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Abuse of Process Claim Requires an Allegation of Abusive Acts After the Filing of a Claim

An abuse of process claim in Nevada has two fundamental elements: (1) an ulterior purpose, and (2) a willful act in the use of the process not proper in the regular conduct of a proceeding.  Executive Mgmt. Ltd. v. Ticor Title Ins. Co., 114 Nev. 823, 843, 963 P.2d 465, 478 (1998).  The action for abuse of process hinges on the misuse of regularly-issued process.  Nevada Credit Rating Bureau, Inc. v. Williams, 88 Nev. 601, 606, 503 P.2d 9 (1972).

The mere filing of a complaint itself is insufficient to establish the tort of abuse of process.  Hampton v. Nustar Managment Financial Group, Dist. Court, (D. Nev. 2007); Laxalt v. McClatchy, 622 F. Supp. 737, 752 (D. Nev. 1985).  Instead, the complaining party must include some allegation of abusive measures taken after the filing of the complaint in order to state a claim.  Id.  Merely alleging that an opposing party has a malicious motive in commencing a lawsuit does not give rise to a cause of action for abuse of process.  Id.; Curiano v. Suozzi, 469 N.E.2d 1324, 1326 (N.Y. 1984).

Furthermore, maintaining a lawsuit for the purpose of continuing litigation as a lever to obtain a settlement is not an improper motive and would not demonstrate any ulterior purpose other than resolution or settlement of the suit which is an acceptable use of process.  Rashidi v. Albright, 818 F. Supp. 1354, 1359 (D. Nev. 1993); Wilson v. Hayes, 464 N.W. 2d 250, 267 (Iowa 1990) (explaining that “abuse of process will not lie for a civil action which inconveniences a defendant, or for one filed in expectation of settlement (a ‘nuisance’ suit)” because “[s]ettlement is included in the ‘goals of proper process,’ even though the suit is frivolous.”).  Likewise, the imposition of expenses arising from the defense of a lawsuit is an insufficient injury to sustain a claim for abuse of process.  Stroock & Stroock & Lavan v. Beltramini, 157 A.D.2d 590, 591, 550 N.Y.S.2d 337, 338 (App Div. 1st Dept. 1990).

The second element’s improper action cannot simply be filing process; it must be a subsequent willful act such as “minimal settlement offers or huge batteries of motions filed solely for the purpose of coercing a settlement.” Laxalt v. McClatchy, 622 F. Supp. 737, 752 (1985); Kollodge v. State, 757 P.2d 1024 (Alaska 1988) (explaining that the second element of the tort of abuse of process contemplates some overt act done in addition to the initiating of the suit).  As explained in Laxalt:

This is a severely strained interpretation of the Bull case.  The Nevada court clearly indicated the attorney abused the process available to him by offering to settle the case for a minimal sum and by failing to present proper evidence at trial.  It was the actions which the lawyer took (or failed to take) after the filing of the complaint which constituted the abuse of process, and not the filing of the complaint itself, which constituted the tort in the Bull court’s estimation.  Thus, Nevada follows the rule, as does an overwhelming majority of states, that the mere filing of the complaint is insufficient to establish the tort of abuse of process.

It is clear that McClatchy has failed to state a claim for abuse of process under Nevada law.  As seen above, Nevada courts have held that the filing of a complaint alone cannot constitute the willful act necessary for the tort to lie.  This, however, is all that McClatchy has alleged.  There is no allegation of abusive measures taken after the filing of the complaint, such as minimal settlement offers or huge batteries of motions filed solely for the purpose of coercing a settlement.

Id.  (internal citations omitted).  In fact, the California Supreme Court has observed that “the overwhelming majority” of states hold that “the mere filing or maintenance of a lawsuit—even for an improper purpose—is not a proper basis for an abuse of process action.”  Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., 728 P.2d 1202, 1209 (Cal. 1986) (citations omitted).  See also Trear v. Sills, 82 Cal. Rptr. 2d 281, 293 (Cal. Ct. App. 1999) (“[T]he tort [of abuse of process] requires abuse of legal process, not just filing suit. Simply filing a lawsuit for an improper purpose is not abuse of process.”).  Prosser concurs with this view:

Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required; and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions.

Prosser and Keeton on the Law of Torts § 121, at 898 (footnote omitted).  Thus, to survive a motion to dismiss for failure to state a claim, a party must plead a willful act taken by the defendant in addition to filing the complaint.  Laxalt v. McClatchy, 622 F. Supp. 737, 752 (D. Nev. 1985).

In an illustrative case,  Mr. Suozzi sued multiple government officials for publishing campaign literature opposing Suozzi’s brother’s mayoral campaign.  Curiano v. Suozzi, 469 N.E.2d 1324, 1325 (N.Y. 1984).  In response, defendants asserted two counterclaims against Suozzi, defamation and abuse of process, both of which Suozzi moved to dismiss.  The Court granted Suozzi’s motion to dismiss in its entirety.  Id.  In reaching its decision, the Court stated,

Insofar as the only process issued in the [first] action was a summons, the process necessary to obtain jurisdiction and begin the lawsuit, there was no unlawful interference with plaintiffs’ persons or property because the institution of a civil action by summons and complaint is not legally considered process capable of being abused.  Moreover, plaintiffs have not alleged the gist of the action for abuse of process, which is the improper use of process after it is issued.  They do not contend that the summons issued by defendants was improperly used after it was issued but only that defendants acted maliciously in bringing the action. A malicious motive alone, however, does not give rise to a cause of action for abuse of process.

Id. at 1326-1327 (emphasis added) (internal citations and quotations omitted).  See also Rosen v. Tesoro Petroleum Corp., 582 A.2d 27, 33 (Pa. Super. Ct. 1990) (“We find that appellants have failed to state a claim for abuse of process, as the allegations in their complaint amount to no more than a charge for the initiation of litigation for a wrongful purpose, and do not charge appellees with any ‘perversion’ of properly issued process.”).

About the Author

Jay Young is a Las Vegas, Nevada attorney. His practice focuses on business law, business litigation, and acting as an Arbitrator and Mediator.

Mr. Young can be reached at 702.667.4868 or at jay@h2law.com.