Norfolk Southern Railway Company v. Tobergte et al

Filing 232

OPINION AND ORDER: Count three of Dft Hall's counterclaim (DE 23 at p.14) is hereby DISMISSED WITH PREJUDICE. Signed by Judge Karen K. Caldwell on 3/10/2022.(SLH)cc: COR

U NITED S TATES D ISTRICT C OURT
E ASTERN D ISTRICT OF K ENTUCKY
C ENTRAL D IVISION
L EXINGTON
Norfolk Southern Railway
Company,

Civil No. 5:18-207-KKC

Plaintiff,
v.

O PINION AND O RDER

Kevin Tobergte and
Andy Hall,
Defendants.

** ** ** ** **

This matter is before the Court upon its own motion. As part of
its review of the parties’ pretrial motions in limine, the Court reviewed
Defendant Andy Hall’s counterclaim for abuse of process. Plaintiff
Norfolk Southern’s motion in limine [DE 171 at 8–9] asked the Court to
exclude “any evidence or argument relating to Defendant Hall’s abuse
of process [counter]claim.” [Id. at 9.] Hall’s response argued, among
other things, that Norfolk Southern was attempting to use “a motion in
limine to cloak an untimely motion for summary judgment . . . .” [DE
187 at 6.] The parties’ arguments prompted the Court to inquire into the
elements of abuse of process under Kentucky law, and the Court’s review
of the case law raised doubts regarding the viability of Hall’s
counterclaim. It appeared that even if all of Hall’s allegations were true,
they would be insufficient to support his claim. The Court acknowledges
that it raised the issue close to the beginning of trial. However, the Court

was duty bound to raise the issue when its research raised doubts about
the viability of Hall’s counterclaim.
The presence of Hall’s counterclaim had a material impact on the
evidence that would have been presented to the jury at trial.1 Much of
that evidence would have been inadmissible if used to prove any of Hall’s
other claims or defenses and carried a substantial risk of prejudicing
Norfolk Southern.2 It was therefore incumbent upon the Court to inquire
into the viability of the counterclaim before trial, rather than at another
juncture after the jury had already heard potentially prejudicial and
otherwise irrelevant evidence and argument.

ANALYSIS
I.

Sua Sponte Dismissal
A federal district court “has a duty to make an inquiry sua sponte

as to whether [a claim is] properly before [it],” GBT P’ship v. City of
Fargo, Case No.: A3-00-50, 2001 U.S. Dist. LEXIS 20195, 2001 WL
1820144 at *1 (D.N.D. Nov. 27, 2001) and likewise “has sua sponte

The admissibility of evidence at issue in Norfolk Southern’s 8th, 12th, 15th, 26th,
and 27th motions in limine all at least partially depended on the presence of Hall’s
abuse of process counterclaim. [See DE 171 at 8–9, 11–12, 13–14, 22, 22–23.]

1

For example, Hall indicated that he would introduce evidence regarding “emotional
distress that [he] has endured due to Norfolk Southern suing him for millions of dollars
that it knows he cannot and will never be able to pay” [DE 187 at 9], “evidence
regarding his financial condition” [DE 187 at 10], evidence that Norfolk is “seeking a
judgment for millions of dollars in damages that the railroad knows and has always
known he cannot pay and which will force him into bankruptcy” [DE 187 at 14–15],
and “evidence regarding Norfolk Southern’s vindictive motives in filing and
prosecuting this lawsuit against him.” [DE 187 at 15.] While evidence and argument
to this effect may have been relevant to his abuse of process claim, it would otherwise
be inadmissible. These arguments have no relevance to the negligence issues that are
central to all other claims in this lawsuit, and would serve only to prejudice Norfolk
Southern by injecting ideas regarding an imbalance of power or position that exists
between a large corporation and an individual.
2

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authority to examine the sufficiency of Plaintiff’s allegations for each
[claim] and may dismiss them if appropriate.” Gok v. Roman Catholic
Church, No. 20-4817, 2021 U.S. Dist. LEXIS 135188, 2021 WL 3054793
at *8 n.6 (E.D. Pa. July 20, 2021). With that authority, a district court
may act sua sponte to dismiss a complaint for failure to state a claim
under Rule 12(b)(6). See Morrison v. Tomano, 755 F.2d 515, 516–17 (6th
Cir. 1985); 5B Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure 3d § 1357 (West 2021).
In considering whether to dismiss a claim sua sponte, this Court
“proceed[s] with great caution,” Boddie v. Am. Broad. Cos., 731 F.2d 333,
340 (6th Cir. 1984), because sua sponte dismissals risk the appearance
of a judge acting as an advocate rather than an independent entity.
Tingler v. Marshall, 716 F.2d 1109, 1111 (6th Cir. 1983) (quoting
Franklin v. Or., State Welfare Div., 662 F.2d 1337, 1342 (9th Cir. 1981)).
Before sua sponte dismissal for failure to state a claim, a court must give
a claimant notice of the intended dismissal and a chance to respond to
that notice. Morrison, 755 F.2d at 516. If the “face of a complaint plainly
fails to state a claim for relief” after notice and an opportunity to respond
has been given, “a district court has ‘no discretion’ but to dismiss it.”
Eriline Co. S.A. v. Johnson, 440 F.3d 648, 657 (4th Cir. 2006) (quoting
5A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1357 (2d ed. 1990)).
The Court gave Hall notice of its doubts about the viability of his
abuse of process counterclaim in its show cause order that was issued
on February 17, 2022. [DE 190.] In its order, the Court explained that
Hall’s complaint did not appear to allege any facts that would satisfy the

