Park v. Bender ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SHINOK PARK,
Plaintiff,
v.
Civil Action No. 21-2448 (RDM)
BRUCE M. BENDER,
Defendant.
MEMORANDUM OPINION
Plaintiff Shinok Park, proceeding pro se, filed this action against her former attorney,
Bruce Bender, for fraud, unlawful detention of personal property, unjust enrichment,
malpractice, spoliation of evidence, and breach of fiduciary duties. Dkt. 1 at 6. Bender moves to
dismiss on the ground that Plaintiff’s suit is barred under the doctrines of res judicata and
collateral estoppel. Dkt. 7 at 2. Park has since moved to amend her complaint, Dkt. 17, which
Bender opposes, Dkt. 21. For the reasons that follow, the Court will GRANT Bender’s motion
to dismiss and will DENY Park’s motion for leave to amend the complaint as futile.
I. BACKGROUND
For purposes of the pending motion to dismiss, the following facts, which are largely
taken from Plaintiff’s complaint, are accepted as true. See Am. Nat’l Ins. Co. v. FDIC, 642 F.3d
1137, 1139 (D.C. Cir. 2011). The Court, moreover, takes judicial notice of the public records—
included as attachments to Bender’s motion to dismiss—that document the previous litigation
between Park and Bender’s law firm in Maryland state court and between Plaintiff and her
former supervisor in D.C. Superior Court. See Capitol Servs. Mgmt., Inc. v. Vesta Corp., 933
F.3d 784, 789 (D.C. Cir. 2019) (“District courts may, at the Rule 12(b)(6) stage, take judicial
notice of publicly filed pleadings in related actions as evidence of what was alleged in the other
actions . . . .”); see also EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir.
1997) (“In determining whether a complaint fails to state a claim, [the Court] may consider only
the facts alleged in the complaint, any documents either attached to or incorporated in the
complaint and matters of which [it] may take judicial notice.”).
A. Bender’s Representation of Park
In May 2017, Park retained Bender, an attorney at the Maryland law firm of Axelson,
Williamowsky, Bender & Fishman, P.C. (“AWB&F”), to represent her in a then-ongoing civil
suit in D.C. Superior Court against her former supervisor, Milan Brahmbhatt. Dkt. 1 at 1–2
(Compl. ¶¶ 1–2, 5); see also Dkt. 7-4 at 18. In that suit (“the sexual assault case”), Park alleged
that, while Brahmbhatt was her supervisor at the World Bank, he engaged in sexual assault,
battery, intentional inflection of emotional distress (“IIED”), blackmail, and tortious interference
with contract and business relations—although the latter three counts had been dismissed by the
D.C. Superior Court before Park retained Bender. Dkt. 1 at 2 (Compl. ¶ 5); Dkt. 7-4 at 5, 15.
Beginning in February 2018, Bender also represented Park in the appeal of a civil defamation
suit against Brahmbhatt and his lawyer, Peter Hansen, which was pending before the D.C. Court
of Appeals at the time. Dkt. 1 at 1–2 (Compl. ¶¶ 2, 7). According to Park’s complaint, Bender
and Brahmbhatt had a “personal” relationship that Bender failed to disclose to Park, although she
does not describe the nature of the relationship. Dkt. 1 at 2 (Compl. ¶ 6).
After Bender joined the sexual assault case as Park’s attorney, a jury trial was set to
proceed on the sexual assault, battery, and IIED counts. Dkt. 7-4 at 20. Park’s concerns with
Bender’s representation arose, in the first instance, during pre-trial discovery. She alleges that
Bender “misguided” her when he “advised [her] to lie during depositions,” Dkt. 1 at 2, 6 (Compl.
2
¶¶ 9, 39), “advised [her] that she could contact witnesses and encourage them to not attend [their
own] depositions,” id. at 3 (Compl. ¶ 11), and “encouraged [her] to lie to the jury about the
validity of certain evidence and facts,” id. (Compl. ¶ 15). Park was sanctioned with a $3,000
penalty for this conduct—a sanction that Bender allegedly later raised during trial “to the
detriment of Plaintiff’s credibility.” Id. at 3 (Compl. ¶¶ 12–13). She also contends that, during
discovery, Bender precluded her from viewing evidence that he received from Google on her
behalf, notwithstanding the fact that he shared that evidence with Peter Hansen, counsel for
Brahmbhatt. Id. (Compl. ¶ 14).
In June 2018, Superior Court Judge Hiram Puig-Lugo presided over a ten-day jury trial
on Park’s remaining claims against Brahmbhatt. Id. at 2 (Compl. ¶¶ 5, 8); Dkt. 7-4 at 30.
During the trial, Bender allegedly continued to engage in misconduct: he allegedly “changed and
altered Plaintiff’s exhibits without discussing the changes with her” or showing her the final
exhibits, id. at 4 (Compl. ¶¶ 20, 22–23), “submitted additional exhibits that [Park] had never seen
or approved,” id. (Compl. ¶ 21), “failed to provide [her] with copies of . . . [27] defense
exhibits,” id. (Compl. ¶¶ 24–25), and “continued to use and pay expert witnesses” against Park’s
express wishes, id. (Compl. ¶ 26). After the close of evidence and deliberation, the jury returned
a verdict in Park’s favor on her IIED claim, awarding her $15,000 in damages, id. at 3 (Compl.
