Steele v. Morris

Decision Date09 April 1985
Docket NumberCiv. A. No. 2:85-0088.
Citation608 F. Supp. 274
PartiesIda Jane STEELE, Plaintiff, v. Ricky Dewayne MORRIS, Defendant.
CourtU.S. District Court — Southern District of West Virginia

E. Joseph Buffa, Charleston, W. Va., for plaintiff.

Wayne King, Clay, W. Va., for defendant.

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

The Plaintiff, Ida Jane Steele, filed the complaint instituting this action on January 16, 1985, alleging malicious use of civil process and/or abuse of process by the Defendant. Plaintiff's complaint further alleges that Defendant's actions were willful, deliberate and so outrageous as to give rise to punitive damages. Rather than answer the complaint, the Defendant filed a motion to dismiss the complaint on the grounds that Plaintiff's claims should have been asserted as a counterclaim in one of the two actions between these same parties brought in the Circuit Court of Clay County, West Virginia, and that the requisite jurisdictional amount of $10,000 was not in controversy. Inasmuch as Defendant's motion to dismiss was not accompanied by a memorandum of law, in order to facilitate the decisional process the Court ordered the Defendant to file a memorandum of law in support of his motion by March 12, 1985, with the Plaintiff to respond by April 5, 1985. The Court's Order noticed counsel that upon completion of the briefing schedule the Court would consider this matter mature for decision and may rule thereon without further notice to counsel of record. Contrary to this Court's scheduling order, the Defendant failed to file a supporting memorandum. Despite Defendant's briefing default, counsel for Plaintiff dutifully filed a memorandum of law in opposition to Defendant's motion to dismiss in a timely fashion. In addition to responding to the arguments made in Defendant's motion to dismiss, counsel for Plaintiff has requested the Court in her responsive memorandum to award Plaintiff her attorney's fees incurred in preparing the memorandum in opposition to Defendant's motion to dismiss on the ground that "Defendant's Motion to Dismiss appears to have been interposed for improper purposes pursuant to Rule 11 ...."1 The date for submitting memorandum of law having expired pursuant to the terms of this Court's Order entered February 25, 1985, this matter is now ripe for decision.

The underlying civil actions brought by the parties in the Circuit Court of Clay County, which suits ultimately gave rise to this action, were related in that each involved personal relations between the parties. First in time was a civil paternity suit brought by Steele against Morris. That lawsuit was followed by one brought by Morris against Steele wherein Morris alleged Steele had contracted with him to pay for "stud fees" and that she had breached the agreement, for which breach Morris claimed compensatory and punitive damages. Morris' breach of contract suit was voluntarily dismissed by him with prejudice on December 21, 1984. The pleadings in this case do not reveal the disposition or status of Steele's paternity suit.

The foregoing procedural history demonstrates the incorrectness of Defendant's argument that Plaintiff's claims asserted herein should be dismissed because they were not raised by counter-claim in one of the Clay County actions because the case law clearly establishes that a cause of action for malicious use of civil process and/or abuse of process does not accrue until the allegedly abusive or malicious lawsuit is terminated. See e.g., Vinal v. Core, 18 W.Va. 1, 23-24 (W.Va.1981).2Woodford v. McDaniels, 73 W.Va. 736, 81 S.E. 544 (1914); Allen v. Burdette, 89 W.Va. 615, 109 S.E. 739 (1921).3See also Rule 13(a) of the Federal Rules of Civil Procedure "Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction". Because the claims herein asserted by Plaintiff had not yet accrued, and thus could not have been asserted by Plaintiff, in the Clay County litigation, Defendant's motion to dismiss on this basis is denied.

