ROBERT W. PRATT, District Judge.
Before the Court is a Motion to Dismiss ("Motion") by Counterclaim Defendants Margie Phelps, Elizabeth Phelps, and Timothy Phelps (collectively "Phelps et al." or "Counterclaim Defendants"), filed October 10, 2013. Clerk's No. 56. On October 28, 2013, Counterclaim Plaintiff Ralph O'Donnell ("O'Donnell" or "Counterclaim Plaintiff) resisted the Motion. Clerk's No. 59. Phelps et al. replied on November 7, 2013. Clerk's No. 61. On November 8, 2013, O'Donnell moved for leave to file a surreply, which the Court granted on November 14, 2013. Clerk's Nos. 62-63. The Motion is fully submitted.
This lawsuit arises out of allegations that, during several public demonstrations organized by Phelps et al, O'Donnell and the other two respondents named in this lawsuit enforced Iowa's flag abuse statutes, which Phelps et al. contend are unconstitutional, thus depriving them of their First Amendment rights. See Second Am. Compl. ("Complaint") (Clerk's No. 30) ¶¶ 16, 18-21, 25-29. At issue are the following three Iowa Code provisions — §§ 718A.1A, 718A.6, and 723.4(6). Id. ¶¶ 42(a)-(c). Phelps et al. seek (1) a declaration from this Court that these provisions are unconstitutional, both on their face and as applied to them; (2) an injunction
On September 19, 2013, O'Donnell answered the Complaint and asserted three counterclaims — abuse of process, defamation, and intentional infliction of emotional distress. See Answer (Clerk's No. 48) ¶¶ 22-37. In particular, O'Donnell denied that Phelps et al.'s First Amendment rights had been violated, see id. ¶¶ 24-26, and also asserted that, even if their rights had been violated, such violation did not happen at his direction, see id. ¶¶ 28-30. O'Donnell further alleged that he was named a respondent in this lawsuit so that Phelps et al. "would have a police chief named as a [respondent ... from more than one county in Iowa, ... to better pursue class action status against Respondents,... [and to] obtain an injunction against all [Iowa] law enforcement personnel." Id. ¶¶ 31-33. Additionally, O'Donnell alleged that on or about April 18, 2013, Phelps et al. publicized the filing of this lawsuit against him, and communicated to the public the allegedly false allegations concerning him. Id. ¶¶ 35-36. O'Donnell now contends that "wrongfully naming ... [him as a respondent] in this action and intentionally publicizing ... [the allegations contained in the Complaint]" constitute abuse of process,
To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, a complaint
A viable complaint must include "sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).
Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (alteration in original) (internal citations omitted). "The plausibility standard requires a plaintiff to show at the pleading stage that success on the merits is more than a `sheer possibility.' It is not, however, a `probability requirement.'" Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir.2009) (quoting Iqbal 556 U.S. at 678, 129 S.Ct. 1937).
The Supreme Court, in Iqbal described a "two-pronged approach" for evaluating complaints challenged under Rule 12(b)(6). See Iqbal 556 U.S. at 679, 129 S.Ct. 1937. First, a court should divide the allegations between factual and legal allegations; factual allegations should be accepted as true, but legal allegations should be disregarded. Id. Second, the factual allegations must be parsed for facial plausibility. Id.
Id. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 570, 127 S.Ct. 1955).
The "parsing" process requires careful examination of the plaintiffs allegations, however, "the complaint should be read as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible." Braden, 588 F.3d at 594. Indeed, "[requiring a plaintiff to rule out every possible lawful explanation for the conduct he challenges would invert the principle that the complaint is construed most favorably to the nonmoving party, and would impose the sort of probability requirement at the pleading stage which Iqbal and Twombly explicitly reject." Id. at 597 (internal quotations and citations omitted).
