Sakala v. Milunga et al

MOTION to Dismiss for Failure to State a Claimas to Counterclaims

D. Md.May 1, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND (Southern Division) FAITH SAKALA Plaintiff/Counter-Defendant, v. Case No.: 8:16-cv-00790-PWG BERNADETTE TEMBO MILUNGA, et al. Defendants/Counter-Plaintiffs. PLAINTIFF/COUNTER-DEFENDANT FAITH SAKALA'S MOTION TO DISMISS COUNTERCLAIMS Plaintiff/Counter-Defendant Faith Sakala, by her undersigned counsel, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, respectfully moves to dismiss with prejudice all Counts (I-VI) set forth in the Counterclaim filed by Defendants/Counter-Plaintiffs Bernadette Tembo Milunga and Kaingu Milunga (collectively, "Defendants/Counter-Plaintiffs"). The grounds and authorities for this Motion are set forth fully in the attached Memorandum of Law in Support of Plaintiff/Counter-Defendant Faith Sakala's Motion to Dismiss Counterclaims, which is incorporated herein by reference. WHEREFORE, Plaintiff/Counter-Defendant Faith Sakala respectfully requests that this Honorable Court issue an Order: A. dismissing Defendants/Counter-Plaintiffs' Counterclaim in its entirety, with prejudice; and B. granting such other and further relief as the Court deems appropriate. [Signature on following page] 1363974.4 05/01/2017 Case 8:16-cv-00790-PWG Document 49 Filed 05/01/17 Page 1 of 3 Respectfully submitted, Date: May 1, 2017 /S/ Jordan Rosenfeld Harriet E. Cooperman (Federal Bar No. 00729) Gary B. Eidelman (Federal Bar No. 04580) Jordan D. Rosenfeld (Federal Bar No. 13694) Douglas A. Sampson (Federal Bar No. 19800) Morgan N.G. Perna (Federal Bar No. 19803) SAUL EWING LLP 500 East Pratt Street, 8th Floor Baltimore, MD 21202 (410) 332-8600 (telephone) (410) 332-8862 (facsimile) Attorneys for Plaintiff/Counter-Defendant Faith Sakala 1363974.4 05/01/2017 2 Case 8:16-cv-00790-PWG Document 49 Filed 05/01/17 Page 2 of 3 CERTIFICATE OF SERVICE I hereby certify that on this 1st day of May, 2017, a copy of the foregoing Plaintiff/Counter-Defendant Faith Sakala's Motion to Dismiss Counterclaims, Memorandum in Support thereof, and Proposed Order were sent via first class mail, postage prepaid to Bernadette Tembo Milunga Kaingu Milunga 2321 Georgia Village Way Silver Spring, MD 20902 Counsel for Plaintiff /s/ Jordan D. Rosenfeld Jordan D. Rosenfeld 1363974.4 05/01/2017 3 Case 8:16-cv-00790-PWG Document 49 Filed 05/01/17 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND (Southern Division) FAITH SAKALA Plaintiff/Counter-Defendant, v. Case No.: 8:16-cv-00790-PWG BERNADETTE TEMBO MILUNGA, et al. Defendants/Counter-Plaintiffs. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF FAITH SAKALA'S MOTION TO DISMISS COUNTERCLAIMS Plaintiff/Counter-Defendant Faith Sakala ("Ms. Sakala" or "Plaintiff'), by her undersigned counsel, hereby submits this Memorandum of Law in Support of her Motion to Dismiss Counterclaims ("Motion") filed by Defendants/Counter-Plaintiffs Bernadette Tembo Milunga ("Ms. Milunga") and Kaingu Milunga ("Mr. Milunga") (collectively "Defendants" or the "Milungas"). INTRODUCTION The Milungas lured Ms. Sakala from her home in Zambia to the United States with promises of fair wages and working hours, basic provisions and necessities, a safe place to live, and a college education. Her employment conditions over the next 10 months varied greatly from those promised in the negotiations and written contract. In her Second Amended Complaint, Ms. Sakala alleges claims under the Trafficking Victims Protection Reauthorization Act, 18 U.S.C. §§ 1581 et seq. (the "TVPRA"), the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (the "FLSA"), the Maryland Wage and Hour Law 1363980.6 05/01/2017 Case 8:16-cv-00790-PWG Document 49-1 Filed 05/01/17 Page 1 of 17 ("MWHL"), the Maryland Wage Payment and Collection Law ("MWPCL"), and Maryland common law. The Milungas answered Ms. Sakala's Second Amended Complaint and simultaneously filed Counterclaims alleging civil conspiracy, fraud and misrepresentation, libel and slander (defamation), intentional infliction of emotional distress, assault and battery, and invasion of privacy. As more fully set forth below, each of the Milungas' claims is facially deficient, has no basis in fact or law, and must be dismissed. RELEVANT FACTS AS ALLEGED 1 In 2014, when Ms. Sakala was 18 years old, the Milungas sought a domestic employee, and inquired with Ms. Sakala's aunt, Dorothy Mwembela. (Defs.' Countercl. at 27). At that time, Ms. Milunga was an employee of the World Bank in Washington, D.C., and Mr. Milunga had recently obtained