HANOVER 3201 REALTY, LLC v. VILLAGE SUPERMARKETS, INC. et al
OPINION AND ORDER granting 60 Motion to Dismiss Counterclaim/Third-Party claim. Signed by Judge Stanley R. Chesler on 9/7/17. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HANOVER 3201 REALTY, LLC,
VILLAGE SUPERMARKETS, INC. et al., :
MACK-CALI REALTY CORP. et al.,
Third-Party Defendants. :
Civil Action No. 14-1327 (SRC)
OPINION & ORDER
CHESLER, District Judge
This motion comes before the Court on the motion to dismiss the Counterclaim/ThirdParty claim, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a valid
claim for relief by Plaintiff Hanover 3201 Realty, LLC (“Hanover”) and Third-Party Defendant
Mack-Cali Realty Corporation (“MCRC”). For the reasons stated below, the motion to dismiss
will be granted.
The Amended Complaint alleges a dispute between Hanover and Defendants Village
Supermarkets, Inc. and Hanover and Horsehill Development, LLC (collectively,
“Defendants”) over property development. In the Answer, Defendants asserted one claim as
both a Counterclaim against Hanover and a Third-Party claim against MCRC1 for malicious
abuse of legal process. Hanover and MCRC now move to dismiss this claim.
The Counterclaim/Third-Party claim alleges:
118. Counterclaim Defendants caused to be filed a Complaint and caused process
to be issued upon Counterclaim Plaintiffs in the District of New Jersey.
119. After process was issued in this action, Counterclaim Defendants
maliciously abused that process by knowingly and improperly filing an Amended
Complaint which deleted material facts and added objectively baseless claims and
allegations in order to improperly preserve subject matter jurisdiction in federal
120. Counterclaim Defendants deleted the material facts and added the
objectively baseless claims and allegations in order to harass and oppress
Counterclaim Plaintiffs, namely to force them to litigate in an improper court
system and to cause them to incur substantial expense defending claims and
allegations which Counterclaim Defendants knew were objectively baseless.
121. Counterclaim Plaintiffs were damaged by Counterclaim Defendants’
malicious abuse of process.
(Answer at 56.)
Hanover and MCRC move to dismiss the Counterclaim/Third-Party claim on the ground
that it fails to state a valid claim for relief under New Jersey law. Specifically, Hanover and
MCRC argue that the Counterclaim/Third-Party claim does not allege facts supporting the
inference that the Counterclaim Defendants acted to coerce or oppress Plaintiff and that “[i]n the
absence of some coercive or illegitimate use of the judicial process there can be no claim for its
abuse.” (Pl.’s Br. at 9.)
In opposition, Defendants do not address this argument. Instead, Defendants focus on
The Third-Party Complaint alleges that Hanover is a fully-owned subsidiary of MCRC.
(Answer at 25.)
arguing that the filing of the Amended Complaint, which asserted “objectively baseless”
allegations, constitutes a “further act” and, somehow, this satisfies the pleading requirements for
malicious abuse of legal process. Defendants acknowledge that, as an essential element of the
tort, New Jersey law requires a coercive or illegitimate use of the judicial process,2 but do not
point to what facts the Counterclaim pleads to support that element. Defendants thus fail to
respond effectively to the movants’ main argument and, indeed, this Court does not discern how
the filing of an Amended Complaint can, without more, plausibly support the inference that
Hanover and MCRC used the legal process to coerce Defendants. The pleading itself makes
only the conclusory assertion that, in amending the Complaint, Plaintiff acted “in order to harass
and oppress Counterclaim Plaintiffs, namely to force them to litigate in an improper court system
and to cause them to incur substantial expense defending claims and allegations which
Counterclaim Defendants knew were objectively baseless.” (Am. Compl. ¶ 120.) This states a
legal conclusion; it does not allege any facts which make plausible the inference that Plaintiff
The parties have no dispute over the applicable New Jersey law:
The tort of malicious abuse of process lies not for commencing an improper
action, but for misusing or misapplying process after it is issued. To be found
liable for malicious abuse of process, a party must have performed additional acts
“after issuance of process ‘which represent the perversion or abuse of the
legitimate purposes of that process.’” We have further clarified that “process is
not abused unless after its issuance the defendant reveals an ulterior purpose he
had in securing it by committing ‘further acts’ whereby he demonstrably uses the
process as a means to coerce or oppress the plaintiff.” In order for there to be
“abuse” of process, therefore, a party must “use” process in some fashion, and
that use must be “coercive” or “illegitimate.”
Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 431 (N.J. Super. Ct. App. Div. Jan. 5,
2009) (citations omitted).
amended the Complaint to coerce Defendants.3
The Counterclaim does not meet the pleading standards of Iqbal and Twombly. A Rule
12(b)(6) motion to dismiss should be granted only if the plaintiff is unable to articulate “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain
statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Twombly,
127 S. Ct. at 1964 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a
plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Id. at 1964-65 (internal citations omitted); see also Fed. R. Civ. P. 8(a)(2). “Factual
allegations must be enough to raise a right to relief above the speculative level on the assumption
that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 1965 (internal
citations omitted). Factual allegations must be well-pleaded to give rise to an entitlement to
[A] court considering a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth. While legal conclusions can provide the framework of a
The Court comments that Defendants appear to be attempting to turn an alleged act of
frivolous litigation into a tort. This gist of the Counterclaim is that Plaintiff amended the
Complaint to make frivolous claims. Defendants contend that filing the Amended Complaint
“abused the litigation process and forced Village to continue in this baseless and costly federal
action.” (Defs.’ Opp. Br. 13.) The law has a number of remedies available to those who suffer
the effects of frivolous litigation, but they are not generally tort law remedies. Frivolous
litigation and malicious abuse of legal process are different things with different remedies.
complaint, they must be supported by factual allegations. When there are
well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). The Answer does not contain sufficient wellpleaded factual allegations to plausibly give rise to an entitlement to the relief that the
Counterclaim seeks. The motion to dismiss the Counterclaim/Third-Party claim will be granted.
The Supreme Court has characterized dismissal with prejudice as a “harsh remedy.”
New York v. Hill, 528 U.S. 110, 118 (2000). Dismissal of a count in a complaint with prejudice
is appropriate if amendment would be inequitable or futile. Alston v. Parker, 363 F.3d 229, 235
(3d Cir. 2004). “When a plaintiff does not seek leave to amend a deficient complaint after a
defendant moves to dismiss it, the court must inform the plaintiff that he has leave to amend
within a set period of time, unless amendment would be inequitable or futile.” Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Defendants’ opposition points to no
unpled facts that might allow an amended counterclaim to withstand a future motion to dismiss.
This Court concludes, therefore, that amendment is futile. Because amendment is futile, the
Counterclaim/Third-Party claim will be dismissed with prejudice.
Because the motion to dismiss the Counterclaim will be granted, the motion to strike
certain parts of the Answer is moot.
For these reasons,
IT IS on this 7th day of September
ORDERED that the motion to dismiss the Counterclaim/Third-Party claim (Docket
Entry No. 60) is GRANTED, and the Counterclaim/Third-Party claim is hereby DISMISSED
s/ Stanley R. Chesler
Stanley R. Chesler, U.S.D.J
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