Jiang v. Porter et al

Filing 95

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion to dismiss the counterclaims filed by defendants Survivors Network of Those Abused by Priests, David Clohessy, and Barbara Dorris [Doc. # 88 ] is granted. An order of partial dismissal will be filed separately. Signed by District Judge Carol E. Jackson on 3/30/16. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
REV. XIU HUI “JOSEPH” JIANG,
Plaintiff,
vs.
TONYA LEVETTE PORTER, et al.,
Defendants.

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Case No. 4:15-CV-1008 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion to dismiss the
counterclaims filed by defendants Survivors Network of Those Abused by Priests, its
executive director David Clohessy, and its Missouri registered agent Barbara Dorris
(the “SNAP defendants”) for failure to state a claim, pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure. Defendants have responded in opposition, and
the issues are fully briefed.
I.

Background

Plaintiff Reverend Xiu Hui “Joseph” Jiang is a Chinese-born ordained Catholic
priest in the Archdiocese of St. Louis. Jiang asserts that defendants A.M. and N.M.
falsely accused him of sexually abusing their minor son for the purpose of monetary
gain.

Jiang also asserts that defendants Jaimie D. Pitterle and Tonya Levette

Porter, officers of the St. Louis Metropolitan Police Department, conducted an
inadequate investigation of the abuse allegations and targeted plaintiff for
prosecution because of his religion and ethnicity.

Jiang further asserts that the

SNAP defendants led a public smear campaign against him which included making
false accusations of child molestation in the media. The criminal case against Jiang

remained pending in state court from April 17, 2014 until June 17, 2015, when it
was voluntarily dismissed shortly before trial.
The following claims remain in the complaint:

religious discrimination,

selective enforcement and prosecution based on religion, race and national origin,
and conduct shocking the conscience, all in violation of 42 U.S.C. § 1983, against
defendants Porter and Pitterle (Counts I–VI); conspiracy to violate civil rights, in
violation of 42 U.S.C. § 1985, against all defendants except the City of St. Louis
(Count VII); willful, malicious and reckless official acts in violation of Missouri law
against defendants Porter and Pitterle (VIII); abuse of process against defendants
Porter and Pitterle (Count XII); intentional infliction of emotional distress against all
defendants except the City of St. Louis (Count XIII); and defamation against the
SNAP defendants (Counts XIV–XV).
The SNAP defendants have asserted counterclaims for abuse of process and
punitive damages. The SNAP defendants claim that plaintiff does not have a proper
purpose for bringing this lawsuit. Instead, they argue that plaintiff filed this lawsuit
to intimidate the minor from pushing forward with the state charges, to bully the
defendants, to publish defamatory statements regarding the defendants, and to
prevent the defendants from raising public awareness of plaintiff’s activities.
II.

Legal Standard

The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal
sufficiency of the complaint. Fed. R. Civ. P. 12(b)(6). The factual allegations of a
complaint are assumed true and construed in favor of the plaintiff, “even if it strikes
a savvy judge that actual proof of those facts is improbable.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 (2007) (citing Swierkiewicz v. Sorema N.A., 534 U.S.

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506, 508 n.1 (2002)); Neitzke v. Williams, 490 U.S. 319, 327 (1989) (“Rule
12(b)(6) does not countenance . . . dismissals based on a judge’s disbelief of a
complaint’s factual allegations.”); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)
(stating that a well-pleaded complaint may proceed even if it appears “that a
recovery is very remote and unlikely”). The issue is not whether the plaintiff will
ultimately prevail, but whether the plaintiff is entitled to present evidence in
support of his claim. Scheuer, 416 U.S. at 236. A viable complaint must include
“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550
U.S. at 570; see id. at 563 (stating that the “no set of facts” language in Conley v.
Gibson, 355 U.S. 41, 45–46 (1957), “has earned its retirement”); see also Ashcroft
v. Iqbal, 556 U.S. 662, 678–84 (2009) (holding that the pleading standard set forth
in Twombly applies to all civil actions).

“Factual allegations must be enough to

raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The
legal standard for a motion to dismiss a counterclaim is the same as the standard
applied to a motion to dismiss a complaint.

E.g., Intercon Sols., Inc. v. Basel

Action Network, 969 F. Supp. 2d 1026, 1067 (N.D. Ill. 2013).
III.

Discussion
A.

Abuse of Process

To establish an abuse of process claim under Missouri law, a litigant must
prove that “(1) the [opposing party] made an illegal, improper, perverted use of
process, a use neither warranted nor authorized by the process; (2) the [opposing
party] had an improper purpose in exercising such illegal, perverted or improper
use of process; and (3) damage resulted.”