employment with the Zambian Embassy in the United States. Id. The Milungas told Ms. Mwembela that they were seeking a live-in worker to care for one infant child. Id. Ms. Mwembela recommended her niece, Ms. Sakala. Id. Ms. Milunga and Ms. Sakala negotiated terms of an employment contract, and memorialized those terms in a written agreement (the "Contract"). (Defs.' Countercl. at 28). A partial copy of the Contract is attached to the Counterclaim as Exhibit A (Dkt. No. 22-1). The Contract stated that Ms. Sakala would receive an hourly rate of $9.50, plus an overtime rate of $14.25 per hour for each hour worked over 40 hours per week. Id. Ms. Sakala would also receive up to fifteen paid sick days and one paid holiday. Id. After the contract was executed, The "Relevant Facts as Alleged" set forth herein are based on the allegations of Defendants/Counter-Plaintiffs Counterclaim and are taken as true for the limited purposes of this Motion to Dismiss. Ms. Sakala does not admit any of the Milungas' allegations. 1363980.6 05/01/2017 -2- Case 8:16-cv-00790-PWG Document 49-1 Filed 05/01/17 Page 2 of 17 Ms. Sakala left her family and her home in Zambia to come to the United States, where she began working for the Milungas no later than December 1, 2014. (Defs.' Countercl. at 28-29). The Milungas allegedly began suffering extreme financial hardship in "early 2015," shortly after Ms. Sakala's arrival. (Defs.' Countercl. at 31). At that point they were "unable to pay [Ms.] Sakala's wages." Id. The Milungas allege that thereafter "[Ms.] Sakala offered to forego her regular wages provided Counterclaimants end [Ms.] Sakala's family $500 a month," (Defs.' Countercl. at 31), and that in April of 2015 "[Ms.] Sakala and Counterclaimants also ^ 2 agreed on the amount of outstanding compensation due and owing." (Defs.' Countercl. at 33). They further acknowledge that the World Bank eventually instituted an investigation into their employment of Ms. Sakala, and "determined that [Ms.] Sakala was owed $14,140.85." (Defs.' Countercl. at 35). The Milungas allege that they finally paid Ms. Sakala this amount, id., but only after World Bank intervention. They do not contest that the money was due and owing. The Counterclaims state that Ms. Sakala's employment with the Milungas terminated on August 25, 2015, (Defs.' Countercl. at 33), though they assert in their Answer that Ms. Sakala "was employed by Defendants from December 1, 2014 through September 21, 2015." (Defs.' Ans. f34).3 The Milungas allege that Ms. Sakala filed suit for fraudulent reasons pursuant to an agreement with third-party Monica Mzezewa, all in an effort to stay in the United States. (Defs.' Countercl. f 16). Notwithstanding these allegations, the Milungas do not allege that they actually paid Ms. Sakala or her family as a result of these so-called agreements. Exhibit N to the Milungas' Counterclaim is an unsigned document purporting to terminate Ms. Sakala's employment, and listing the date of termination as September 27, 2015. Though Ms. Sakala has neglected to discuss this document in her analysis, she has considered it, and her conclusions are unchanged. 1363980.6 05/01/2017 -3- Case 8:16-cv-00790-PWG Document 49-1 Filed 05/01/17 Page 3 of 17 The Milungas further allege that Ms. Sakala was dishonest when she originally communicated to them her desire to the come to the United States to work for them, and that she fraudulently represented that she hoped to "attend school/college" in the United States while employed by them. (Defs.' Countercl. ̂[*[ 20-21). The Milungas allege that Ms. Sakala defamed them during her employment by falsely telling individuals, including World Bank Group officials, that she was being "mistreated, abused, overworked and unpaid," and defamed them after her employment by making the same allegations in writing. (Defs.' Countercl. ̂ 27-28). The Milungas state that through Ms. Sakala's various allegations, which they contend are false, she intended to inflict emotional distress on them, and succeeded. (Defs.' Countercl. ̂Jf 31-34). The Milungas also allege that over the course of Ms. Sakala's employment, she both threatened harm against and battered their minor children. (Defs.' Countercl. at 32 and ̂ 39- 40). They have also "concluded that [Ms.] Sakala was somehow tampering with [Ms.] Milunga's food," and that Ms. Milunga became ill as a result. (Defs.' Countercl. at 30-31). They finally allege that Ms. Sakala posted images of the Milunga children on her Facebook page without their permission. (Defs.' Countercl. at 30 and *| 44). They have attached the