Bruemmer et al v. Reardon et al
Filing
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OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARLA M. BRUEMMER et al.,
Plaintiffs,
File No. 1:11-CV-988
v.
HON. ROBERT HOLMES BELL
MICHAEL REARDON, et al.,
Defendants.
/
OPINION
Plaintiffs Marla M. Bruemmer and Design Evolutions, Inc. filed this copyright
infringement action against Defendants Michael Reardon, Laurie Reardon, Tom Scott, and
Don Chapman. Defendants Scott and Chapman have filed a counterclaim alleging abuse of
process. This matter is before the Court on Plaintiffs/Counter-Defendants’ motion for
summary judgment seeking dismissal of Defendants’ counterclaim pursuant to Fed. R. Civ.
P. 12(b)(6) for failure to state a claim (Dkt. No. 23) and on Plaintiffs’ motion for sanctions
pursuant to Fed. R. Civ. P. 11 (Dkt. No. 25).
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must plead “sufficient
factual matter” to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
In reviewing the motion, the Court must “construe the complaint in the light most favorable
to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of
the plaintiff,” but “need not accept as true legal conclusions or unwarranted factual
inferences.” Hunter v. Sec’y of U.S. Army, 565 F.3d 986, 992 (6th Cir. 2009) (quoting Jones
v. City of Cincinnati, 521 F.3d 555, 559 (6th Cir. 2008)).
A claim of abuse of process under Michigan law has two essential elements: “(1) an
ulterior purpose and (2) an act in the use of process which is improper in the regular
prosecution of the proceeding.” Friedman v. Dozorc, 412 Mich. 1, 30, 312 N.W.2d 585, 594
(Mich., 1981) (citing Spear v. Pendill, 164 Mich. 620, 623, 130 N.W. 343 (1911)).
In support of their abuse of process claim, Defendants Scott and Chapman make the
following allegations:
27.
Counter-Defendants have abused the complaint process in a wrongful
and unlawful manner by making false allegations in their pleadings.
28.
Counter-Defendants knowingly filed misleading statements without any
knowledge as to the nature of their truth regarding Counter-Plaintiff,
Chapman’s, Design. Further, Counter-Defendants have no evidence
that Counter-Plaintiff, Chapman’s Design is even arguably similar
enough to counter-Defendant’s Sketch to constitute a violation of any
alleged copyright she may hold.
(Dkt. No. 20, Countercl. ¶¶ 27, 28.)
Plaintiffs contend that they are entitled to dismissal of the counterclaim because the
mere filing of a complaint, even a complaint containing false allegations, is not sufficient to
state a claim for abuse of process.
The gravamen of the tort of abuse of process “is the misuse of process . . . for any
purpose other than that which it was designed to accomplish.” Moore v. Michigan Nat’l
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Bank, 368 Mich. 71, 75; 117 NW2d 105 (1962) (quoting 3 Restatement Torts, § 682); see
also Rowbotham v. DAIIE, 69 Mich. App 142, 146, 244 NW2d 389 (1976) (“[T]he tort
concerns the willful use of a valid process to obtain a result the law did not intend.”). “The
tort generally consists of ‘some form of extortion,’ whereby the process is used ‘to put
pressure upon the other to compel him to pay a different debt or to take some other action or
refrain from it.’” Spencer v. Armstrong, No. 245429, 2004 WL 1227657, at * 1 (Mich. Ct.
App. June 3, 2004) (quoting 3 Restatement Torts, 2d, § 682, p 475).
It is well-settled that an action for abuse of process lies for “the improper use of
process after it has been issued, not for maliciously causing it to issue.” Friedman, 412
Mich. at 30 (quoting Spear, 164 Mich. at 623); see also DirecTV, Inc. v. Zink, 286 F. Supp.
2d 873, 875 (E.D. Mich. 2003) (“[T]he abuse of process tort in Michigan law addresses
subsequent misconduct or abuse of proceedings, which occurs after the process has been
initiated.). “[T]he filing of a lawsuit is not an ‘irregular act in the use of process’ because
‘a summons and complaint are properly employed when used to institute a civil action.’”
Yoost v. Caspari, — N.W.2d —, 2011 WL 4204505 (Mich. Ct. App. Sept. 15, 2011) (quoting
Friedman, 412 Mich. at 31). “A claim asserting nothing more than an improper motive in
properly obtaining process does not successfully plead an abuse of process.”
Dalley v.
Dykema Gossett, 287 Mich. App. 296, 322, 788 N.W.2d 679, 695 (2010) (citing Young v.
Motor City Apts. Ltd. Dividend Housing Ass’n No. 1 & No. 2, 133 Mich.App. 671, 681, 350
N.W.2d 790 (1984)). Even a claim that there was no factual basis for the complaint is not
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sufficient to state an abuse of process claim. Dalley, 287 Mich. App. at 322.
Defendants contend that Plaintiffs filed this action in retaliation for Defendants’
failure to use Plaintiffs’ builder and out of envy that Defendants’ home was listed on the
Parade of Homes. Defendants’ allegations are not sufficient to state a claim for abuse of
process. Defendants have merely alleged the malicious initiation of a suit. They have not
alleged the misuse of process for in improper purpose. Accordingly, Plaintiffs’ motion to
dismiss Defendants’ counterclaim will be granted.
Plaintiffs have also filed a motion for sanctions pursuant to Fed. R. Civ. P. 11. They
contend that Defendants’ counterclaim for abuse of process is not warranted by existing law
or by a non-frivolous argument for extending, modifying or reversing existing law. (Dkt. No.
25, Mot. for Sanctions). Plaintiffs have presented evidence that, although they gave notice
of the pleading defect, Defendants failed to withdraw their counterclaim.
Plaintiffs’ motion does not comply with the requirements of Rule 11. Rule 11
specifies that a motion for sanctions “must be served under Rule 5, but it must not be filed
or be presented to the court if the challenged paper, claim, defense, contention, or denial is
withdrawn or appropriately corrected within 21 days after service or within another time the
court sets.” Fed. R. Civ. P. 11(c)(2). This provision, known as the “safe harbor” provision,
is an absolute requirement. Ridder v. City of Springfield, 109 F.3d 288, 296 (6th Cir. 1997).
See also First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 511 (6th
Cir. 2002) (“Rule 11 is unavailable where the moving party fails to serve a timely ‘safe
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harbor’ letter.”). Plaintiffs sent Defendants a letter, but they did not serve a copy of their
motion on Defendants 21 days prior to filing it. Accordingly, their motion for sanctions will
be denied. In addition, the Court notes that although it may, on its own initiative, order an
attorney or party to show cause why specified conduct does not violate Rule 11, see Fed. R.
Civ. P. 11(c)(3), the Court declines to do so in this case.
An order consistent with this opinion will be entered.
Dated: January 9, 2012
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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