Holick v. Burkhart
Filing
284
MEMORANDUM AND ORDER. Plaintiff's motion to alter or amend judgment (Doc. 271 ) is DENIED. Signed by District Judge John W. Broomes on 8/13/2019. (mam)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARK HOLICK,
Plaintiff,
v.
Case No. 16-1188-JWB
JULIE A. BURKHART,
Defendant.
MEMORANDUM AND ORDER
This matter is before the court on Plaintiff’s motion to alter or amend judgment. (Doc.
271.) The motion is fully briefed and is ripe for decision. (Docs. 272, 273, 274.) For the reasons
stated herein, Plaintiff’s motion to alter or amend (Doc. 271) is DENIED.
I. Summary
Plaintiff moves pursuant to Fed. R. Civ. P. 59(e) to alter or amend the court’s summary
judgment ruling (Doc. 270) insofar as it dismissed Plaintiff’s abuse of process claim. (Doc. 271
at 1.) Alternatively, Plaintiff seeks relief under Fed. R. Civ. P. 60(b)(1) and (b)(6). Plaintiff argues
the court improperly “made a factual determination as to the purpose and intent of Defendant in
brining the PFS [Protection from Stalking] action” despite evidence that Defendant had an ulterior
motive in filing it. (Id.) He further argues the court erred by finding the PFS action was confined
to its “regular and legitimate function,” because there was evidence that Defendant used the PFS
process for a process forbidden by statute. (Id.)
II. Rule 59(e) standard
“Grounds which justify alteration or amendment under Rule 59(e) include: (1) an
intervening change in controlling law; (2) new evidence that was previously unavailable; or (3) a
need to correct clear error or prevent manifest injustice.” Jenny Yoo Collection, Inc. v. Essense of
Australia, Inc., No. 17-CV-2666-JAR-GEB, 2019 WL 2717167, at *2 (D. Kan. June 28, 2019)
(citing Hayes Family Tr. v. State Farm Fire & Cas. Co., 845 F.3d 997, 1004 (10th Cir. 2017.)) A
motion to reconsider “is not appropriate to revisit issues already addressed or advance arguments
that could have been raised in prior briefing.” Rezac Livestock Comm. Co., Inc. v. Pinnacle Bank,
2019 WL 2613179, *9 (D. Kan. June 26, 2019) (citations omitted.) It is appropriate only “where
the court has misapprehended the facts, a party’s position, or the controlling law.” Id.
III. Analysis
Plaintiff’s motion shows no basis for reconsideration of the court’s summary judgment
ruling. The court dismissed the abuse of process claim based on its finding that “Plaintiff has
failed to cite evidence from which a jury could reasonably conclude that Defendant made an illegal
or improper use of process.” (Doc. 270 at 22.) That was true, the court noted, even if Defendant
had an improper ulterior motive for bringing the PFS action. (Doc. 270 at 23.) Plaintiff
acknowledges that abuse of process has distinct elements consisting of a defendant’s improper use
of a process (i.e., a use not authorized by the process itself) and a defendant’s ulterior motive or
purpose for doing so. (Doc. 271 at 8.) Yet Plaintiff immediately conflates the two, arguing that
“whether a defendant had an ulterior motive or improper purpose is a question of fact for the jury,”
and arguing the court improperly made findings of fact concerning Defendant’s purpose.
(Id. at
9-10.) To the extent the “use” element examines whether the process was used for a purpose other
than that for which it was designed or intended, the inquiry does not depend upon the defendant’s
state of mind or purpose. Rather, it turns upon an objective examination of the manner in which
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the process was used and whether that use was consistent with the process’s intended purpose.
See, e.g., 1 Am. Jur. 2d Abuse of Process § 6 (“For purposes of abuse of process claims, although
the litigant’s motive may be important in determining whether there was an ulterior purpose for
the use of the process, it still must be established that, viewed objectively, there was an improper
use of the process.”) In dismissing this claim on summary judgment, the court examined the actual
use of the PFS process in light of the allegations made by Defendant in her PFS complaint, and
concluded the process was “confined to its regular function in relation to the claims asserted….”
(Doc. 270 at 23.)
