Hetronic International Inc v. Rempe

Filing 48

ORDER granting in part and denying in part 38 Hetronic International, Inc.s and Methode Electronics, Inc.s Motion to Dismiss Counterclaims. Signed by Honorable Robin J. Cauthron on 4/9/15. (lg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
HETRONIC INTERNATIONAL, INC.,
Plaintiff,
vs.
TORSTEN REMPE,
Defendant,
and
TORSTEN REMPE,
Counterclaimant,
vs.
HETRONIC INTERNATIONAL, INC.,
and METHODE ELECTRONICS, INC.,
Counterclaim-defendants.

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Case No. CIV-14-787-C

MEMORANDUM OPINION AND ORDER
I. BACKGROUND
Plaintiff is Hetronic International, Inc. (“Hetronic”), a Delaware corporation that
conducts business in the transportation, energy, electronics, and manufacturing industries.
Its principal place of business is Oklahoma City. Hetronic is a subsidiary of Methode
Electronics, Inc. (“Methode”). Methode is a publicly traded company; Hetronic is not.
Defendant was president of Hetronic until September 2013. In November 2013, Defendant
incorporated a new business, AZ Control Solutions, Inc. During Defendant’s employment
as president, Hetronic had contracts with several German companies (the “Fuchs

Companies”) for the distribution and assembly of Hetronic products. Hetronic terminated
those contracts and filed suit against the Fuchs Companies in June 2014 after discovering
the Fuchs Companies allegedly were engaged in a scheme to compete with Hetronic, which
included selling Hetronic systems independently and placing Hetronic’s name on counterfeit
parts. Hetronic filed this lawsuit in July 2014, alleging, in part, that Defendant assisted the
Fuchs Companies in this scheme and that Defendant planned to use AZ Control Solutions,
Inc., as the North American distributor for the Fuchs Companies. In the Answer (Dkt. No.
28), Defendant denies liability for Hetronic’s claims and asserts the following five
counterclaims against Hetronic and Methode: two claims of wrongful termination arising out
of fraudulent transactions and consumer fraud; slander; tortious interference with prospective
economic relations; and abuse of process. Hetronic and Methode now seek dismissal of all
Defendant’s counterclaims for failure to state a claim upon which relief may granted pursuant
to Fed. R. Civ. P. 26(b). (Mot. to Dismiss Countercls., Dkt. No. 38.) Defendant has filed a
Response (Dkt. No. 40). Hetronic and Methode have filed a Reply (Dkt. No. 42). The
motion is at issue.
II. STANDARD OF REVIEW
The Supreme Court has 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.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged. The plausibility standard is not akin to a
“probability requirement,” but it asks for more than a sheer possibility that a
defendant has acted unlawfully.
Iqbal, 556 U.S. at 678 (internal citations omitted). At the dismissal stage, the Court will
accept all of the claimant’s well-pleaded factual allegations as true and view them in the light
most favorable to the claimant. Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th
Cir. 2007). However, “conclusory allegations that lack ‘supporting factual averments are
insufficient to state . . . claim[s] on which relief can be based.’” In re Marsden, 99 F. App’x
862, 866 (10th Cir. 2004) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
Dismissal is appropriate when the allegations in the complaint, treated as true, cannot “raise
a claim of entitlement to relief.” Twombly, 550 U.S. at 558.
III. ANALYSIS
A. Wrongful Termination
Employers generally may terminate at-will employees with or without cause at any
time and without incurring any liability. Burk v. K-Mart Corp., 1989 OK 22, ¶ 5, 770 P.2d
24, 26. However, this standard is not without exception. Oklahoma law recognizes an
actionable Burk tort “where an employee is discharged for refusing to act in violation of an
established and well-defined public policy or for performing an act consistent with a clear
and compelling public policy.” Id., ¶ 19, at 29. This tort also offers protection for both
“internal and external reporting of whistleblowers who rely on an employer’s public-policy
violation to support an actionable employment termination.” Darrow v. Integris Health, Inc.,
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2008 OK 1, ¶ 19, 176 P.3d 1204, 1215 (citing Barker v. State Ins. Fund, 2001 OK 94, ¶ 16,
40 P.3d 463, 465). A Burk tort, “is unique: it applies to only a narrow class of cases and it
must be tightly circumscribed.” Barker, 2001 OK 94, ¶ 14, 40 P.3d at 468 (citing Burk, 1989
OK 22, ¶¶ 21-22, 770 P.2d at 29). To assert a viable Burk claim, Defendant must allege the
following:
(1) an actual or constructive discharge (2) of an at-will employee (3) in
significant part for a reason that violates an Oklahoma public policy goal
(4) that is found in Oklahoma’s constitutional, statutory, or decisional law or
in a federal constitutional provision that prescribes a norm of conduct for
Oklahoma and (5) no statutory remedy exists that is adequate to protect the
Oklahoma policy goal.
Vasek v. Bd. of Cnty. Comm’rs of Noble Cnty., 2008 OK 35, ¶ 14, 186 P.3d 928, 932.
Hetronic and Methode argue that Defendant’s Burk claims must be dismissed because they
do not fit in the “narrow class of cases in which the discharge is contrary to a clear mandate
of public policy as articulated by constitutional, statutory or decisional law.” Burk, 1989 OK
22, ¶ 17, 770 P.2d at 28. Public policy is a judicial determination. Pearson v. Hope Lumber
& Supply Co., Inc., 1991 OK 112, ¶ 5, 820 P.2d 443, 444.
1.

