                            UNPUBLISHED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Affirmed in part, reversed in part, and remanded by unpublished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.
Unpublished opinions are not binding precedent in this circuit.




                                2
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


                                          3
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.



                                            4
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

                                      5
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

                                          6
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-


                                         7
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.

                                               8
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.



                                               9
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).



                                               10
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.



                                  11
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.

                                          12
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

      7Appellees 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.



                                              13
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.



                                             14
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.



                                    15