photographs at issue as Exhibit C to the Counterclaim (Dkt. Nos. 22-23). STANDARD OF REVIEW Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes dismissal of a civil action for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citation omitted). A claim has facial plausibility only "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable 1363980.6 05/01/2017 -4- Case 8:16-cv-00790-PWG Document 49-1 Filed 05/01/17 Page 4 of 17 for the misconduct alleged." Id. at 663. Although a court considering a motion to dismiss is required to "accept properly pled factual allegations as true and construe them in the light most favorable to the plaintiff, 'wholly vague and conclusory allegations are not sufficient to withstand a motion to dismiss.'" Doe v. Virginia Dep't of State Police, 713 F.3d 745, 754 (4th Cir. 2013) (internal citation omitted). "[The court] need not accept the legal conclusions drawn from the facts, and [it] need not accept as true unwarranted inferences, unreasonable conclusions or arguments." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009) (quoting Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008)). "[W]here the well- pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal quotation marks and alteration omitted). When fraud is alleged, the claim must also meet the "heightened pleading standard under Rule 9(b)." Roberson v. Ginnie Mae REMIC Trust 2010 HOI, 973 F. Supp. 2d 585, 588 (D. Md. 2013) (citations omitted). Rule 9(b) requires that, "[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." Fed. R. Civ. P. 9(b). As such, Rule 9(b) requires that a fraud claim must allege "the time, place and content of the false representation, as well as the identity of the person making the misrepresentation and what [was] obtained thereby." Roberson, 973 F. Supp. 2d at 588 (citations omitted). ARGUMENT I. THE MILUNGAS' CONSPIRACY CLAIM IS FATALLY DEFICIENT FOR FAILING TO ALLEGE AN UNDERLYING TORT. The Milungas' clam for civil conspiracy at Count I of their Counterclaim is improperly pled as a stand-alone claim, and should be dismissed. To establish a cause of action for civil conspiracy, a claimant must show (1) an agreement; (2) an unlawful or tortious act in furtherance 1363980.6 05/01/2017 -5- Case 8:16-cv-00790-PWG Document 49-1 Filed 05/01/17 Page 5 of 17 of that agreement, or use of unlawful or tortious means to accomplish an act not in itself illegal; and (3) actual legal damage to the plaintiff. Lloyd v. Gen. Motors Corp., 397 Md. 108, 154 (2007). Civil conspiracy is not a stand-alone cause of action, but rather requires an underlying tort claim to which the conspiracy may attach. Alleco, Inc. v. Harry & Jeanette Weinburg Found., Inc., 340 Md. 176, 189 (1995). Forming an agreement, without more, is not sufficient to sustain a cause of action; rather, it is doing the act itself that forms the basis for the claim. McLaughlin v. Copeland, 435 F. Supp. 513, 525 (D. Md. 1977). The Milungas allege that Ms. Sakala conspired with a third person to bring false claims in an effort to procure a protective immigration status, and to extract money from the Milungas. (Defs.' Countercl. 16-17). The only act they allege in furtherance of this conspiracy, "fraudulently filing [the] Second Amended Complaint" suggests that the tort of malicious use of process underlies their conspiracy claim. (Id. f 16). To bring a claim for malicious use of process, a plaintiff must establish the following elements: (1) the institution of the civil proceedings; (2) without probable cause; (3) with malice; (4) that the proceedings have terminated and in the plaintiffs favor; and (5) that damages were inflicted upon the plaintiff by arrest or imprisonment, by seizure of property or other special injury... Elliott v. Evans, 942 F. Supp. 238, 242 (D. Md. 1996). The Milungas have not pled malicious use of process, nor could they. Because the instant lawsuit would be the basis of the claim, they cannot allege that "the proceedings have terminated [] in [their] favor." The Milungas have pled civil conspiracy as a stand-alone claim, and the presumed underlying tort cannot be stated as a claim. Amending the Counterclaim would be futile and dismissal is proper. See Bellezza v. Greater Havre de Grace Yacht Club, Inc., No. 0367, Sept. 363980.6 05/01/2017 -6- Case 8:16-cv-00790-PWG Document 49-1 Filed 05/01/17 Page 6 of 17 Term 2014, 2015 WL 6394418, at *10 (Md. Ct. Spec. App. Oct. 22, 2015) ("[S]ince civil conspiracy is not a separate tort, it must be dismissed in the absence of an underlying tort."). II. THE MILUNGAS HAVE FAILED