos of Ms. Baker-

Proctor and Ms. Baker and the following text:

The St. Mary’s County Sheriff’s Office is

seeking the identities of the persons pictured

in a fraud and theft investigation. On

Wednesday, May 5, 2021, the suspects arrived

at the drive thru of the PNC Bank in

Leonardtown in a blue four-door Chevy Impala

and withdrew $1,250 from the victim’s savings

account. The passenger suspect filled out the

withdrawal slip, which was submitted by the

driver suspect.

(ECF No. 1-3 at 10). The article encouraged people with

information about the identities of the suspects to contact the

“St. Mary’s County Crime Solvers.” The same article was published

on multiple other media platforms, including smnewsnet.com, “Bay

Net,” and social media websites. (ECF No. 14 at 2). Plaintiffs

contacted PNC Bank and the St. Mary’s County Sheriff’s Office, at

Mary Baker, and Catherine L. Dickerson is proceeding on behalf of

her mother. Plaintiffs’ response to Defendant’s motion states

that Plaintiff Dickerson is the mother of Plaintiff Baker-Proctor

and does not mention a Mary Baker. (ECF No. 17 at 6). The facts

as alleged in the amended complaint control, as a party may not

amend a complaint through a response in opposition to a motion to

dismiss. See Zachair, Ltd. v. Driggs, 965 F.Supp. 741, 748 (D.Md.

1997), aff’d, 141 F.3d 1162 (4th Cir. 1998). In any event, it is

unnecessary to resolve this discrepancy in ruling on the motion to

dismiss.

which point they were told that the report was a mistake and that

they were not suspects in a crime. Plaintiffs allege that they

“were harassed and denied job opportunities” as a result of the

publications. (ECF No. 14 at 3).

On November 16, 2021, Plaintiffs filed a complaint in the

Circuit Court for St. Mary’s County, Maryland against Defendant

PNC Bank, asserting claims of defamation per se, negligence, false

light, and intentional infliction of emotional distress. (ECF No.

1-3). Defendant filed a notice of removal on December 28, 2021,

on the basis of diversity jurisdiction. (ECF No. 1). Plaintiffs

filed an amended complaint on February 18, 2021, (ECF No. 14), and

Defendant filed a motion to dismiss for failure to state a claim

on March 14, 2022, (ECF No. 15). Plaintiffs filed a response in

opposition, and Defendant filed a reply. (ECF Nos. 17, 18).

II. Standard of Review

The purpose of a motion to dismiss under Rule 12(b)(6) is to

test the sufficiency of the complaint. Presley v. City of

Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). A 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.” Fed.R.Civ.P. 8(a)(2). However, “Rule

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

assertion, of entitlement to relief.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 n.3 (2007). That showing must include 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) (alteration in original) (internal quotation marks

omitted). Indeed, the complaint must allege “enough facts to state

a claim to relief that is plausible on its face.” Twombly, 550

U.S. at 570.

“Determining whether a complaint states a plausible claim for

relief will . . . be a context-specific task that requires the

reviewing court to draw on its judicial experience and common

sense.” Iqbal, 556 U.S. at 679. When undertaking this review,

the court must consider all well-pleaded allegations in a complaint

as true. See Albright v. Oliver, 510 U.S. 266, 268 (1994). Courts

generally do not “resolve contests surrounding the facts, the

merits of a claim, or the applicability of defenses” through a

Rule 12(b)(6) motion. Edwards v. City of Goldsboro, 178 F.3d 231,

243 (4th Cir. 1999) (quoting Republican Party v. Martin, 980 F.2d

943, 952 (4th Cir. 1992)). However, “in the relatively rare

circumstances where facts sufficient to rule on an affirmative

defense are alleged in the complaint, the defense may be reached

by a motion to dismiss filed under Rule 12(b)(6).” Goodman v.

Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc).

III. Analysis

A. Defamation

Defendant moves to dismiss Plaintiffs’ defamation claim,

arguing that (1) the statements published in the articles

Plaintiffs cited in their amended complaint cannot give rise to a

claim against Defendant because the articles were published by

third parties, and (2) Defendant’s alleged statement published to

the police is privileged. (ECF No. 15-1 at 9-12).

Under Maryland law, a properly pleaded defamation claim is

accompanied by specific facts establishing the following four

elements: “(1) that the defendant made a defamatory statement to

a third person, (2) that the statement was false, (3) that the

defendant was legally at fault in making the statement, and (4)

that the plaintiff thereby suffered harm.” Piscatelli v. Van

Smith, 424 Md. 294, 306 (2012) (quoting Indep. Newspapers, Inc. v.

