Pastian v. International Credit Systems, Inc et al

Filing 32

ORDER granting 25 Plaintiff's Motion to Dismiss Counterclaim of Defendant EveryBody Fitness, LLC. Signed by Magistrate Judge Sharon L. Ovington on 2-23-18. (mcm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MEGAN PASTIAN,
Plaintiff,
vs.
INTERNATIONAL CREDIT
SYSTEMS, INC., et al.,
Defendants.

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Case No. 3:17-cv-00252
Magistrate Judge Sharon L. Ovington
(by full consent of the parties)

DECISION AND ENTRY
Plaintiff Megan Pastian challenges in her amended complaint Defendants’ conduct
in connection with a gym membership. In response, the gym, Defendant EveryBody
Fitness (Defendant), asserts various counterclaims including an abuse-of-process
counterclaim. Pastian presently seeks dismissal of this counterclaim (Doc. #s 25, 27).
Defendant opposes dismissal (Doc. #26).
Because Pastian attacks Defendant’s counterclaim as it is pled, Rule 8(a) and
12(b)(6) standards apply. Rule 8(a)(2) requires Defendant to assert a “short and plain
statement of the [counter]claim showing [it] is entitled to relief….” This Rule “does not
require ‘detailed factual allegations,’ but it demands more than an unadorned, the[opposing-party]-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
677-78 (2009) (quoting, in part, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)) (other citation omitted).
In the presence of Pastian’s Rule 12(b)(6) motion, the Court accepts Defendant’s

well-pleaded facts as true and construes its counterclaim in its favor. Marais v. Chase
Home Finance LLC, 736 F.3d 711, 713 (6th Cir. 2013). The counterclaim will withstand
Pastian’s Rule 12(b)(6) Motion as long as Defendant alleges “sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at
678. A claim has facial plausibility when its factual allegations allow “the court to draw
the reasonable inference that the [opposing party] is liable for the misconduct alleged.”
Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (quoting Iqbal, 556
U.S. at 678). “‘Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice’ in pleading a claim.” Bickley v. Dish
Network, LLC, 751 F.3d 724, 734 (6th Cir. 2014) (quoting Iqbal, 556 U.S. at 678). And
the counterclaim “falls short if [it] pleads facts ‘merely consistent with [the opposing
party’s] liability’ or if the alleged facts do not ‘permit the court to infer more than the
mere possibility of misconduct....’” Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010)
(quoting, in part, Iqbal, 556 U.S. at 678).
Pastian contends that Defendant’s abuse-of-process counterclaim must be
dismissed under Fed. R. Civ. P. 12(b)(6) because Defendant fails to allege facts sufficient
to raise a plausible abuse-of-process counterclaim. Defendant argues that dismissal is
unwarranted because its abuse-of-process counterclaim is a distinct tort recognized under
Ohio law and because its allegations, and the allegations in Pastian’s amended complaint,
support an abuse-of-process counterclaim.
Defendant is correct that Ohio law recognizes a distinct tort of abuse of process.
See Yaklevich v. Kemp, Schaeffer, & Rowe Co. et. al., 68 Ohio St.3d 294, 298 (1994)).
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To assert an abuse-of-process claim under Ohio law, Defendant must allege facts that,
when accepted as true, plausibly demonstrate three elements: “(1) that a legal proceeding
has been set in motion in proper form and with probable cause; (2) that the proceeding
has been perverted to attempt to accomplish an ulterior purpose for which it was not
designed; and (3) that direct damage has resulted from the wrongful use of process.”
Voyticky v. Village of Timberlake, Ohio, 412 F.3d 669, 677 (6th Cir. 2005) (quoting
Yaklevich, 68 Ohio St.3d at 298).
Defendant does not presently contend that Pastian’s act of filing the instant case
falls short of satisfying the first element. Rather Defendant seems to acknowledge the
first element is satisfied, at least for present purposes. This is seen in the counterclaim
itself in which Defendant states, “Upon information and belief, Plaintiff initiated the legal
action against EveryBody Fitness in proper form and with probable cause.” (Doc. #26,
PageID # 103).
As to the second and third elements of its abuse-of-process counterclaim,
Defendant asserts:
34. Plaintiff has pursued this action against EveryBody in an attempt to
accomplish Plaintiff’s ulterior or improper purpose for which the
lawsuit was not designated.
35. In filing this action against EveryBody Fitness, Plaintiff is
attempting to force EveryBody Fitness to release her from a lawful
contract and surrender its right to payment of over $3,700, plus
interest, which Plaintiff rightfully owes EveryBody Fitness.
Plaintiff is also attempting to wrongfully force EveryBody Fitness to
pay her unreasonable legal fees alleged incurred in pursuing and
maintaining this action.

