Tatko v. Engel, et al.

Opinion

Tatko v . Engel, et a l . CV-94-95-B 09/13/94 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Paula M . Tatko

v. Civil N o . 94-95-B

Engel, Gearreald & Gardner, P.A., e t . a l .

O R D E R

An abuse of process claim requires a plaintiff to show that

legal process was used "to accomplish a purpose for which it was

not designed." Clipper Affiliates, Inc. v . Checovich, 138 N.H.

271, 276, 638 A.2d 7 9 1 , 795 (1994). Paula Tatko contends that

Attorneys David Engel and Mark Gearreald and their law firm are

liable for abuse of process because they improperly filed an ex

parte attachment petition against Tatko in state court to create

a conflict of interest that would force their withdrawal as her

counsel in other litigation. The issue presented by defendants'

motion to dismiss is whether Tatko sufficiently alleges that defendants' abuse of process was motivated by an improper

purpose. For the reasons that follow, I conclude that she has

not. Thus, I grant defendants' motion to dismiss.

1 I . DISCUSSION The New Hampshire Supreme Court defined the abuse of process

tort in two recent decisions. In Long v . Long, the court adopted

the Restatement (Second) of Tort's definition of abuse of

process. 136 N.H. 2 5 , 2 9 , 611 A.2d 6 2 0 , 623 (1992). Thus, the

court held that an abuse of process claim must allege that "(1) a

person used (2) legal process, whether criminal or civil, (3)

against the party (4) primarily to accomplish a purpose for which

it is not designated and (5) caused harm to the party (6) by the

abuse of process." Id. at 2 9 .

The court further clarified the tort's improper purpose

element in Clipper Affiliates, 138 N.H. at 276-77 (1994). There,

quoting from Prosser and Keeton's well known treatise, the court

observed: The 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 process as a threat or a club. There i s , in other words, a form of extortion, and it is what is done in the course of negotiation, rather than the issuance or formal use of the process itself which constitutes the tort. Clipper Affiliates, Inc., 138 N.H. at 276-77 (quoting Prosser and

Keeton on The Law of Torts 898 (5th ed. 1984)). The court

further noted that "absent some form of compulsory process

forcing the performance or forbearance of some prescribed act, an

abuse of process claim fails." Id. at 277 (internal quotations

and citations omitted). Ulterior intentions alone will not give

rise to liability for abuse of process. Id. Applying this

standard, the court concluded that the abuse of process claim at

issue was deficient because it alleged only that legal process

was used to retaliate against and harass the plaintiff. Id.

After Clipper Affiliates, only certain types of improper

purpose allegations will support an abuse of process claim. A

purpose to retaliate or harass will not suffice. Id. Instead,

process must be used to improperly coerce a particular result.

Tatko contends that her claim survives because it alleges that defendants filed the attachment petition to create a conflict of

interest that would allow defendants to withdraw as her counsel.

However, since she does not allege that defendants filed the

petition to coerce her into taking or forebearing from taking

some action, her claim cannot survive.

3 III. CONCLUSION

Defendant's motion to dismiss (document n o . 8 ) is granted.

SO ORDERED.

Paul Barbadoro United States District Judge September 1 3 , 1994 c c : Randall Wilbert, Esq. Richard Nelson, Esq.