In Counterclaim I, Defendant asserts he was fired because he refused to sign

inaccurate quarterly financial reports and internally reported concerns regarding inaccurate
accounting in Hetronic’s Philippines division. (Answer, Dkt. No. 28, at 27-35.) Defendant
argues his actions are protected pursuant to 21 Okla. Stat. §§ 1635 and 1636 and that

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termination based on these actions is a violation of Oklahoma’s public policy.1 These
criminal statutes prohibit the falsification of corporate records and apply to corporations
“carrying on business, or keeping an officer thereof,” in Oklahoma. 21 Okla. Stat. §§ 1635,
1636 & 1644. “It is public policy in Oklahoma and everywhere to encourage the disclosure
of criminal activity.” Lachman v. Sperry-Sun Well Surveying Co., 457 F.2d 850, 853 (10th
Cir. 1972). However, not every “employee allegation of illegal or unsafe employer’s activity
will withstand scrutiny in light of Burk.” Darrow, 2008 OK 1, ¶ 20, 176 P.3d at 1216. In
Hayes v. Eateries, Inc., 1995 OK 108, 905 P.2d 778, the Oklahoma Supreme Court held that
an employee who was fired after reporting a co-employee’s embezzlement did not have a
viable Burk claim. “[T]he situation involve[d] only the private or proprietary interests of the
employer-employee relationship, not the direct interests of the general public as where the
reporting involves the criminal wrongdoing of the employer or a co-employee perpetrated
against the interests of the general public.” Id., ¶ 24, at 786. The Oklahoma Supreme Court

