Memorandum and Order

SANDRA S. BECKWITH, U.S. District Judge.

On September 10, 1998, this Court entered judgment in favor of Defendants with respect to all four claims asserted by plaintiffs in this matter: malicious prosecution, abuse of process, intentional infliction of emotional distress, and negligent infliction of emotional distress. Plaintiff s appealed the judgment, and the United States Court of Appeals reversed this Court's judgment with respect only to the abuse of process claim and remanded this action for further proceedings. This matter is now before the Court upon Defendants' renewed motion for summary judgment with respect to the abuse of process claim. Plaintiff Ralph Luciani asserts that claim on behalf of himself and his two minor sons against attorney F. Joseph Schiavone and F. Joseph Schiavone Co., LPA.

1. Background

Plaintiff Ralph Luciani and his former wife, Karen Luciani, were married in 1984 in Ohio. Mrs. Luciani's family resides in Ohio. The Lucianis were married in the home of Defendant Schiavone and his wife, who is a friend of Karen Luciani's. The Lucianis moved to New Mexico after they were married and have resided there, almost continually, since late 1984. They have two sons, born in 1986 and 1988.

On November 1, 1996, Karen Luciani filed a petition for the dissolution of her marriage to Ralph Luciani in Bernalillo County, New Mexico. The New Mexico court issued an order prohibiting either parent from removing their children from New Mexico without the written consent of the other parent. On November 7, 1996, Karen Luciani dismissed the New Mexico action and moved, with her children, to Ohio. Karen Luciani went to Defendant Schiavone's residence in particular.

On November 7, 1996, Ralph Luciani filed a police report in Bernalillo County, New Mexico, concerning the disappearance of his children. He also lodged a complaint against Karen Luciani with the district attorney for that county.

Once in Ohio, on November 8, 1996, Karen Luciani, represented by Defendants, filed a petition for separation, pursuant to Ohio Revised Code ("O.R.C.") § 3105.17, in the Court of Common Pleas for Butler County, Ohio. Karen Luciani filed various other documents in the Ohio action with regard to custody and support. The Butler County Court of Common Pleas issued an order prohibiting the removal of the Luciani children from Ohio.

Also on November 8, 1996, Ralph Luciani filed a petition for dissolution in Bernalillo County, New Mexico. The court there issued an order prohibiting the removal of the Luciani children from New Mexico, although the children were already in Ohio when the order was issued.

On December 2, 1996, pursuant to Ralph Luciani's complaint against Karen Luciani, the Federal Bureau of investigations removed the children from Karen Luciani's custody and returned them to New Mexico, into the custody of Ralph Luciani. On January 16, 1997, Karen Luciani acquiesced to the jurisdiction of the New Mexico court. On January 30, 1997, on the basis of Karen Luciani's acquiescence to the jurisdiction of the New Mexico court, the Butler County Court of Common Pleas dismissed her petition for separation.

Prior to their appeal from this Court's judgment, plaintiffs had argued that Defendants filed the action in Butler County on Karen Luciani's behalf without probable cause. In its decision on appeal, the Court of Appeals suggested that plaintiffs could prove that Defendants initiated that action with probable cause but then perverted the process of the Ohio court by requesting relief that the court was powerless to provide. On remand, plaintiffs have adopted that line of argument, arguing that Defendants had probable cause to file the separation action in Ohio because Karen Luciani was in Ohio when the action was commenced. They argue, however, that Defendants abused process by asking the Ohio court to resolve issues of custody and support when it did not have jurisdiction to do so. Those arguments now form the basis for Plaintiffs' abuse of process claim.

Defendants seek summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, with respect to that claim.

2. The Summary Judgment Standard

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The evidence presented on a motion for summary judgment is construed in the light most favorable to the non-moving party, who is given the benefit of all favorable inferences that can be drawn therefrom. United States v. Diebold, Inc., 369 U.S. 654 (1962). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986) (emphasis in original).

The Court will not grant summary judgment unless it is clear that a trial is unnecessary. The threshold inquiry to determine whether there is a need for trial is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Id.

