n 362,

malicious abuse of process, false imprisonment, and loss of

consortium.

Thereafter, the bankruptcy court went forward with the contempt

proceeding. After the first day of evidentiary hearings, Alexis

moved

to dismiss the proceedings because she had filed the February

13th

complaint. The court denied Alexis' motion. The evidentiary

hearing

continued and the court ultimately ruled that Germantown had wil-

_________________________________________________________________

*See 11 U.S.C. S 362.

3
fully violated the bankruptcy stay and that damages for

attorneys' fees

and costs were appropriate.

On May 11, 1998, the district court referred the suit arising out

of

the February 13th complaint to the bankruptcy court for

consolidation

with the show cause proceeding. By Memorandum of Decision dated

May 10, 1999, the bankruptcy court dismissed all but the loss of

consortium claim in the second action. The court found that the Matthews' claims for violation of Section 362, malicious abuse of

process, false imprisonment, and malicious prosecution were

barred

under res judicata by Alexis' earlier litigation of the contempt

application.

The bankruptcy court reasoned that Section 362 permits debtors to

seek consequential and punitive damages by motion and that the

Matthews could have brought their claims before the bankruptcy court

in

the contempt hearing. Finding that the Matthews were required to

bring all of their claims arising out of this same transaction or

occurrence at the same time, the court concluded that their failure to

do so

barred their subsequently filed claims. The court found that (1)

the

determination that Germantown violated the stay order was a final

judgment on the merits; (2) the contempt case involved the same

cause of action; and (3) both cases involved the same parties.

However, the court found that res judicata did not bar Theodore's

claim for loss of consortium because the earlier action had only

been

brought by Alexis. The bankruptcy court reasoned that "[a] claim

for

loss of consortium is not entirely derivative of the Section

362(h)

claim." Thus, the court found it unreasonable to require Theodore

to

join "his loss of consortium claim with A. Matthews' Motion."

On May 18, 1999, the district court issued a Memorandum and

Order substantially adopting the bankruptcy court's recommenda-
tions. The sole point of disagreement related to the decision of

the

bankruptcy court that Theodore's claim for loss of consortium was

not barred by res judicata. Finding that Maryland loss of

consortium

claims stem from the marital entity and that Maryland would not

permit a "lone spouse" to "pursue a free-standing loss of consortium

claim," the district court held that res judicata also barred

Theodore's

claim. The court stated,

4
Unquestionably, as a matter of Maryland common law, not

only are spouses "in privity" in respect to a claim for

loss

of consortium, but indeed, under state law, a loss of

consortium claim may only be maintained by the entireties, as it

is

a joint claim belong[ing] to the marital entity, and not

(as in

some states) a divisible claim maintainable by each spouse

individually.

This appeal followed.

We review a district court decision to dismiss on the basis of

res

judicata de novo. See In re Varat Enterprises, Inc., 81 F.3d

1310,

1314 (4th Cir. 1996). Our review reveals that the district court

was

correct to dismiss the Matthews' claims on res judicata grounds.

With

regard to the Matthews' claims for malicious abuse of process,

false

imprisonment, malicious prosecution, and violation of Section

362(h),

we affirm for substantially the same reasons given by the

district and

bankruptcy courts. While the loss of consortium claim raises a

somewhat more complicated issue, we agree with the district court

that the

special nature of the claim under Maryland law precludes its

litigation

in light of the earlier contempt proceeding. The only element in

the

question with regard to the loss of consortium claim is the

identity of

the parties.

The Matthews contend that res judicata should not bar the loss of

consortium claim because the alleged damage to the marital entity

giving rise to the loss of consortium claim "did not have to

automatically be raised in the bankruptcy proceedings." Under Maryland

law,

there are three elements that must be established for res

judicata to
apply: (1) identity of the parties; (2) the same cause of action;

and (3)

a final judgment on the merits in the earlier suit by a court of

competent jurisdiction. See Kutzik v. Young, 730 F.2d 149, 151 (4th

Cir.

1984) (citing Alvey v. Alvey, 225 Md. 386, 390 (1961)).

The Maryland Court of Appeals has recently discussed the nature

of loss of consortium claims under Maryland law, stating as

follows:

A claim for loss of consortium arises from the loss of

society, affection, assistance, and conjugal fellowship

suffered by the marital unit as a result of the physical

injury to

5
one spouse through the tortious conduct of a third party.

Deems v. Western Maryland Railway Company, 247 Md.

95, 100, 231 A.2d 514 (1967)....A comprehensive discussion of the consortium claim was set forth by this Court in

Deems in which we held that damage to the marital relationship is a compensable injury. We further concluded that a

consortium claim must be filed jointly by a couple and

tried

concurrently with the claim of the physically injured

spouse

in order to avoid duplication of awards.

Oaks v. Connors, 339 Md. 24, 33 (1995).

Here, the identity of the parties element is established by Maryland's rule that a loss of consortium claim belongs to the

husband and

wife jointly and may only be brought in a joint action. This rule

places Theodore and Alexis in privity, extends the reach of res

judicata to Theodore, and satisfies the identity of the parties

requirement.

See Kutzik, 730 F.2d at 151 (holding that privity establishes

identity

of the parties element). Moreover, in this case, equity favors

the application of res judicata to the loss of consortium claim: Theodore

was

aware of the show cause proceeding; Alexis and Theodore had both

filed for bankruptcy in a joint petition; and Alexis consciously

chose

to proceed under 362(h), an action that permitted the addition of

the

damages claim they later brought.

AFFIRMED

6UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-4227