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36. Plaintiff intentionally or willfully used the legal process with the
purpose of harassing and injuring EveryBody Fitness.
37. As a direct and proximate result of Plaintiff’s wrongful use of the
legal process for her ulterior purpose, Everybody Fitness has
otherwise suffered and continues to suffer damages ….
(Doc. #18, PageID#s 103-04).
The facts alleged throughout Defendant’s counterclaims, see Doc. #18, PageID #s
101-04, including (but not limited to) those advanced in paragraphs 34-37, fail to
plausibly assert the second element of an abuse-of-process claim. To adequately plead
the second element, Defendant’s facts must indicate that Pastian took a “further act in the
use of process not proper in the regular conduct of the proceeding.” Lech v. Third
Federal Savings, 1:13cv518, 2014 WL 12647016, at *4 (S.D. Ohio 2014) (Watson, D.J.)
(citations omitted). “Under Ohio law, if one uses process properly, but with a malicious
motive, there is no abuse of process.” Gliatta v. Tectum, Inc., 211 F. Supp. 2d 992, 1010
(S.D. Ohio 2002) (“The key to the tort of abuse of process is the purpose for which
process is used once it is issued.”) (internal quotation and citation omitted); see Hahn v.
Star Bank, 190 F.3d 708, 718 (6th Cir. 1999) (“[T]here is no liability [for abuse of
process] where the defendant has done nothing more than carry out the process to its
authorized conclusion, even though with bad intentions.”).
The Ohio Supreme Court has cogently explained:
In an abuse of process case, “[t]he improper purpose usually takes
the form of coercion to obtain a collateral advantage, not properly involved
in the proceeding itself, such as the surrender of property or the payment of
money, by the use of the process as a threat or a club.” Prosser & Keeton on
Torts (5 Ed.1984) 898, Section 121. Simply, abuse of process occurs where
someone attempts to achieve through use of the court that which the court
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is itself powerless to order.
Robb v. Chagrin Lagoons Yacht Club, Inc., 75 Ohio St.3d 264, 271 (1996). Robb
provides an example of an improper purpose. The plaintiffs in Robb brought a case “with
the intention to use it as a club to coerce the membership [of a Yacht Club] to vote in
their favor [regarding the plaintiffs’ membership]. Clearly, the trial court had no
authority to order club members how to vote.” Id. No similar improper purpose—one
this Court lacks the authority to order—appears in Defendant’s counterclaims or in
Plaintiff’s amended complaint. Pastian instead seeks damages, non-economic damages,
and reasonable attorney fees against Defendant for its purported violations of Ohio
statutory law. See Doc. #15, PageID #s 84-85. Such relief is potentially available to
Pastian and within the Court’s authority to grant (upon proper proof, of course). See e.g.,
Ohio Rev. Code §§ 1345.09(B), (F).
Defendant finds Pastian’s improper motive in her failure to explain why she did
not simply cancel her gym-membership contract with Defendant, as allowed by the terms
of the contract; why she has offered no explanation as to why she did not inform
Defendant that she did not want personal-training services; why she did not even attempt
to send Defendant any notice of her cancellation until June 2017; and, why she waited six
months to tell Defendant that she no longer wanted to be a member. Defendant also
points to the fact that Pastian simply cancelled her credit card rather than properly
informing Defendant of her desire to cancel her membership.
Accepting these allegations as true and construing Defendant’s counterclaim in its
favor does not reveal that Pastian had an improper motive in filing and litigating the
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present case. The facts on which Defendant relies go to the merits of Pastian’s claims.
