Summary
allowing loss of consortium recovery for malicious prosecution because claim should not necessitate physical injury
Summary of this case from Limone v. U.S.Opinion
8:02CV360
June 10, 2003
MEMORANDUM AND ORDER
Introduction
This matter is before the court on defendants' motion to dismiss, Filing No. 11. The plaintiffs oppose this motion, and both parties have filed briefs in support of their positions. The plaintiffs filed this action against the defendants alleging malicious prosecution and intentional infliction of emotional distress. Filing No. 1. Thereafter, the defendants filed their motion to dismiss and to make more definite and certain pursuant to Fed.R.Civ.P. 12(b)(6) and 12(e). Filing No. 11. I have carefully reviewed the record, briefs and relevant case law. I conclude that the motion to dismiss should be denied in part and granted in part.
On December 12, 2000, a criminal action was commenced against Stephen C. Lynch for computer hacking involving the web page of the North Platte Telegraph, owned by the defendant Omaha World-Herald. The criminal lawsuit was later dismissed. Stephen Lynch and his wife, Patricia Lynch, thereafter filed this lawsuit against the defendants. In their complaint, plaintiff Stephen Lynch alleges malicious prosecution, and plaintiff Patricia Lynch alleges that defendants intentionally inflicted emotional distress upon her and further that she has experienced the loss of consortium of her husband, Stephen Lynch.
Standard of Review
In considering a motion to dismiss a complaint under Rule 12(b)(6), the court must assume all the facts alleged in the complaint are true and must liberally construe the complaint in the light most favorable to the plaintiff. Schmedding v. Tnemec Co., 187 F.3d 862, 864 (8th Cir. 1999). A Rule 12(b)(6) motion to dismiss a complaint should not be granted unless it appears beyond a doubt that the plaintiff can prove no set of facts which would entitle him to relief. Id. Thus, as a practical matter, a dismissal under Rule 12(b)(6) should be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief. Id.
In the case of a motion pursuant to Fed.R.Civ.P. 12(e), I need to determine if the pleadings provide sufficient notice of the allegations against the defendants. Carhart v. Smith, 178 F. Supp.2d 1068, 1076 (D.Neb. 2001). Further, I must also determine if the issues are better suited to discovery, rather than requiring additional pleading. Geir v. Educational Service Unit No. 16, 144 F.R.D. 680, 685 (D.Neb. 1992).
Discussion
A. Rule 12(b)(6) motion
Count I is for malicious prosecution. Defendants contend that Patricia Lynch is not a proper party to this cause of action. In order to maintain a lawsuit on this basis, one must have the proceeding terminated against her. Holmes v. Crossroads Joint Venture, 629 N.W.2d 511, 526 (Neb. 2001). In the present case Patricia Lynch cannot meet this requirement, as the criminal action in state court was filed only against plaintiff Stephen Lynch. Thus, to the extent that Count I appears to plead a malicious prosecution action on behalf of Patricia Lynch, the motion to dismiss will be granted.
To the extent that Patricia Lynch is attempting to argue a loss of consortium claim, I find that claim has been sufficiently pleaded in this case. Although the allegations in Count I do not clearly delineate such a claim, the prayer for relief clears up any doubt that plaintiffs intend to make a claim for loss of consortium. The claim is sufficient so as to enable the defendant to draft an appropriate response.
The real question is whether Patricia Lynch is entitled to maintain a loss of consortium cause of action against the defendants. Defendants cite case law from other jurisdictions for the proposition that there must be a physical injury or illness to support a loss of consortium claim. See Browning-Ferris Industries, Inc. v. Lieck, 881 S.W.2d 288, 294-95 (Tex. 1994); Collins v. Gulf Oil Corp., 605 F. Supp. 1519, 1524 (D.Conn. 1985). No Nebraska courts have directly addressed this issue.
Plaintiffs rely on case law, also outside of Nebraska, that permits loss of consortium claims by spouses for malicious prosecution cases. Rivers v. Ex-Cell-O Corp., 300 N.W.2d 420 (Mich.Ct.App. 1980); Zalewski v. Gallagher, 375 A.2d 1195 (N.J.Super. 1977); Dunn v. Alabama Oil and Gas, Inc., 299 S.W.2d 25 (Tenn.Ct.App. 1956). See also, Molien v. Kaiser Foundation Hospitals, 616 P.2d 813, 822 (Cal. 1980) (no longer distinguish between physical injury and emotional distress); Agis v. Howard Johnson Company, 355 N.E.2d 315, 320 (Mass. 1976) (claim for loss of consortium not dependent on whether physical harm exists, but can also be psychological or emotional injury); Bowersox v. P.H. Gladfetler Co., 677 F. Supp. 307 (M.D.Pa. 1988) (claim for emotional distress by wife against employer and loss of consortium claim against employer by husband).
Although there is no clear case law in Nebraska which requires a physical injury for a loss of consortium claim, Nebraska courts have allowed for a loss of consortium claim without physical injury where adultery was involved. See Hansen v. Strohschein, 133 N.W.2d 598 (Neb. 1965) (action for alienation of affections). Further, at least one Nebraska case has noted that "plaintiffs have collected substantial damages without asserting or proving . . . physical or other debilitating injury" in invasion of privacy cases. Sabrina W. v. Willman, 540 N.W.2d 364, 370 (Neb.App. 1995). The court stated that "[C]onsequently, plaintiff can collect general damages for any symptom or side effect caused by the intrusion or resultant emotional distress or suffering or mental anguish . . . adverse impact on marital or family relationships (including loss of consortium). . . ." Id. In addition, the cases submitted by the plaintiff, while not mandatory or binding on this court, are persuasive and clearly support the proposition that physical injury should not be required as a prerequisite to maintaining a loss of consortium action. For these reasons, I believe the Nebraska courts would permit a cause of action for consortium even though plaintiffs have alleged no physical injuries, and I conclude that plaintiff shall be entitled to maintain her loss of consortium claim.
Count II pleads infliction of emotional distress on behalf of Patricia Lynch. Defendants argue that plaintiff is not a proper party to the action as she has not pleaded allegations as to the outrageous conduct on the part of the defendants. Nichols v. Busse, 503 N.W.2d 173, 179 (Neb. 1993). I have reviewed the complaint, Count II, and I have reviewed the arguments set forth in plaintiffs' briefs, and I conclude that the complaint sufficiently sets forth allegations of intentional emotional distress so as to comply with the federal rules of pleading. Allowing the discovery process to take place will assist defendants with answering the more specific desired information discussed in their brief. Following discovery, motions for summary judgment can be filed, if appropriate.
B. Rule 12(e) motion
Defendants request an order granting their motion for a more definite statement pursuant to Fed.R.Civ.P. 12(e). Defendants contend that the allegations in Counts I and II are vague and ambiguous. I have carefully reviewed the complaint, and I find the pleadings sufficient to inform the defendants of the allegations against them. Carhart v. Smith, 178 F. Supp.2d at 1076. The remaining requested information is best served by allowing the discovery process to proceed. See Geir v. Educational Service Unit No. 16, 144 F.R.D. at 685.
THEREFORE, IT IS ORDERED that the defendants' motion to dismiss, Filing No. 11, is hereby denied in part and granted in part as outlined in this memorandum and order.