TO STATE A CLAIM FOR FRAUD AND MISREPRESENTATION. To state a claim for fraud, the Milungas must allege with particularity that: (1) Ms. Sakala made a false statement of fact; (2) Ms. Sakala knew the statement was false or acted with reckless disregard for the truth of the statement; (3) Ms. Sakala made the statement for the purpose of defrauding the Milungas; (4) the Milungas reasonably relied on the false statement, and (5) the Milungas were damaged as a result. Sterling v. Ourisman Chevrolet of Bowie Inc., 943 F. Supp. 2d 577, 597 (D. Md. 2013). The Milungas allege that two representations made by Ms. Sakala were fraudulent: (1) that Ms. Sakala "wanted to come to the United States to work for [them] as a nanny;" and (2) that Ms. Sakala "wanted to attend school/college while she was employed with [the Milungas]." (Defs.' Countercl. 20-21). Though the Milungas have alleged generally that they were harmed by Ms. Sakala's so-called fraud, (Defs.' Countercl. ̂ 25), they have failed to specifically tie either of these statements to damages. First, the Milungas admit that Ms. Sakala came to the United States to work for them as a nanny. See generally (Defs.' Countercl. at 28-29). Thus, even if Ms. Sakala did not want to work for them, it is impossible to tie this representation to a harm, since it is undisputed that she worked for them (she just was not paid). Similarly, even if Ms. Sakala did not actually want to attend school in the United States, the Milungas cannot point to any detrimental change in their position as a result of this representation. The Milungas have also failed to meet the heightened pleading standard for fraud under Fed. R. Civ. P. 9(b). Rule 9(b) requires that a fraud claim allege "the time, place and content of the false representation, as well as the identity of the person making the misrepresentation and 1363980.6 05/01/2017 -7- Case 8:16-cv-00790-PWG Document 49-1 Filed 05/01/17 Page 7 of 17 what [was] obtained therebyRoberson, 973 F. Supp. 2d at 588 (citations omitted) (emphasis added); see also Boardley v. Household Fin. Corp. Ill , 39 F. Supp. 3d 689, 699 (D. Md. 2014) (citations omitted). The Milungas vaguely refer to the statements-at-issue as representations made "prior to Sakala's employment" without giving any specific dates when they were made, where they were made, to whom they were made, or what specifically was said. (Defs.' Countercl. 20-21). Further, the Milungas have failed to state what benefits Ms. Sakala obtained from her allegedly fraudulent statements. The Milungas have failed to allege necessary elements of fraud, and have failed to satisfy the heightened pleading standard under Rule 9(b). Count II of their Counterclaim should be dismissed. III. THE MILUNGAS HAVE FAILED TO STATE A CLAIM FOR DEFAMATION. The Milungas' claim for defamation is facially deficient. To plead a cause of action for defamation, the Milungas must allege that: (1) Ms. Sakala made a statement o a third person; (2) the statement was false; (3) Ms. Sakala was legally at fault in making the statement; and (4) the Milungas suffered harm. Norman v. Borison, 418 Md. 630, 647, 17 A.3d 697, 706 (2011). "A false statement is one that is not substantially correct." Batson v. Shifflett, 325 Md. 684, 726 (1992). "[T]rue statements, no matter how damaging to the plaintiff, may never provide the foundation for a defamation claim." AIDS Counseling & Testing Centers v. Grp. W Television, Inc., 903 F.2d 1000, 1004 (4th Cir. 1990) (citing Garrison v. Louisiana, 379 U.S. 64, 74 (1964); New York Times Co. v. Sullivan, 376 U.S. 254 (1964)). The Milungas allege that U[d]uring her employment . . . [Ms.] Sakala verbally told individuals, including but not limited to, Monica Mzezewa and World Bank Group officials that she was being mistreated, abused, overworked and unpaid (had received no wages) by [the 1363980.6 05/01/2017 -8- Case 8:16-cv-00790-PWG Document 49-1 Filed 05/01/17 Page 8 of 17 Milungas], impugning the honesty and integrity of [the Milungas], knowing that such statements were false." (Defs.' Countercl. f 26 (emphasis added)). Under Maryland law, the statute of limitations for both slander and libel is one year. Md. Code Cts. & Jud. Proc. § 5-105. Though their papers conflict, the Milungas admit that, at the latest, Ms. Sakala's employment ended by September 21, 2015. (Defs.' Ans. f 35). The Milungas filed the Counterclaim on December 8, 2016. Therefore, any verbal statements made by Ms. Sakala during her employment (i.e., prior to September 21, 2015) are barred by the one-year statute of limitations for defamation