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Phelps v. Powers

United States District Court, S.D. Iowa, Western Division

December 19, 2013

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

Page 1037

For Margie J. Phelps, Elizabeth M. Phelps, Timothy B. Phelps, on behalf of themselves and " Individual Picketers from the Westboro Baptist Church", Plaintiffs: Rita N. Bettis, Randall C Wilson, ACLU OF IOWA FOUNDATION, Des Moines, IA.

For Drue Powers, Red Oak Police Chief; in personal capacity, in capacity as official, and as class representative for police chiefs within the state of Iowa, Joe Sampson, Montgomery County Sheriff; in personal capacity, in capacity as official, and as class representative of sheriffs' departments with the state of Iowa, Defendants: Kristopher K Madsen, Robert M Livingston, STUART TINLEY LAW FIRM LLP, COUNCIL BLUFFS, IA.

For Ralph O'Donnell, Council Bluffs Police Chief, in personal capacity, in capacity as official, and as class representative for police chiefs with the State of Iowa, Defendant: Michael A Sciortino, LEAD ATTORNEY, COUNCIL BLUFFS CITY ATTORNEYS OFFICE, COUNCIL BLUFFS, IA.

For State of Iowa, Intervenor: Jeffrey S. Thompson, LEAD ATTORNEY, Meghan L. Gavin, ATTORNEY GENERAL OF IOWA, DES MOINES, IA.

For Ralph O'Donnell, Council Bluffs Police Chief, in personal capacity, in capacity as official, and as class representatives for police chiefs and county sheriffs' department with the State of Iowa, Counter Claimant: Michael A Sciortino, LEAD ATTORNEY, COUNCIL BLUFFS CITY ATTORNEYS OFFICE, COUNCIL BLUFFS, IA.

For Elizabeth M. Phelps, Margie J. Phelps, Timothy B. Phelps, on behalf of themselves and " Individual Picketers from the Westboro Baptist Church", Counter Defendants: Randall C Wilson, ACLU OF IOWA FOUNDATION, Des Moines, IA.

OPINION

Page 1038

ORDER

ROBERT W. PRATT, U.S. 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]

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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 complaint

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must 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).

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 (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).

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. 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 (citing Twombly, 550 U.S. at 570).

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. 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. 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 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).

Page 1041

" [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.[6] See 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 pursue class action status against Respondents, . . . [and to] obtain an injunction against all [Iowa] law enforcement personnel." Answer ¶ ¶ 31-33. O'Donnell fails to cite any legal authority--nor has the Court found any--suggesting that any of these reasons amounts to using legal process in an improper or unauthorized manner. Relevant case law actually supports the contrary conclusion. Cf. Palmer v. Tandem Mgmt. Servs., 505 N.W.2d 813, 817 (Iowa 1993) (first emphasizing that " [a] very restrictive view is taken of this [second] element [of

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the tort of abuse of process]" and then noting that " abuse of process will not lie for a civil action that inconveniences a defendant or for one filed in expectation of settlement. . . . [or] to intimidate and embarrass a defendant . . . [or filed] for even a malicious purpose" (internal citations omitted)); Reis, 491 F.3d at 870-71 (affirming the district court's finding of no improper purpose under Iowa law where the plaintiff alleged that the defendant had " made a financial demand on . . . [the plaintiff's employer] in exchange for releasing alleged claims against . . . [the employer] and . . . [the plaintiff]" and then the defendant " instituted these proceedings . . . for her stated purpose of coercing a settlement from . . . [the employer]." ).