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second element of abuse of process under Kentucky law. [DE 190 at 2–
3.] Hall was given seven days to file a written response to the Court’s
intended dismissal, and he filed a timely response on February 24, 2022
[DE 206].3 Having given Hall notice and opportunity to respond, the
Court may consider whether his counterclaim for abuse of process
should be dismissed for failure to state a claim.
II.

Standard of Review
A pleading must include a “short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
factual allegations supporting a claim must “raise a right to relief above
the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). “In other words, the Rule 12(b)(6) standard requires that a
plaintiff provide ‘enough facts to state a claim to relief that is plausible
on its face.’” Mellentine v. Ameriquest Mortg. Co., 515 F. App’x 419, 422
(6th Cir. 2013) (quoting Twombly, 550 U.S. at 569). A claim becomes
plausible “when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556).

In a pretrial telephone conference with the parties on February 25, 2022, the Court
gave Hall another opportunity to respond, to give him the benefit of an extra day to
conduct research on the issue. At the conference, Hall’s counsel reiterated their
arguments from the written response, but did not point to any additional authority
that supported their argument. At that point, the Court stated it was disinclined to
allow the abuse of process counterclaim to go forward, but would allow Hall’s counsel
to continue its research and attempt to find cases or other legal authority that might
support his position. The Court then gave Hall another opportunity to respond at a
pretrial hearing on February 28, 2022, and Hall’s counsel did not present any
additional argument or authority in response to the Court’s show cause order.

3

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In determining whether Hall has stated a plausible claim, the
Court “accept[s] as true [his] factual allegations and draw[s] all
reasonable inferences in his favor, but . . . disregard[s] any legal
conclusions.” Rudd v. City of Norton Shores, 977 F.3d 503, 511 (6th Cir.
2020) (citing Doe v. Baum, 903 F.3d 575, 580 (6th Cir. 2018)). Each claim
must be supported by “direct or inferential [factual] allegations
respecting all the material elements under some viable legal theory.”
Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005).
III.

Hall’s Abuse of Process Counterclaim
Abuse of process is a tort recognized under Kentucky law and is

comprised of two elements: “(1) an ulterior purpose and (2) a willful act
in the use of the process not proper in the regular conduct of the
proceeding.” Garcia v. Whitaker, 400 S.W.3d 270, 276 (Ky. 2013)
(quoting Simpson v. Laytart, 962 S.W.2d 392, 394 (Ky. 1998)). The
“willful act” element typically takes the “form of coercion to obtain a
collateral advantage.” Sprint Communs. Co., L.P. v. Leggett, 307 S.W.3d
109, 117 (Ky. 2010) (citing Simpson, 962 at 395). It requires “[s]ome
definite act or threat not authorized by the process, or aimed at an
objective not legitimate in the use of the process.” Garcia, 400 S.W.3d at
276 (quoting Simpson, 962 S.W.2d at 394). “[E]ven though a party acts
with malevolent intentions, if he has done nothing more than carry out
the legal process to its authorized conclusion an abuse of process claim
will not lie.” George v. Lavit, No. 2005-CA-002233-MR, 2006 Ky. App.
Unpub. LEXIS 1042, at *6 (Ct. App. Nov. 9, 2006) (citing Simpson, 962
S.W.2d at 394–95).

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Kentucky case law makes clear that the “willful act” at issue must
be unauthorized or improper in the course of the legal process, and the
collateral advantage being sought must be an improper one, not simply
better bargaining or negotiating position. See, e.g., Garcia v. Whitaker,
400 S.W.3d 270, 277 (Ky. 2013) (finding a “willful act” where a
complainant accompanied a deputy sheriff to arrest the defendant and
the defendant was required to forfeit property that he lawfully held);
Sprint Commuc’ns Co., L.P. v. Leggett, 307 S.W.3d 109, 119 (Ky. 2010)
(finding a “willful act” where a company overstated its authority to
condemn property in an effort to induce a property owner to negotiate
more generously over sale of an interest in land that the company had
no power to acquire by legal process); Simpson v. Laytart, 962 S.W.2d
392, 395, (Ky. 1998) (holding there was no “willful act” where nearby
residents appealed a planning commission’s decision approving division
of land with the purpose of preventing the land’s sale and division);
Flynn v. Songyer, 399 S.W.2d 491, 494 (Ky. 1966) (obtaining a warrant
against an individual to coerce that individual to release a garnishment
satisfies “willful act” element); Stoll Oil Refining Co. v. Pierce, 337
S.W.2d 263, 266 (Ky. 1960) (issuing a forcible detainer without the
required bond to dispossess a tenant satisfies “willful act” element).
Here, Hall has not satisfied the “willful act” element of an abuse
of process claim, because he has pled no facts indicating that Norfolk
Southern took any sort of wrongful action that is improper in the regular
course of the proceeding in order to gain a collateral advantage. The
facts he has pled in support of his abuse of process claim do not show
that Norfolk Southern committed any wrongful act or has sought to use

