Opinion
C.A. No. 99C-07-109 WTQ.
Date Argued: March 23, 2000.
Date Decided: March 23, 2000.
Letter Opinion and Order on Defendant Reed M. Stewart's Motion to Dismiss — MOTION DENIED Except to the Extent the Complaint Might be Viewed as Stating a Claim for Abuse of Process.
Bettina C. Ferguson, Esquire; 206 Fox Road, Dover, DE 19901.
Kevin J. Connors, Esquire; Marshall Dennehey Warner, Coleman Goggin, 1220 Market Street #300, Wilmington, DE 19801.
Mason E. Turner, Jr. Esquire; Prickett Jones Elliot, 1310 King Street, P.O. Box 1328, Wilmington, DE 19899.
Louis J. Rizzo, Esquire; Reger Rizzo, One Commerce Center, Suite 731, 1201 Orange Street, Wilmington, DE 19801.
Dear Ms. Ferguson, Mr. Connors, Mr. Rizzo, and Mr. Turner:
This is the Court's Letter Opinion and Order on Defendant Reed M. Stewart's Motion to Dismiss. For the reasons stated herein, the Motion is DENIED as it relates to the malicious prosecution claim and GRANTED as it relates to any conceivable abuse of process claim.
FACTS
This is a lawsuit for damages related to a prior law suit filed by the now Defendant Wesley College against Plaintiff Bettina Ferguson ("Ferguson"). During the relevant time periods, Ferguson was employed by Wesley College. The movant in the current Motion, Reed M. Stewart ("Stewart"). was the President of Wesley College at the initiation of the first lawsuit.
Ms. Ferguson was admitted to the Delaware Bar in 1997 and has held a Certificate of Retirement from active law practice since approximately March 1988.
Around the first of September 1995, Wesley College, through its attorneys, filed suit against Ferguson, along with Leslie Pitts and Keith Hudson, in the United States Federal District Court for the District of Delaware. The Complaint alleged violations of Federal law regarding the unauthorized interception and disclosure of electronic communications under 18 U.S.C. § 2511 and violations of State law regarding the misuse of computer system information under 11 Del. C. § 935. Ferguson alleges that the Defendants or their agents intentionally and willfully caused a news release to be sent to the Delaware Business Review, resulting in a Statewide newspaper article about the Federal suit which mentioned her by name. On August 11, 1997, the District Court granted Ferguson Summary Judgment, which was subsequently affirmed by the Third Circuit. In a second Count, Ferguson charges the appeal was frivolous.
Ferguson alleges that due to the "cloud" created by the Defendants lawsuit against her, she has been effectively prevented from returning to the practice of law and she has incurred additional financial damages as a result of the lawsuit. She asserts that there was no probable cause for the suit in the District Court and that the allegedly frivolous appeal was motivated by malice.
Defendant Stewart claims that Ferguson's Complaint amounts to her seeking damages for malicious prosecution and abuse of process with regard to the civil proceedings initiated by Wesley College. Stewart contends that the underlying civil proceedings were not instituted by him, and assuming arguendo that he initiated the investigation into the Plaintiffs' activities with the electronic communications, such action by Stewart fails to support the allegation that the underlying proceedings were instituted by, or at the insistence of, Stewart. Stewart further argues that Ferguson has failed to allege facts that could satisfy the elements of malicious prosecution.
The terms "malicious prosecution" and "abuse of process" do not appear in the Complaint, but the allegations set forth in the Complaint appear to seek damages based on these theories.
As to any possible abuse of process allegations, Stewart argues that Ferguson has failed to allege that Stewart did a willful and improper act in using the process. Stewart also argues that Ferguson has not alleged the prerequisite elements of an abuse of process claim and urges this Court to dismiss all such claims against him.
STANDARD OF REVIEW
In evaluating a Motion to Dismiss under Superior Court Civil Rule 12(b)(6), the Court must assume all well pleaded facts in the Complaint to be true. Nix v. Sawyer, Del. Super., 466 A.2d 407, 410 (1983) (citing Laventhol, Krekstein, Horwath Horwath v. Tuckman, Del. Supr., 372 A.2d 168 (1976)). For purposes of a Motion under Rule 12(b)(6), all allegations in the Complaint must be accepted as true. State Use of Certain-Teed Products Corp. v. United Pacific Ins. Co., Del. Super., 389 A.2d 777, 778 (1978). A Complaint will not be dismissed unless the Plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances susceptible of proof Nix, 466 A.2d at 410 (citing Diamond State Tel. Co. v. University of Del., Del. Supr., 269 A.2d 52 (1970)). A Complaint may not be dismissed unless it is clearly without merit, which may be a matter of law or fact. Diamond State, 269 A.2d at 58.
DECISION
It appears that the heart of Stewart's Motion is based on improper pleading by Ferguson. A pleading is "well pleaded" if it puts the opposing party on notice of the claim being brought against it. Precision Air, Inc. v. Standard Chlorine of Delaware, Inc., Del. Supr., 654 A.2d 403, 406 (1995). Complaints generally are short plain statements of the claim, each averment therein being simple, concise and direct with technical forms of pleading being unnecessary. Twin Coach Co. v. Chance Vought Aircraft Co., Del. Super., 2 Storey 588, 163 A.2d 278, 283 (1960). Pleadings are usually for notice giving with the task of narrowing and clarifying the basic issues and ascertaining the relevant facts being left to the deposition and discovery process. Delaware Valley Drug Co. v. Kline, Del. Super., 1 Storey 242, 144 A.2d 403, 405 (1958).