¶¶ 16–17), and a verdict in Brahmbhatt’s favor on the sexual assault and battery claims, id.
(Compl. ¶ 16). The Court granted Brahmbhatt’s motion for judgment notwithstanding the
verdict on the IIED claim, however, and entered judgment in Brahmbhatt’s favor. Id. (Compl. ¶
18). Two months later, the Court also granted Brahmbhatt’s motion for $150,000 in attorney’s
fees and costs—a sum Park alleges “amounted to around the fair market value of [her]
investment rental condominium property at the time.” Id. at 5 (Compl. ¶ 30); Dkt. 7-4 at 34.
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After the return of the jury verdict, Bender contacted Park, alleging that she owed him
over $160,000 in previously undiscussed fees. Id. at 4 (Compl. ¶ 27). He indicated, moreover,
that he would halt his representation of her in the defamation appeal if she did not pay his fees
within two weeks. Id. at 4 (Compl. ¶ 28). Park declined to pay the fees, and Bender “stopped
representing [her] in her trial case and appeal.” Id. at 4 (Compl. ¶ 29). 1 Bender then allegedly
“became unresponsive,” “refusing to respond to Plaintiff’s emails and phone calls” or to “her
requests for copies of her trial exhibits and case files used in both the trial and appeal cases.”
Dkt. 1 at 5 (Compl. ¶ 31). He continued to send Park legal bills, however, which he “claimed
were for continued representation and finance charges on her outstanding balance.” Id. (Compl.
¶ 32). In October 2019, after Park had retained a new attorney, Bender responded to Park’s
emails, stating that he had “given [her] all of her exhibits” and “demanded $1,500 for the
production of said exhibits.” Id. (Compl. ¶ 33).
Not until November 2019 did Bender and Brahmbhatt’s attorney send Park a selection of
final trial exhibits via email, at which point Park apparently discovered that Bender “had made
damaging changes to her original draft exhibits” and that “exhibits she had never before seen or
had the opportunity to reply to had been used in the trial.” Id. (Compl. ¶¶ 34–35). Although
Park has appealed the jury verdict in the sexual assault case to the D.C. Court of Appeals, her
“appeal remains in jeopardy because Defendant continues to withhold over 30 exhibits from
[her]”—indeed, the Court of Appeals has already once dismissed the appeal without prejudice
because Park was “unable to prepare her appeal brief and appendix without copies of the trial
exhibits from [Bender].” Id. (Compl. ¶¶ 36–37).
1
The D.C. Court of Appeals eventually affirmed the D.C. Superior Court’s grant of summary
judgment against Park in the defamation suit. See Park v. Brahmbhatt, 234 A.3d 1212 (D.C.
2020).
4
B. The Maryland Litigation
In May 2019, AWB&F sued Park in the Circuit Court for Montgomery County,
Maryland. See Dkt. 7-2 at 2. AWB&F sought recovery of unpaid attorney’s fees under two
retention agreements it had entered with Park: one as to the sexual assault case against
Brahmbhatt and one as to the defamation appeal. Dkt. 7-3 at 2–3. After a failed attempt to
remove the suit to federal court, Park answered and filed a counterclaim, which she later
amended (the “Maryland counterclaims”). Id. at 4–5; Dkt. 7-2 at 6–9. In her amended
counterclaims, Park brought claims against AWB&F for breach of contract (Count I),
professional negligence (Count II), breach of fiduciary duties (Count III), evidence spoliation
(Count IV), and intentional misrepresentation (Count V). Dkt. 7-1 at 8–18.
The Maryland counterclaims centered on Bender’s representation of Park, both during the
sexual assault case and the defamation appeal. Id. Much like the complaint in this case, the
Maryland counterclaims recounted Park’s retention of Bender, the jury trial, the resulting dispute
about Bender’s fees, Bender’s unresponsiveness after trial, Bender’s alleged manipulation and
withholding of exhibits from Park, and the effect of Bender’s conduct on her ability to pursue her
appeal. Id. at 1–8. The counterclaims allege, on these points, that AWB&F breached its contract
with Park and engaged in professional negligence when it, through its principals, “failed to
amend the complaint against Mr. Brahmbhatt,” “failed to produce an appeal argument on the
dismissal of the defamation case through summary judgment,” “failed to timely address the
issues regarding the fabrication/authenticity of certain [evidence],” “failed to prepare and advise
Ms. Park properly regarding her testimony,” “instructed Ms. Park to provide false testimony,”
“altered Ms. Park’s medical record without her knowledge,” and “litigated Ms. Park’s sexual
assault case in a way which subjected her to sanctions in the amount of $153,000,” among other
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actions. Id. at 9–14. As a direct and proximate result of these actions, Park asserted that she
“suffered significant damages, including . . . loss[es] in the defamation case appeal and the
sexual assault case.” Id. at 11, 14.