Nichols v. Harbor Venture, Inc., 284

F.3d 857, 862 n.4 (8th Cir. 2002) (quoting Stafford v. Muster, 582 S.W.2d 670,

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678 (Mo. banc 1979)). “These elements are frequently summarized as (1) a willful
act of using process (2) for a collateral purpose.” Krakover v. Mazur, 48 F.3d 341,
344 (8th Cir. 1995). “Stated another way, the test as to whether there is an abuse
of process is whether the process has been used to accomplish some end which is
outside the regular purview of the process.”

Nichols, 284 F.3d at 862 (quoting

Ritterbusch v. Holt, 789 S.W.2d 491, 493 n.1 (Mo. banc 1990)).
Plaintiff argues that defendants’ abuse of process claim should be dismissed
because the defendants fail to allege any illegal, improper or perverted use of
process, or an improper motive. Defendants counter that instead of filing his civil
lawsuit to recover money, plaintiff is improperly using the process for the purpose
of witness intimidation, to avoid criminal consequences for his activities, to publish
defamatory statements in a privileged forum, and to silence the SNAP defendants
and others from raising public awareness of his actions and the danger he may
pose to the community.
The Court finds that defendants’ allegations are insufficient to constitute an
improper use of process under Missouri law.

“Mere allegations that [plaintiff]

maliciously commenced a civil suit” does not state a claim for abuse of process in
Missouri. Viehweg v. Taylor, 797 F. Supp. 751, 752 (E.D. Mo. 1992). “[N]o liability
is incurred where the defendant has done nothing more than pursue the lawsuit to
its authorized conclusion regardless of how evil his motive may be.”

Wells v.

Orthwein, 670 S.W.2d 529, 533 (Mo. Ct. App. 1984); see also Wessler v. Wessler,
610 S.W.2d 650, 652 (Mo. Ct. App. 1980) (“While an ulterior motive may be
inferred from an abuse of process the converse does not hold.”).

“As long as a

plaintiff is seeking the remedy requested, his bad motives for pursuing the suit are

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irrelevant.” Krakover, 48 F.3d at 344; see also Wells, 670 S.W.2d at 532 (“If the
action is confined to its regular and legitimate function in relation to the cause of
action stated in the complaint there is no abuse even if the plaintiff had an ulterior
motive in bringing the action, or if he knowingly brought suit upon an unfounded
claim.”).
As noted by this court in Viehweg:
[Defendants’] claim is unlike other allegations of abuse of process that
have withstood a motion to dismiss, such as those relying on
defendants’ filing of identical claims in several other courts, see
National Motor Club v. Noe, 475 S.W.2d 16, 24 (Mo. 1972), initiation
of a criminal prosecution in order to compel the criminal defendant to
pay for damages to an automobile, see [Ritterbusch, 789 S.W.2d at
494], or filing of a third appeal while two appeals involving the same
cause of action are still pending, Braxton v. Bi-State Development
Agency, 728 F.2d 1105 (8th Cir. 1984).
797 F. Supp. at 753; see also Romeo v. Jones, 86 S.W.3d 428 (Mo. Ct. App. 2002)
(finding that respondents were not entitled to judgment as a matter of law on an
abuse of process claim because direct evidence of internal communications
indicated that their lawsuit had been filed for the pretextual purpose of using the
discovery process to gather evidence a prepare a defense in an unrelated lawsuit).
Because defendants have failed to allege an improper use of process to state
a claim for abuse of process, the Court will grant plaintiff’s motion to dismiss Count
I of defendants’ counterclaim.
B.

Punitive Damages

Plaintiff also argues that defendants’ counterclaim for punitive damages
should be dismissed because it fails to assert any independent cause of action. The
SNAP defendants seek punitive damages in Count II for the alleged abuse of
process in Count I.

“A [claimant] must prevail on his or her underlying claim to

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submit punitive damages to the jury.” Romeo, 144 S.W.3d at 334. As discussed
above, defendants have failed to state a claim for abuse of process. Because the
improper use of process necessary to give rise to tort liability for abuse of process
is absent, defendants’ claim for punitive damages likewise fails. See Krakover, 48
F.3d at 345 (finding no error in the district court’s grant of judgment as a matter of
law on the issue of punitive damages when the court found no rational trier of fact
could have found for the defendants on their underlying abuse of process
counterclaim).

As such, Count II of defendants’ counterclaim will also be

dismissed.
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For the reasons set forth above,
IT IS HEREBY ORDERED that plaintiff’s motion to dismiss the counterclaims
filed by defendants Survivors Network of Those Abused by Priests, David Clohessy,
and Barbara Dorris [Doc. #88] is granted.
An order of partial dismissal will be filed separately.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 30th day of March, 2016.

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