Stoller v. Funk et al

Filing 88

ORDER granting 68 Plaintiff's Motion to Dismiss Defendant's Counterclaims. Signed by Honorable Robin J. Cauthron on 5/30/12. (lg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
WILLIAM H. STOLLER, an,
individual and trustee of the William H.
Stoller Trust, for himself and
derivatively on behalf of Express
Services, Inc., a nominal defendant,

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Plaintiff,
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vs.
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ROBERT A. FUNK, an individual and
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trustee of the Robert A. Funk Trust,
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the ROBERT A. FUNK TRUST,
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ROBERT E. FELLINGER, and
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JERI CRAIG, individuals, and EXPRESS )
SERVICES, INC., a Colorado corporation, )
nominal defendant,
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Defendants.
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No. CIV-11-1144-C

MEMORANDUM OPINION AND ORDER
Plaintiff has filed a motion pursuant to Fed. R. Civ. P. 12(b)(6), seeking dismissal of
counterclaims raised by Defendants Robert A. Funk, the Robert A. Funk Trust, Robert E.
Fellinger, and Jeri Craig. Each Defendant asserted substantially similar counterclaims for
abuse of process arguing that Plaintiff was not justified in filing the present action. Arguing
that Defendants have failed to state a claim for relief under Oklahoma law, Plaintiff seeks
dismissal of the abuse of process counterclaims because the allegations are based on actions
occurring before the present action was filed. Plaintiff argues that because Oklahoma
jurisprudence states an abuse of process claim must be based on actions occurring within the

lawsuit itself, Defendants’ counterclaims fail to state a claim and are subject to dismissal
pursuant to Rule 12(b)(6).
The standard for consideration of motions to dismiss brought pursuant to
Fed. R. Civ. P. 12(b)(6) has undergone some adjustment in the last five years. Beginning
with the Supreme Court’s decision in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and
the subsequent decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court made
clear that to survive a motion to dismiss a complaint must contain enough allegations of fact
which taken as true “state a claim to relief that is plausible on its face.” Twombly, 550 U.S.
at 570. That is, a plaintiff must “nudge his claims across the line from conceivable to
plausible” in order to survive a motion to dismiss. Id. Here, the resolution of the Motion to
Dismiss hinges more on a question of law than the adequacy of the facts pleaded.
The Oklahoma Supreme Court has set out the elements which must be established to
state a claim for abuse of process. These elements are: “(1) the improper use of the court
process (2) primarily for an ulterior improper purpose (3) with resulting damage to the
plaintiff asserting the misuse.” Greenberg v. Wolfberg, 1994 OK 147, ¶ 22, 890 P.2d 895,
905 (footnotes omitted). The Oklahoma court further clarified the nature of the tort, stating
“that malicious prosecution be distinguished from abuse of process–the former lies for the
malicious initiation of process and the latter for a perversion of the process after it is issued.”
Id. at ¶ 25, 906.
After review of the allegations set forth in the counterclaims and the arguments raised
in response to the motion, it is clear that for each assertion of fact in the counterclaims
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Defendants are relying on actions that Plaintiff took prior to filing the lawsuit. None of the
actions assert or argue that after this lawsuit was initiated that Plaintiff undertook wrongful
acts. Defendants argue that by using the lawsuit for an improper purpose–that is, to gain
advantages that Plaintiff could not gain within the scope of the lawsuit–he has improperly
used the process and therefore the tort should lie.
Defendants’ argument overlooks the clear distinction between abuse of process and
malicious prosecution identified by the Oklahoma Supreme Court. As noted above, in
Greenberg, the court clearly identified that a lawsuit or action that was wrongfully brought
would give rise to a malicious prosecution claim. It is only where wrongful acts are taken
within the course of an active or ongoing lawsuit that abuse of process can lie. As the court
notes in Greenberg, for a malicious prosecution claim to prevail, the party asserting that
claim must have the action terminated in their favor. Greenberg, ¶ 14, 901-902. Thus,
Defendants’ counterclaims cannot be construed as malicious prosecution claims and as abuse
of process claims they fail to state a claim for relief.
For the reasons set forth herein, Plaintiff’s motion to dismiss (Dkt. No. 68) is
GRANTED and the counterclaims are dismissed without prejudice.
IT IS SO ORDERED this 30th day of May, 2012.

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