O'Donnell, however, claims that Phelps et al.'s prayer for attorney fees and costs in this case amounts to an attempt to compel him to pay a different debt, which constitutes the ulterior motive required by the second element of the abuse-of-process claim. See Countercl. Pl.'s Resistance to Countercl. Defs.' Mot. (" Countercl. Pl.'s Resistance Br." ) (Clerk's No. 59) at 7 (citing Restatement (Second) of Torts § 682 cmt. b). O'Donnell is correct that, according to the Restatement (Second) of Torts, " using . . . [legal] process to put pressure upon the other to compel him to pay a different debt" satisfies the second element of the abuse-of-process claim. See Restatement (Second) of Torts § 682 cmt. b ( " For abuse of process to occur there must be use of the process for an immediate purpose other than that for which it was designed and intended. The usual case of abuse of process is one of some form of extortion, using the process to put pressure upon the other to compel him to pay a different debt or to take some other action or refrain from it." ). Upon a closer examination, however, the present case does not fall within this category of cases.[7] To clarify what types of cases constitute an attempt to compel one to pay a different debt, thus inviting a claim for abuse of process, § 682 comment (b) provides three illustrations.[8] None of them, however, is

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analogous to the present case. See supra n.8. Therefore, accepting as true all factual allegations in O'Donnell's abuse-of-process counterclaim, the Court must nevertheless conclude that he has not pled sufficient facts to state a plausible claim for relief.

B. Intentional Infliction of Emotional Distress (" IIED" )

For reasons that follow, the Court reaches the same conclusion with respect to O'Donnell's IIED claim as it did with his abuse-of-process claim. Phelps et al. argue that this claim is " even more meagerly ple[]d" than the abuse-of-process cause of action. See Countercl. Defs.' Br. at 7. O'Donnell insists, however, that he has sufficiently pled his IIED claim because the evidence already discovered in this case demonstrates that " 50% of . . . [Phelps et al.'s] claims against O'Donnell are untrue," as shown by the materials O'Donnell attached to his resistance brief.[9] See Countercl. Pl.'s Resistance Br. at 9.

The tort of IIED has the following four elements: " (1) outrageous conduct by the defendant; (2) the defendant intentionally caused, or recklessly disregarded the probability of causing, the emotional distress; (3) [the] plaintiff suffered severe or extreme emotional distress; and (4) the defendant's outrageous conduct was the actual and proximate cause of the emotional distress." Fuller, 567 N.W.2d at 423 (internal citation omitted). Even assuming that O'Donnell has adequately pled the remaining three elements of IIED,[10] he

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has failed to plead sufficient facts to label Phelps et al.'s alleged conduct " outrageous." Indeed, " [b]efore . . . [their] conduct can be considered outrageous, it must be so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Fuller, 567 N.W.2d at 423 (internal citation omitted). O'Donnell argues that he has sufficiently pled his IIED cause of action because the allegations in his counterclaim establish that Phelps et al. filed a meritless lawsuit against him and publicized the allegations made in that lawsuit in a press release and/or at a press conference. See Answer ¶ ¶ 22-37. O'Donnell, however, cites no legal authority for the proposition that filing a lawsuit with no chance for success combined with publicizing the lawsuit's allegations constitutes " outrageous conduct." Therefore, even accepting O'Donnell's allegations as true, the Court must nevertheless conclude that he has failed to plead facts rising to the level of " outrageous conduct" required for a successful IIED claim.

C. Defamation[11]

" Defamation includes the twin torts of libel and slander." Kiesau v. Bantz, 686 N.W.2d 164, 174 (Iowa 2004) (internal citation omitted).[12] " Libel involves written statements, while slander involves oral statements." Id. (internal citation omitted). A cause of action for defamation, whether libel or slander, is grounded in " the transmission of derogatory statements, not any physical or emotional distress to [the] plaintiff which may result." Id. at 175 (internal citation omitted). The existence of the tort of defamation reflects our society's recognition that every person has an " interest in his[/her] reputation and good name." Id. at 175 (internal citation omitted). Thus, anyone

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who " denigrates the opinion which others in the community have of the plaintiff" is liable to the plaintiff for the injury caused to the plaintiff's reputation. Id. at 174-75 (internal citation omitted).

Despite the fact that both libel and slander claims are possible in this case, such possibility is of little or no consequence to the Court's ruling on Phelps et al.'s dismissal motion.[13] Indeed, the Restatement defines the elements of the defamation claim without regard to the distinctions between libel and slander, and notes that the differences lie in the mode of publication of the defamatory statements. See Restatement (Second) of Torts § § 558 ( " To create liability for defamation there must be: (a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication." ), 568 (noting that, generally, " [l]ibel consists of the publication of defamatory matter by written or printed words," while " [s]lander consists of the publication of defamatory matter by spoken words" ).