1

Pursuant to 21 Okla. Stat. § 1635:
Any director, officer, agent or member of any corporation or joint stock
association, who, with intent to defraud, destroys, alters, mutilates or falsifies any of
the books, papers, writings or securities belonging to such corporation or association,
or makes or concurs in making any false entry, or omits or concurs in omitting to
make any material entry in any book of accounts, or other record or document kept
by such corporation or association, shall be guilty of a felony.
Pursuant to 21 Okla. Stat. § 1636:
Any director, officer or agent of any corporation or joint-stock association,
who knowingly concurs in the making, or publishes any written report, exhibit or
statement of its affairs or pecuniary condition, containing any material statement
which is false . . . or willfully refuses or neglects to make or deliver any written
report, exhibit or statement required by law, is guilty of a misdemeanor.
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distinguished the circumstances in Hayes from those situations where “the employee is
terminated for seeking to vindicate his own legal rights or interests” or where the employee
is “seeking to vindicate a public wrong where the victim of the crime could in any real or
direct sense be said to be the general public.” Id., ¶¶ 23-24, at 786. The Oklahoma Supreme
Court addressed this issue again in Darrow, 2008 OK 1, 176 P.3d 1204. In Darrow, a home
health care agency employee was terminated after internally reporting possible Medicare
fraud. Id., ¶¶ 2-5, at 1207-08. The Oklahoma Supreme Court distinguished Darrow from
Hayes, finding that the fiscal integrity of home health care agencies implicated a “pervasive
public interest.” Id., ¶¶ 17-20, at 1215-16. The employee’s reports dealt with allegations of
the falsification of documents in violation of 21 Okla. Stat. § 1589, which criminalizes the
making of false entries in corporate books of accounts. See Darrow, ¶ 18, at 1215. The court
held that “[p]roviding legal recourse to an employee who asserts he was discharged for
reporting violations of Oklahoma’s criminal law where the public interest is so closely
entwined clearly gives rise to a mandate of public policy on which a Burk claim may be
rested.” Id. In the instant case, Defendant internally reported acts that allegedly violate 21
Okla. Stat. §§ 1635 and 1636. Defendant’s allegations that Methode would use the
inaccurate quarterly reports in its public SEC reporting and that shareholders would rely on
the reports implicate a matter of public interest. Thus, Defendant’s allegations sufficiently
state a mandate of public policy on which a Burk claim may rest. Furthermore, Defendant’s
allegation that he was fired for refusing to sign the inaccurate reports could support a finding
that Defendant was “seeking to vindicate his own legal rights or interests.” Hayes, 1995 OK
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108, ¶ 23, 905 P.2d at 786. Although the Oklahoma Court of Civil Appeals case Gabler v.
Holder & Smith, Inc., 2000 OK CIV APP 107, 11 P.3d 1269, is not binding precedent
pursuant to 20 Okla. Stat. § 30.5, the Court finds it persuasive. The plaintiff, Gabler, alleged
he was fired, in part, because he reported his employer kept two sets of corporate records.
Id., ¶ 40, at 1277. The court held that Gabler, as former vice president, “could be found to
be seeking to protect his own interests” and thus was protected under the Burk rule because
“[e]ven concurring in falsification of corporate records may make a corporate officer
criminally liable” under 21 Okla. Stat. §§ 1635 and 1636. Id., ¶ 46, at 1278. Based on the
reasoning above, Defendant’s actions in refusing to sign the inaccurate corporate records and
in reporting the accounting errors are protected under the Burk rule.
Hetronic and Methode have provided no case law supporting their argument that
Counterclaim I must be dismissed because Defendant failed to plead “materiality” or
“scienter.” 21 Okla. Stat. §§ 1635, 1636. Neither Darrow nor Gabler held that an employee
must plead every element of the statute cited as the basis for public policy. See Darrow,
2008 OK 1, ¶ 18, 16 P.3d at 1215 (holding that Darrow’s whistleblowing would be protected
activity based on 21 Okla. Stat. § 1589 without addressing whether Darrow pleaded the
elements of that statute, which include scienter); see also Gabler, 2000 OK CIV APP 107,
¶ 46, 11 P.3d at 1278 (holding that Gabler’s whistleblowing was protected based on 21 Okla.
Stat. §§ 1635 and 1636 without addressing whether Gabler had sufficiently pleaded the
elements thereof).

