Karsner v. The City of Radcliff, Kentucky et al
Filing
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MEMORANDUM OPINION AND ORDER Signed by Chief Judge Joseph H. McKinley, Jr. on 10/6/2016 granting 10 Motion to Dismiss for Failure to State a Claim filed by Defendant Tooley. cc: Counsel(JBM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:16-CV-00372-JHM
PATRICIA A. KARSNER
PLAINTIFF
V.
CITY OF RADCLIFF, ET AL
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant Warren Tooley’s Motion to Dismiss. Fully
briefed, this matter is ripe for decision. For the reasons stated below, the Motion to Dismiss is
GRANTED.
I. BACKGROUND
Plaintiff Patricia A. Karsner and Defendant Tooley have two children together and have
never married. On September 21, 2015, the Jefferson Circuit Court, Family Division 10 issued
an order granting immediate custody to Tooley and ordering Karsner to have no contact with the
children. [DN 11-1, at 10–11]. Armed with the custody order, Tooley went to Karsner’s home
to get his children. The children refused to go with him and then ran away. Tooley then filed a
criminal complaint against Karsner, alleging she feloniously interfered with his custody of the
children in violation of KRS 509.070. [DN 11-1, at 8]. On September 23, police officers from
the City of Radcliff arrived at Karsner’s home and arrested her on the charge of custodial
interference.
Karsner filed this complaint on June 14, 2016, making numerous claims against the City
of Radcliff, the Radcliff Police Department, and the two arresting officers, alleging excessive
force was used while performing the arrest. [DN 1]. Karsner also asserts claims of malicious
prosecution and abuse of process against the same defendants, as well as against Tooley for
bringing the criminal complaint against her. Tooley moved this court to dismiss the two claims
against him pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state
a claim upon which relief can be granted.1 [DN 10].
II. STANDARD OF REVIEW
Upon a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6),
a court “must construe the complaint in the light most favorable to plaintiffs,” League of United
Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (citation omitted), “accept all
well-pled factual allegations as true,” id., and determine whether the “complaint . . . states a
plausible claim for relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Under this standard, the
plaintiff must provide the grounds for its entitlement to relief, which “requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff satisfies this standard only when it “pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678. A complaint falls short if it pleads facts
“merely consistent with a defendant's liability” or if the alleged facts do not “permit the court to
infer more than the mere possibility of misconduct.” Id. at 678–79. Instead, a complaint “must
contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief.’”
Id. at 677 (quoting Fed. R. Civ. P. 8(a)(2)). “But where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has
1
Tooley also filed an answer to Karsner’s complaint [DN 12] and acknowledges that this Court may treat his Rule
12(b)(6) motion as a Rule 12(c) motion for judgment on the pleadings. However, “[t]he standard of review for a
Rule 12(c) motion is the same as for a motion under Rule 12(b)(6) for failure to state a claim upon which relief can
be granted.” Fritz v. Charter Tp. Of Comstock, 592 F.3d 718, 722 (6th Cir. 2010). Therefore, the Court will discuss
the motion in the context of Rule 12(b)(6).
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not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P.
8(a)(2)).
III. DISCUSSION
Karsner has made two claims against Tooley. First, she alleges that he is liable under the
Kentucky common law tort of malicious prosecution for his filing of a criminal complaint
against her for custodial interference. [DN 1, at 8]. Second, she alleges that he is liable under
the Kentucky common law tort of abuse of process based upon the same conduct as that in the
malicious prosecution claim. [DN 1, at 10]. However, Karsner has failed to plead sufficient
factual content in relation to at least one essential element of each tort. Therefore, the Court
grants Tooley’s motion as to both claims.
A. MALICIOUS PROSECUTION
While the seminal case in Kentucky regarding the tort of malicious prosecution has long
been Raine v. Drasin, 621 S.W.2d 895 (Ky. 1981), the Supreme Court of Kentucky has recently
refined the basic elements of the tort in Martin v. O’Daniel, --- S.W.3d ---, 2016 WL 5244518
(Ky. Sep. 22, 2016). Thus, the necessary elements for a claim of malicious prosecution are now
1) the defendant initiated, continued, or procured a criminal or civil
judicial proceeding, or an administrative disciplinary proceeding
against the plaintiff;
2) the defendant acted without probable cause;
3) the defendant acted with malice, which, in the criminal context,
means seeking to achieve a purpose other than bringing an
offender to justice; and in the civil context, means seeking to
achieve a purpose other than the proper adjudication of the claim
upon which the underlying proceeding was based;
4) the proceeding, except in ex parte civil actions, terminated in
favor of the person against whom it was brought; and
5) the plaintiff suffered damages as a result of the proceeding.
