UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-1382

GRAYSON L. HARE, JR.,

Plaintiff - Appellant,

v.

SHIRLEY J. SIMPSON; BARBARA A. BURNS; PAULINE E. GIMA;

GILBERT G. MALONE; DOES 1-10,

Defendants - Appellees.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. J. Frederick Motz, Senior District 

Judge. (1:13-cv-01981-JFM)

Argued: March 26, 2015 Decided: August 7, 2015

Before GREGORY, KEENAN, and WYNN, Circuit Judges.

Affirmed in part, reversed in part, and remanded by unpublished 

opinion. Judge Gregory wrote the opinion, in which Judge Keenan

and Judge Wynn joined.

ARGUED: K. Ross Powell, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, 

Charlottesville, Virginia, for Appellant. Leo Wallace, 

Stewartstown, Pennsylvania; Russell Karpook, COHAN, WEST & 

KARPOOK, PC, Baltimore, Maryland, for Appellees. ON BRIEF: 

Stephen L. Braga, Brian Walsh, Third Year Law Student, Appellate 

Litigation Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, 

Charlottesville, Virginia, for Appellant.
2

Unpublished opinions are not binding precedent in this circuit.
3

GREGORY, Circuit Judge:

Grayson Hare, Jr., a pro se Maryland litigant, has sued 

four Pennsylvania residents for forgery, aiding and abetting 

fraud, intentional infliction of emotional distress, and civil 

conspiracy. Defendants-Appellees are Hare’s step-sister, 

Shirley Simpson; Simpson’s attorney, Gilbert Malone; Malone’s 

paralegal, Pauline Gima; and Simpson’s real estate broker, 

Barbara Burns. Essentially, Hare alleges that Appellees 

conspired to produce counterfeit powers of attorney for Hare’s 

parents, which Simpson used to confine Hare’s father to a

nursing home, to restrict communication between the two, and to 

liquidate property without giving Hare his share. The district 

court dismissed the case on res judicata grounds. For the 

reasons that follow, we affirm dismissal of the claims against 

Burns and Gima from the case, as well as Hare’s claims against 

all Appellees for intentional infliction of emotional distress. 

However, we reverse the district court’s determination that res 

judicata bars Hare’s remaining claims against Simpson and Malone

and remand the case for further proceedings consistent with this 

opinion.

I.

Hare’s first amended complaint (“complaint”) alleges that 

in 2006, shortly after their mother suffered a stroke, Simpson 
4

left Hare’s father in his Maryland home without adequate care

before subsequently admitting him to a nursing home in

Pennsylvania. According to Hare, Simpson was able to use her 

personal relationships with the facility’s leadership to 

restrict Hare’s communication with and access to his father, 

including in one instance having Hare removed from the property.

Hare further alleges that around this same time, Appellees 

conspired to produce counterfeit powers of attorney for both 

parents back-dated to 2002.1 Hare maintains that Simpson had 

existing relationships with Malone and Gima, who together 

created the fraudulent documents. Armed with the counterfeit 

powers of attorney, Hare alleges that in 2007, Simpson worked

with Burns to sell the parents’ residence without their 

knowledge or consent. Hare claims that he is entitled to half 

of these proceeds pursuant to a 1995 deed conveying the property 

to him and Simpson as tenants in common.2

Hare says he became aware of this conspiracy in 2010, two

years after his parents passed away. After his parents’ death, 

 1 The complaint also alleges that Malone created fraudulent 

estate planning documents. See J.A. 17. This allegation does 

not appear related to the primary relief that Hare seeks, which 

is his half of the 1995-deeded property that was sold in 2007.

See J.A. 20.

2 The deed was executed but not recorded by Hare and 

Simpson’s parents, who also reserved a life estate and the 

continuing power to sell the property during their lifetime.
5

Simpson was appointed personal representative of their estate on 

November 3, 2008. Simpson avers that it was only in discharging 

these duties that she discovered the 1995 deed. In January

2009, Simpson filed an action in Baltimore County Circuit Court 

in her capacity as representative of the estate seeking a 

declaratory judgment on the validity of the deed. Hare filed a 

counter-complaint alleging that the deed was valid, that Simpson 

had breached her duties to the Hares and to the estate, and also 

requesting an accounting of her actions in that capacity. Hare 

v. Simpson, No. 1385, at *3-4 (Md. Ct. Spec. App. Apr. 15, 

2014). After a hearing on both parties’ motions for partial 

summary judgment, the court declared the deed valid. Id. at *4.