The fact that the weight of the evidence favors the moving party does not authorize a court to grant summary judgment. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 472 (1962) "[T]he issue of material fact required by Rule 56(c) . . . to entitle a party to proceed to trial is not required to be resolved conclusively in favor of the party asserting its existence; rather, all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or a judge to resolve the parties' differing versions of the truth at trial." First National Bank v. Cities Service Co., 391 U.S. 253, 288-89 (1968).

Moreover, although summary judgment must be used with extreme caution since it operates to deny a litigant his day in court, Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.), cert. dismissed, 444 U.S. 986 (1979), the United States Supreme Court has stated that the "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to `secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). According to the Supreme Court, the standard for granting summary judgment mirrors the standard for a directed verdict, and thus summary judgment is appropriate if the moving party establishes that there is insufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Id. at 323; Anderson, 477 U.S. at 250.

Accordingly, summary judgment is clearly proper "against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322. Significantly, the Supreme Court also instructs that the "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion" against a party who fails to make that showing with significantly probative evidence. Id. Anderson, 477 U.S. at 250. Rule 56(e) requires the non-moving party to go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Id.

Further, there is no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or similar materials negating the opponent's claim. Id. Rule 56(a) and (b) provide that parties may move for summary judgment "with or without supporting affidavits." Accordingly, where the non-moving party will bear the burden of proof at trial on a dispositive issue, summary judgment may be appropriate based solely on the pleadings, depositions, answers to interrogatories, and admissions on file.

3. Analysis

In order to prove abuse of process under Ohio law, Plaintiffs must establish each of the following:

(1) that Defendants set a legal proceeding in motion in proper form and with probable cause;

(2) that Defendants perverted the proceeding to attempt to accomplish an ulterior purpose for which it was not designed; and

(3) that direct damage has resulted from the wrongful use of process.

Plaintiffs base their abuse of process claim in this action upon Defendants' involvement in the separation action commenced by Karen Luciani in Butler County. In its decision in this matter, the Court of Appeals stated as follows:

Generally, if a suit is instituted in an attempt to settle a case, there is no abuse of process. See Whalen v. Abell, 953 F.2d 663, 671 (D.C. Cir. 1992). This general rule does not apply if the attempt to settle involves issues that are not properly before the court. If the Ohio separation action was properly before the court and Mr. Schiavone was attempting to settle only the issue of separation, there would be no abuse of process. If, however, Mr. Schiavone was attempting to settle custody, support, and property issues that were not properly before the court in the separation action, he would be seeking a collateral advantage.

When Mrs. Luciani visited Ohio in October 1996, she drafted a settlement letter with Mr. Schiavone's assistance. Mr. Schiavone stated that he did not consider Mrs. Luciani a client when he helped her with the letter, but that he gave her legal advice as it pertained to her situation if she moved to Ohio. He first considered her to be a client on the morning of the day she left New Mexico.

Mr. Schiavone had, however, been in contact with Mr. Quintana, Mrs. Luciani's lawyer in New Mexico. They had discussed Mrs. Luciani's case and situation, and Mr. Schiavone was aware that the Temporary Domestic Order prevented Mrs. Luciani from taking the children out of New Mexico. Mrs. Luciani was present in Mr. Quintana's office when he and Mr. Schiavone had a telephone conversation regarding New Mexico and Ohio law.

One or two days before Mrs. Luciani left New Mexico, Mr. Quintana called Mr. Schiavone to ask whether she could file a legal separation action in Ohio. Sometime prior to November 7, Mr. Schiavone instructed Mrs. Luciani not to leave New Mexico until she checked with Mr. Quintana and made sure it was legal for her to leave. Mrs. Luciani called Mr. Schiavone's office on the morning she left New Mexico, but did not speak with him personally.

Mr. Schiavone stated that he advised Mrs. Luciani not to come to Ohio, because if the case were contested, it would be better to litigate in New Mexico to protect the assets and to make it easier on the children. Once she arrived in Ohio, he felt that it was imperative to get her under the jurisdiction of the Ohio courts. He stated that the Ohio court might have jurisdiction over assets located outside the state, particularly if Dr. Luciani agreed to the jurisdiction. Mr. Schiavone also believed that the Ohio court would have jurisdiction to enter orders regarding custody and child support under the Uniform Child Custody Jurisdiction Act.