Park also alleged in her counterclaims that AWB&F breached its fiduciary duties to her
when “it . . . continued to pay two IT forensic experts . . . against her verbal and written
instructions,” “paid a private investigator . . . without any consultation with Ms. Park,” “paid
conference room rental[s]” and other deposition-related costs, and failed to correct its bills in
response to Park’s complaints. Id. at 14–15. As to the spoliation count, Park alleged that
AWB&F spoliated, through its principals and agents, her evidence by making “damaging
alterations” to her exhibits, concealing Google’s response to her subpoena, and blocking her
preferred expert from testifying. Id. at 15–17. Finally, Park alleged that AWB&F “knowingly
and willfully made misrepresentation[s] when” its principals or agents advised Ms. Park to
“contact her trial witnesses and tell them not to go to the depositions,” “lied to [her] . . . about
Google’s response to her subpoena,” and “wrote a letter to then-assigned [J]udge
Edelman . . . that there was no issue between the parties in forensic examination of the
defendant’s alleged email and online chat communications.” Id. at 17–18.
AWB&F moved for summary judgment on both its breach-of-contract claim and on
Park’s amended counterclaims. Dkt. 7-2 at 14, 16. Park apparently failed to respond in a timely
fashion to AWB&F’s request for admission of facts, and the Maryland court consequently—and
notwithstanding several motions for reconsideration by Park—deemed AWB&F’s facts to be
admitted. Dkt. 7-3 at 5. In an October 2021 memorandum opinion, Judge Storm granted
AWB&F’s motions for summary judgment as to its own breach-of-contract claim and as to
Park’s amended counterclaims. Id. at 2. In relevant part, Judge Storm concluded that AWB&F
6
and Park entered into two valid contracts, that Park failed to pay AWB&F for services rendered,
and that Park failed to demonstrate, either by expert testimony or by pointing to AWB&F’s
errors, that AWB&F engaged in legal malpractice. Id. at 7–8.
The court concluded, moreover, that “the evidence [did] not support . . . [Park’s] claim
that [AWB&F] was acting in any way in violation of its fiduciary duties, or the parties[’]
agreement,” id. at 9, and that Park’s claim for intentional misrepresentation failed because, at a
minimum, “Park [could not] show that she suffered any damage as a result of any purported
misrepresentation,” id. at 10. The court also determined, based on Park’s admissions of fact, that
“[t]he only damages [Park] seeks are $153,000 related to sanctions that were imposed against her
resulting from her own conduct, not that of counsel.” Id. at 8 n.9. And because Maryland does
not recognize spoliation of evidence as an independent cause of action, the court granted
summary judgment for AWB&F on that claim. Id. at 9–10. Accordingly, the Maryland court
entered judgment in AWB&F’s favor for $159,656.25, plus prejudgment interest. Dkt. 7-2 at 21.
Park has since appealed that judgment to the Maryland Court of Special Appeals, id., and the
appeal remains pending as of this Court’s decision, see Park v. Axelson Williamowsky Bender &
Fishman PC, No. CSA-REG-1486-2021 (Md. Ct. Spec. App.).
C. Procedural History
Park filed the instant suit on September 14, 2021, Dkt. 1 at 1 (Compl.), alleging fraud,
unlawful detention of personal property, unjust enrichment, misrepresentation, malpractice,
spoliation of evidence, and breach of fiduciary duties, id. at 6. More specifically, she contends
that Bender “committed the tort of fraud” when he promised to perform “truthful and ethical
legal services,” when he “‘knowingly and willfully’ misguided Plaintiff” towards sanctionable
conduct, and “deliberately altered Plaintiff’s trial exhibits.” Id. (Compl. ¶¶ 38–40). She further
7
alleges that Bender “committed the tort of legal malpractice when he failed to fully represent and
advocate” for her, that he unlawfully retained her trial exhibits and improperly spent her money
on witnesses, and that he engaged in “spoliation of evidence” when he “shared with
[Brahmbhatt’s] counsel the privileged and confidential information given to him by Plaintiff.”
Id. (Compl. ¶¶ 41–43).
Bender moved to dismiss Park’s complaint as barred by principles of res judicata and
collateral estoppel on December 31, 2021. Dkt. 7. On February 3, 2022, Park moved for leave
to file an amended complaint out of time, Dkt. 17, which Bender opposed, Dkt. 21. Park then
filed an additional out-of-time pleading, further opposing Bender’s motion to dismiss. Dkt. 25.
The Court denied Bender’s motion to strike this pleading, see Apr. 21, 2022 Min. Order, and will
accordingly consider it here.
II. LEGAL STANDARD
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal
sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002); see Fed.
R. Civ. P. 12(b)(6). A complaint need not include “detailed factual allegations” and may survive
a Rule 12(b)(6) motion even if “recovery is very remote and unlikely,” as long as the facts
alleged in their complaint are “enough to raise a right to relief above the speculative level.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007). The complaint must be construed in the
light most favorable to the plaintiff and “the court must assume the truth of all well-pleaded
allegations.” Warren v. District of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004). On a
Rule 12(b)(6) motion, the Court is limited to considering “only the facts alleged in the complaint,
any documents either attached to or incorporated in the complaint and matters of which we may
take judicial notice.” St. Francis Xavier Parochial Sch., 117 F.3d at 624. Where, as here, the res
8
judicata “defense appears on the face of the complaint and any matters of which the court may
take judicial notice,” the Court may consider the defense in a motion brought under Rule
12(b)(6). Sheppard v. District of Columbia, 791 F. Supp. 2d 1, 1 n.3 (D.D.C. 2011); see also
Boling v. U.S. Parole Comm’n, 290 F. Supp. 3d 37, 45 (D.D.C. 2017) (“When res judicata bars a
claim, it is subject to dismissal under Rule 12(b)(6).”).