Brodie, 407 Md. 415, 441 (2009)).3 Plaintiffs’ complaint alleges

that Defendant committed defamation per se, as opposed to

defamation per quod. Thus, the defamatory character of the

statement must be imputed by the “words themselves,” rather than

3 The parties apply, without discussion, Maryland law to this

diversity case. Under Maryland choice-of-law doctrine, the “law

of the place of injury” applies “as to all matters of substantive

law.” Lewis v. Waletzky, 422 Md. 647, 657 (2011). The place of

injury here was clearly in Maryland, where all relevant events

described in the complaint occurred. Therefore, Maryland law

applies.

by the context in which the words were said. See Metromedia, Inc.

v. Hillman, 285 Md. 161, 172 (1979).

Defendant is correct in asserting that Plaintiffs needed to

allege that a defamatory statement was made by Defendant, rather

than by a third party. See Piscatelli, 424 Md. at 306 (explaining

that the plaintiff must establish “that the defendant made a

defamatory statement” (emphasis added)); see also Harvey v. Cable

News Network, Inc., 520 F.Supp.3d 693, 714 (D.Md. 2021) (dismissing

claims based on statements made by parties other than the

defendant). Plaintiffs allege that “[a]ll publications were

authorized, overseen, or otherwise compiled by the Defendant who

thereafter circulated and published [the] same to the public via

Worldwide Newspaper, Bay Net[,] and other social platforms[.]”

(ECF No. 14 at 4). Plaintiffs provide no additional facts to

support their allegation that Defendant runs, oversees, or

publishes articles via those websites. This allegation falls into

the category of “naked assertion[s] devoid of further factual

enhancement” that will not suffice to survive a motion to dismiss.

See Iqbal, 556 U.S. at 678. Therefore, there is no plausible claim

for relief against Defendant based on the articles published on

third-party websites.4

4 Plaintiffs do not respond to Defendant’s argument to this

effect in their response to Defendant’s motion. Thus, in any

event, it is treated as conceded. See Stenlund v. Marriott Int’l,

Inc., 172 F.Supp.3d 874, 887 (D.Md. 2016).

The only defamatory statement to a third party that can be

attributed to Defendant is the alleged report Defendant made to

the St. Mary’s County Sheriff’s Office. However, as Defendant

asserts, “Maryland law affords a ‘qualified privilege’ to ‘any

person who makes an oral, written[,] or printed report about

matters involving violations of the law.’” Carroll v. City of

Westminster, 52 F.Supp.2d 546, 566 (D.Md. 1999) (quoting Fearnow

v. C & P Tele. Co., 104 Md.App. 1, 67 (1995), rev’d on other

grounds, 342 Md. 363 (Md. 1996)); see also Johnson v. PNC Bank,

N.A., No. 19-CV-3136-ELH, 2020 WL 1491355, at *10 (D.Md. Mar. 27,

2020); Bailey v. Budget Rent a Car Sys., Inc., No. 16-CV-0636-ELH,

2016 WL 1721386, at *6 (D.Md. Apr. 29, 2016). This means that

Plaintiffs’ defamation claim based on that statement can only stand

if they have plausibly alleged that Defendant acted with malice or

otherwise abused the privilege, meaning that Defendant had “actual

knowledge that [its] statement [wa]s false, coupled with [its]

intent to deceive another by means of that statement.” Piscatelli,

424 Md. at 307-08 (quoting Ellerin v. Fairfax Sav., F.S.B., 337

Md. 216, 240 (1995)); see also Miner v. Novotny, 304 Md. 164, 167

(1985). And “[w]hile malice is usually a question for the fact-

finder, it need not be submitted to the fact-finder when the

plaintiff fails to allege or prove facts that would support a

finding of malice.” Piscatelli, 424 Md. at 308.

Here, Plaintiffs have not alleged that Defendant made the

report to the police with actual knowledge that the report was

false, nor have they alleged that Defendant intended to deceive

the police with the report. At most, they attempt to frame the

fact that Defendant allegedly made the report “without any prior

investigation” as evidence of actual malice. However, this falls

far short of actual knowledge of falsity with an intent to deceive.5

Therefore, Plaintiffs have failed to state a plausible defamation

claim against Defendant.

B. Negligence

Defendant also moves to dismiss Plaintiffs’ negligence claim.

Defendant argues that Plaintiffs cannot assert a separate claim

for negligent publication in addition to a defamation claim because

the claims would be redundant. (ECF No. 15-1 at 15). Regardless

of the merits of this argument, because Plaintiffs’ defamation

claim will be dismissed, Plaintiffs could have sought to pursue

their negligence claim in the alternative. However, Plaintiffs

did not respond to Defendant’s challenge to their negligence claim

in their response to Defendant’s motion, nor did they make any

5 Plaintiffs argue that malice can be shown by proof of

“reckless disregard for the truth.” (ECF No. 17 at 18). While

that was once true, the Maryland Court of Appeals superseded that

standard in Piscatelli, 424 Md. at 307-08, such that actual

knowledge of falsity is now required under Maryland law. See

Johnson, 2020 WL 1491355, at *11 (citing Shirley v. Heckman, 214

Md.App. 34, 45-46 (2013)).

arguments in support of their negligence claim. Therefore, they

have abandoned their claim. See Mentch v. E. Sav. Bank, FSB, 949

F.Supp. 1236, 1247 (D.Md. 1997).