A court will "draw on its judicial experience and common sense" when determining whether a complaint states a plausible claim for relief. Iqbal 556 U.S. at 679, 129 S.Ct. 1937. Thus, the Court may consider other, more likely explanations for the acts described in the complaint when determining whether the pleaded factual allegations give rise to a plausible entitlement to relief. Id. at 680, 129 S.Ct. 1937. But the Court must always be mindful that "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable, and `that a recovery is very remote and unlikely.'" Twombly, 550 U.S. at 556, 127 S.Ct. 1955 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).
The crux of Phelps et al.'s argument in support of their Motion is that O'Donnell's counterclaims do not meet the Twombly-Iqbal standard set forth above, and should, therefore, be dismissed under Federal Rule of Civil Procedure 12(b)(6) as facially implausible. See Countercl. Defs.' Br. in Supp. of Their Mot. ("Countercl. Defs.' Br.") (Clerk's No. 56-1) at 3-13.
"The tort of abuse of process is `the use of legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it was not designed.'" Fuller v. Local Union No. 106 of the United Bhd. of Carpenters, 567 N.W.2d 419, 421 (Iowa 1997) (internal citation omitted). Thus, a plaintiff must show that the defendant used legal process for an improper purpose, i.e., "to secure ... some collateral advantage not properly includable in the process itself." Id. (internal citation omitted). A claim for abuse of process has the following three elements: "(1) the use of a legal process; (2) its use in an improper or unauthorized manner; and (3) ... damages as a result of the abuse." Id. at 421-22 (internal citations omitted).
The second element of this cause of action proves an insurmountable obstacle in many cases, including the present one.
There has been no such showing in this case. Phelps et al. correctly observe that "missing [from O'Donnell's counterclaim] is ... any allegation of an `ulterior' purpose" on the part of Phelps et al. in naming him as a respondent in this lawsuit. Countercl. Defs.' Br. at 7. Indeed, O'Donnell merely avers that Phelps et al. named him a respondent in this lawsuit only to "have a police chief named as a [Respondent ... from more than one county in Iowa, ... to better pursue class action status against Respondents, ... [and to] obtain an injunction against all [Iowa] law enforcement personnel." Answer ¶¶ 31-33. O'Donnell fails to cite any legal authority — nor has the Court found any — suggesting that any of these reasons amounts to using legal process in an improper or unauthorized manner. Relevant case law actually supports the contrary conclusion. Cf. Palmer v. Tandem Mgmt. Servs., 505 N.W.2d 813, 817 (Iowa 1993) (first emphasizing that "[a] very restrictive view is taken of this [second] element [of
O'Donnell, however, claims that Phelps et al.'s prayer for attorney fees and costs in this case amounts to an attempt to compel him to pay a different debt, which constitutes the ulterior motive required by the second element of the abuse-of-process claim. See Countercl. Pl.'s Resistance to Countercl. Defs.' Mot. ("Countercl. Pl.'s Resistance Br.") (Clerk's No. 59) at 7 (citing Restatement (Second) of Torts § 682 cmt. b). O'Donnell is correct that, according to the Restatement (Second) of Torts, "using ... [legal] process to put pressure upon the other to compel him to pay a different debt" satisfies the second element of the abuse-of-process claim. See Restatement (Second) of Torts § 682 cmt. b ("For abuse of process to occur there must be use of the process for an immediate purpose other than that for which it was designed and intended. The usual case of abuse of process is one of some form of extortion, using the process to put pressure upon the other to compel him to pay a different debt or to take some other action or refrain from it."). Upon a closer examination, however, the present case does not fall within this category of cases.
For reasons that follow, the Court reaches the same conclusion with respect to O'Donnell's IIED claim as it did with his abuse-of-process claim. Phelps et al. argue that this claim is "even more meagerly ple[]d" than the abuse-of-process cause of action. See Countercl. Defs.' Br. at 7. O'Donnell insists, however, that he has sufficiently pled his IIED claim because the evidence already discovered in this case demonstrates that "50% of ... [Phelps et al.'s] claims against O'Donnell are untrue," as shown by the materials O'Donnell attached to his resistance brief.
