Summary
Filing suit “is embraced in this and most civilized communities. Thus, regardless of plaintiff's alleged motive - whether it be tortious, malicious, or even criminal - the alleged conduct itself simply does not rise to the level of extreme and outrageous.”
Summary of this case from Oliver v. Roehm Am.Opinion
CIVIL ACTION NO. 03-1457 SECTION "N"
November 19, 2003
ORDER AND REASONS
Before the Court is Plaintiff, DIRECTV, Inc.'s Rule 12(b)(6) Motion to Dismiss John Atwood's Counterclaim for Failure to State a Claim Upon Which Relief May Be Granted. For the reasons that follow, the motion is GRANTED.
I. BACKGROUND
Plaintiff brought this action against John Atwood and other defendants, seeking damages and other relief pursuant to the Federal Communications Act of 1934, 47 U.S.C. § 605, and the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1986, and the Communications Assistance for Law Enforcement Act of 1994, 18 U.S.C. § 2510-22, as well as Louisiana law. Plaintiff alleges inter alia that the defendants used electronic communication intercepting devices to surreptitiously intercept, unscramble, and exhibit plaintiff's encrypted satellite television programming. In response, Atwood has asserted a counterclaim against plaintiff, alleging that plaintiff filed this suit without probable cause and for the primary purpose of harassing and embarrassing Atwood and coercing him to pay for services. As plaintiff-in-counterclaim, Atwood asserts these claims under theories of malicious prosecution, intentional infliction of emotion distress, negligent infliction of emotion distress, abuse of process, and defamation.
II. LAW AND ANALYSIS
A 12(b)(6) motion to dismiss should be granted only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Indest v. Freeman Decorating, Inc., 164 F.3d 258, 261 (5th Cir. 1999). In making this determination, the Court must accept all well-pleaded facts as true, and view them in the light most favorable to the plaintiff. Id.
A. Malicious Prosecution :
The tort of malicious prosecution has six essential elements: "(1) The commencement or continuance of an original criminal or civil judicial proceeding. (2) Its legal causation by the present defendant in the original proceeding. (3) Its bona fide termination in favor of the present plaintiff. (4) The absence of probable cause for such proceeding. (5) The presence of malice therein. (6) Damage conforming to legal standards resulting to plaintiff. . . ." Lees v. Smith, 363 So.2d 974, 978 (La.App. 3d Cir. 1978). The policy behind the third requirement is that "a party bringing a suit should not be made to defend his right to bring such until it is fully determined at trial that the original action was erroneously brought." Id. Here, Atwood has failed to allege this essential element and cannot do so, given that plaintiff's suit against him has not terminated. Accordingly, he has failed to state a claim for malicious prosecution under Louisiana law.
B. Defamation :
As with malicious prosecution, Louisiana courts have held "that an action for defamation arising out of allegations made in [a] judicial proceeding, and made against a party to those proceedings, cannot be brought until those proceedings are terminated." Ortiz v. Barriffe, 523 So.2d 896, 898 (La.App. 4th Cir.) ("Encouraging a countersuit for defamation in each and every lawsuit discourages legitimate claims and burdens the courts unnecessarily"), writ denied, 531 So.2d 273 (La. 1988); see also Weldon v. Republic Bank, 414 So.2d 1361, 1363 (La.App. 2d Cir. 1982) ("`The rule is well established in the jurisprudence of this State that a cause of action for defamatory statements set forth in the pleadings of a civil action does not arise or come into existence until final determination of such suit, and, therefore, a claim for damages for an alleged libel set forth in the pleadings may not form the basis for a reconventional demand in the pending suit.'") (quoting Udell, Inc. v. Ascot Oils, Inc., 177 So.2d 178 (La.App. 2d Cir. 1965)). Thus, it is plain from the face of Atwood's counterclaim that he does not have a cause of action for defamation at this time. Certainly, he has failed to state one.