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Hetronic and Methode argue Counterclaim I must be dismissed because 21 Okla. Stat.
§§ 1635 and 1636 do not “touch any aspect of the employment relationship.” Pearson, 1991
OK 112, ¶ 7, 820 P.2d at 445; Shero v. Grand Sav. Bank, 2007 OK 24, ¶¶ 10-11, 161 P.3d
298, 301; Rogers v. Alezopulos, No. CIV-11-1140-C, 2012 WL 1232007, at *3 (W.D. Okla.
April 12, 2012). However, Pearson, Shero, and Rogers all deal with civil statutes and “are
not applicable [when] dealing with matters of importance to the general public.” Darrow,
2008 OK 1, ¶ 16, n.45, 176 P.3d at 1214, n.45; see Hayes, 1995 OK 108, ¶ 24, 905 P.2d at
787 (holding that Hayes’ whistleblowing was not protected by public policy because the
situation did not involve “the direct interests of the general public as where the reporting
involves the criminal wrongdoing of the employer or a co-employee perpetrated against the
interests of the general public”).
Hetronic and Methode also argue that the Dodd-Frank Wall Street Reform and
Consumer Protection Act and the Sarbanes-Oxley Act provide adequate remedies. 15 U.S.C.
§ 78u-6(h)(1)(A)(iii); 18 U.S.C. § 1514A(b)(1)(A)-(B). Defendant cannot maintain a viable
Burk claim if a “statutory remedy exists that is adequate to protect the Oklahoma policy
goal.” Vasek, 2008 OK 35, ¶ 14, 186 P.3d at 932. Whether a remedy is “adequate” is a
“question[] of law to be resolved by the court.” McCrady v. Okla. Dep’t of Pub. Safety,
2005 OK 67, ¶ 9 , 122 P.3d 473, 475. However, the Court lacks the facts necessary to make
such a determination at this stage in the proceedings.
The last issue to address is whether Defendant may assert a wrongful termination
claim against both Hetronic and Methode. Under Oklahoma law, Burk claims can “only be
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asserted against an employer.” Tesh v. U.S. Postal Serv., 215 F. Supp. 2d 1220, 1229 (N.D.
Okla. 2002) (citing Burk, 1989 OK 22, ¶ 17, 770 P.2d at 28). In his Counterclaim, Defendant
refers to “his superiors at Methode” and alleges that both Methode and Hetronic terminated
his employment. (Answer, Dkt. No. 28, at 32-35.) Because the Court must accept all of
Defendant’s well-pleaded factual allegations as true at the dismissal stage, these allegations
are sufficient to state claims of wrongful termination against both Hetronic and Methode.
See Alvarado, 493 F.3 at 1215. Defendant’s argument that Methode may be held liable for
the negligent conduct of its subsidiary is irrelevant as wrongful termination is not a
negligence claim. Thus, Defendant has sufficiently stated a claim of wrongful termination
in Counterclaim I against both Hetronic and Methode.
2.

In Counterclaim II, Defendant asserts he was fired because he refused to sell

magneto elastic sensors using false representations that the sensors were a proprietary and
patented product of Hetronic and because he internally reported concerns regarding the false
representations. (Answer, Dkt. No. 28, at 27-35.) Defendant cites the Oklahoma Consumer
Protection Act, 15 Okla. Stat. § 751, et seq., as the public policy basis for Counterclaim II.2

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15 Okla. Stat. § 753(20) prohibits a person, in the course of business, from committing “an
unfair or deceptive trade practice,” which includes “a misrepresentation, omission or other practice
that has deceived or could reasonably be expected to deceive or mislead a person to the detriment
of that person.” 15 Okla. Stat. § 752.
15 Okla. Stat. § 753(2),(3) & (7) further prohibit the following:
2. Maki[ing] a false or misleading representation, knowingly or with reason to know,
as to the source, sponsorship, approval, or certification of the subject of a consumer
transaction;
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Bearing in mind that Burk torts must be “tightly circumscribed,” the Court is not persuaded
the Consumer Protection Act articulates “a clear mandate of public policy” against
termination of an at-will employee under these circumstances. Burk, 1989 OK 22, ¶ 17, 770
P.2d at 28. Oklahoma courts have recognized Burk torts where the employee was fired for
“seeking to vindicate a public wrong where the victim of the crime . . . [is] the general
public.” Hayes, 1995 OK 108, ¶¶ 23-24, 905 P.2d at 786; see e.g. Darrow, 2008 OK 1, 176
P.3d 1204 (recognizing a mandate of public policy in circumstances where a violation of
criminal law was “entwined” with the public interest in the fiscal integrity of home health
care agencies). However, Defendant does not allege any harm, actual or possible, to the
general public, and the Court was unable to find any Oklahoma case law recognizing that the
Consumer Protection Act may support a Burk tort. Based on the reasoning above,
Defendant’s allegations do not sufficiently state a claim of wrongful termination.
Counterclaim II must be dismissed.
B. Counterclaim III—Slander
Defendant alleges that “Hetronic employees and Methode executives” have made
slanderous statements “to others in the same industry and to potential customers of Rempe
that Rempe mismanaged Hetronic, made misrepresentations to customers and was generally

