Bickel v. Mackie

Decision Date04 April 1978
Docket NumberNo. C 76-44.,C 76-44.
Citation447 F. Supp. 1376
PartiesEarl Y. BICKEL, M. D., Plaintiff, v. Lenore V. MACKIE and Roger M. Hibbits, Defendants.
CourtU.S. District Court — Northern District of Iowa


Thomas M. Collins, Richard S. Fry, Cedar Rapids, Iowa, for plaintiff.

William M. Tucker, Iowa City, Iowa, for defendant Roger M. Hibbits.

Lenore V. Mackie, pro se.

Robert M. Wohler, O'Fallon, Mo., for defendant.


McMANUS, Chief Judge.

This matter is before the court on defendant Hibbits' resisted motion for judgment on the pleadings filed November 18, 1977. In addition the court will treat defendant Mackie's pro se answer, which raises legal issues identical to those in Hibbits' motion, as a motion for judgment on the pleadings. Granted.

It is noted at the outset that in considering a motion for judgment on the pleadings all well-pleaded allegations in the non-moving party's pleadings and the reasonable inferences drawn therefrom are taken as true while all contravening assertions by the movant are taken to be false. Beal v. Missouri R. Co., 312 U.S. 45, 51, 61 S.Ct. 418, 85 L.Ed. 577 (1941); Gumer v. Shearson, Hammill & Co., 516 F.2d 283, 286 (2d Cir. 1974); Southern Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478 (6th Cir. 1973); Chicago, Milwaukee, St. Paul & R. R. Co. v. Alva Coal Corp., 365 F.2d 49 (7th Cir. 1966); Wright & Miller, Federal Practice and Procedure: Civil § 1368. Where there are material issues of fact a motion for judgment on the pleadings must fail. Wright & Miller, supra. The motion may contain certain defenses, including failure to state a claim upon which relief can be granted. FRCP 12(h)(2).

This case arises out of an unsuccessful medical malpractice suit initiated by Lenore V. Mackie acting on advice of her counsel Roger M. Hibbits, against Earl Y. Bickel, plaintiff here, and others. That suit was summarily dismissed January 27, 1975. On September 16, 1976 Dr. Bickel brought this action against Mackie and Hibbits alleging malicious prosecution, abuse of process, negligent practice of law, failure to comply with the Code of Professional Responsibility, and conspiracy to harm him. On July 27, 1977 plaintiff requested permission to amend his complaint to include claims that: (1) the malpractice suit was filed and prosecuted recklessly and with heedless disregard for or indifference to plaintiff's rights; and (2) as a result of said suit plaintiff suffered mental anguish, damage to his professional reputation, and expenditures of time to prepare a defense in reckless disregard of his rights. The amendments were allowed by October 27, 1977 order of this court.

The issues raised by Hibbits with regard to Divisions II and III are identical to those raised by Mackie in her answer which addresses claims set out in Divisions I, II and III. Therefore the following discussion of Hibbits' defenses a fortiori also will apply to Mackie.

With regard to Count 1 of Divisions II and III of the complaint, defendant Hibbits bases his motion for judgment on the pleadings on the grounds that Iowa law requires that special damages be pleaded, they were not pleaded and in fact there were no special damages. He attacks Count 2 of Division II and Count 4 of Division III on the grounds that there is no action a defendant can bring against plaintiff's attorney based on negligence. Further, defendant states that Counts 3 of Divisions II and III are not properly denominated abuse of process counts, but rather merge with the malicious prosecution charges. Likewise Hibbits contends that neither the Code or Professional Responsibility nor a theory of conspiracy are proper bases for this action. He also claims that plaintiff's theory that a plaintiff's attorney may be liable to defendants for heedless disregard of that defendant's rights is not actionable. And finally defendant asserts that punitive damages cannot be sustained where there is no underlying cause for compensatory damages. These defenses will be discussed seriatim.

Malicious Prosecution

The elements of malicious prosecution are set out in Sarvold v. Dodson, 237 N.W.2d 447, 448 (Iowa 1976) which requires:

(1) a previous prosecution;
(2) instigation or prosecution thereof by defendant;
(3) termination in favor of plaintiff in the present case;
(4) want of probable cause;
(5) malice in bringing the prosecution;
(6) damages.

See also Liberty Loan Corporation of Des Moines v. Williams, 201 N.W.2d 462 (Iowa 1972). In Liberty Loan the court expanded the final element by stating that damages to plaintiff must conform to legal standards. 201 N.W.2d at 466. Defendant properly cites Aalfs v. Aalfs, 246 Iowa 158, 66 N.W.2d 121, 122-123 (1954) for the proposition that no cause of action will lie "unless there has been an arrest of the person, seizure of the property, or special injury sustained". Special injuries are those caused a defendant not necessarily resulting from all suits prosecuted for like causes of action.