C. Abuse of Process :
"To state a claim for abuse of process under Louisiana tort law, a plaintiff must allege two essential elements: (1) an ulterior purpose; and (2) a willful act in the use of process that is not in the regular conduct of the proceeding." Grant v. Farm Credit Bank of Texas, 841 F. Supp. 186, 190 (W.D. La. 1992), aff'd, 8 F.3d 295 (5th Cir. 1993). Atwood has failed to allege facts to support the second essential element, and this failure is fatal to his claim. "Even if a party has an ulterior purpose in making use of some legal process, no cause of action exists unless there has been some abuse." Id. "`While the existence of an ulterior motive may, perhaps, be inferred from the fact that the process has been misused or misapplied, the reverse is not true, for if the act of the prosecutor is in itself regular, the motive, ulterior or otherwise, is immaterial.'" Weldon, 414 So.2d at 1365 (quoting I AM. JUR.2d, ABUSE OF PROCESS). "To make out its case, the plaintiff must prove irregular steps taken under cover of the process after its issuance, and damage to the plaintiff resulting therefrom."' Weldon, 414 So.2d at 1366 (quoting Italian Star Line v. United States Board E. F. Corp., 53 F.2d 359, 361 (2d Cir. 1930)). Atwood has alleged no such irregular steps taken on the part of plaintiff. Rather, as in Weldon, what Atwood complains of is "not based on any perversion of any process but simply the filing of the suit." Weldon, 414 So.2d at 1366. Such a complaint does not state a claim for abuse of process.
D. Intentional Infliction of Emotion Distress :
To make out a claim for intentional infliction of emotional distress, a plaintiff must allege facts establishing three essential elements: "(I) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct." Nicholas v. Allstate Ins. Ca, 765 So.2d 1017, 1022 (La. 2000) (quoting White v. Monsanto, 585 So.2d 1205, 1209 (La. 1991)). The first element is a critical one. It is not "enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that this conduct has been characterized by `malice' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort." Nicholas, 765 So.2d at 1021 (quoting REST. 2D TORTS, § 46). Rather, liability will be imposed "only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. Here, the alleged conduct at issue is the act of filing suit. Such conduct does not go beyond all possible bounds of decency and would not be regarded as atrocious and utterly intolerable in a civilized community. Indeed, it is an action that is embraced in this and most civilized communities. Thus, regardless of plaintiffs alleged motive — whether it be tortious, malicious, or even criminal — the alleged conduct itself simply does not rise to the level of extreme and outrageous. Accordingly, it cannot support a claim for intentional infliction of emotional distress under Louisiana law.
E. Negligent Infliction of Emotion Distress :
"Louisiana law does not generally recognize an independent cause of action for negligent infliction of emotional distress." Lann v. Davis, 793 So.2d 463, 466 (La.App. 2d Cir. 2001) (citing Moresi v. Department of Wildlife, 567 So.2d 1081 (La. 1990)); Bacas v. Falgoust, 760 So.2d 1279, 1282 (La.App. 5th Cir. 2000) ("Louisiana law does not recognize an independent tort of negligent infliction of emotional distress."). The cause of action "is available under limited circumstances only." Id. Specifically, Louisiana tort law recognizes a cause of action for negligent infliction of emotional distress only in extraordinary situations, where there is an "especial likelihood of genuine and serious mental distress, arising from . . . special circumstances, which serves as a guarantee that the claim is not spurious." Moresi, 567 So.2d at 1096. To state a claim for negligent infliction of emotional distress, a plaintiff must allege the following elements: (1) that an independent, direct duty was owed to plaintiff by defendant; (2) that the duty afforded protection to plaintiff for the risk and harm caused; (3) that the duty was breached; and (4) that the mental aguish suffered by the plaintiff was genuine and serious. Bacas, 760 So.2d at 1282. Atwood's counterclaim fails to allege facts supporting any of these elements. Although Atwood alleges that he has experienced "public embarrassment, fright for being sued and fear of the detrimental effects of a possible civil judgment against him," this does not rise to the level of serious emotional distress. Under Louisiana case law, emotional distress is considered "serious" if "a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case/* Held v. Aubert, 845 So.2d 625, 633-34 (La.App. 1st Cir. 2003). "A non-exhaustive list of serious emotional distress includes neuroses, psychoses, chronic depression, phobia, and shock." Id. Nor has Atwood alleged any special circumstances that would create an especial likelihood of serious psychological harm. Accordingly, he has failed to state a claim for negligent infliction of emotional distress under Louisiana law.
III. CONCLUSION
For the foregoing reasons, IT IS ORDERED that Plaintiff, DIRECTV, Inc.'s Rule 12(b)(6) Motion to Dismiss John Atwood's Counterclaim for Failure to State a Claim Upon Which Relief May Be Granted is GRANTED, and defendant Atwood's counterclaims are dismissed.