3. Mak[ing] a false or misleading representation, knowingly or with reason to know,
as to affiliation, connection, association with, or certification by another;
7. Represent[ing], knowingly or with reason to know, that the subject of a consumer
transaction is of a particular standard, style or model, if it is of another.
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incompetent.” (Answer, Dkt. No. 28, at 35.) Slander—one of the two categories of
defamation—can be a false statement that injures a person’s reputation in respect to his
office, profession, trade, or business. 12 Okla. Stat. §§ 1141, 1442(3). To assert a viable
claim of defamation, Defendant must plead:
“(1) a false and defamatory statement concerning [Defendant]; (2) an
unprivileged publication to a third party; (3) fault amounting at least to
negligence on the part of the publisher; and (4) either the actionability of the
statement irrespective of special damage, or the existence of special damage
caused by the publication.”
Cardtoons, L.C. v. Major League Baseball Players Ass’n, 335 F.3d 1161, 1166 (10th Cir.
2003) (citation omitted).
Defendant has failed to plead sufficient facts to support this claim. Defendant does
not allege the statements are false, asserting only that Hetronic and Methode have
“slandered” his reputation. This statement is conclusory, and the term “slander” does not
automatically interject an allegation of falsity. Defendant’s assertion that this Court has
“‘assumed’ [falsity] for purposes of the motion to dismiss” is inaccurate and not persuasive.
(Def.’s Resp., Dkt. No. 40, at 14 n.6.) In Zagorsky v. McAdam, No. CIV-13-1209-D, 2014
WL 2982669 (W.D. Okla., July 1, 2014), the Court held that, “even assuming” the statement
was false and defamatory, the plaintiff had still failed to state a plausible claim for relief.
Defendant’s allegations provide no indication as to when these statements were made, and
Defendant has failed to allege the identity of both the persons making and receiving the
statements. Id. at *6 (“The allegations fail to identify to whom and when any of the emails
and oral statements were sent or made. Thus, Plaintiff has failed to state a plausible claim for
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relief for defamation.”). Furthermore, Defendant does not state whether the statements were
spoken or communicated through some other medium. “[I]n the context of a defamation
claim, Fed. R. Civ. P. 8(a) requires that the complaint provide sufficient notice of the
communications complained of to allow [Hetronic and Methode] to defend [themselves].”
McGeorge v. Cont’l Airlines, Inc., 871 F.2d 952, 955-56 (10th Cir. 1989) (citing Liguori v.
Alexander, 495 F.Supp. 641, 647 (S.D.N.Y. 1980); 12 Okla. Stat. § 1444.1). Defendant’s
pleading does not do so. Furthermore, Defendant’s pleading is bare of any allegation of
fault. Defendant’s allegations accepted as true cannot state a claim upon which relief may
be granted. Thus, Counterclaim III—Slander must be dismissed.
C. Tortious Interference with Prospective Economic Relations
Defendant alleges that Methode has encouraged employees to inform Defendant’s
prospective customers about the instant case “in order to discourage these customers from
ordering products from Rempe.” (Answer, Dkt. No. 28, at 36.) Defendant asserts that this
and the allegedly slanderous statements discussed previously have tortiously interfered with
a “reasonable expectation of economic relations with these customers.” (Id. at 37.) To state
a claim for interference with prospective business relations, Defendant must plead:
(1) the existence of a valid business relation or expectancy; (2) knowledge of
the relationship or expectancy on the part of the interferor; (3) an intentional
interference including or causing a breach or termination of the relationship or
expectancy; and (4) resultant damage to the party whose relationship has been
disrupted.
Cohlmia v. St. John Med. Ctr., 693 F.3d 1269, 1286-87 (10th Cir. 2012) (citing Boyle Servs.,
Inc. v. Dewberry Design Grp., Inc., 2001 OK CIV APP 63, ¶ 6, 24 P.3d 878, 880).
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Having carefully reviewed Defendant’s pleading, the Court finds Defendant has failed
to set forth sufficient factual allegations to state a claim of tortious interference with
prospective business relations. Defendant has provided no specific factual allegations
supporting the conclusory allegation that Defendant had “a reasonable expectation of
economic relations” with the prospective customers. (Answer, Dkt. No. 28, at 36-37.) “To
show the existence of a valid business relationship or expectancy, ‘[Defendant] must show
either that prospective economic advantage would have been achieved had it not been for
such interference or that there was, in view of all the circumstances, a reasonable assurance
thereof.’” Optima Oil & Gas Co., LLC v. Mewbourne Oil Co., No. CIV-09-145-C, 2009 WL
1773198, at *8 (W.D. Okla. June 22, 2009) (quoting Crystal Gas Co. v. Okla. Natural Gas
Co., 1974 OK 34, ¶ 25, 529 P.2d 987, 990) (internal quotation marks and citation omitted).
The pleading contains no allegations showing Defendant had a “reasonable assurance” of
obtaining the prospective business relations. Neither does Defendant identify which
prospective customer relationships were interfered with or how the actions of Hetronic and
Methode caused the interference. North Am. Ins. Agency, Inc. v. Bates, No. CIV-12-544-M,
2013 WL 6150781, at *11 (W.D. Okla. Nov. 22, 2013). Thus, Defendant’s allegations,
accepted as true, cannot support finding “the existence of a valid business relation or
expectancy.” Cohlmia, 693 F.3d at 1287. Counterclaim IV—Tortious Interference with
Prospective Economic Relations must be dismissed.3

