Opinion
CV 19-36-M-DWM
05-17-2019
DAVID LIPSON, a Nevada resident, and BONE RATTLER, LLC, a Wyoming limited liability company, Plaintiffs and Counter-Defendants, v. GROVER + COMPANY, LLC d/b/a MONTANA CREATIVE ARCHITECTURE AND DESIGN, a Montana limited liability company, and SCOTT ELDEN, individually, Defendants, Counterclaimants, and Third-Party Plaintiffs, v. NADINE LIPSON, QZM, INC., a Nevada corporation, and PAWS UP RANCH, LLC d/b/a RESORT AT PAWS UP, Third-Party Defendants.
ORDER
The parties are familiar with the facts underlying the dispute in this case, so they need not be repeated here. On April 11, 2019, Plaintiffs/Counter-Defendants David Lipson and Bone Rattler, LLC (collectively "Lipson") moved to dismiss the abuse of process claim (Count Five) of the First Amended Counterclaim and Third-Party Complaint. (Doc. 11.) Defendants/Counterclaimants Grover + Company, LLC, doing business as Montana Creative Architecture and Design, and Scott Elden (collectively "Montana Creative") failed to respond by the May 2, 2019 deadline. See L.R. 7.1(d)(1)(B)(i).
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a claim "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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The elements of an abuse of process claim are "(1) an ulterior purpose and (2) a willful act in the use of the process not proper in the regular conduct of the proceeding." Brault v. Smith, 679 P.2d 236, 240 (Mont. 1984). The First Amended Counterclaim and Third-Party Complaint (Doc. 7) does not allege facts to support either of these elements. Accordingly,
IT IS ORDERED that Lipson's motion to dismiss (Doc. 11) is GRANTED. Count 5 of the First Amended Counterclaim and Third-Party Complaint (Doc. 7) is DISMISSED.
DATED this 17th day of May, 2019.
/s/_________
Donald W. Molloy, District Judge
United States District Court