under Maryland law. The Milungas further allege that following her employment, Ms. Sakala "stated in written communications, i.e., [Ms.] Sakala's complaint to WGB (World Bank) officials, that she was being mistreated, abused, overworked and unpaid . . . ." (Defs.' Countercl. If 28). It is undisputed that Ms. Sakala did file a complaint with the World Bank for unpaid wages, however the Milungas have failed to specify the date the complaint was filed. To the extent the complaint was filed with the World Bank prior to December 8, 2015, the alleged claim for defamatory statements in the complaint is barred by the one-year statute of limitations. Md. Code Cts. & Jud. Proc. § 5-105. Further, Ms. Sakala's statement hat she was unpaid is true and, therefore, cannot support the Milunga's defamation claim. AIDS Counseling, 903 F.2d at 1004. The Milungas admit that they did not pay Ms. Milunga after early 2015. (Defs.' Countercl. at 31). The Milungas further admit that the World Bank investigated Ms. Sakala's claim, and "the investigator determined that Sakala was owed $14,140.85," and they eventually paid her. (Defs.' Countercl. at 35). They have not contended that this amount was not due and owing. 1363980.6 05/01/2017 -9- Case 8:16-cv-00790-PWG Document 49-1 Filed 05/01/17 Page 9 of 17 Finally, Ms. Sakala's characterization of her unpaid employment as "mistreatment" and "abuse," and her statement hat she was "overworked" do not constitute defamation as a matter of law. "[A] statement not subject to objective verification" cannot "rise to the level of defamation." Baltimore Sports & Social Club, Inc. v. Sport & Social LLC, Civil No. 16-CV- 02953-JFM, 2017 WL 526499, at *3 (D. Md. Jan. 6, 2017). In Baltimore Sports, this Court dismissed a defamation claim, citing approvingly Phantom Touring v. Affiliated Publications. Id. That case held that a theater critic's characterization of a play as a "rip-off, a fraud, a scandal, [and] a snake-oil job," was "figurative and hyperbolic" language that did not support a defamation claim. Id. (citing Phantom, 953 F.2d 724, 728 (1st Cir. 1992)). Ms. Sakala's alleged description of her treatment as "mistreatment" and "abuse," and her condition as "overworked" similarly is subjective, is not subject to objective verification, and is "precisely the type f. . . figurative . . . language protected by the First Amendment." Id. Ms. Sakala's alleged statements cannot support a claim for defamation. Count III of the Milungas' Counterclaim should be dismissed. IV. THE MILUNGAS HAVE FAILED TO ALLEGE EXTREME AND OUTRAGEOUS BEHAVIOR SUFFICIENT TO SUPPORT A CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. The Milungas have not pled facts to support the elements of their claim for intentional infliction of emotional distress ("IIED"). To sustain this cause of action, the Milungas must adequately plead (1) conduct that was intentional or reckless; (2) conduct that was extreme and outrageous; (3) a causal connection between the wrongful conduct and the emotional distress; and (4) severe emotional distress. Harris v. Jones, 281 Md. 560, 566 (1977). The "extreme and outrageous" element dominates the inquiry: The extraordinary nature of the tort ... is its insistence upon "extreme and outrageous" conduct. In fact, this element is, in large 363980.6 05/01/2017 -10- Case 8:16-cv-00790-PWG Document 49-1 Filed 05/01/17 Page 10 of 17 respect, the entire tort. It both limits the reach of the tort and dominates the proof of its elements. The outrageousness requirement means there is no liability simply for the intentional infliction of emotional distress. If a defendant intends to cause a plaintiff emotional distress and succeeds in doing so, the defendant is nonetheless not liable unless his or her conduct is also extreme and outrageous. Kentucky Fried Chicken Nat'l Mgmt. v. Weathersby, 326 Md. 663, 670-71 (1992). Extreme and outrageous conduct is defined as "conduct that is so outrageous in character and 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." Harris, 281 Md. at 567. Only four IIED claims have ever succeeded in Maryland courts: Fay a v. Almaraz, 329 Md. 435 (1993) (HIV-positive surgeon operated on the appellants without their knowledge of his disease); Figueiredo-Torres v. Nickel, 321 Md. 642 (1991) (psychologist had sexual relations with the plaintiffs wife during the time when he was treating the couple as their marriage counselor); B.N. v. K.K., 312 Md. 135 (1988) (physician knowingly did not tell nurse with whom he had sexual intercourse that he had herpes); Young v. Hartford Accident & Indem., 303 Md. 182 (1985) (worker's compensation insurer's "sole purpose" in insisting that claimant submit to psychiatric examination was to harass her and force her to abandon her claim or to commit suicide). The Milungas have based their IIED claim on the allegation that Ms. Sakala "falsely accusjed them] of holding her as a slave, abusing her, starving her, and not providing for her welfare" in an effort to stay in the United States. (Defs. Countercl. at 42, 31-32). Nothing in Maryland case law suggests that allegations of this nature meet the extreme and outrageous standard. Indeed, Maryland's state and federal courts have routinely dismissed and denied claims for IIED where alleged defamation was the underlying conduct. See, e.g., Holt v. Camus, 128 F. Supp. 2d 812, 817 (D. Md. 1999) (motion to dismiss granted on IIED claim based on 1363980.6 05/01/2017 -11- Case 8:16-cv-00790-PWG Document 49-1 Filed 05/01/17 Page 11 of 17 defendant's detailed deposition statements, later republished to the judge, regarding attorney- plaintiffs alleged sexual promiscuity); Batson v. Shiflett, 325 Md. 684, 736 (1992) (Court of Appeals reversed IIED judgment based on leaflets accusing plaintiff of "crimes of conspiracy, perjury, falsification of records" and misuse of union funds, even where Court held such leaflets were defamatory); Heflin v. Ulman, No. 0156, Sept. Term, 2016 WL 1360805, at *2-3 (Md. Ct. Spec. App. Apr. 6, 2016) (dismissal of IIED held proper where plaintiff alleged that he was falsely accused of harassment and then terminated after a "superficial investigation"). The Milungas' claims of false accusations are similarly insufficient to meet the extreme and outrageous prong of the IIED inquiry, and should be dismissed. V. THE MILUNGAS HAVE FAILED TO STATE A CLAIM FOR ASSAULT AND BATTERY. A. The Milungas' Assault Claim is Barred by the Statute of Limitations To establish a claim for assault, the plaintiff must show that he or she was intentionally threatened by a defendant who possessed the apparent present ability to carry out that threat. Lee v. Pfeifer et al., 916 F.Supp. 501, 505 (D. Md. 1996); Cooper v. Harbour Inns of Baltimore, Inc., No. L-98-2173, 2000 WL 351373, at *1 (D. Md. Mar. 20, 2000). Under Maryland law, the statute of limitations for assault is one year. Md. Code Cts. & Jud. Proc. § 5-105. The Milungas allege that, while employed by the Milungas, Ms. Sakala used physical force or threats of force to frighten the Milungas. (Defs.' Countercl. | 37-40). These assault claims are time barred because the Milungas admit that, at the latest, Ms. Sakala's employment ended by September 21, 2015. (Defs.' Ans. 1J35). The Milungas filed the Counterclaims on December 8, 2016. Therefore, any alleged assault by Ms. Sakala that occurred during her employment (i.e., prior to September 21, 2015) is barred by the one-year statute of limitations for assault under Maryland law. 1363980.6 05/01/2017 -12- Case 8:16-cv-00790-PWG Document 49-1 Filed 05/01/17 Page 12 of 17 B. The Milungas Fail to Allege Sufficient Facts to Maintain a Battery Claim "A battery occurs when one intends harmful or offensive contact with another without the person's consent." Nelson v. Carroll, 355 Md. 593, 600 (1999). The Milungas admitted in their Counterclaim that they are not sure if Ms. Sakala has committed a battery, but they have speculated that Ms. Sakala committed a battery two different ways: (1) that Ms. Sakala tampered with Ms. Milunga's food, and (2) that Ms. Sakala physically abused the Milungas' children outside of the Milungas' presence. To survive a motion to dismiss, "| f|actual allegations must be enough to raise a right to relief above the speculative level." Bell All. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). "[W]holly vague and conclusory allegations are not sufficient to withstand a motion to dismiss." Doe, 713 F.3d at 754. The Defendants' battery claims are nothing more than pure speculation, and must be dismissed. i. The Milungas Concede That Their Allegations are Speculation. The Milungas allege: [E]ach time Sakala prepared food or a meal for [the Milungas], [Ms.] Milunga immediately became ill, suffering vomiting, stomach pain, and diarrhea. At first Counterclaimants thought this was because Sakala could not cook, but only [Ms.] Milunga was getting ill. [Ms.] Milunga became increasingly concerned as the situation persisted, and so she visited her physician, who told her that her stomach was ulcerated. See Exhibit L. However, when [Ms.] Milunga stopped eating food prepared or offered to her by Sakala she