All other remaining issues from Hare’s counter-complaint were

reserved for trial on July 26, 2010, but the trial was continued 

until July 26, 2012. Id. at *4-5.

In the years between when the Baltimore action was 

initiated and when the trial took place, Hare pursued litigation 

in Pennsylvania. He filed a will contest in the Court of Common 

Pleas of York County, Pennsylvania Orphans’ Court, along with a 

petition for accounting. Simpson filed her formal accounting on 

September 13, 2011, and Hare his objections on October 18, 2011. 

On October 19, 2011, the Pennsylvania court dismissed Hare’s 

objections and affirmed the accounting, writing in its one-page 

adjudication that: “Grayson L. Hare, Sr. executed a Power of 
6

Attorney in favor of Shirley J. Simpson July 26, 2002.” J.A.

36. On June 26, 2012, the Baltimore action came back before the 

circuit court. Ruling on Hare’s counter-complaint, the court 

decided in pertinent part that the issues had been previously 

litigated and brought to final judgment in Pennsylvania. Hare, 

No. 1385, at *5-6.

Hare next pursued relief in federal court, first attempting

to bring suit against Appellees in federal district court in 

California, which was dismissed for lack of personal 

jurisdiction over the defendants. Hare then filed his complaint 

in this case on July 9, 2013. Less than a year later, on April 

15, 2014, the Maryland Court of Special Appeals affirmed the 

decision of the Baltimore County Circuit Court based on claim 

preclusion, in part because Simpson appeared in the same 

representative capacity in the Pennsylvania and Maryland 

actions. Hare, No. 1385, at *7-12.

Hare’s federal complaint contains four counts: forgery, 

aiding and abetting fraud, intentional infliction of emotional 

distress, and civil conspiracy. Burns moved to dismiss the 

case, and Simpson, Malone, and Gima filed a separate motion to 

dismiss. The district court ruled in favor of Appellees, 

holding without further explanation “that the claims asserted by 

plaintiff are barred by the doctrine of res judicata since they 

were resolved in litigation in the Court of Common Pleas of York 
7

County, Pennsylvania Orphans’ Court.” J.A. 138. Hare now 

timely appeals from this decision.

II.

We review a grant of a motion to dismiss for failure to 

state a claim de novo. E.I. du Pont de Nemours & Co. v. Kolon 

Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011). In assessing 

the propriety of a Rule 12(b)(6) ruling, we accept the factual 

allegations in the complaint as true and may also properly take 

judicial notice of matters of public record. Philips v. Pitt 

Cty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). The 

complaint’s factual allegations, however, “‘must be enough to 

raise a right to relief above the speculative level’ and have 

‘enough facts to state a claim to relief that is plausible on 

its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 555, 570 (2007)).

A.

We must at the outset affirm the dismissal of the claims 

against Burns and Gima. While the district court ostensibly 

relied on claim preclusion, see infra, we may affirm its 

decision on any grounds apparent from the record. United States 

v. Smith, 395 F.3d 516, 519 (4th Cir. 2005). Here, Hare has

simply failed to plead a set of facts supporting any claim for 

relief against either of these Appellees. Burns is twice-
8

mentioned in the complaint, first as having listed Hare’s 

parents’ residence for sale “in furtherance of the objectives of 

the conspiracy.” J.A. 14. Hare further accuses Burns of having 

“concealed the existence of the unrecorded 1995 deed from the 

purchaser of the Hares’ residence.” J.A. 15 (emphasis added). 

Even less detail is provided about Gima’s alleged role; Hare 

merely asserts she “assisted in the production of fraudulent 

powers of attorney.” J.A. 13. A well-pled complaint must offer 

more than “naked assertions devoid of further factual 

enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 

(brackets and internal quotation marks omitted). Without more 

detail alleging a plausible claim for relief, we find these 

fleeting mentions of Burns and Gima insufficient to state a 

claim against them as a matter of law.

B.

We also find that Hare has failed to state a claim for 

intentional infliction of emotional distress (IIED). The 

complaint states that “physical and emotional damage” was 

“directly caused by . . . prevent[ing] plaintiff from having 

free and unmonitored communications with his father and by 

denying plaintiff medical information concerning his father’s 

condition and treatment.” J.A. 18. This count appears to 

allege harm inflicted on Hare either while he was in 

Pennsylvania or California. See J.A. 14; see also J.A. 65-67.
9

Under the rule of lex loci delicti, Hare’s IIED claim is 

therefore evaluated under the substantive tort law of those 

states. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 

496 (1941); Hauch v. Connor, 453 A.2d 1207, 1209 (Md. 1983)

(affirming that Maryland “adhere[s] to the rule that the 

substantive tort law of the state where the wrong occurs 

governs”). But regardless of whether the alleged harm occurred 

in Pennsylvania, California, or both, Hare’s IIED claim requires 

a plausible allegation of severe or extreme emotional distress.3

See Taylor v. Albert Einstein Med. Ctr., 754 A.2d 650, 652 (Pa. 

