JEAN C. HAMILTON, District Judge.
This matter is before the Court on Plaintiffs Carlene Armetta, David Armetta, and Aspira Marketing Direct, LLC's ("Aspira") (collectively "Plaintiffs")
In early 2010, Defendant Stacy DeWalt, then Chief Marketing Officer of Learning Care Group, Inc. ("LCG"), was involved in an effort to hire Plaintiff Carlene Armetta as an employee of LCG. (Complaint ("Compl."), ¶¶ 1, 2). Mrs. Armetta was hired to provide direct mail marketing services for LCG, and she and her husband, Plaintiff David Armetta, previously had provided similar services to LCG as independent contractors through Plaintiff Aspira, a company owned and operated primarily by Mr. Armetta. (Id., ¶ 2).
LCG's Code of Business Conduct and Ethics contains the following conflict of interest policy:
(Counterclaim, attached Exh. 1, PP. 3-4).
According to Ms. DeWalt, Plaintiffs were aware of LCG's conflict of interest policy, and Mrs. Armetta further was informed directly by Ms. DeWalt that if she were to accept the position, Mr. Armetta would be prohibited by the terms of the policy from directly or indirectly having a financial interest in a competitor, customer, or supplier of LCG. (Counterclaim, ¶¶ 11, 12). Ms. DeWalt claims that despite this knowledge, the Armettas engaged in a business relationship with LCG during the period of Mrs. Armetta's employment, whereby they purposely and willfully concealed from Ms. DeWalt and others that Mr. Armetta and Aspira were receiving income for work associated with or requested by LCG. (Id., ¶ 1). Ms. DeWalt maintains Plaintiffs conducted this subterfuge by "conceal[ing] the arrangement Mr. Armetta had brokered with [marketing agencies Vertis Communications and FCL Graphics], by hiding any involvement of Mr. Armetta or Aspira in work these companies performed for LCG, and by concealing the fact Plaintiffs received income outside of Ms. Armetta's salary from marketing work associated with or requested by LCG." (Id., ¶ 3).
In early 2013, Ms. DeWalt left LCG for an employment position in St. Louis, Missouri. (Counterclaim, ¶ 18). Later that year, Plaintiffs discovered that LCG was investigating them for an alleged conflict of interest, and they initiated contact with Ms. DeWalt on the subject. (Id., ¶ 19). Ms. DeWalt informed LCG's internal investigation counsel that she had no knowledge regarding such conflict of interest. (Id., ¶¶ 20, 21). According to Ms. DeWalt, through counsel retained by Plaintiffs to assist them in the internal investigation being conducted by LCG, Plaintiffs began a campaign of harassment toward her, in an effort to force her to change her story to align with their position. (Id., ¶ 22).
(Counterclaim, attached Exh. 2, PP. 1-2). Ms. DeWalt asserts Plaintiffs made other statements to her as well, "regarding their intent to take actions adverse to her employment and damaging to her reputation if she did not change her story to align with theirs." (Counterclaim, ¶ 24).
Plaintiffs ultimately served Ms. DeWalt with a subpoena to testify in the litigation pending between Plaintiffs and LCG in the United States District Court for the District of Connecticut.
On July 16, 2015, Plaintiffs initiated the instant suit against Ms. DeWalt, in which they recount a different version of events. Specifically, Plaintiffs maintain LCG informed Ms. DeWalt that upon Mrs. Armetta's employment, LCG should no longer work with Mr. Armetta or Aspira. (Compl., ¶ 2). Plaintiffs allege that despite receiving this directive, Ms. DeWalt instructed Mr. Armetta and Aspira to continue to provide marketing and direct mail service to LCG through outsourced print vendors, and to "roll" their services into the invoices from the print vendors so that LCG could compensate them through such vendors. (Id., ¶¶ 2, 27).
Plaintiffs allege that in August 2013, LCG initiated an internal investigation into the alleged conflict of interest between Mrs. Armetta, as an employee of LCG, and Mr. Armetta and Aspira, as providers of services to LCG. (Compl., ¶ 40). Mrs. Armetta eventually was terminated from her position at LCG due to the alleged conflict of interest, and she claims such termination deprived her of her bonus and future wages, and blemished her reputation. (Id., ¶¶ 41, 42). Plaintiffs further allege that LCG has refused to remit payment for certain services provided by Mr. Armetta and Aspira and invoiced by FCL, and thus the two have been unjustly denied hundreds of thousands of dollars in receivables. (Id., ¶ 43). Based on the foregoing, Plaintiffs assert causes of action based on common law fraud (Count I), negligent misrepresentation (Count II), and violation of the Connecticut Unfair Trade Practices Act (Count III), against Ms. DeWalt.
On October 1, 2015, Ms. DeWalt filed her Answer, Affirmative Defenses, and Counterclaim. (ECF No. 8). As support for her claim of abuse of process, Ms. DeWalt alleges as follows:
(Counterclaim, ¶¶ 31, 32).