The tort of IIED has the following four elements: "(1) outrageous conduct by the defendant; (2) the defendant intentionally caused, or recklessly disregarded the probability of causing, the emotional distress; (3)[the] plaintiff suffered severe or extreme emotional distress; and (4) the defendant's outrageous conduct was the actual and proximate cause of the emotional distress." Fuller, 567 N.W.2d at 423 (internal citation omitted). Even assuming that O'Donnell has adequately pled the remaining three elements of IIED,
"Defamation includes the twin torts of libel and slander." Kiesau v. Bantz, 686 N.W.2d 164, 174 (Iowa 2004) (internal citation omitted).
Despite the fact that both libel and slander claims are possible in this case, such possibility is of little or no consequence to the Court's ruling on Phelps et al.'s dismissal motion.
With this legal framework in mind, the Court turns to the parties' respective arguments. Phelps et al. contend that O'Donnell's defamation counterclaim suffers from the same deficiencies as the other two counterclaims asserted in this lawsuit, i.e., failure to plead sufficient facts to state a facially plausible claim for relief. See Countercl. Defs.' Br. at 9, 12. First, Phelps et al. maintain that to the extent O'Donnell's defamation cause of action rests on any factual allegations in the Complaint, the claim must fail because factual allegations contained in a pleading are absolutely privileged.
O'Donnell disagrees that dismissal is appropriate, citing Iowa's Model Civil Jury Instructions dealing with the elements of the tort of defamation. Countercl. Pl.'s Resistance Br. at 11-14 (quoting the model instructions concerning libel/slander per se, libel/slander by implication, and damages recoverable in an action for libel/slander). There can be no dispute that, with respect to his defamation claim, O'Donnell only alleges that, on or about April 18, 2013, Phelps et al. "issued a press release and/or held a press conference announcing to the press and general public the filing of this lawsuit...." Answer ¶ 35. O'Donnell cites no case — nor is this Court aware of any — where merely announcing the filing of the lawsuit supports a claim for defamation. Even assuming, however, that the statements communicated in the press release and/or at the press conference went beyond a mere announcement of the lawsuit, O'Donnell has failed to identify the speaker, the content of the allegedly defamatory statements, or their recipient. See Cedar Rapids Lodge & Suites, LLC v. JFS Dev., Inc., No. 09-cv-00175, 2010 WL 2836949, at *7 (N.D.Iowa July 19, 2010) (concluding that Plaintiffs had pled their defamation claim with sufficient specificity where Plaintiffs had identified both the speaker and the recipient of the allegedly defamatory statements, as well as the statements' content). Therefore, O'Donnell's allegations are insufficient to support a plausible entitlement to relief for defamation. See Freeman v. Bechtel Const. Co., 87 F.3d 1029, 1032 (8th Cir.1996) (affirming dismissal of a slander claim where the allegations did "not identify the defamatory statements with any specificity, [did] not identify the manner of oral publication, and [did] not allege that [any agent of the defendant's acting within the scope of employment] published the statements to a non[-]privileged recipient"). Rather than dismiss the defamation claim, however, the Court has decided to allow O'Donnell the opportunity to amend it and eliminate the deficiencies identified above. Accordingly, O'Donnell shall file an amended counterclaim no later than January 3, 2014, or will suffer the dismissal of his defamation claim without further notice. In the event that O'Donnell amends his defamation counterclaim, Phelps et al. remain free to file a new dismissal motion as to the amended defamation claim.
For the foregoing reasons, Phelps et al.'s Motion to Dismiss (Clerk's No. 56) is GRANTED IN PART and DENIED IN PART, consistent with the terms of this Order.
IT IS SO ORDERED.
Restatement (Second) of Torts § 682 cmt. b, illus. 1-3.
448 N.W.2d 458, 461-62 (Iowa 1989). When judged against this demanding standard, O'Donnell's allegation, even when accepted as true, that "[t]he acts of ... [Phelps et al.] ... in this action ... have ... caused him emotional distress," see Answer 1137, is plainly insufficient under the Twombly-Iqbal standard.