2000); Hughes v. Pair, 209 P.3d 963, 976 (Cal. 2009). His 

complaint, however, offers nothing more than a bare allegation 

of “emotional harm and distress.” J.A. 18. We find, once more, 

such detail insufficient to state his IIED claim as a matter of 

law.

III.

We next consider whether Hare’s remaining claims of 

forgery, aiding and abetting fraud, and civil conspiracy were in 

fact “barred by the doctrine of res judicata since they were 

resolved in litigation in the [Pennsylvania Orphans’ Court].”

 3 Although Pennsylvania has not officially recognized the 

tort of IIED, it recognizes the “minimum elements necessary to 

sustain such a cause of action” as those set forth in Section 46 

of the Restatement (Second) of Torts. Taylor, 754 A.2d at 652.
10

J.A. 138. It is unclear whether the district court was 

referring to “true res judicata,” also known as claim 

preclusion, 18 Charles Alan Wright & Arthur R. Miller, Federal

Practice & Procedure § 4402 (2d ed. 2015), or if it was 

referring to collateral estoppel, also known as issue 

preclusion. We consider both doctrines in turn, and determine 

neither precludes Hare’s remaining claims against Simpson and

Malone.

As Hare rightly points out, claim preclusion is no 

obstacle. Under Pennsylvania law,4 claim preclusion dictates 

that “[a]ny final, valid judgment on the merits by a court of 

competent jurisdiction precludes any future suit between the 

parties or their privies on the same cause of action.” Balent 

v. City of Wilkes-Barre, 669 A.2d 309, 313 (Pa. 1995). Here, 

the parties in the instant case are different from those in the 

Pennsylvania litigation. As the record shows, Malone was not a 

party to the action in the Orphans’ Court. Moreover, Hare’s 

complaint names Simpson in her personal capacity, whereas she 

appeared before the Orphans’ Court as “Power of Attorney of the 

Estate.” See J.A. 52-53. As an estate representative, Simpson 

 4 We “are bound under the Full Faith and Credit statute, 

28 U.S.C. § 1738, to apply the law of the rendering state to 

determine whether and to what extent the state court judgment 

should have preclusive effect in the federal action.” Davenport 

v. N.C. Dep’t of Transp., 3 F.3d 89, 92 (4th Cir. 1993).
11

was not in privity with herself in her personal capacity. See

Blum v. Goldman, 79 A.2d 248, 251 (Pa. 1951) (finding claim 

preclusion “does not generally apply where a party appears in 

two proceedings in different capacities”); Sec. Trust Co. v. 

Feist, 5 A.2d 119, 122 (Pa. 1939). Given this lack of identity 

of the parties, the district court erred insofar as it relied on 

grounds of claim preclusion.5

Appellees similarly cannot prevail on grounds of issue 

preclusion.6 As formulated by the Pennsylvania Supreme Court,

issue preclusion applies where “1) the issues in the two actions 

are sufficiently similar and sufficiently material to justify 

invoking the doctrine; 2) the issue was actually litigated in 

the first action; and 3) a final judgment on the specific issue 

 5 This lack of privity distinguishes our case from In re 

Lare’s Estate, 257 A.2d 556 (Pa. 1969), which Appellees seek to 

rely on for the proposition that a judicial confirmation of an 

accounting “is res adjudicata as to all items contained therein 

as well as to all questions which could have been raised 

concerning such items.” Id. at 563. There, the parties to the 

instant action and previous accounting were the same, thus 

fulfilling the requirements of the claim preclusion doctrine.

We further note that, if Lare applies in the issue 

preclusion context, it is only because the court explained that 

the alleged claim of impropriety “was before th[e] Court 

previously.” Id. Even though it was not “[e]xplicitly 

discuss[ed]” in the court’s opinion, id., the issue in question 

had been actually litigated, unlike the validity of the deed in 

our case. See infra.

6 Appellees have asked us to affirm the district court’s 

decision on the basis of issue preclusion with regard to 

Appellee Malone, but not Simpson. Appellees Br. at 9, 15.
12

in question was issued in the first action.” Commonwealth. v. 

