Cooper v. Escambia County Commission et al
ORDER dismissing with prejudice the plaintiff's claim for abuse of process. The 112 Motion in Limine is denied as moot. The 113 Motion in Limine is granted. Signed by Chief Judge William H. Steele on 1/26/12. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
) CIVIL ACTION 10-0330-WS-C
ESCAMBIA COUNTY COMMISSION, )
In the joint pretrial document, the plaintiff preserved a claim of abuse of process.
(Doc. 104 at 7).1 The defendants preserved as a legal issue concerning this claim the
assertion that abuse of process requires an abuse of judicial process and that the
plaintiff’s case does not implicate judicial process. (Id. at 7). The Court required the
parties to submit trial briefs addressing this issue among others, (Doc. 110 at 2), and the
parties have complied. (Doc. 118 at 10-14; Doc. 119 at 10-11; Doc. 121 at 8-9). The
Court, pursuant to Rule 56(f), now considers whether the plaintiff’s claim for abuse of
process is insufficient as a matter of law.
The plaintiff did not, however, preserve any right to seek damages under this claim.
While she demanded $600,000 in damages for abuse of process in her amended complaint, (Doc.
24 at 14-15), the joint pretrial document identified only $4,620 in damages to be sought at trial,
and those damages were expressly tied to physical damage to the roadway and adjoining water
lines. (Doc. 104 at 13). As the parties were warned, the joint pretrial document, once adopted as
part of the final pretrial order, “shall constitute the final statement of the … relief at issue.”
(Doc. 92, Attachment at 4). They were further warned that the final pretrial order “shall
constitute the basis for any relief afforded by the Court.” (Id. at 5). The final pretrial order does
incorporate by reference the joint pretrial document and thus limits the available relief to that
preserved in the latter document. (Doc. 110 at 2). Since the plaintiff could not be awarded
damages even on a successful claim for abuse of process, it is unclear why she pursues the claim.
“[N]o Alabama case has directly addressed whether an administrative proceeding
may give rise to an abuse-of-process claim ….” Haynes v. Coleman, 30 So. 3d 420, 425
(Ala. Civ. App. 2009). As a federal court sitting in diversity with no definitive ruling by
the relevant state’s highest court, the Court must predict how that body would resolve the
issue if presented to it. E.g., Molinos Valle del Cibao v. Lama, 633 F.3d 1330, 1348 (11th
Cir. 2011). For several reasons, the Court predicts that the Alabama Supreme Court
would not recognize a claim for abuse of administrative process.
First, the tort of abuse of process is also known as “abuse of legal process.” E.g.,
Dempsey v. Denman, 442 So. 2d 63, 65 (Ala. 1983); accord Preskitt v. Lyons, 865 So. 2d
424, 428 (Ala. 2003). The Alabama Supreme Court, discussing an abuse-of-process
claim, has noted that “legal process” for purposes of such a claim “has been defined in
Black’s Law Dictionary (6th ed. 1990) as ‘a summons, writ, warrant, mandate, or other
process issuing from a court.’” Id. at 430 (emphasis added). The Preskitt Court likewise
listed “examples of legal processes for which an action will lie if the process is abused,”
and each of them involves process issued from a court. Id. at 430-31.2 The Alabama
Supreme Court, in reliance on Preskitt, has confirmed in another context that only
documents issued by a court can constitute “process.” Ex parte Brooks, 897 So. 2d 1017,
1019 n.1 (Ala. 2004).
As the plaintiff notes, these pronouncements are “not dispositive” (as the
defendant in Preskitt caused no process of any kind to issue), but they provide clear
evidence that the Alabama Supreme Court considers the tort to reach only abuse of
judicial process. Indeed, Judge Moore has concluded that, “[i]n light of this language, …
this court cannot expand an abuse-of-process claim to an administrative proceeding.”
Haynes, 30 So. 3d at 427 (Moore, J., concurring in the result in part and dissenting in
These include recording a judgment, suing out execution, suing out attachment, causing
an arrest, and levying an execution. Id.
Second, the recognized purpose of the abuse-of-process tort is to protect the
integrity of the judicial system, and courts acknowledging this purpose unsurprisingly
have refused to expand the tort to abuse of administrative process. E.g., Moore v.