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Hetronic and Methode argue that Defendant’s tortious interference counterclaim should
be dismissed because Defendant cannot personally sue for alleged injury to a corporation and thus
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D. Abuse of Process
To sufficiently state a claim of abuse of process, Defendant must plead: “(1) the
improper use of the court’s process (2) primarily for an ulterior or improper purpose (3) with
resulting damage to the [party] asserting the misuse.” Greenberg v. Wolfberg, 1994 OK 147,
¶ 22, 890 P.2d 895, 905 (footnote omitted). The essence of the tort of abuse of process is
“not the wrongfulness of the prosecution, but some extortionate perversion of lawfully
initiated process to illegitimate ends.” Heck v. Humphrey, 512 U.S. 477, 485 n.5 (1994).
Defendant alleges that Hetronic and Methode, through their actions in the instant
lawsuit and in a separate lawsuit to which Defendant is not a party, have abused the process
of the Court. The Court will focus solely on Hetronic’s and Methode’s actions in the instant
case because actions occurring in proceedings independent of “the specific proceeding relied
upon to assert the abuse-of-process claim” cannot state a claim of abuse of process. See
Greenberg, ¶ 23, at 905 (“Nonetheless, unless a court’s process has been misused or
misapplied in the specific proceeding relied upon to assert the abuse-of-process claim, the
delict is not maintainable.”). Defendant alleges that Hetronic and Methode seek the improper
objectives of pressuring Defendant to (1) not compete with Hetronic and (2) agree to testify
favorably in Hetronic’s pending lawsuit against the Fuchs Companies. (Answer, Dkt. No.
28, at 36-43.) The first objective cannot state a claim for abuse of process. In the Amended