stopped experiencing symptoms, and has not experienced any additional symptoms since Sakala's departure. Therefore, Counterclaimants have concluded that Sakala was somehow tampering with [Ms.] Milunga's food to make her sick, and otherwise harm her. (Defs.' Countercl. at 30-31). Exhibit L appears to be a medical record suggesting that Ms. Milunga was diagnosed with "calculus of gallbladder with other cholecystitis without mention of obstruction." Exhibit L offers no medical opinion as to how Ms. Milunga contracted this condition, and otherwise gives no factual support to Defendants' claims that it was caused by 1363980.6 05/01/2017 -13- Case 8:16-cv-00790-PWG Document 49-1 Filed 05/01/17 Page 13 of 17 Ms. Sakala tampering with the food. Nor do the Milungas allege that Exhibit L stands for this proposition. Rather, as they have conceded, the allegation that Ms. Sakala "somehow" tampered with Ms. Milunga's food is a conclusion they have drawn. Similarly, the Milungas state only a single factual allegation to support battery against their children: [The Milungas'] concerns increased further when their six-year old son told [them] that [Ms.] Sakala was physically abusing him (hitting him). Initially, [the Milungas] did not take their minor son seriously, but he has persisted in his claims and now [the Milungas] believe that [Ms.] Sakala was indeed abusing their children out of their presence." (Defs.' Countercl. at 32). To survive a motion to dismiss, "[fjactual allegations must be enough to raise a right to relief above the speculative level." Bell All. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). "[W]holly vague and conclusory allegations are not sufficient to withstand a motion to dismiss." Doe, 713 F.3d at 754. Nothing other than an allegation that a minor child said that Ms. Sakala hit him has been presented as a fact. The Milungas' battery claims are purely speculative, and must be dismissed. ii. The Milungas Did Not Properly State a Claim for Battery of Their Children. A tortious injury to a minor child gives rise to two potential causes of action: (1) a claim by the minor child that is brought on his behalf by a parent or guardian for injuries suffered by the child; or (2) a claim brought by the parents or guardians of the child for medical expenses incurred by such person for the treatment of the minor's injuries. Piselli v. 75th Street Med., 371 Md. 188 (2002); Arrabal v. Crew-Taylor, 159 Md. App. 668 (2004), abrogated on other grounds by McQuitty v. Spangler, 410 Md. 1 (2009)). The Defendants did not list their children as parties and have not stated that they are bringing claims on behalf of their children. Defendants have not alleged that they have incurred -14- 1363980,6 05/01/2017 Case 8:16-cv-00790-PWG Document 49-1 Filed 05/01/17 Page 14 of 17 medical expenses for their children as a result of any battery. The Milungas have not properly stated a claim for a battery to their minor children, and any battery claims related to alleged abuse of the children must be dismissed. VI. THE MILUNGAS FAIL TO STATE A CLAIM FOR INVASION OF PRIVACY Maryland recognizes four types of invasion of privacy claims, conforming to the Restatement (Second) of Torts: (a) Unreasonable intrusion upon seclusion; (b) Appropriation of another's name or likeness; (c) Unreasonable publicity given to another's private life; and (d) Publicity which unreasonably places another in a false light before the public. Lawrence v. A.S. Abell Co., 299 Md. 697, 701-02 (1984). An intrusion upon seclusion claim requires "[t]he intentional intrusion upon the solitude or seclusion of another or his private affairs or concerns that would be highly offensive to a reasonable person." Furman v. Sheppard, 130 Md. App. 67, 73 (2000). An appropriation claim requires the appropriation of the name or likeness of another for the defendant's "own use or benefit." Lawrence, 299 Md. at 702. But an appropriation claim only applies when the plaintiffs "name or likeness [has] commercial or other value." Id. at 706 (internal quotation marks and citation omitted). Lawrence, for instance, held that an appropriation claim for reprinting a picture of two children in an ad campaign was not proper, because the children's likenesses did not have "proven value." Id. The children "were not famous and, in fact, were not even professional models .... Thus, the children did not demonstrate that the paper [] took advantage of any special value associated with their likenesses." Id. at 706-07. An unreasonable publicity claim requires "[a] matter publicized [] of a kind which (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public." Furman, 130 Md. App. at 77. Finally, a false light claim requires -15- 1363980.6 05/01/2017 Case 8:16-cv-00790-PWG Document 49-1 Filed 05/01/17 Page 15 of 17 giv[ing] publicity to a matter concerning another that places the other before the public in a false light ... if (a) the false light in which the other person was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. Id. The Milungas have attached a number of photos at Exhibit C to their Counterclaim, and allege that Ms. Sakala invaded their privacy by posting those photos that feature their children and their home on social media. (Defs.' Ex. C). The photos that feature the children are in a variety of locations, most of them public. Two photos of the children appear to be indoors. However, the Milungas at no point specify which photos are photos of their home. Rather, the Milungas have alleged generally that they "have a protected right to the privacy of their home and the images of their children," and that Ms. Sakala "intentionally and without the knowledge, consent, or permission of [the Milungas], published and posted photographs and images of [their] minor children and [their] home on the internet." (Defs.5 Countercl. f[j 43-44). Though it is not clear from the allegations, it appears the Milungas are complaining of either an intrusion upon seclusion or unreasonable publicity of private life. Regardless, they have failed to state a claim for either. The photos in Exhibit C do not reveal any private facts - they do not identify the children depicted, nor the location of the home, nor even which photos display their home. Further, under Maryland law, revealing an image of an event already visible in a public place cannot constitute an invasion of privacy. Barnhart v. Paisano Pubs., LLC, 457 F. Supp. 2d 590, 593 (D. Md. 2006). Therefore, the photos of Ms. Sakala with the children in public places cannot support a claim for an invasion of privacy. Finally, the Court of Special Appeals has held that the "highly offensive for a reasonable person" standard for an invasion of privacy claim "needs to have the same overtones of mental -16- 1363980.6 05/01/2017 Case 8:16-cv-00790-PWG Document 49-1 Filed 05/01/17 Page 16 of 17 distress as in defamation. It must be one affecting reputation, which would be offensive and objectionable to a reasonable person of ordinary sensibilities." Taylor v. NationsBank N.A., 128 Md. App. 414, 420 (1999) (emphasis added) rev'd on other grounds 365 Md. 166 (2001). The Milungas have failed to allege that Ms. Sakala had any effect on their reputation when she posted the photos on social media. Indeed, they have included the same photos of their minor children in a public document without requesting that the court seal the pictures. Thus, the Milungas have failed to state a claim, and Count VI should be dismissed in its entirety. CONCLUSION For the foregoing reasons, Plaintiff/Counter-Defendant Faith Sakala respectfully requests that this Court dismiss Defendants' Counterclaim in its entirety, with prejudice. Respectfully submitted, Date: May 1, 2017 /S/ Jordan Rosenfeld Harriet E. Cooperman (Federal Bar No. 00729) Gary B. Eidelman (Federal Bar No. 04580) Jordan D. Rosenfeld (Federal Bar No. 13694) Douglas A. Sampson (Federal Bar No. 19800) Morgan N.G. Perna (Federal Bar No. 19803) SAUL EWING LLP 500 East Pratt Street, 8th Floor Baltimore, MD 21202 (410) 332-8600 (telephone) (410) 332-8862 (facsimile) Attorneys for Plaintiff/Counter-Defendant Faith Sakala 1363980.6 05/01/2017 -17- Case 8:16-cv-00790-PWG Document 49-1 Filed 05/01/17 Page 17 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND (Southern Division) FAITH SAKALA Plaintiff/Counter-Defendant, v. Case No.: 8:16-cv-00790-PWG BERNADETTE TEMBO MILUNGA, et al. Defendants/Counter-Plaintiffs. ORDER UPON CONSIDERATION of Plaintiff/Counter Defendant Faith Sakala's Motion to Dismiss Counterclaims, Memorandum of Law in Support thereof, any oppositions thereto, and any replies or hearings thereon, it is this day of , 2017, by the United States District Court for the District of Maryland, ORDERED, that Plaintiff/Counter Defendant Faith Sakala's Motion to Dismiss Counterclaim be, and is hereby, GRANTED; and it is further ORDERED, that all counts of Defendants/Counter-Plaintiffs Bernadette Tembo Milunga and Kaingu Milunga's Counterclaim be, and are hereby DISMISSED WITH PREJUDICE. The Honorable Paul W. Grimm United States District Court Judge 1363975.2 05/01/2017 Case 8:16-cv-00790-PWG Document 49-2 Filed 05/01/17 Page 1 of 1