Karie v. Vt. CVS Pharm.
| Docket Number | 22-CV-03430 |
| Decision Date | 22 January 2024 |
| Citation | 2024 Vt Super 012201 |
| Parties | Hajrija Karie v. Vermont CVS Pharmacy, LLC., et al |
| Court | Superior Court of Vermont |
ENTRY REGARDING MOTION
Title Motion for Summary Judgment; Motion for Summary Judgment Motion for Summary Judgment (Motion: 7; 8; 9)
This case assert claims for intentional infliction of emotional distress (IIED), trespass, and invasion of privacy based upon service of deposition subpoenas by Defendant Jennifer Martin and Queen City P.L Ms. Martin and Queen City counterclaim for abuse of process based upon the filing of this case. Defendants move for summary judgment on Plaintiff s claims and Plaintiff moves for summary judgment on the counterclaims.
Motion of Martin and Queen City (Motion 7)
Martin and Queen City seek summary judgment on Plaintiffs claims, arguing that she does not have sufficient evidence to establish IIED or trespass.
To establish IIED, a plaintiff must show ""outrageous conduct, done intentionally or with reckless disregard of the probability of causing emotional distress, resulting in the suffering of extreme emotional distress, actually or proximately caused by the outrageous conduct." Davis v. Am. Legion, Dep't of Vermont, 2014 VT 134, ¶ 19,198 Vt. 204 (quoting Fromson v. State, 2004 VT 29, ¶ 14,176 Vt. 395). The defendant's actions must be "so outrageous in character and so extreme in degree as to go beyond all possible bounds of decent and tolerable conduct in a civilized community and be regarded as atrocious and utterly intolerable." Id. ¶ 20 (quoting Cate v. City of Burlington, 2013 VT 64, ¶ 28, 194 Vt. 265). The conduct "must cause the plaintiff to suffer distress so severe that no reasonable person could be expected to endure it." Id. (citation omitted).
All that Karie alleges is that Martin, after coming to serve a subpoena at a time when family were present to mourn a death in the family, did not leave when asked, was there for 15 minutes, and "mocked and taunted" Karie. Karie also alleges that her preexisting anxiety was worsened, but she has sought no treatment for it whatsoever. Even if proven, these facts could not lead any reasonable jury to find that the high threshold for IIED has been met. Instead, they are the precise sort of "mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities" that cannot establish IIED. Denton v. Chittenden Bank, 163 Vt. 62, 66 (1994). "When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219,1224 (2d Cir. 1994).[1]
As for the trespass claim, the facts are in dispute as to whether Martin left promptly when asked to, or stayed for 15 more minutes. "A person who intentionally enters or remains upon land in the possession of another without a privilege to do so is subject to liability for trespass." Jones v. Hart, 2021 VT 61, ¶ 66, 215 Vt. 258 (citing Harris v. Carbonneau. 165 Vt. 433, 437 (1996)). It is "liability-producing regardless of the degree of harm the invasion cause[s]." Id. (quoting Adams v. Cleveland-Cliffs Iron Co., 602 N.W.2d 215, 219 n.9 (Mich. App. 1999)). Since Karie alleges no actual harm from the alleged 15-minute trespass, she would be entitled to no more than nominal damages. Nonetheless, she is entitled to proceed on that claim. See Jones, 2021 VT 61, ¶ 66 ("Plaintiffs showing a direct and tangible invasion of their property may obtain injunctive relief and at least nominal damages without proof of any other injury.").
Motion of CVS Pharmacy (Motion q)
CVS Pharmacy is sued under a respondent superior theory, as Martin was serving a subpoena on its behalf. CVS moves for summary judgment on the same grounds as those asserted by Martin and Queen City, and the court's ruling is the same.
Motion of Plaintiff (Motion 8)
Plaintiff moves for summary judgment on Defendants' counterclaim for abuse of process. What Martin and Queen City assert is that "Plaintiff has filed the instant lawsuit against Martin and Queen City for the sole purpose of impeding discovery in the Underlying Lawsuit and preventing Martin from carrying out her duly-authorized professional work in the State of Vermont." Counterclaim ¶ 11. They say that "Plaintiff s filing of the instant lawsuit against Martin and Queen City constitutes an improper, unwarranted use of court processes with an ulterior motive and purpose, i.e., to impede and prevent appropriate discovery from occurring in the Underlying Lawsuit." Id. ¶ 12. They say they have "sustained damages, including, but not limited to, reputational damage, loss of business revenue, increased insurance premiums, and attorneys' fees and costs in defending against the instant lawsuit." Id. ¶ 13.
Martin testified at deposition that she believed this suit was aimed at discouraging her from serving further subpoenas at Plaintiffs residence. She further testified that she has lost time due to dealing with this suit, expects her insurance premiums to go up as a result of it, and may in the future suffer reputational harm and/or have to pay attorney's fees.
To prove a claim for abuse of process, a party must show "(1) an illegal, improper or unauthorized use of a court process; 2) an ulterior motive or an ulterior purpose; and 3) resulting damage to the plaintiff." Weinstein v. Leonard, 2015 VT 136, ¶ 22, 200 Vt. 615 (quoting Jacobsen v. Garzo, 149 Vt. 205, 208 (1988)). The fact that a claim is frivolous is not enough, even if the intent is malicious. Id. The party must show that "the processes of the court have themselves been used improperly." Id. (quotation omitted; emphasis added). The mere filing of suit cannot constitute abuse of process: Doctor's Assocs., Inc, v. Weible, 92 F.3d 108, 114 (2d Cir. 1996). "Rather, liability for abuse of process lies only when the offending party overtly misuses the process once the proceeding has begun." Id. (citing cases). "In short, no matter what misconduct by the tortfeasor occurs before the commencement of suit, it is not, in itself, an abuse of process because there is not yet process to abuse." Id.
All that Martin and Queen City point to here is the filing of this suit. They cite no misuse of a subpoena in this case, or the seeking of an oppressive attachment, or anything similar. See, e.g., Weinstein, 2015 VT 136, ¶ 25. The suit may be frivolous, but it cannot meet the legal test for...
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