Had Plaintiffs not abandoned their negligence claim, there

would be serious doubt as to its viability. Specifically, there

is a question as to whether Plaintiffs have articulated a duty

Defendant owed to them and breached by filing a police report for

suspected fraud and theft.6 See Johnson, 2020 WL 1491355, at *4-7

(discussing lack of duty in case with facts nearly identical to

the present case). Out of an abundance of caution, this claim

will be dismissed without prejudice to afford Plaintiffs the

opportunity to move to amend their complaint for a second time and

articulate more clearly the duty that Defendant owed to Plaintiffs,

should they choose to do so.

C. False Light

Defendant moves to dismiss Plaintiffs’ false light claim

based on the qualified privilege that also applied to Plaintiffs’

defamation claim. (ECF No. 15-1 at 13). Defendant is correct

that “a qualified privilege that would shield a defendant from

liability for defamation applies equally to a claim of false light

invasion of privacy.” Lindenmuth v. McCreer, 233 Md.App. 343, 367

6 In their amended complaint, Plaintiffs allege only that

“Defendant owed a duty of care to all its customers who frequent

the bank including the Plaintiffs.” (ECF No. 14 at 5).

(2017); see also Mazer v. Safeway, Inc., 398 F.Supp.2d 412, 431

(D.Md. 2005). Because, as previously discussed, Plaintiffs failed

to allege facts that would support a finding of actual malice,

Defendant’s statement to the police is immune from Plaintiffs’

false light claim as well.

D. Intentional Infliction of Emotional Distress

Finally, Defendant moves to dismiss Plaintiffs’ intentional

infliction of emotional distress claim. (ECF No. 15-1 at 14).

Defendant argues that the conduct Plaintiffs describe in their

amended complaint does not rise to the level of “extreme and

outrageous,” as is required to sustain such a claim.

Under Maryland law, a claim for intentional infliction of

emotional distress requires four elements: “(1) [t]he conduct must

be intentional or reckless; (2) [t]he conduct must be extreme and

outrageous; (3) [t]here must be a causal connection between the

wrongful conduct and the emotional distress; [and] (4) [t]he

emotional distress must be severe.” Batson v. Shiflett, 325 Md.

684, 733 (1992) (internal quotation marks omitted) (quoting Harris

v. Jones, 281 Md. 560, 566 (1977)). In order to qualify as “extreme

and outrageous,” the conduct must be “so extreme in degree, as to

go beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.” Id.

(quoting Harris, 281 Md. at 567). This is a very high bar, and it

is exceedingly rare for Maryland plaintiffs to make such a showing.

See Haines v. Vogel, 250 Md.App. 209, 230 (2021) (noting that a

claim for intentional infliction of emotional distress has been

sustained in Maryland only four times); see also D&A Designs LLC

v. Fox Television Stations, LLC, No. 20-CV-2993-JKB, 2021 WL

100803, at *5 (D.Md. Jan. 12, 2021).

Plaintiffs allege in their amended complaint that

“Defendant’s actions were extreme and outrageous beyond all bounds

of decency, so as[] to be deemed utterly intolerable in a civilized

community, and the Defendant intentionally or recklessly caused

the Plaintiffs to suffer severe emotional distress.” They add,

“The recitation of the Defendant’s actions will arouse resentment

in an average member of the community.” (ECF No. 14 at 8). In

their response to Defendant’s motion, they highlight the

allegations in the amended complaint that Defendant “published

false statements” “without any prior investigation.” (ECF No. 17

at 20). These allegations, presumed to be true for the purpose of

resolving this motion, do not rise to the level of “extreme and

outrageous” as defined under Maryland law. See D&A Designs LLC,

2021 WL 100803, at *5 (dismissing an intentional infliction of

emotional distress claim based on allegations that a defendant

published “a knowingly false account” of fraud and theft by the

plaintiff). Plaintiffs’ conclusory label of Defendant’s actions

as “extreme and outrageous” falls short of the federal pleading

standards. See id. Accordingly, Plaintiffs’ intentional

infliction of emotional distress claim fails as well.

IV. Conclusion

For the foregoing reasons, Defendant’s motion to dismiss will

be granted. Plaintiffs’ negligence claim will be dismissed without

prejudice.

/s/

DEBORAH K. CHASANOW

United States District Judge