Here, there are no facts to support Stewart's claim that the underlying civil proceedings were not instituted by him or at his insistence. The Complaint clearly states "the lawsuit was instigated by Defendants Stewart, Dube and Roberts." (Compl. ¶ 19). At this early stage of the litigation, the allegations in the Complaint must be accepted as true and the suit cannot be dismissed on this ground without a factual record being developed.
Stewart also alleges that Ferguson has not pled the necessary elements for a malicious prosecution or an abuse of process claim. In Delaware, claims for malicious prosecution are viewed with disfavor and they are assessed with careful scrutiny. Nix, 466 A.2d at 411. In order to establish a claim for malicious prosecution, the following elements must exist:
(1) There must have been a prior institution or continuation of some regular judicial proceedings against the plaintiff in this action for malicious prosection.
(2) Such former proceedings must have been instituted by, or at the instance of the defendant in this action for malicious prosecution.
(3) The former proceedings must have terminated in favor of the defendant therein, the plaintiff in the action for malicious prosecution.
(4) There must have been malice in instituting the former proceedings.
(5) There must have been want of probable cause for the institution of the former proceedings.
(6) There must have been injury or damage resulting to the plaintiff from the former proceedings.Servino v. Medical Center of Delaware Inc., Del. Super., C.A. No. 94C-08-077, Quillen, J. (Feb. 11, 1997); Stidham v. Diamond State Brewery, Del. Super., 2 Terry 330, 21 A.2d 283, 284 (1941).
It appears that the Plaintiff has pled adequately all of the elements necessary for a claim of malicious prosecution. There was a judicial proceeding commenced against her. Plaintiff claims that the Complaint in the Federal action was instigated by Stewart. (Compl. ¶ 19). The former preceding terminated in favor of Ferguson. The Plaintiff alleges that the claim was brought with malice and impermissible motive because Defendants intentionally caused a news release to be sent about the Federal suit. (Compl. ¶¶ 24, 25, 32). Malice may be averred generally. Superior Court Civil Rule 9(b). The Plaintiff alleges that the lawsuit was filed without probable cause. (Compl. ¶ 23). And Ferguson alleges damages from the former proceedings. Therefore, Ferguson should at least be able to get discovery so that the parties can obtain the relevant facts.
Ferguson also alleges malice in her second cause of action when she claims that the appeal of her action was frivolous and that during the continuation of the lawsuit, she was subject to accusations of lying and conspiracy as well as innuendo of other wrongdoing that caused loss of her reputation in the community. (Compl. ¶¶ 35, 36, 39).
Absent specific legal authority, it does not seem to the Court that a claim against a College President, who appears to be the functional equivalent of a Chief Operating Officer of a corporation, is foreclosed from suit merely because that officer does not have the legal authority by himself to institute the suit. What is required is "some affirmative action by way of advice, encouragement, pressure etc., in the institution, or causing the institution, of the proceeding." 54 C.J.S. Malicious Prosecution § 18 (1987).
Stewart cites the case of Megenhardt v. Nolan, Del. Supr., 583 A.2d 660, 1990 WL 169009 (1990) to argue that his actions do not support a claim for malicious prosecution because he did not institute the underlying action. Megenhardt is distinguishable, however, because: 1) the trial Court dismissed that claim at the directed verdict stage and not in a Motion to Dismiss, and 2) in that case, the police did an independent investigation into the criminal action before an arrest was made and charges were brought by the Attorney General. Here, there are no facts alleged at this stage of the proceedings that indicate that any independent investigation was made before the suit was commenced.
Under the current state of the record, the Court cannot state that the Complaint is clearly without merit as a matter of law or fact. Diamond State, 269 A.2d at 58. Thus, Stewart's Motion to Dismiss the malicious prosecution claims is DENIED.
Stewart has also filed a Motion to Dismiss what he describes as the abuse of process claim against him. The essential elements of a claim for abuse of process are: 1) a willful and improper act in the use of process; 2) any form of coercion; and 3) a collateral advantage to Defendants arising from said coercion. Read v. Carpenter, Del. Super., C.A. No. 95C-03-171, Quillen, J. (June 8, 1995), aff'd, Del. Supr., 670 A.2d 1340 (1995); Nix v. Sawyer, Del. Super., 466 A.2d 407, 412 (1983). Ferguson agrees in her response that she has not alleged the elements for an abuse of process action. Thus, it is conceded that the Complaint is inadequate to allege an abuse of process claim and, to that limited extent, the record should be clear that no abuse of process claim is being pursued. Therefore, the Motion to Dismiss what could conceivably be construed as an abuse of process claim is GRANTED. The Complaint in its entirety survives, however, as a two Count claim for malicious prosecution.
CONCLUSION
For the foregoing reasons, the Defendant Reed M. Stewart's Motion to Dismiss the malicious prosecution claim is DENIED and the Motion to Dismiss the abuse of process claim is GRANTED. IT IS SO ORDERED.
WTQ/mw, caj oc: Prothonotary