Id. at *8. With respect to the fourth element, Karsner has failed to plead any facts demonstrating
that the proceeding at issue in this case, the criminal case in which she has been charged with
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custodial interference, has been terminated in her favor. Under the standard for a 12(b)(6)
motion to dismiss, the plaintiff’s claim can only survive if enough factual content is alleged so
that the Court can plausibly infer that “the termination of the proceedings [was] favorable to the
party bringing a malicious prosecution claim,” with favorable defined as “indicat[ing] that the
accused may be innocent of the charges.” Ohnemus v. Thompson, 594 F. App’x 864, 867 (6th
Cir. 2014) (citing Davidson v. Castner-Knott Dry Goods Co., Inc., 202 S.W.3d 597, 605–06 (Ky.
Ct. App. 2006)). In this case, Karsner’s complaint has failed to state that the proceedings against
her have been terminated. In fact, in her response, she confirms that “the felony custodial
interference charge has been separated [from another pending charge] and will be resolved at
another date.” [DN 14, at 7].
Karsner asks this Court to hold Tooley’s motion in abeyance until Karsner’s criminal
case is resolved. However, until such time as the criminal case is resolved in her favor, she has
no claim to assert. Therefore, Tooley’s motion to dismiss as to the malicious prosecution claim
is GRANTED.
B. ABUSE OF PROCESS
Karsner’s claim for abuse of process against Tooley arises from essentially the same
conduct as that which formed the basis for her malicious prosecution claim. But “[w]hile the
two torts of abuse of process and malicious prosecution often accompany one another, they are
distinct causes of action.” Garcia v. Whitaker, 400 S.W.3d 270, 277 (Ky. 2013) (citations
omitted).
In order to establish a cause of action for abuse of process, a plaintiff must
demonstrate 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.” Id. at 276 (internal quotations omitted).
Both are necessary elements, as “there is no liability where the defendant has done nothing more
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than carry out the process to its authorized conclusion even though with bad intentions.” Cherry
v. Howie, --- F. Supp. 3d ---, 2016 WL 3094712, at *6 (W.D. Ky. June 1, 2016) (citing Simpson
v. Laytart, 962 S.W.2d 392, 395 (Ky. 1998)).
Karsner’s complaint has failed to plead any facts as to an improper act committed by
Tooley in the course of the proceeding. Karsner has alleged that Tooley obtained a custody
order for their two children and, when the children allegedly ran away from Karsner’s home,
filed a criminal complaint against her for custodial interference. Even if these actions were done
with “an incidental motive of spite or an ulterior purpose of benefit to the defendant,” they will
not amount to abuse of process unless the acts were somehow improper in the course of the
proceeding. Griffin v. Jones, --- F. Supp. 3d ---, 2016 WL 1092879, at *10 (W.D. Ky. Mar. 21,
2016) (citing Restatement (Second) of Torts § 682 (1977)). For example, the Supreme Court of
Kentucky found in Garcia that filing a criminal complaint against the plaintiff and then
accompanying an officer to the plaintiff’s home to reclaim property from the plaintiff while the
plaintiff was under arrest would be an illegitimate use of the criminal process. Garcia, 400
S.W.3d at 273–74. Karsner has alleged nothing in her complaint beyond Tooley filing the
criminal complaint in “retaliation for the refusal of his teenage daughters' refusal to return to his
custody and their running away.” [DN 1, at 10]. Without regard to whether that is a sufficient
ulterior purpose, it is not sufficient to establish the required improper act for a claim of abuse of
process.2 Because the Complaint is devoid of factual content that would establish an improper
act in the course of the proceeding, Karsner has failed to state a claim upon which relief can be
granted. Therefore, Tooley’s motion to dismiss as to the abuse of process claim is GRANTED.
2
Karsner’s complaint does allege that Tooley did go to Karsner’s house on September 21 with officers in an attempt
to enforce the custody order. However, this event took place before Tooley filed the criminal complaint against
Karsner and thus cannot be considered an improper act in the course of the proceeding, as even if it was improper, it
took place entirely before the proceeding at issue began. Further, Karsner argues that the only improper act was the
filing of the criminal complaint itself.
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IV. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that the Motion to Dismiss
is GRANTED.
October 6, 2016
cc: counsel of record
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