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the legal process to obtain an advantage that is improper or that is
unrelated to the litigation. Hall identifies a number of allegedly “ulterior
or illegitimate” motives in pleading his counterclaim, but identifies no
wrongful act.4 [DE 23 at 11–14, ¶¶ 25–33, 40.] Indeed, the only act that
Hall identifies in his counterclaim is Norfolk Southern’s act of suing
him.
In his response to the Court’s show cause order, Hall states that
Norfolk Southern “made clear that it will drop its . . . claim in exchange
for [Hall] releasing his FELA counterclaim,” and argues that this offer
satisfies the willful act element. 5 [DE 206 at 8.] But a plaintiff’s offer to
drop its claims in exchange for a defendant releasing his counterclaims
is an act that is obviously permitted in the course of litigation. Indeed,
attempts to settle a lawsuit are encouraged in our judicial system.
Bradley v. Sebelius, 621 F.3d 1330, 1339 (11th Cir. 2010) (“Historically,
there is a strong public interest in the expeditious resolution of lawsuits
through settlement. Throughout history, our law has encouraged
settlements.”). The act of making such an offer is not a “definite act or
threat not authorized by the process,” and attempting to settle a lawsuit
is not “an objective not legitimate in the use of the process,” Garcia, 400
S.W.3d at 276 (quoting Simpson, 962 S.W.2d at 394), and thus cannot
In addition to his failure to meet the “willful act” element, Hall appears to also have
failed to meet the “ulterior purpose” element. The purposes Hall ascribes to Norfolk
Southern are simply a desire to improve its bargaining position in litigation or
anticipated litigation. However, because the “willful act” element was the only
apparent deficiency identified in its show cause orders, the Court confines its reasoning
and analysis to that element in deciding whether his counterclaim should be dismissed.

4

Hall did not actually include any allegation to this effect in his counterclaim, and he
has asked the Court to allow him to amend his counterclaim to include it. [DE 206 at
8–9.] However, even if his counterclaim had included the allegation, his claim would
still fail, as explained infra.

5

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satisfy the “willful act” element of an abuse of process claim under
Kentucky law. The fact that Norfolk Southern’s claims were for millions
of dollars does not make its lawsuit or offer to settle improper in any
way. In litigation, one party will almost always be in a superior
bargaining position and attempting to use that position to obtain a
favorable outcome is not unauthorized or an illegitimate goal—it is the
very nature of negotiation during litigation. If the Court were to accept
Hall’s position, any party that offers to settle a case by proposing both
parties drop their claims would be subject to an abuse of process claim.
Hall cites Kinslow v. Fifth Third Bank, Inc. to support his
argument that Norfolk Southern’s offer satisfies the “willful act”
element. 529 F. App’x 467 (6th Cir. 2013). In Kinslow, the Sixth Circuit
stated that a party’s allegation that “after [the bank] commenced the
Ohio lawsuit, [the bank] offered to dismiss that case if the [cattle
ranchers]

would

release

all

their

claims

against

[the

bank] . . . theoretically might lend support to the plaintiffs’ abuse of
process claim.” Id. at 473 (emphasis added). However, the court in
Kinslow did not decide whether that allegation actually would satisfy
the “willful act” element, because the plaintiff in that case did not
include the allegation in his complaint and did not seek leave to amend
the complaint. Id.
The Sixth Circuit’s statement in Kinslow that a party’s offer to
dismiss its claims in exchange for release of opposing claims
“theoretically might lend support” to an abuse of process claim is
hypothetical and equivocal dicta, and no Kentucky authority is cited in
support of it. Further, it is an unpublished case and therefore not

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binding on this Court, and the Court does not find Kinslow persuasive
or helpful in this case. Neither the Court nor the parties have found any
Kentucky authority to support the notion that an offer to drop claims in
exchange for release of counterclaims is an abuse of the litigation
process. [See DE 206 at 7; DE 212 at 3–4.]
Further, it does not comport with the well-established public
policy in favor of settlements, where parties are encouraged to reach
amicable solutions among themselves and to resolve disputes outside of
the courtroom whenever possible. To hold settlement offers to be an
abuse of the legal process would be contrary to fundamental principles
of our legal system. Therefore, the Court will follow the clear precedent
established by Kentucky courts and the sound public policy encouraging
settlements.

CONCLUSION
Accordingly, for the reasons stated in this opinion and the Court
being otherwise sufficiently advised, it is hereby ORDERED that Count
Three of Defendant Andy Hall’s counterclaim [DE 23 at 14] is hereby
DISMISSED WITH PREJUDICE.
Dated March 10, 2022.

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