lacks standing. The true issue is whether Defendant is the real party in interest. Fed. R. Civ. P. 17.
As this does not implicate a question of the Court’s jurisdiction, the Court declines to address the
issue because Defendant’s counterclaim is dismissible on other grounds.
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Complaint (Dkt. No. 27), Hetronic alleges that Defendant breached a non-compete clause in
the employment contract. Hetronic’s requested relief includes compensatory damages and
an injunction that would bar Defendant “from using Hetronic’s confidential information to
compete with it.” (Id. at 33.) Therefore, forcing Defendant to not compete with Hetronic is
a “‘lawfully obtainable’” objective of the instant lawsuit and cannot constitute an “‘improper
purpose.’” See Meyers v. Ideal Basic Indus., Inc., 940 F.2d 1379, 1383 (10th Cir. 1991)
(quoting Houghton v. Foremost Fin. Servs. Corp., 724 F.2d 112, 116 (10th Cir. 1983)
(“‘Abuse of process occurs when legal process is used for an improper purpose, to
accomplish an end not lawfully obtainable, or to compel someone to do some collateral thing
he could not be legally compelled to do.”))
Defendant alleges that Hetronic and Methode sought these objectives through the
following “improper use[s] of the court’s process”: (1) filing the instant lawsuit;
(2) completing service of process; (3) maintaining the instant lawsuit; (4) offering to dismiss
the lawsuit; (5) “interrogat[ing]” Defendant for three hours about the Fuchs Companies
during a witness interview; and (6) threatening that it would be “World War III” if Defendant
filed a counterclaim. (Answer, Dkt. No. 28, at 36-43.)
Defendant asserts that filing the instant lawsuit constitutes abuse of process because
the lawsuit “lacked any merit.” (Id. at 40.) Allegations that a lawsuit was wrongfully
brought may state a claim for malicious prosecution, not abuse of process. Stoller v. Funk,
No. CIV-11-294-C, 2012 WL 1952255, at *1 (W.D. Okla. May 30, 2012) (citing Greenberg,
¶ 25, 906). Abuse of process claims are reserved for “perversion of the process after it is
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issued.” Greenberg, ¶ 25, 906. As a matter of law, Defendant presently cannot maintain a
claim of malicious prosecution because “the party asserting that claim must have the action
terminated in their favor.” Stoller, 2012 WL 1952255, at *1 (citing Greenberg, 1994 OK
147, ¶ 14, 890 P.2d at 901-902). The other alleged actions of Hetronic and Methode are not
“processes” anticipated within the tort of abuse of process. “The word ‘process,’ . . .
encompasses the entire range of procedures incident to the litigation process.” Greenberg,
1994 OK 147, ¶ 22, 890 P.2d at 905 n.47 (citing Nienstedt v. Wetzel, 133 Ariz. 348, ¶ 11,
651 P.2d 876, 880 (1982)). The Arizona Supreme Court case cited defines “processes” as
“the noticing of depositions, the entry of defaults, and the utilization of various motions such
as motions to compel production, for protective orders, for change of judge, for sanctions and
for continuances.” Nienstedt, 133 Ariz. 348, ¶ 11, 651 P.2d at 880-81. None of the alleged
actions fit within this definition. Furthermore, “[i]mproper use means a ‘definite act or threat
not authorized by the process, or aimed at an objective not legitimate in the use of the
process.’” Marlin Oil Corp. v. Barby Energy Corp., 2002 OK CIV APP 92, ¶ 13, 55 P.3d
446, 450 (quoting Tulsa Radiology Assocs., Inc. v. Hickman, 1984 OK CIV APP 11, 683
P.2d 537, 539). Defendant does not allege that Hetronic and Methode have done anything
“‘more than carry out the process to its authorized conclusion.’” Id. Such actions, even if
done with “bad intentions,” cannot constitute “improper use.” Id. Thus, Defendant’s
allegations do not sufficiently state a claim of abuse of process; Counterclaim V must be
dismissed.
IV. CONCLUSION
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Accordingly, Hetronic International, Inc.’s and Methode Electronics, Inc.’s Motion
to Dismiss Counterclaims (Doc. No. 38) is GRANTED IN PART and DENIED IN PART.
Defendant has sufficiently stated a claim for relief in Counterclaim I. Counterclaims II, III,
IV, and V are dismissed. If Defendant wishes to amend, that pleading must be filed within
20 days of the date of this Order.
IT IS SO ORDERED this 9th day of April, 2015.

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