A pro se complaint, “however inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). “This
benefit is not, however, a license to ignore the Federal Rules of Civil Procedure,” Sturdza v.
United Arab Emirates, 658 F. Supp. 2d 135, 137 (D.D.C. 2009), and a pro se complaint must
“still ‘present a claim on which the Court can grant relief’ to withstand a Rule
12(b)(6) challenge,” Smith v. Scalia, 44 F. Supp. 3d 28, 36 (D.D.C. 2014) (citations omitted).
III. ANALYSIS
A. Res Judicata
Bender moves to dismiss Park’s complaint as precluded under the doctrines of res
judicata and collateral estoppel by the Maryland court’s grant of summary judgment to AWB&F
on Park’s counterclaims. Dkt. 7 at 2. This Court is required to give a state-court judgment, such
as the Maryland decision here, “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 Sch. Dist.
Bd. of Educ., 465 U.S. 75, 81 (1984), and must, accordingly, “accept” the res judicata and
collateral estoppel rules “chosen by the State from which the judgment is taken,” Marrese v. Am.
Acad. Orthopaedic Surgeons, 470 U.S. 373, 380 (1985) (citation omitted); see also Allen v.
McCurry, 449 U.S. 90, 95 (1980); Presidential Bank, FSB v. 1733 27th St. SE LLC, 404 F. Supp.
3d 1, 11 (D.D.C. 2019); Brewer v. District of Columbia, 105 F. Supp. 3d 74, 85 (D.D.C. 2015).
9
As relevant here, Maryland courts have decided that res judicata bars subsequent litigation where
“(1) the parties in the present litigation are the same or in privity with the parties to the earlier
litigation; (2) the claim presented in the current action is identical to that determined or that
which could have been raised and determined in the prior litigation; and (3) there was a final
judgment on the merits in the prior litigation.” R & D 2001, LLC v. Rice, 938 A.2d 839, 848
(Md. 2008).
Maryland courts have explained that the “somewhat allied” doctrine of collateral
estoppel, or issue preclusion, provides that, “[w]hen an issue of fact or law is actually litigated
and determined by a valid and final judgment, the determination is conclusive in a subsequent
action between the parties, whether on the same or a different claim.” Id. at 848–49 (alteration
omitted) (quoting Janes v. State, 711 A.2d 1319, 1324 (Md. 1998)). In other words, “[i]ssue
preclusion means that if a previous case took place between the same parties or their privies, and
the fact-finder made a finding that was ‘essential to’ the judgment entered, all future cases
between those parties are stuck with that finding and cannot re-litigate the question.” Mostofi v.
Midland Funding, LLC, 117 A.3d 639, 696 (Md. Ct. Spec. App. 2015). “These two doctrines
serve the same judicial policy: that the losing litigant deserves no rematch after a defeat fairly
suffered, in adversarial proceedings, on issues raised, or that should have been raised.” Id. at
696–97 (internal quotation marks and citation omitted).
Because the Court agrees with Bender that all of Park’s claims are barred by res judicata,
the Court need not consider the collateral estoppel effect of the Maryland court’s holdings. The
Court evaluates each requirement of res judicata in turn.
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1. Same Parties or Parties in Privity
The “parties in the present litigation” are not precisely the “same” as those involved in
the Maryland litigation, which occurred between AWB&F and Park. R & D 2001, 938 A.2d at
848. Maryland courts have clarified, however, that the parties need not be “precisely identical”
where the subsequent litigant is “so identified in interest with [the party to the previous suit] that
[the person] represents the same legal right.” Bank of N.Y. Mellon v. Georg, 175 A.3d 720, 744
(Md. 2017) (second alteration in original) (citation omitted); see also Kim v. Council of Unit
Owners for Collington Ctr. III Condo., 952 A.2d 346, 353 (Md. Ct. Spec. App. 2008). If, in
other words, a person, “although not [a] formal part[y] of record, [has] a direct interest in the
suit, and in the advancement of [his] interest take[s] open and substantial control of its
prosecution,” or is “so far represented by another that [his] interests receive actual and efficient
protection, any judgment recovered therein is conclusive upon [him] to the same extent as if [he]
had been [a] formal part[y].” Bank of N.Y. Mellon, 175 A.3d at 744 (quoting Ugast v. La
Fontaine, 55 A.2d 705, 708 (Md. 1947)).
