Opinion
File No. 1:98-CV-726
February 26, 2001
ORDER DENYING MOTION TO DISMISS COUNTERCLAIM
In accordance with the opinion entered this date,
IT IS HEREBY ORDERED that Corporation's motion to dismiss counterclaim for abuse of process (Docket # 278) is DENIED.
OPINION
This matter is before the Court on Plaintiff Amway Corporation's Rule 12(b)(6) motion to dismiss Count I of the counterclaim filed by Defendants Procter Gamble Company and the Procter Gamble Distributing Company (collectively "PG") which alleges abuse of process. For the reasons that follow this motion will be denied.
Plaintiff filed its complaint in this matter on October 13, 1998. On July 26, 1999, in its response to Plaintiff's second amended complaint, PG filed its counterclaim, including the abuse of process claim at issue in this motion. This claim was incorporated by reference in PG's response to Plaintiff's third amended complaint. The time for filing motions for amendment of pleadings was closed as of October 3, 2000. This 12(b)(6) motion to dismiss was filed on December 21, 2000.
Second Case Management Order dated 10/3/00 (Docket # 230).
If a complaint (or, in this case, counterclaim) is to survive a motion to dismiss under FED. R. CIV. P. 12(b)(6), it must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory. Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir. 1993). In evaluating a 12(b)(6) motion to dismiss this Court treats as true all of the well-pleaded allegations of the counterclaim, and construes all allegations in the light most favorable to the counterclaimant. Glassner v. R.J. Reynolds Tobacco Co., 223 F.3d 343, 346 (6th Cir. 2000). However, the Court need not accept as true legal conclusions or unwarranted factual inferences. In re Sofamor Danek Group, Inc., 123 F.3d 394, 400 (6th Cir. 1997). "In order for a dismissal to be proper, it must appear beyond doubt that the plaintiff would not be able to recover under any set of facts that could be presented consistent with the allegations of the complaint." Bower v. Federal Express Corp., 96 F.3d 200, 203 (6th Cir. 1996) (citations omitted).
The parties agree that to state a claim for abuse of process, a claimant must allege "(1) an ulterior purpose and (2) an act in the use of process which is improper in the regular prosecution of the proceeding." Friedman v. Dozorc, 412 Mich. 1, 30, 312 N.W.2d 585 (1985). The Michigan Supreme Court cites the following passage from Restatement Torts, 2d, in explanation of the abuse of process tort:
The gravamen of the misconduct for which the liability stated in this section is imposed is not the wrongful procurement of legal process or the wrongful initiation of criminal or civil proceedings; it is the misuse of process, no matter how properly obtained, for any purpose other than that which it was designed to accomplish. Therefore, it is immaterial that the process was properly issued, that it was obtained in the course of proceedings that were brought with probable cause and for a proper purpose, or even that the proceedings terminated in favor of the person instituting or initiating them. The subsequent misuse of the process, though properly obtained, constitutes the misconduct for which the liability is imposed under the rule stated in this section.Friedman, 412 Mich. at 30 n. 18 (quoting 3 RESTATEMENT TORTS, 2d, § 682, comment a, p. 474).
PG alleges in its counterclaim that Amway has abused the civil litigation process by using it for its ulterior motives to cause vexation and damage to PG's reputation and to force PG to incur legal expenses. PG further alleges that Amway has abused the civil litigation process, at PG's expense, by using this suit and its discovery process for the ulterior motive of harassing and intimidating the operators of various Internet websites which publish information which is critical of Amway.
PG's answer to second amended complaint, affirmative defenses and counterclaims (Docket # 52), ¶¶ 22-26. PG's counterclaims are incorporated by reference in PG's answer to third amended complaint (Docket # 147).
Amway correctly contends that an abuse of process claim cannot be premised upon the mere filing of a lawsuit, even if that lawsuit is malicious. An action for abuse of process cannot be based merely upon the malicious filing of a suit. Friedman, 412 Mich. at 31 (quoting Spear v. Pendill, 164 Mich. 620, 623; 130 N.W. 343 (1911)). "The ulterior purpose alleged must be more than harassment, defamation, exposure to excessive litigation costs, or even coercion to discontinue business." Early Detection Center, PC v. New York Life Ins. Co., 157 Mich. App. 618, 629-30 (1986).
PG appears to recognize that damage to PG's reputation and exposure to litigation costs are not sufficient to support an abuse of process claim. PG asserts in its brief that its abuse of process claim is based upon Amway's ulterior purpose in "coercing the operators of various websites, who are not parties to this case, into surrendering their First Amendment right to comment publicly about Amway's business."
PG Defendants' Brief in Opposition to Amway's Motion to Dismiss Counterclaim for Abuse of Process, at 4.
Amway contends that because PG has failed to plead that Amway was motivated by a purpose to do harm to PG by issuing the subpoenas, PG has failed to state a claim of its own against Amway.
Amway has chosen to bring this motion to dismiss the counterclaim under Rule 12(b)(6) rather than under Rule 56. In order to grant a motion to dismiss under 12(b)(6), this Court, after construing all allegations in the light most favorable to the counterclaimant, must conclude that it appears beyond doubt that the counterclaimant would not be able to recover under any set of facts that could be presented consistent with the allegations of the counterclaim. Glassner, 223 F.3d at 346; Bower, 96 F.3d at 203. A complaint need not set down in detail all the particularities of a plaintiff's claim, but must simply give the defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Lillard v. Shelby Board of Education, 76 F.3d 716, 726 (6th Cir. 1996) (citations omitted).
PG has generally pleaded that the harassment of the website operators caused injury to PG. While the pleadings may not be very specific with respect to PG's injury, injury to PG could be consistent with the allegations in the counterclaim. Accordingly, Amway's motion to dismiss counterclaim for abuse of process will be denied.
An order consistent with this opinion will be entered.