The opinion of the court was delivered by: GLADYS KESSLER, District Judge
Plaintiffs, Fraternal Order of Police, DC Lodge 1, Inc.,
Fraternal Order of Police, Bureau of Engraving and Printing Labor
Committee, Inc. ("BEP") and Gregory O. Davis, Sr., Chairman of
the BEP Labor Committee, bring suit against Defendant Roger A.
Gross, a police inspector employed at all material times by the
BEP. In this single-count Complaint, Plaintiffs allege abuse of
process by Defendant.
This matter is now before the Court on the Defendant's Motion
to Dismiss. Upon consideration of the Motion, Opposition, Reply,
and the entire record herein, and for the reasons stated below,
the Defendant's Motion to Dismiss is granted.
On July 6, 2001, Defendant commenced a civil action against
Plaintiffs for intentional interference with contract and
intentional interference with prospective economic advantage.
Compl. ¶ 9, Ex. A. In that case Defendant alleged that, in order to interfere with his prospects for promotion, Plaintiffs:
attacked Defendant's professional character and reputation;
pressured a police officer to file false sexual harassment
charges against him; charged him with violations of federal law;
and initiated a vote of no confidence against him alleging 1)
racism, 2) discrimination in decisions to promote, and 3)
violation of personnel polices for personal gain. Compl. Ex. A ¶¶
On March 2, 2003, this Court granted Plaintiffs' motion to
dismiss and dismissed that complaint, concluding that Defendant
"has failed to state a claim for intentional interference with
contract because . . . he has . . . failed to establish the
existence of any contract." Gross v. Davis et al., Civil Action
No. 01-1486 (GK) at 5. In addition, this Court found that
Defendant "failed to establish the existence of a valid business
relationship or expectancy." Id. at 8.
Plaintiffs claim the prior action was an abuse of process and
Defendant's "ulterior motive in filing the . . . lawsuit . . .
was to silence the plaintiffs in making complaints against him . . .
and by burdening the plaintiffs with the costs of a legal
defense so that they would abandon their criticism of him."
Compl. ¶ 21.
Plaintiffs seek judgment against Defendant for $75,000,
attorneys' fees, and costs. II. STANDARD OF REVIEW
A motion to dismiss should be granted only "if it is clear that
no relief could be granted under any set of facts that could be
proved consistent with the allegations." Hishon v. King &
Spaulding, 467 U.S. 69, 73 (1984). A motion to dismiss tests not
whether the plaintiff will prevail on the merits, but instead
whether the plaintiff has properly stated a claim. See
Fed.R.Civ.P. 12(b)(6). Accordingly, the factual allegations of the
complaint must be presumed true and liberally construed in favor
of the plaintiff. Shear v. Nat'l Rifle Ass'n of Am.,
606 F.2d 1251, 1253 (D.C. Cir. 1979).
Plaintiffs have failed to state a claim for abuse of
process.*fn1 "In addition to ulterior motive, one must
allege and prove that there has been a perversion of the judicial
process and achievement of some end not contemplated in the
regular prosecution of the charge." Morowitz v. Marvel,
423 A.2d 196, 198 (D.C. 1980) (citing Hall v. Hollywood Credit Clothing Co., 147 A.2d 866, 868 (D.C.
1959)). "The mere issuance of the process is not actionable, no
matter what ulterior motive may have prompted it; the gist of the
action lies in the improper use after issuance." Hall,
147 A.2d at 868.
In their Complaint, Plaintiffs allege that the purpose of the
prior lawsuit was to "coerce the plaintiffs into giving up all
opposition to the defendant's attempts to become the commander of
the [BEP]." Compl. ¶ 22. Plaintiffs, however, do not allege that
the Defendant acted in any way other than what would be expected
in the course of a lawsuit, nor do they allege that Defendant
accomplished an improper end by filing that lawsuit, both
necessary elements in an abuse of process claim. Jacobson v.
Thrifty Paper Boxes, Inc., 230 A.2d 710, 711 (D.C.App. 1967)
("The test as to whether there is an abuse of process is whether
the process has been used to accomplish some end which is without
the regular purview of the process, or which compels the party
against whom it is used to do some collateral thing which he
could not legally and regularly be required to do.") (citing
1 Am.Jur.2d Abuse of Process § 4 (1962)).
Plaintiffs merely allege that Defendant initiated a claim for
damages, served each Plaintiff, declined to dismiss the
complaint, and the complaint was dismissed by the Court. Compl.
¶¶ 9-15. It is only in their Opposition that Plaintiffs raise factual
allegations which suggest Defendant filed the first lawsuit "not
to vindicate any right he may have possessed, but to extort, in
effect, a concession from the plaintiffs so they would end their
complaints about him." Pls.' Mem. Opp'n at 10. These allegations,
which are not included in the pleadings, cannot properly be
considered by this Court on a motion to dismiss. See
Fed.R.Civ.P. 12(b). However, even if these allegations were accepted
as true and Plaintiffs were given leave to amend their Complaint,
they would still not prevail on this Motion. See Foman v.
Davis, 371 U.S. 178, 182 (1962) (citing "futility of amendment"
as a permissible reason to deny an opportunity to amend under
The allegation that Defendant sought to extort a concession is
insufficient to constitute a claim for abuse of process because
he did not accomplish this impermissible purpose. Morowitz,
A.2d at 198. In Morowitz, the court held that "Without more,
appellants' proffer that appellee filed the counterclaim with the
ulterior motive of coercing settlement is deficient. There is no
showing that the process was, in fact, used to accomplish an end
not regularly or legally obtainable." Id. at 198-99; See
Yellow Bus Lines, Inc. v. Drivers, Chauffeurs & Helpers Local
Union 639, 883 F.2d 132, 138 (D.C. Cir. 1989) (holding that the
settlement "must accomplish some outrageous end and represent a
"perversion" of the judicial process."), rev'd in part on other grounds,
913 F.2d ...