Here, the party against whom res judicata is invoked—Park—was herself a party to the
prior action. It is only Bender, the party who now seeks to invoke res judicata, who was not a
formal party to the Maryland litigation. Maryland courts have dubbed this an “important[]”
distinction in their privity analyses, Worsham v. Friends of Marilyn Mosby, 12-C-17-001456,
2020 WL 4000879, at *4 (Md. Ct. Spec. App. July 15, 2020), because the question of privity
centers on “whether the interests of the party against whom estoppel is sought were fully
represented, with the same incentives, by another party in the prior matter,” Mathews v. Cassidy
Turley Md., Inc., 80 A.3d 269, 294 (Md. 2013) (emphasis added) (applying this distinction in the
context of collateral estoppel); see Worsham, 2020 WL 400879, at *4 n.8 (noting that “[t]he
11
same analysis applies to res judicata”). The Maryland Court of Appeals has therefore “relaxed
somewhat the strict requirements of privity and mutuality[]” for cases where the defendant may
not necessarily be in privity with the “defendant to the first suit.” deLeon v. Slear, 616 A.2d 380,
389 n.5 (Md. 1992).
Against the backdrop of these relaxed privity standards, the Court considers whether
Bender is sufficiently “identified in interest” with AWB&F that they “represent[] the same legal
right.” Bank of N.Y. Mellon, 175 A.3d at 744. In the Maryland counterclaims, Park alleged that
AWB&F was liable for the actions of “its actual or apparent principals, agents and/or
employees”—most centrally for those of Bender himself. E.g., Dkt. 7-1 at 11. Bender and
AWB&F’s interests in defending against Park’s allegations appear, therefore, to be identical:
Park’s assertions against AWB&F in the Maryland counterclaims are coterminous with her
allegations against Bender here, and the counterclaims did not enumerate allegations against any
other AWB&F employees aside from Bender. See generally Dkt. 7-1. The instant suit is
therefore akin to the case of deLeon v. Slear, 616 A.2d 380 (Md. 1992), where the Maryland
Court of Appeals concluded that there was “privity between . . . nurses and [a] hospital” when a
plaintiff asserted that “the hospital, a corporation, was liable for defamatory statements allegedly
made by its [nurses]” and had previously litigated the same claims against the nurses themselves.
See id. at 389. 2
2
Park alleged in the Maryland counterclaims that Bender is a “lawyer of the Firm,” Axelson,
Williamowsky, Bender, & Fishman. Dkt. 7-1 at 2. Although neither party addresses the
question, the law firm’s name suggests that Bender is a partner of the firm, and Maryland courts
have, at least on occasion, considered partners in privity with their partnerships. Cf. Winmark
Ltd. P’ship v. Miles & Stockbridge, 674 A.2d 73, 85 (Md. Ct. Spec. App. 1996) (finding general
partners “totally and inextricably aligned” in privity with their limited partnership for purposes
of judicial estoppel), rev’d on other grounds, 693 A.2d 824 (Md. 1997).
12
Park argues that AWB&F and Bender are nevertheless not in privity because AWB&F’s
complaint in Maryland addressed “bills from not only Defendant Bender, but also [three other]
attorneys of the firm” and that “[t]he counterclaim . . . Park raised in [the Maryland] lawsuit was
confined in that scope.” Dkt. 20 at 5. The fact that AWB&F’s complaint may have raised fee
disputes as to other attorneys, however, does not limit the scope of Park’s counterclaims or
AWB&F’s interest in defending against those counterclaims. Regardless of any allegations in
AWB&F’s complaint against Park, AWB&F and Bender share, in these two lawsuits, the same
interest in establishing that Bender did not engage in legal malpractice, violate his fiduciary
duties to Park, or engage in tortious conduct while serving as Park’s attorney. Because Bender’s
interests were “so far represented by” AWB&F in the Maryland litigation that he “receive[d]
actual and efficient protection,” then, Bender and AWB&F are in privity. See Bank of N.Y.
Mellon, 175 A.3d at 744 (quoting Ugast, 55 A.2d at 708).
2. Same Claims
For res judicata to apply, Park must also be attempting to relitigate the same “claim” or
“cause of action” in the instant complaint as she did in the Maryland counterclaims. See deLeon,
616 A.2d at 389. Under Maryland law, courts apply the so-called “transaction” test to determine
whether claims are the same. See Kent Cnty. Bd. of Educ. v. Bilbrough, 525 A.2d 232, 238 (Md.
1987). The transaction test, in turn, defines a “claim” to “include[] all rights of the plaintiff to
remedies against the defendant with respect to all or any part of the transaction, or series of
connected transactions, out of which the claim arose.” Boyd v. Bowen, 806 A.2d 314, 325 (Md.
Ct. Spec. App. 2002). Whether a claim is part of the same transaction turns, furthermore, on
“such considerations as whether the facts are related in time, space, origin or motivation, whether
13
they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’
expectations.” FWB Bank v. Richman, 731 A.2d 916, 928 (Md. 1999).