Mr. Schiavone stated that his office prepared the documents filed in the legal separation action, but pointed out several times that the affidavit was his client's, and not his. Although the address given on the documents was not where Mrs. Luciani actually resided while in Ohio, it was her original intention to live with her mother, and not with the Schiavones. Mr. Schiavone admitted that the statement that Mrs. Luciani had not been a party to any custody litigation in the past five years was not true because the New Mexico dissolution proceedings involved custody and allocation of parental rights. He was sure that he reviewed the affidavit before filing it, but it was still filed with a false statement. Mr. Schiavone stated that he did not realize there was a misstatement until several days before his deposition. He believed that Mrs. Luciani did not knowingly lie in the affidavit, and that any inaccuracies were her mistake.

Mrs. Luciani admitted that there had been custodial proceedings prior to November 7. She stated that she circled the items on the affidavit, but then said she did not remember circling any of it. She read and signed the affidavit, and assumed that Mr. Schiavone had read it as well. Mrs. Luciani admitted that the statement regarding custody proceedings in the past five years was false.

While the case before us was pending in the district court, Judge Conese, the judge before whom the Ohio action was litigated, filed an affidavit. He stated that he was aware of the previous New Mexico filing and dismissal while the Ohio case was pending, including on November 8 when he entered the order granting temporary custody and child support. He was also aware that Mrs. Luciani and the children were staying at the Schiavone home. According to Judge Conese, Mr. Schiavone informed him of these facts.

Viewing the evidence in light most favorable to Dr. Luciani, we conclude there is a genuine issue of material fact regarding whether Mr. Schiavone perverted the Ohio action in an attempt to accomplish an ulterior purpose. Because of the close personal relationship between his wife and Mrs. Luciani, Mr. Schiavone was aware of the history of difficulties in the Luciani marriage. He knew that Mrs. Luciani had filed and dismissed the New Mexico action, immediately leaving the state with the children when the Temporary Domestic Order was no longer in effect. He knew that an Ohio court would have jurisdiction over a separation action but not a divorce action. The complaint he filed requested custody, support, and property division, even though he should have been aware that the Ohio court may have lacked jurisdiction over these issues. See Stanek v. Stanek, No. CA94-03-080, 1994 WL 519826 (Ohio Ct.App. Sept. 26, 1994). The Ohio court actually granted child support to Mrs. Luciani. Mr. Schiavone's office prepared, and he reviewed, the documents that contained the false statements. Additionally, Judge Conese's affidavit implies that Mr. Schiavone had improper ex parte contact with the judge.

The evidence is such that a reasonable fact finder could infer that Mr. Schiavone brought the separation action to pressure Dr. Luciani to submit to Ohio's jurisdiction on issues that were not properly before the court. Assuming, without deciding, that Mr. Schiavone had probable cause to bring the separation action but did not have probable cause to request custody, support, or property division, a jury could infer that he was using the Ohio action as a bargaining chip to obtain a custody arrangement and property settlement that the Ohio court had no power to order. Alternatively, a jury could infer that Mr. Schiavone was attempting to obtain actual judgments from the Ohio court that it had no power to grant. "Simply, abuse of process occurs where someone attempts to achieve through use of the court that which the court is itself powerless to order." Robb [v. Chagrin Lagoons Yacht Club. Inc.], 662 N.E.2d at 14. Although the custody, support, and property claims were related to the separation proceeding, they must be considered collateral to the proceeding if the Ohio court had no jurisdiction over them.

Slip opinion, pp. 7-10.

The Court is persuaded that a reasonable fact finder could conclude that the first two elements of the abuse of process claim are satisfied. The Court of Appeals noted that an Ohio court would have jurisdiction over a separation action between the Lucianis. See Stanek v. Stanek, No. CA94-03-080, 1994 WL 519826 (Ohio Ct.App. Sept. 26, 1994). Defendants do not argue to the contrary. A reasonable fact finder could conclude that Defendants initiated the Ohio action with probable cause.

The Court of Appeals concluded that a reasonable fact finder could infer that Defendants brought the Ohio action to pressure Ralph Luciani to submit to Ohio's jurisdiction on issues that were not properly before the Ohio court. Alternatively, the Court of Appeals concluded, a fact finder could conclude that Defendants were attempting to obtain judgments that the Ohio court had no power to issue. In short, the court concluded that Plaintiffs could prove that Defendants had perverted the Ohio "proceeding to attempt to accomplish an ulterior purpose for which it was not designed." Yaklevich, 68 Ohio St.3d at 298.