Defendant's motion to dismiss for lack of jurisdictional amount is equally without merit. Because this is a diversity of citizenship action brought pursuant to 28 U.S.C. § 1332, the actual amount in controversy must exceed $10,000 for this Court to have jurisdiction. The general rule governing whether the requisite jurisdictional amount is in controversy is that the "sum claimed by the Plaintiff controls if the claim is apparently made in good faith." St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938); Prior Oil Well Drilling Co. v. David A. Waldron and Associates, Inc., 601 F.Supp. 778, 779 (S.D. W.Va.1985); Patrick v. Sharon Steel Corp., 549 F.Supp. 1259, 1261 (N.D.W.Va. 1982). Before the Court can dismiss an action on this basis it "must appear to a legal certainty that the claim is really less than the jurisdictional amount ...." St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. at 289, 58 S.Ct. at 590; Prior Oil Well Drilling Co. v. David A. Waldron and Associates, Inc., 601 F.Supp. at 779; Patrick v. Sharon Steel Corp., 549 F.Supp. at 1262. Measured against this standard it is clear Plaintiff has properly pled in her ad damnum the requisite jurisdictional amount. Plaintiff's complaint alleges that as a result of Defendant's actions she lost her job as a teacher,4 incurred expenses for attorney's fees, travel and moving, loss of benefits and has suffered emotional distress, embarrassment, mental anguish and damage to her reputation. Significantly, Plaintiff has also claimed entitlement to punitive damages for Defendant's willful, deliberate and outrageous conduct.5 In view of the ad damnum, which appears to be properly pleaded and in good faith, the Court cannot find and conclude "to a legal certainty" that Plaintiff's damages claim is for "really less than the jurisdictional amount and, therefore, denies Defendant's motion to dismiss the complaint for lack of jurisdiction.

Upon review of the entire record in this action, the Court is of the opinion that Plaintiff's motion pursuant to Rule 11 for recovery of her attorney's fees incurred in preparation of her memorandum of law in opposition to Defendant's motion to dismiss warrants favorable consideration by the Court. Rule 11 provides, inter...

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  • Equitrans, L.P. v. 0.56 Acres More or Less of Permanent Easement Located in Marion Cnty.
    • United States
    • U.S. District Court — Northern District of West Virginia
    • November 18, 2015
    ...breach of fiduciary duty, fraud, and unjust enrichment, and it therefore became a compulsory counterclaim); Steele v. Morris , 608 F.Supp. 274, 275–76 (S.D.W.Va.1985) (concluding that cause of action for abuse of process had not accrued before the defendant served the answer, and therefore ......
  • Zimmer-Hatfield, Inc. v. Wolf
    • United States
    • U.S. District Court — Southern District of West Virginia
    • February 18, 1994
    ...v. Giannaris, 818 F.Supp. 755, 758 (M.D.Pa.1993); Arias v. Solis, 754 F.Supp. 290, 292-93 (E.D.N.Y.1991); Steele v. Morris, 608 F.Supp. 274, 276 (S.D.W.Va.1985) (Haden, C.J.); Patrick v. Sharon Steel Corp., 549 F.Supp. 1259, 1261-62 (N.D. W.Va.1982) (Haden, C.J.); Cf. In re A.H. Robins Co.,......
  • State ex rel. Pritt v. Vickers, 31356.
    • United States
    • West Virginia Supreme Court
    • October 10, 2003
    ...pleadings are considered by the court."). 13. Filing of the defendants' answer effectuated joinder of the issues. Cf. Steele v. Morris, 608 F.Supp. 274, 277 (S.D.W.Va.1985) (observing that "because no answer ha[d] been filed, the issues have yet to be 14. Because the matter is not properly ......
  • State v. Vickers, No. 31356 (W. Va. 10/10/2003), 31356.
    • United States
    • West Virginia Supreme Court
    • October 10, 2003
    ...are considered by the court."). 13. Filing of the defendants' answer effectuated joinder of the issues. Cf. Steele v. Morris, 608 F. Supp. 274, 277 (S.D. W. Va. 1985) (observing that "because no answer ha[d] been filed, the issues have yet to be 14. Because the matter is not properly before......
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