The Maryland counterclaims and Park’s complaint in this case are clearly “related in
time, space, [and] origin.” See id. Both suits address Bender’s representation of Park in and
leading up to the June 2018 trial in D.C. Superior Court and his engagement as her appellate
counsel as to her defamation case in the D.C. Court of Appeals. Compare Dkt. 7-1 at 2–8, with
Dkt. 1 at 1–5. The factual allegations in the two complaints mirror one another almost perfectly:
in each instance, Park contends that Bender encouraged her to engage in sanctionable conduct,
Dkt. 7-1 at 10, 13; Dkt. 1 at 2–3 (Compl. ¶¶ 9, 11–12, 15); lied to her about Google’s response to
her subpoena, Dkt. 7-1 at 17; Dkt. 1 at 3 (Compl. ¶ 14); altered and withheld trial exhibits from
her, Dkt. 7-1 at 5–7; Dkt. 1 at 4 (Compl. ¶¶ 20–25); retained experts and investigators against her
express instruction, Dkt. 7-1 at 14; Dkt. 1 at 4 (Compl. ¶ 26); and surprised her with fees she
never agreed to pay, Dkt. 7-1 at 4, 8–11; Dkt. 1 at 4 (Compl. ¶¶ 27–29). The two suits therefore
“form a convenient trial unit,” as “the witnesses or proofs” relevant to the complaint against
Bender “tend to overlap [with] the witnesses or proofs relevant to the first.” Smalls v. Md. State
Dep’t of Educ., 127 A.3d 610, 619, 624 (Md. 2015) (citations omitted). The Maryland
counterclaims and the instant action arise, moreover, from the same literal “transaction or series
of connected transactions,” Boyd, 806 A.2d at 326—here, the two retention agreements between
Park and AWB&F as to the sexual assault case in D.C. Superior Court and the defamation appeal
in the D.C. Court of Appeals, Dkt. 1 at 1–2 (Compl. ¶¶ 2, 5, 7); Dkt. 7-1 at 2–3.
To be sure, the legal theories advanced by Park are not identical in the two cases. As
Bender himself notes, Park’s complaint against him raises claims based on “unjust enrichment”
and “unlawful detention of personal property” that were not presented in the Maryland
14
counterclaim. Dkt. 7 at 6–7. But res judicata bars not only the exact legal arguments addressed
in the original litigation; it also bars other claims that “could have been made” in the original
litigation and that arise from the same series of transactions as the claim that was adjudicated.
Smalls, 127 A.3d at 616–17 (“Res judicata is concerned not only with what was, but with what
could have been.”). 3 “[A] mere change in the legal theory, applied to the same set of facts
previously litigated, will not in and of itself avoid claim preclusion.” Bilbrough, 525 A.2d at
236. Because the unjust-enrichment and unlawful-detention claims are predicated on the same
transactions litigated in the Maryland counterclaim, the new legal theories present in the instant
suit do not change the Court’s conclusion as to res judicata.
In Park’s “supplemental memorandum” in support of her motion for leave to file an
amended complaint, Park for the first time asserts that her suit is not barred by res judicata
because Maryland has adopted “special rules of res judicata in the context of counterclaims.”
3
There is perhaps a colorable argument that the spoliation-of-evidence claim advanced in both
the Maryland litigation and in the instant suit “could” not really “have been litigated” in the
previous case because Maryland apparently does not “recognize such a[] claim as an independent
cause of action.” See Dkt. 7-3 at 9–10; see also Anne Arundel Cnty. Bd. Of Educ. v. Norville,
887 A.2d 1029, 1039 (Md. 2005) (suggesting that a novel theory of liability might survive a
dismissal based on res judicata if the new theory of liability did not exist when the first action
was litigated). Park has, however, not even gestured towards her spoliation claim in her
opposition to Bender’s motion to dismiss and has thus waived any argument that the spoliation
claim should survive the dismissal here. See, e.g., Xenophon Strategies, Inc. v. Jernigan
Copeland & Anderson, PLLC, 268 F. Supp. 3d 61, 72 (D.D.C. 2017). Nor has Park addressed
whether this Court would, if considering the merits of this case, apply D.C. tort law—which
recognizes an “independent and actionable tort” for negligent or reckless spoliation of evidence,
Holmes v. Amerex Rent-A-Car, 710 A.2d 846, 847 (D.C. 1998)—or whether Maryland law
would govern this action, as the Maryland court assumed it did in deciding the counterclaim. In
any event, even if D.C. law governed, Park’s allegation that Bender engaged in spoliation “when
he shared with [Brahmbhatt’s] counsel the privileged and confidential information given to him
by Plaintiff,” Dkt. 1 at 6 (Compl. ¶ 43) (emphasis added), fails, at a basic level, to allege the
essential element of “destruction of . . . evidence by [a] duty-bound defendant,” Cook v.
Children’s Nat’l Med. Ctr., 810 F. Supp. 2d 151, 155 (D.D.C. 2011) (emphasis added) (quoting
Holmes, 710 A.2d at 854)).
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Dkt. 25 at 6–7. Because Maryland has no compulsory counterclaim rule, Park argues, “the
defendant has a choice as to whether or not [s]he will pursue [her] counterclaim in the action
brought against [her] by the plaintiff,” and res judicata thus does not bar a plaintiff from later
asserting a claim that she could have raised in a counterclaim. Id. at 7 (quoting Fairfax Sav.,
F.S.B. v. Kris Jen Ltd. P’ship, 655 A.2d 1265, 1270 (Md. 1995)). This argument is unavailing.