With this legal framework in mind, the Court turns to the parties' respective arguments. Phelps et al. contend that O'Donnell's defamation counterclaim suffers from the same deficiencies as the other two counterclaims asserted in this lawsuit, i.e., failure to plead sufficient facts to state a facially plausible claim for relief. See Countercl. Defs.' Br. at 9, 12. First, Phelps et al. maintain that to the extent O'Donnell's defamation cause of action rests on any factual allegations in the Complaint, the claim must fail because factual allegations contained in a pleading are absolutely privileged.[14] See id. at 9 (" O'Donnell has failed to credibly plead that there were statements made outside of the privileged four corners of . . . [Phelps et al.'s] complaint . . . ." ). Second, assuming that the defamation claim is predicated on the press conference and/or press release that O'Donnell alleges Phelps et al. held and/or published on or about April 18, 2013 to announce the filing of the lawsuit against him, the counterclaim must fail because it fails to specify the contents of any statements made by them. See id. (" [O]rdinarily, the announcement of the filing of a lawsuit is not a libelous statement. Nor does O'Donnell appear to know what was said or how it was said or provide any allegations as to the content of an allegedly libelous statement." ). Third, Phelps et al. assert that the defamation cause of action is deficient because it lacks any specific allegations concerning the damages that O'Donnell claims he has suffered as a result of their unlawful conduct.[15] See id. at 6-7, 10

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(noting that O'Donnell's three counterclaims, including his defamation claim, lack any description of his alleged damages and arguing that O'Donnell's failure to provide such description is fatal under the Twombly-Iqbal standard).

O'Donnell disagrees that dismissal is appropriate, citing Iowa's Model Civil Jury Instructions dealing with the elements of the tort of defamation. Countercl. Pl.'s Resistance Br. at 11-14 (quoting the model instructions concerning libel/slander per se, libel/slander by implication, and damages recoverable in an action for libel/slander). There can be no dispute that, with respect to his defamation claim, O'Donnell only alleges that, on or about April 18, 2013, Phelps et al. " issued a press release and/or held a press conference announcing to the press and general public the filing of this lawsuit . . . ." Answer ¶ 35. O'Donnell cites no case--nor is this Court aware of any--where merely announcing the filing of the lawsuit supports a claim for defamation. Even assuming, however, that the statements communicated in the press release and/or at the press conference went beyond a mere announcement of the lawsuit, O'Donnell has failed to identify the speaker, the content of the allegedly defamatory statements, or their recipient. See Cedar Rapids Lodge & Suites, LLC v. JFS Dev., Inc., No. 09-cv-00175, 2010 WL 2836949, at *7 (N.D. Iowa July 19, 2010) (concluding that Plaintiffs had pled their defamation claim with sufficient specificity where Plaintiffs had identified both the speaker and the recipient of the allegedly defamatory statements, as well as the statements' content). Therefore, O'Donnell's allegations are insufficient to support a plausible entitlement to relief for defamation. See Freeman v. Bechtel Constr. Co., 87 F.3d 1029, 1032 (8th Cir. 1996) (affirming dismissal of a slander claim where the allegations did " not identify the defamatory statements with any specificity, [did] not identify the manner of oral publication, and [did] not allege that [any agent of the defendant's acting within the scope of employment] published the statements to a non[-]privileged recipient" ). Rather than dismiss the defamation claim, however, the Court has decided to allow O'Donnell the opportunity to amend it and eliminate the deficiencies identified above. Accordingly, O'Donnell shall file an amended counterclaim no later than January 3, 2014, or will suffer the dismissal of his defamation claim without further notice. In the event that O'Donnell amends his defamation counterclaim, Phelps et al. remain free to file a new dismissal motion as to the amended defamation claim.

IV. CONCLUSION

For the foregoing reasons, Phelps et al.'s Motion to Dismiss (Clerk's No. 56) is GRANTED IN PART and DENIED IN PART, consistent with the terms of this Order.

IT IS SO ORDERED.


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