Western Forge Corp., 192 P.3d 427, 438-39 (Colo. App. 2007); Gordon v. Community
First State Bank, 587 N.W.2d 343, 353 (Neb. 1998); Stolz v. Wong Communications,
Ltd., 31 Cal. Rptr. 2d 229, 236 (Cal. App. 1994). The Alabama Supreme Court likewise
has noted that the tort of abuse of process exists to counter the “[i]nherent danger in any
judicial system … that the court’s powers might be made to serve the illegitimate ends of
an individual.” C.C. & J., Inc. v. Hagood, 711 So. 2d 947, 952 (Ala. 1998) (emphasis
added) (plurality opinion). Given this understanding of the tort’s purpose, the state court
is unlikely to expand the tort to the administrative context.
Third, and as Judge Moore noted, “[t]he vast majority of jurisdictions decline to
recognize abuse of process in nonjudicial proceedings.” Moore, 192 P.3d at 439; accord
Bloom v. Arnold, 248 P.3d 752, 756-57 (Kan. App. 2011). Rhode Island apparently is the
only state to recognize a claim for abuse of administrative process. Dobratz v. Krier,
2011 WL 5867067 at *4 (Iowa App. 2011).3 The plaintiff has articulated, and the Court
discerns, no reason to suspect the Alabama Supreme Court would embrace the most
expansive tort of abuse of process in the nation.
Finally, it should be noted that several federal courts have expressed, albeit in
dicta, their understanding that Alabama limits the tort to abuse of judicial process.
United States Steel, LLC v. Tieco, Inc., 261 F.3d 1275, 1291 (11th Cir. 2001); Nolin v.
Town of Springville, 45 F. Supp. 2d 894, 913 (N.D. Ala. 1999), rev’d in part on other
grounds, 207 F.3d 1253 (11th Cir. 2000).
Even in Rhode Island, it is “only quasi-judicial contested administrative determinations
or proceedings that establish the legal rights, duties, or privileges of a party after a hearing and
that embody sufficient attributes of judicial proceedings” that can give rise to a non-judicial
abuse of process. Hillside Associates v. Stravato, 642 A.2d 664, 669 (R.I. 1994).
For all these reasons, the Court concludes that the Alabama Supreme Court would
not recognize a tort of abuse of process based on process not issued by a court in the
context of judicial proceedings.
The plaintiff gamely proposes that, because the statutory procedure followed by
the County Commission in vacating Christmas Tree Lane resulted in a resolution filed in
Probate Court, which resolution was the “equivalent of a decree” and which placed on
her the burden of appealing the Commission’s decision to state court, the procedure is
“not exactly administrative.” (Doc. 119 at 10-11). Perhaps the Commission’s
proceedings eventually led to judicial proceedings, but they were not themselves judicial
proceedings because they did not occur in court.4 The plaintiff suggests that the
resolution, at least once filed in Probate Court, “is the functional equivalent of a
complaint.” (Doc. 119 at 9). Assuming without deciding that this is a fair analogy, under
Preskitt and Brooks a complaint cannot constitute “legal process” sufficient to support an
abuse-of-process claim because it does not issue from a court.
The only “process” on which the plaintiff’s claim is based are various notices
issued by the Commission of its intent to hold a hearing and the Commission’s eventual
resolution following the hearing. (Doc. 119 at 8). These items constitute at best
administrative process and, as a matter of law, will not support a claim for abuse of
For the reasons set forth above, the plaintiff’s claim for abuse of process is
dismissed with prejudice.5
Assuming without deciding that the vacation procedure would satisfy Hillside
Associates’ view of a quasi-judicial administrative determination, the Court has concluded that
the Alabama Supreme Court would not expand the tort of abuse of process to reach process not
issued by an actual court.
The plaintiff’s motion in limine concerning judicial notice, (Doc. 112), which seeks to
present evidence relevant only to her abuse-of-process claim, is denied as moot. Her motion in
limine to exclude the minutes of the Commission’s hearing, (Doc. 113), which the defendants
DONE and ORDERED this 26th day of January, 2012.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
admit are relevant only to the abuse-of-process claim and to a previously dismissed due process
claim, (Doc. 117 at 3-4; Doc. 120 at 1), is granted.
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