In Aalfs the Iowa Supreme Court realized that there was a substantial split among the states as to theories of damages in malicious prosecution cases. The Supreme Court stated:

. . . Briefly, the courts which think an action for malicious prosecution of a civil action should be permitted in all cases reason the law should provide a remedy for every wrong, and a litigant should not be permitted to bring suit with charges of fraud, deceit, or other imputation of improper conduct against the defendant, such charges being knowingly false, malicious and without probable cause, without being required to respond in damages for the harm so wantonly done.

66 N.W.2d at 123.

The Iowa Supreme Court expressly rejected that theory in holding:

The opposing position, which we have adopted and still believe sound, is that the courts should be open to all who think they have a just cause of action, and it would deter many honest litigants from asserting their rights if they knew they were to be penalized by a counter-action for damages based on alleged malice if for any reason they failed in winning their cause.

Id. at 123.

Plaintiff cites no Iowa cases which redefine damages necessary to sustain a malicious prosecution case. He contends that there is a conflict of law which inexorably leads to application of Missouri law. We reject this assertion for two reasons. First, the original malpractice suit was transferred from federal court in Missouri to this court because original venue was improper. The transaction took place in Iowa and the defendants were Iowa citizens. Second, this suit was instituted in Iowa which has a special interest in determining the relationship of parties involved in suits arising out of conduct in Iowa. Iowa specifically has interests in keeping its courts open to potential litigants and not having its courts jammed with vast numbers of retaliatory suits. See Aalfs v. Aalfs, supra at 124. It would appear that Iowa has the most significant contacts and interests in this case. See Lindstrom v. Aetna Life Ins. Co., 203 N.W.2d 623 (Iowa 1973); Fabricus v. Horgen, 257 Iowa 268, 132 N.W.2d 410, 414-415 (1965); Flogel v. Flogel, 257 Iowa 547, 133 N.W.2d 907 (1965); Fuerste v. Bemis, 156 N.W.2d 831 (Iowa 1968).

Plaintiff cites Prosser to advance his theory that Iowa's special damages requirement is outdated, and it may be. However, Iowa and some 16 other jurisdictions follow this rule.1

In a society in which litigation has become a national pastime it may seem obvious that there should be a remedy for the victim of frivolous litigation where that defendant was neither seized, had his property seized or sustained special injuries. See 52 Am.Jur.2d, Malicious Prosecution § 11. This is particularly so when the original litigation casts aspersions on a defendant's professional reputation. See Von Brimer v. Whirlpool Corp., 536 F.2d 838, 847 (9th Cir. 1976). But so far as this court can tell, Iowa does not recognize reputational harm as a basis for a malicious prosecution action. Plaintiff seems to be calling for a change in the Iowa rule.

In O'Toole v. Franklin, 279 Or. 513, 569 P.2d 561 (1977), a case similar to the one at bar, Justice Linde traces the tensions between guaranteeing access to the courts and protecting persons from vexatious suits which may involve substantial outlays of time and money. 569 P.2d at 564. Noting that the "special interest" rule is not immune to judicial change, he states:

But the legislative process is not inappropriate, given adequate time and preparation, for studying and resolving the competing and the common interests at stake in private law . . ..

Id. at 565.

Other recent cases show a hesitancy to hold an attorney, often acting under the pressure of an impending statutory deadline, liable for representing a client in what turned out to be a frivolous suit. In Drago v. Buonagurio, 89 Misc.2d 171, 391 N.Y.S.2d 61 (Sup.Ct.1977) a physician sued an attorney and others for malicious prosecution, abuse of process and negligence after they unsuccessfully sued him for malpractice. The court found that even though the doctor who was sued for malpractice never treated the plaintiff's decedent, no suit for malicious prosecution arose. 391 N.Y.S.2d at 62.

This hesitancy, the explicit holdings of the Iowa Supreme Court, and the susceptibility of the Iowa rule to legislative reform reinforces this court's position that plaintiff has failed to state a cause of action based on malicious prosecution.


Count 2 of Division II and Count 4 of Division III state claims against Hibbits based on negligence in advising the Mackies with regard to commencing and prosecuting the malpractice suit. Plaintiff correctly notes and defendant concedes the general trend toward relaxation of privity requirements where third parties may rely to their detriment on the conduct of a professional. Thus, in Ryan v. Kanne, 170 N.W.2d 395 (Iowa, 1969) the Iowa Supreme...

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