It is true that Maryland’s counterclaim rule “is permissive rather than mandatory,” Moore
v. Nissan Motor Acceptance Corp., 831 A.2d 12, 16 (Md. 2003), and that failure to bring a
counterclaim does not necessarily “preclude a subsequent action of that claim” unless the
subsequent action would “nullify the initial judgment or would impair rights established in the
initial judgment,” Rowland v. Harrison, 577 A.2d 51, 56–57 (Md. 1990) (quoting Restatement
(Second) of Judgments § 22(2)(b) (Am. L. Inst. 1982)). This approach to res judicata preserves
the permissive nature of Maryland’s counterclaim rule and ensures that a defendant can “bring
suit at a time and place of his own selection,” rather than “assert his claim in the forum or the
proceeding chosen by the plaintiff.” Id. at 55 (quoting Restatement (Second) of Judgments
§ 22(1) cmt. a). If Park had decided not to assert counterclaims against AWB&F in Maryland,
then, it is at least plausible that she could have raised some of her pending claims against Bender
here, unless successful prosecution of the instant suit would have nullified the Maryland
judgment.
But the Restatement’s approach governs only where a defendant may plead a
counterclaim but “fails to do so,” Restatement (Second) of Judgments § 22(1), and Maryland
courts have thus limited this rule to those contexts where a counterclaim was not adjudicated in
the first judgment. See, e.g., Rowland, 577 A.2d at 52 (observing that plaintiff was allowed to
voluntarily dismiss her negligence counterclaim in prior action without prejudice prior to
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litigation); Fairfax, 655 A.2d at 1275 (“[T]he case before us does not involve a counterclaim
filed in the [prior] foreclosure action . . . .”); Moore, 831 A.2d at 17 (“Moore did not assert any
counterclaim in the [prior] action . . . .”); Rodney George Living Tr. v. Mayor of Balt., No. 24-C-
18-004753, 2020 WL 1330333, at *6–7 (Md. Ct. Spec. App. Mar. 20, 2020) (explaining the
limited contexts in which “a party who failed to impose a permissive counterclaim is barred from
raising the claim in a subsequent action” (emphasis added)). Where, as here, the plaintiff
actually asserted a counterclaim in the first suit, and where the Court entered judgment upon that
counterclaim, the Restatement § 22(1) rule does not transform the rules of res judicata to allow
“[l]egal theories . . . [to] be divided and presented in piecemeal fashion in order to advance them
in separate actions,” Anne Arundel Cnty. Bd. of Educ. v. Norville, 887 A.2d 1029, 1038 (Md.
2005), merely because the first of those actions was a permissive counterclaim. See Horowitz v.
Cont’l Cas. Co., No. 14-cv-3698, 2015 WL 9460111, at *3 (D. Md. Dec. 28, 2015) (rejecting the
notion that “claim preclusion [categorically] does not apply where . . . the earlier claims were
permissive counterclaims”), aff’d, 681 F. App’x 198 (4th Cir. 2017). Because Park chose to
litigate these claims as counterclaims in Maryland, the usual rules of res judicata govern.
3. Final Judgment on the Merits
The third and final prong of the res judicata analysis requires a “[(1)] final judgment
[(2)] rendered on the merits in the first suit, [(3)] by a court of competent jurisdiction.” Boyd,
806 A.2d at 325 (collecting cases). Neither party contests in earnest that the Maryland court was
a court of “competent jurisdiction”—although Park gestures that the Maryland court’s “arbitrary
and inaccurate judgment that should be corrected” makes it “questionable whether to call the
Circuit ‘competent jurisdiction.’” Dkt. 20 at 7. The Maryland court’s decision, moreover,
clearly constitutes a “final judgment,” notwithstanding Park’s argument that the pending appeal
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affects the judgment’s finality. See id. at 7; Dkt. 24 at 3. Summary judgment is a “final
judgment” for purposes of res judicata, see, e.g., Powell v. Breslin, 59 A.3d 531, 538 (Md. 2013)
(giving res judicata effect to a grant of summary judgment), and “the pendency of an appeal does
not affect the finality of a judgment,” Campbell v. Lake Hallowell Homeowners Ass’n, 852 A.2d
1029, 1041 (Md. Ct. Spec. App. 2004); see also Powell, 59 A.3d at 539 (noting that “a final trial-
court judgment operates as res judicata while an appeal is pending” (quoting 18 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 4433 (2d ed. 1987) (italicization
removed)).
Park seems to contend that the Maryland judgment was nevertheless not “a final
judgment rendered on the merits” because the Circuit Court was “plainly wrong” in deeming
AWB&F’s requests for admissions of fact admitted even though they were “filled with the
ultimate issues of the case” and “virtually nullified all of Ms. Park’s counterclaim.” Dkt. 20 at 7;
see also Dkt. 24 at 3 (arguing that res judicata “require[s] a full and fair opportunity for parties to
litigate in the prior or previous case”). But even if Park is correct that the Maryland court erred
in deeming AWB&F’s proposed facts admitted, or in relying on those admissions in rendering its
decision on the merits, “[t]he mere fact that the prior ruling is wrong does not deprive it of res
judicata effect.” Powell, 59 A.3d at 538 (quoting Garrett Park v. Montgomery Cnty. Council,
262 A.2d 568, 571–72 (Md. 1970) (italicization removed)). Park’s concession that “all of the[]
issues” with the Maryland court’s treatment of AWB&F’s requests for admission “will be raised
in Plaintiff’s appellate brief,” Dkt. 25 at 4, underscores the notion that any error in the trial
court’s decision should be corrected by Maryland’s Court of Special Appeals, and not by this
Court.