Even if her claims against Defendant ultimately lack merit, its counterclaim and other
allegations in the pleadings fail to raise a reasonable inference that she took a “further act
in the use of process not proper in the regular conduct of the proceeding.” Lech,
1:13cv518, 2014 WL 12647016, at *4. There are, moreover, only conclusory statements
in Defendant’s counterclaim, see Doc. #18, PageID #s 103-04, ¶s 34-37, and no facts
asserted in support of Defendant’s counterclaim that “plausibly imply that proceeding has
been perverted to attempt to accomplish an ulterior purpose for which it was not
designed.” Voyticky, 412 F.3d at 677. Indeed, “there is no liability [for abuse of process]
where the defendant has done nothing more than carry out the process to its authorized
conclusion, even though with bad intentions.” Hahn, 190 F.3d at 718 (citing Yaklevich,
68 Ohio St.3d at 298 n.2).
Defendant also missteps by relying on Clermont Environmental Reclamation Co.
v. Hancock, 16 Ohio App.3d 9, 12-13 (1984), a pre-Iqbal-Twombly case based on Ohio
procedural law. Federal procedural law applies in the present case. See Biegas v.
Quickway Carriers, Inc., 573 F.3d 365, 374 (6th Cir. 2009) (citing Erie Railroad Co. v.
Tompkins, 304 U.S. 64 (1938)) (other citation omitted). Consequently, the discussion of
the Ohio Rules of Civil Procedure in Clermont Environmental does not apply in the
present case. Defendant, moreover, points to the explanation in Clermont Environmental
that discusses the staff notes to Ohio R. Civ. P. 8. As Defendant indicates, those staff
notes state, “‘a party has many discovery options for exposing the precise facts upon
which allegations in the complaint are based and, if the pleadings are a sham, he may
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resort to summary judgment pursuant to Civ. R. 56.’” Clermont Environmental, 16 Ohio
App.3d at 13. But, Iqbal rejected this approach: “Rule 8 marks a notable and generous
departure from the hypertechnical, code-pleading regime of a prior era, but it does not
unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”
Iqbal, 556 U.S. at 678-79. In light of this, Defendant’s failure to plead a plausible abuseof-process claim also fails to “unlock the doors of discovery…” for Defendant to pursue
evidence concerning that implausible claim. See id.
Defendants further claim that “it is simply not required to detail exactly how the
Plaintiff has abused process.” (Doc. #26, PageID #139). This is correct in that Rule 8
“does not require ‘detailed factual allegations….” Iqbal. But this does not help
Defendant avoid Rule 12(b)(6) dismissal because Rule 8 “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation. Iqbal, 556 U.S. at 678
(citations omitted). Here, hypotheticals are informative: Defendant could have alleged—
keeping Rule 11 in mind—facts indicating that Pastian sought relief unavailable in this
Court or took some “further act in the use of process not proper in the regular conduct of
the proceeding.” Lech, 1:13cv518, 2014 WL 12647016, at *4. Having not done so, and
having instead raised only conclusory allegations in support of its abuse-of-process
counterclaim, this counterclaim is subject to Rule 12(b)(6) dismissal.
Accordingly, Plaintiff’s Motion to Dismiss Counterclaim is well taken. Further,
because Defendant voluntarily dismissed, without prejudice, Count Two of its
counterclaim (Doc. #24), Defendant’s single pending counterclaim is Count One (breach
of contract).
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IT IS THEREFORE ORDERED THAT:
Plaintiff’s Motion to Dismiss Counterclaim of Defendant EveryBody Fitness, LLC
(Doc. #25) is granted.

February 23, 2018

s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

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