Plaintiffs have identified evidence of direct damage resulting from the alleged wrongful use of process. While a dispute between the parties concerning some of the evidence of damage is unresolved, Defendants do not seriously contest Plaintiff Ralph Luciani's contention that he was damaged financially by virtue of the collateral proceedings in Ohio, which necessitated the services of counsel. The Court concludes that a reasonable fact finder could conclude that Plaintiff Ralph Luciani, and possibly the other Plaintiffs, suffered direct damage as a result of the alleged perversion of the Ohio proceeding.

Defendants have argued that they are immune, under Ohio law, from liability to Plaintiffs arising from their performance as counsel to Mrs. Luciani. The Court of Appeals noted that "[u]nder Ohio law, an attorney is not liable to a third party for his performance as an attorney unless the party is in privity with his client." Slip opinion, p. 11 (citing Scholler v. Scholler, 10 Ohio St.3d 98, 103 (1984)). The Court of Appeals further noted that "even if the third party is not in privity with his client, the attorney is not immune from liability if he acted maliciously." Id.

Plaintiffs were not in privity with Defendants' client, Mrs. Luciani, for purposes of establishing liability for abuse of process. See Scholler, 10 Ohio St.3d at 103-04. Accordingly, in order to overcome the general immunity recognized in Scholler, supra, plaintiffs must demonstrate that Defendants acted maliciously.

The Ohio courts have provided precious little guidance in the interpretation of the maliciousness requirement of Scholler and similar cases. Two Ohio appellate courts have opined that an attorney may act maliciously when he acts with an ulterior motive separate and apart from his client's interests. See Thompson v. R R Service Systems. Inc., Nos. 96APE10-1277, 96APE10-1278, 1997 WL 359325, *14 (Ohio Ct.App. Franklin Cty. June 19, 1997); Fallang v. Hickey, No. CA86-11-163, 1987 WL 16298, *8 (Ohio Ct.App. Butler Cty. Aug. 31, 1987). Plaintiffs have not identified any ulterior motive on the part of Defendants that was "separate and apart" from Mrs. Luciani's interests. As they have argued, however, Ohio law does not require that a plaintiff prove such a motive in order to overcome the general immunity identified in Scholler, supra.

In a decision post-dating Scholler, the Ohio Supreme Court suggested that an attorney acts maliciously when special circumstances "such a fraud, bad faith, [or) collusion" are present. Simon v. Zipperstein, 32 Ohio St.3d 74, 76-77 (1987) See also Firestone v. Galbreath, 976 F.2d 279, 287 (6th Cir. 1992). Plaintiffs have not, attempted to demonstrate that the special circumstances of fraud or collusion are present. They contend, however, that they can prove that Defendants acted in bad faith and, therefore, maliciously, in perverting the Ohio proceedings.

Plaintiffs contend that Defendants knew, or should have known, that the Ohio court was without jurisdiction over property and custody issues. They contend, on that basis, that Defendants could not have been acting in good faith when they sought the Ohio court's intervention in those matters. They must, therefore, have been acting in bad faith, Plaintiffs contend. Because bad faith constitutes a special circumstance negating the general immunity recognized in Scholler, Plaintiffs contend that Defendants are not protected by that immunity.

While the Court does not conclude that the absence of good faith always equates to the presence of bad faith, the Court agrees that an attorney who attempts to obtain relief from a court that he knows to be powerless to grant it acts in bad faith. The Court concludes, therefore, that Plaintiffs may establish that Defendants acted in bad faith, and, therefore, maliciously, when they perverted the Ohio proceeding by seeking relief that the Ohio court could not grant. The Court concludes, therefore, that Defendants are not entitled to summary judgment with respect to Plaintiffs' claim for abuse of process.

4. Conclusion

For those reasons, Defendants' motion for summary judgment (Doc. 48) is hereby DENIED. The Court DIRECTS the Clerk to establish final pretrial and trial dates in consultation with counsel.

IT IS SO ORDERED.