Plaintiff argues that “courts, including those of Kansas, hold that the pursuit of an action
with an ulterior motive collateral to the proceeding will sustain an abuse of process claim without
more,” and this “is particularly true in cases alleging First Amendment motives.” (Doc. 271 at 15.)
Kansas case law provides that abuse of process “contemplates some overt act in addition to the
initiating of the suit; thus the mere filing or maintenance of a lawsuit, even for an improper
purpose, is not a proper basis for an abuse of process action.” Caldwell-Baker Co. v. Tideman, 149
P.3d 894 (Table), 2007 WL 136029, *7 (Kan. Ct. App. Jan. 19, 2007) (quoting 1 Am. Jur. 2d,
Abuse of Process § 11, pp. 47-71.) (emphasis added.) See also Welch v. Shepherd, 169 Kan. 363,
366, 219 P.2d 444, 447 (1950) (“two elements are necessary to an action for malicious abuse of
process, one the existence of an ulterior motive, and second, an act in the use of such process not
proper in the regular prosecution of the proceeding.”) Plaintiff cites no Kansas case identifying an
exception to this rule when “First Amendment motives” are claimed. Kansas recognizes, as does
the Restatement, that if the suit “is brought not to recover on the cause of action stated in the
complaint but to accomplish a purpose for which the process was not designed, there is an abuse
of process.” Id. (emphasis added.) Here, the PFS dispute as to whether Plaintiff engaged in
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stalking or instead engaged in lawful expressive conduct was central to the merits of the PFS
complaint.1 By design of Kansas law, a temporary PFS order was available to Defendant on the
cause of action alleged by her in the PFS complaint. Plaintiff has cited no evidence that Defendant
used the PFS order in a manner collateral to that cause of action or in a manner not contemplated
by statute. See Jackson & Scherer, Inc. v. Washburn, 209 Kan. 321, 331, 496 P.2d 1358, 1366
(1972) (“abuse of process is the employment of a process in a manner not contemplated by law,
or to obtain an object which such a process is not intended by law to effect.”) For reasons stated
previously, Plaintiff may be able to show that Defendant did not have probable cause for her
allegations in the PFS complaint, but abuse of process does not consist of “commencing an action
or causing process to issue without justification, but misusing or misapplying process, justified in
itself, for an end other than that which it was designed to accomplish.” Id. As such, Plaintiff’s
evidence that Defendant maintained the PFS action, communicated with Officer Hinners about it,
and offered to settle if Plaintiff agreed not to continue the sort of acts alleged in the PFS complaint
do not satisfy the element of an improper use of process for a purpose for which it was not
designed.2
1
As noted in the court’s prior order, a state district judge denied Plaintiff’s motion to dismiss the PFS complaint on
First Amendment grounds, finding questions of fact as to whether the alleged actions were protected by the First
Amendment. (Doc. 270 at 11.)
2
In addition to the foregoing, the court notes that the Kansas Supreme Court has described the tort of abuse of process
as misusing or misapplying process, “justified in itself,” for an end other than that which it was designed to accomplish.
Thomas v. City of Baxter Springs, Kan., 369 F. Supp. 2d 1291, 1299 (D. Kan. May 10, 1995) (quoting Jackson &
Scherer, Inc., 209 Kan. at 331, 36 P.2d at 1366-67). In his motion, Plaintiff criticizes the court’s conclusion that
process was justified for the claim stated in the PFS petition, arguing vehemently that Defendant’s PFS suit was a
completely unjustified effort to silence his constitutionally protected speech. If that be the case, then Plaintiff’s abuse
of process claim may well fail on the alternative basis that, according to Plaintiff, the process was unjustified from the
beginning. Under Kansas law, such circumstances may support a claim for malicious prosecution, but apparently not
one for abuse of process.
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In sum, Plaintiff’s motion fails to show that dismissal of the abuse of process claim
constitutes clear error or results in manifest injustice, and it fails to show any grounds for relief
under Rule 59 or Rule 60.
IT IS THEREFORE ORDERED this 13th day of August, 2019, that Plaintiff’s motion to
alter or amend judgment (Doc. 271) is DENIED.
s/ John W. Broomes
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE
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