Phelps v. Powers

• Decision Date: 19 December 2013
• Docket Number: No. 1:13–cv–00011.,1:13–cv–00011.
• Citation: 5 F.Supp.3d 1036
• Parties: Margie PHELPS et al., on behalf of themselves and “Individual Picketers from the Westboro Baptist Church,” Petitioners, v. Drue POWERS et al., Respondents. Ralph O'Donnell, Counterclaim Plaintiff, v. Margie Phelps et al., Counterclaim Defendants.
• Court: U.S. District Court — Southern District of Iowa

5 F.Supp.3d 1036

Margie PHELPS et al., on behalf of themselves and “Individual Picketers from the Westboro Baptist Church,” Petitioners,

v.Drue POWERS et al., Respondents.

Ralph O'Donnell, Counterclaim Plaintiff,

v.Margie Phelps et al., Counterclaim Defendants.

No. 1:13–cv–00011.

United States District Court,

S.D. Iowa,

Western Division.

Signed Dec. 19, 2013.

Rita N. Bettis, Randall C. Wilson, ACLU of Iowa Foundation, Des Moines, IA, for Petitioners/Counterclaim Defendants.

Kristopher K. Madsen, Robert M. Livingston, Stuart Tinley Law Firm LLP, Council Bluffs, IA, for Respondents.

Michael A. Sciortino, Council Bluffs, IA, for Counterclaim Plaintiff.

ORDER

ROBERT W. PRATT, District Judge.

Before the Court is a Motion to Dismiss (“Motion”) by Counterclaim Defendants Margie Phelps, Elizabeth Phelps, and Timothy Phelps (collectively “Phelps et al.” or “Counterclaim Defendants”), filed October 10, 2013. Clerk's No. 56. On October 28, 2013, Counterclaim Plaintiff Ralph O'Donnell (“O'Donnell” or “Counterclaim Plaintiff”) resisted the Motion. Clerk's No. 59. Phelps et al. replied on November 7, 2013. Clerk's No. 61. On November 8, 2013, O'Donnell moved for leave to file a sur-reply, which the Court granted on November 14, 2013. Clerk's Nos. 62–63. The Motion is fully submitted. ¹

I. FACTUAL AND PROCEDURAL BACKGROUND

This lawsuit arises out of allegations that, during several public demonstrations organized by Phelps et al., O'Donnell and the other two respondents named in this lawsuit enforced Iowa's flag abuse statutes, which Phelps et al. contend are unconstitutional, thus depriving them of their First Amendment rights. See Second Am. Compl. (“Complaint”) (Clerk's No. 30) ¶¶ 16, 18–21, 25–29. At issue are the following three Iowa Code provisions—§§ 718A.1A, 718A.6, and 723.4(6). Id. ¶¶ 42(a)-(c). Phelps et al. seek (1) a declaration from this Court that these provisions are unconstitutional, both on their face and as applied to them; (2) an injunction ² prohibiting the future enforcement of §§ 718A.1A and 723.4(6); and (3) attorney fees and costs. Id. at 3, 11–12.

On September 19, 2013, O'Donnell answered the Complaint and asserted three counterclaims—abuse of process, defamation, and intentional infliction of emotional distress. See Answer (Clerk's No. 48) ¶¶ 22–37. In particular, O'Donnell denied that Phelps et al.'s First Amendment rights had been violated, see id. ¶¶ 24–26, and also asserted that, even if their rights had been violated, such violation did not happen at his direction, see id. ¶¶ 28–30. O'Donnell further alleged that he was named a respondent in this lawsuit so that Phelps et al. “would have a police chief named as a [r]espondent ... from more than one county in Iowa, ... to better pursue class action status against Respondents, ... [and to] obtain an injunction against all [Iowa] law enforcement personnel.” Id. ¶¶ 31–33. Additionally, O'Donnell alleged that on or about April 18, 2013, Phelps et al. publicized the filing of this lawsuit against him, and communicated to the public the allegedly false allegations concerning him. Id. ¶¶ 35–36. O'Donnell now contends that “wrongfully naming ... [him as a respondent] in this action and intentionally publicizing ... [the allegations contained in the Complaint]” constitute abuse of process,³ defamation, and intentional infliction of emotional distress. Id. at 16.⁴

II. STANDARD OF REVIEW ⁵

To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, a complaintmust contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In reviewing a complaint, a court must “accept as true all of the factual allegations contained in the complaint,” and must draw “all reasonable inferences ... in favor of the plaintiff.” Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir.2008) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

A viable complaint must include “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.

Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (alteration in original) (internal citations omitted). “The plausibility standard requires a plaintiff to show at the pleading stage that success on the merits is more than a ‘sheer possibility.’ It is not, however, a ‘probability requirement.’ ” Braden v. Wal–Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir.2009) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937).

The Supreme Court, in Iqbal, described a “two-pronged approach” for evaluating complaints challenged under Rule 12(b)(6). See Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. First, a court should divide the allegations between factual and legal allegations; factual allegations should be accepted as true, but legal allegations should be disregarded. Id. Second, the factual allegations must be parsed for facial plausibility. Id.

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.... Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ”

Id. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 570, 127 S.Ct. 1955).

The “parsing” process requires careful examination of the plaintiff's allegations, however, “the complaint should be read as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible.” Braden, 588 F.3d at 594. Indeed, “[r]equiring a plaintiff to rule out every possible lawful explanation for the conduct he challenges would invert the principle that the complaint is construed most favorably to the nonmoving party, and would impose the sort of probability requirement at the pleading stage which Iqbal and Twombly explicitly reject.” Id. at 597 (internal quotations and citations omitted).

A court will “draw on its judicial experience and common sense” when determining whether a complaint states a plausible claim for relief. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. Thus, the Court may consider other, more likely explanations for the acts described in the complaint when determining whether the pleaded factual allegations give rise to a plausible entitlement to relief. Id. at 680, 129 S.Ct. 1937. But the Court must always be mindful that “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable, and ‘that a recovery is very remote and unlikely.’ ” Twombly, 550 U.S. at 556, 127 S.Ct. 1955 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). “[W]hile a plaintiff must offer sufficient factual allegations to show that he or she is not merely engaged in a fishing expedition or strike suit, [a court] must also take account of [his or her] limited access to crucial information.” Braden, 588 F.3d at 597.

III. LAW AND ANALYSIS

The crux of Phelps et al.'s argument in support of their Motion is that O'Donnell's counterclaims do not meet the Twombly–Iqbal standard set forth above, and should, therefore, be dismissed under Federal Rule of Civil Procedure 12(b)(6) as facially implausible. See Countercl. Defs.' Br. in Supp. of Their Mot. (“Countercl. Defs.' Br.”) (Clerk's No. 56–1) at 3–13.

A. Abuse of Process

“The tort of abuse of process is ‘the use of legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it was not designed.’ ” Fuller v. Local Union No. 106 of the United Bhd. of Carpenters, 567 N.W.2d 419, 421 (Iowa 1997) (internal citation omitted). Thus, a plaintiff must show that the defendant used legal process for an improper purpose, i.e., “to secure ... some collateral advantage not properly includable in the process itself.” Id. (internal citation omitted). A claim for abuse of process has the following three elements: “(1) the use of a legal process; (2) its use in an improper or unauthorized manner; and (3) ... damages as a result of the abuse.” Id. at 421–22 (internal citations omitted).

The second element of this cause of action proves an insurmountable obstacle in many cases, including the present one.⁶See Thomas v. Marion Cnty., 652 N.W.2d 183, 186 (Iowa 2002) (“Abuse of process claims routinely fail under the high burden we require for the second element.” (internal citation omitted)); Johnson v. Farm Bureau Mut. Ins. Co., 533 N.W.2d 203, 209 (Iowa 1995) (“The second element is difficult to establish.... We have taken a very restrictive view of this element ....”). To satisfy this element, the plaintiff must “[t]ypically” show that the defendant instituted legal proceedings “to obtain some advantage collateral to the allegedly abusive process.” Reis v. Walker, 491 F.3d 868, 870 (8th Cir.2007). “Thus, abuse of process cases usually involve ‘some form of extortion.’ ” Id. (quoting Schmidt v. Wilkinson, 340 N.W.2d 282, 284 (Iowa 1983)).

There has been no such showing in this case. Phelps et al. correctly observe that “missing [from O'Donnell's counterclaim] is ... any allegation of an ‘ulterior’ purpose” on the part of Phelps et al. in naming him as a respondent in this lawsuit. Countercl. Defs.' Br. at 7. Indeed, O'Donnell merely avers that Phelps et al. named him a respondent in this lawsuit only to “have a police chief named as a [r]espondent ... from more than one county in Iowa, ... to better...