Holder, 805 A.2d 499, 502 (Pa. 2002). Regarding the second 

factor, “[a]n issue is actually litigated when it is properly 

raised, submitted for determination, and then actually 

determined.” Id. at 502-03. Here, Appellees’ counsel admitted 

at oral argument that the legitimacy of the power of attorney 

“was not litigated” in Pennsylvania. Oral Argument at 24:17. 

In light of this concession, we cannot affirm the district 

court’s dismissal of the case on the basis of issue preclusion.

Even without Appellees’ counsel’s candor, we agree with 

Hare that the record before the district court did not support 

the conclusion that the issue was in fact litigated in the 

Orphans’ Court. Although not a Rule 12(b) defense, we have 

permitted the assertion of res judicata in a motion to dismiss 

when the defense can be judged from the face of the complaint. 

See Andrews v. Daw, 201 F.3d 521, 524 n.1 (4th Cir. 2000). In 

this case, it is not the complaint that is the obstacle to 

evaluating a preclusion defense, but the scant information 

contained in the Pennsylvania judgment. In its one-page 

adjudication, the court wrote that an audit of the Hare Sr. 

estate was called, and objections “were filed and dismissed by 

the Court and the account was closed the same day.” J.A. 52. 

The court continued: “Grayson L. Hare, Sr. executed a Power of 

Attorney in favor of Shirley J. Simpson July 26, 2002.” J.A. 
13

52. Such lack of detail is all the more reason why adjudication 

of this affirmative defense is ill-suited at this stage in the 

litigation. There is simply no indication about whether the 

court entertained any allegation that the power of attorney was 

forged or fraudulent.7 Of course, after oral argument, we now 

know that the court did not.

Appellees’ argument on brief, that we should nevertheless 

consider the power of attorney’s validity as having been 

litigated because its legitimacy was “implicit” in the Orphans’ 

Court’s confirmation of Simpson’s accounting, is further 

unavailing. See Holder, 805 A.2d at 502-03 (explaining that an 

issue is “actually litigated” when it is “properly raised, 

submitted for determination, and then actually determined”).

Nor can Appellees rely on the idea that the Pennsylvania forum 

afforded Hare “a full and fair opportunity” to litigate the 

issue. The question is not whether Hare, generally speaking, 

could have raised his claim that the power of attorney was 

 7 Appellees further contend that “[a]lthough the record does 

not disclose what issues were raised by Hare’s objections, it 

does not really matter.” Appellees Br. 20. For support, they 

cite to a Third Circuit decision where the court determined that 

a party could be deemed to have actually litigated an issue when 

a default judgment was entered against him as a sanction for 

bad-faith conduct in discovery. In re Docteroff, 133 F.3d 210, 

215 (3d Cir. 1997). Without support for this same proposition 

in Pennsylvania law, not to mention inconclusive evidence of bad 

faith on the part of Hare, Appellees’ argument in this regard 

also fails.
14

forged. This approach confuses claim preclusion and issue 

preclusion. R/S Fin. Corp. v. Kovalchick, 716 A.2d 1228, 1230 

(Pa. 1998) (explaining that claim preclusion applies to claims 

that “could have been litigated during the first proceeding if 

they were part of the same cause of action”). When courts 

include as a criteria of issue preclusion that a litigant must 

have had a “full and fair opportunity” to litigate the issue,

this inquiry presupposes the actual litigation requirement, and 

further asks whether there exist other reasons of fairness 

“permit[ting] defeat of an otherwise valid claim of preclusion.”8

Wright & Miller, supra, § 4423. In other words, Appellees 

cannot eschew the actual litigation requirement.

IV.

In so holding for Hare, we of course respect the animating 

principles behind both preclusion doctrines, including the need 

to protect against the burden of repetitious litigation and to 

promote judicial economy. See Kovalchick, 716 A.2d at 1230. 

But, as presented by the record before us, Appellees have 

conceded and/or failed to meet the necessary elements under 

 8 These fairness concerns may arise in cases of nonmutual 

preclusion, where there is differing incentive to litigate 

vigorously in the first action, or where there are substantial 

differences in the procedures available in different actions. 

See generally Wright & Miller, supra, § 4423.
15

Pennsylvania law for either claim or issue preclusion. We 

therefore affirm the district court in part and reverse in part

and remand the case for further proceedings consistent with this 

opinion.9

AFFIRMED IN PART,

REVERSED IN PART,

AND REMANDED

 9 Appellees also challenge for the first time on appeal 

whether Hare brings his claims beyond the applicable statute of 

limitations, an issue better addressed by the district court.