# Baker-Proctor v. PNC Bank, National Association

> District Court, D. Maryland · February 7, 2023

URL: https://www.frixlaw.com/law-library/cases/10208053

## Case

- **Court:** District Court, D. Maryland
- **Decided:** February 7, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10208053

## How later opinions describe it (automated extraction)

- explaining that the plaintiff must establish “that the defendant made a defamatory statement” (emphasis added)

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10208053. Public record. Not legal advice.