As noted above, Plaintiffs filed the instant Motion to Dismiss Defendant's Counterclaim for Abuse of Process on October 22, 2015, claiming Ms. DeWalt's Counterclaim should be dismissed for failure to state a claim for abuse of process. (ECF No. 10).
In ruling on a motion dismiss, the Court must view the allegations in the Complaint in the light most favorable to Plaintiffs. Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008). The Court, "must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party." Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005) (citation omitted). The Complaint's factual allegations must be sufficient "to raise a right to relief above the speculative level," however, and the motion to dismiss must be granted if the Complaint does not contain "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007) (abrogating the "no set of facts" standard for Fed.R.Civ.P. 12(b)(6) found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Furthermore, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 555 (pleading offering only "labels and conclusions" or "a formulaic recitation of the elements of a cause of action" will not do)).
To state a claim for abuse of process Ms. DeWalt must allege three elements: "(1) [Plaintiffs] made an illegal, improper, perverted use of process, a use neither warranted nor authorized by the process; (2) [Plaintiffs] had an improper purpose in exercising such illegal, perverted or improper use of process; and (3) damage resulted." Arbors at Sugar Creek Homeowners Ass'n v. Jefferson Bank & Trust Co., Inc., 464 S.W.3d 177, 188 (Mo. banc 2015) (internal quotations and citation omitted). "`Stated another way, the test as to whether there is an abuse of process is whether the process has been used to accomplish some end which is outside the regular purview of the process.'" Nichols v. Harbor Venture, Inc., 284 F.3d 857, 862 n. 4 (8th Cir. 2002) (quoting Ritterbusch v. Holt, 789 S.W.2d 491, 493 n. 1 (Mo. 1990) (en banc)).
Lasco Foods, Inc. v. Hall and Shaw Sales, Marketing & Consulting LLC, 2009 WL 3834099, at *1 (E.D. Mo. Nov. 16, 2009). See also Robinett v. Tarr, 2015 WL 5785828, at *2 (E.D. Mo. Oct. 2, 2015) (quoting Wells v. Orthwein, 670 S.W.2d 529 (Mo. Ct. App. 1984)) (emphasis added) ("`If the action is confined to its regular and legitimate function in relation to the cause of action stated in the complaint there is no abuse even if the plaintiff had an ulterior motive in bringing the action, or if he knowingly brought suit upon an unfounded claim.'").
Upon consideration the Court holds that with her claim, Ms. DeWalt fails to demonstrate the first element of her cause of action for abuse of process. Instead, the Court finds that with respect to their action in filing suit against Ms. DeWalt, Plaintiffs merely employed the judicial process to accomplish an end intended by law, and they are entitled to pursue it to its authorized end. See Ulrich Medical USA, Inc. v. Dickman, 2015 WL 5886109, at *3 (E.D. Mo. Oct. 8, 2015); Robinett, 2015 WL 5785828, at *2. Ms. DeWalt's allegation that Plaintiffs had an ulterior motive in filing suit against her does not create a cause of action for abuse of process. See Robinett, 2015 WL 5785828, at *2; see also Ulrich Medical, 2015 WL 5886109, at *3 (citation omitted) ("Even a suit filed with bad intentions will not support an action for abuse of process."); Federal Pharmacal Supply, Inc. v. Murry, 352 F.Supp. 278, 281 (W.D. Mo. 1972) (cited with approval in Nitcher v. Does, 956 F.2d 796, 800 (8th Cir. 1992)) (defendant's allegation that plaintiff brought suit solely to harass defendant does not allege a "willful act" sufficient to state a cause of action for abuse of process).
Furthermore, the Court finds that Plaintiffs' maintenance of their suit at this juncture in the litigation is neither unwarranted nor unauthorized. Ulrich Medical, 2015 WL 5886109, at *3. "Maintaining a cause of action can constitute an abuse of process where further litigation `could not have accomplished any purpose contained in the petition.'" Id. (quoting Guirl v. Guirl, 708 S.W.2d 239, 246 (Mo. App. 1986)). In the instant case, however, unlike in Guirl (where no further relief could be obtained), Ms. DeWalt has tendered no form of requested relief to Plaintiffs, and thus further litigation may accomplish the purpose stated in Plaintiffs' Complaint. Id. Under these circumstances, maintaining the suit is authorized by law, and does not constitute an abuse of process. Id.
Finally, for similar reasons the Court finds Ms. DeWalt fails to state a cause of action for abuse of process with her claim that Plaintiffs used subpoenas in the related litigation to intimidate and harass her into giving false testimony designed to benefit Plaintiffs. In other words, while Ms. DeWalt ascribes evil intent to Plaintiffs, she does not allege they engaged in actions they were not entitled to pursue in the regular course of litigation. This is especially true in light of Plaintiffs' attorney's assertion that while they intended to pursue Ms. DeWalt "aggressively", they wanted her to "provide the truth" in her testimony. (Counterclaim, attached Exh. 2, P. 2). Under these circumstances, the Court again finds Ms. DeWalt fails to state a claim for abuse of process. See OptiStreams, Inc. v. Gahan, 2006 WL 829113 (E.D. Cal. Mar. 28, 2006).
Accordingly,