The Maryland court’s procedural decisions to limit discovery or to deem certain facts
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admitted, moreover, do not make the court’s decision any less a decision “on the merits.” The
Maryland Court of Special Appeals has explained, for example, that a plaintiff who was initially
“denied leave to amend his . . . complaint to add additional claims . . . is nonetheless barred from
raising those claims in a second suit based on the same transaction or series of transactions as the
first,” even if “the trial court’s denial of leave to amend was erroneous” or “the trial court’s
decision was based on procedural grounds instead of the merits.” Gonsalves v. Bingel, 5 A.3d
768, 783 (Md. Ct. Spec. App. 2010). The Maryland court’s grant of summary judgment to
AWB&F on Park’s counterclaims is preclusive. Accordingly, all of Park’s claims are barred by
res judicata.
B. Park’s Motion to Amend
The Court considers, finally, Park’s motion for leave to file an amended complaint. See
Dkt. 17. Leave to amend, even without the opposing party’s consent, “should [be] freely
give[n] . . . when justice so requires,” Fed. R. Civ. P. 15(a)(2), and “it is an abuse of discretion to
deny leave to amend unless there is sufficient reason,” Firestone v. Firestone, 76 F.3d 1205,
1208 (D.C. Cir. 1996). Rule 15 provides, moreover, that “the non-movant generally carries the
burden in persuading the court to deny leave to amend.” S.K. Innovation, Inc. v. Finpol, 854 F.
Supp. 2d 99, 106 (D.D.C. 2012) (quoting Nwachukwu v. Karl, 222 F.R.D. 208, 211 (D.D.C.
2004)). But “leave to amend should be denied when amendment would be futile,” Sai v. Dep’t of
Homeland Sec., 149 F. Supp. 3d 99, 126 (D.D.C. 2015), including, most notably, when “the
proposed claim would not survive a motion to dismiss,” James Madison Ltd. by Hecht v. Ludwig,
82 F.3d 1085, 1099 (D.C. Cir. 1996); see also In re Interbank Funding Corp. Securities
Litigation, 629 F.3d 213, 218 (D.C. Cir. 2010) (“[A] district court may properly deny a motion to
amend if the amended pleading would not survive a motion to dismiss.”).
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In Park’s own words, her proposed complaint adds substantial detail about the
“particularity of circumstances and facts” at issue—detail that she contends “enhance[s] the
sufficiency of the complaint.” Dkt. 24 at 2. Indeed, the proposed amended complaint provides
significantly more context about the nature of Brahmbhatt’s alleged misconduct at the World
Bank, Dkt. 17 at 2 (Am. Compl. ¶ 6), the fee estimates and retainer agreements provided to Park
by Bender when she first retained him, id. at 3–4 (Am. Compl. ¶¶ 8–14), the nature of Bender’s
allegedly excessive bills, id. at 4–5 (Am. Compl. ¶¶ 14–17), the evidence and experts at issue in
the sexual assault case, id. at 6–8, 12–13, 15 (Am. Compl. ¶¶ 19–20, 24, 41–44, 52–54), and the
nature of the sanctionable conduct that Bender allegedly encouraged Park to pursue, id. at 10–12
(Am. Compl. ¶¶ 34–35, 37, 39–40). Park’s proposed amended complaint, moreover, adds yet
another legal theory to those advanced in the Maryland litigation and in the initial complaint: that
Bender “committed the tort of conspiracy to injure when he colluded with the other party with
intent to injure Plaintiff.” Id. at 17 (Am. Compl. ¶ 62).
Notwithstanding its expanded fact section and the additional legal theory, Park’s
proposed amended complaint suffers from the same deficiencies as her first complaint. Each of
the facts presented, even where they differ in detail or emphasis from those in the initial
complaint, relates to Bender’s representation of Park in the sexual assault trial in D.C. Superior
Court and in the defamation appeal in the D.C. Court of Appeals—a “factual grouping” that the
Court has already concluded are sufficiently “related in time, space, [and] origin” to constitute
one “transaction.” See FWB Bank, 731 A.2d at 928. And once a “set of facts” such as this one
“has been litigated, res judicata generally prevents the application of a different legal theory to
that same set of facts,” even where the “legal theories [may] depend on different shadings of fact,
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or would emphasize different elements of facts.” Norville, 887 A.2d at 1039 (quoting Lockett v.
West, 914 F. Supp. 1229, 1233 (D. Md. 1995)).
Because Park’s proposed amended complaint is also barred by res judicata and would
therefore “not survive a motion to dismiss,” In re Interbank, 629 F.3d at 218, the Court will deny
Park’s motion for leave to amend as futile.
CONCLUSION
For the foregoing reasons, the Court will GRANT Bender’s motion to dismiss, Dkt. 7,
and will DENY Park’s motion for leave to file an amended complaint, Dkt. 17.
A separate order will issue.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: September 30, 2022
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