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Abernathy v. White

United States District Court, E.D. Missouri, Eastern Division

September 30, 2019

WILMA ABERNATHY, Plaintiff,
v.
RACHEL WHITE, et al., Defendants.

          MEMORANDUM AND ORDER

          NANNETTE A. BAKER, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on the motion of Defendants Rachel White (“White”), Mary Mans (“Mans”), Robbin Russell (“Russell”), Reginald Brown (“Brown”), and Karen Nelson (“Nelson”) (collectively “Individual Defendants”)[1], to dismiss Plaintiff Wilma Abernathy’s (“Plaintiff” or “Abernathy”) complaint for failure to state a claim on which relief may be granted, and on the basis of various absolute immunities. (Doc. 23). The motion to dismiss was originally filed by Defendants Mans and White, and subsequently, the other Individual Defendants moved to join in the motion. (Docs. 30 and 36). For the reasons set forth below, the Individual Defendants’ motion to dismiss Counts I, II, and V, as well as the motions for joinder, will be granted. Count III of the complaint will be dismissed without prejudice, as the Court declines to exercise supplemental jurisdiction over that claim.

         I. Background

         Plaintiff, a current member of the Board of Aldermen of the City of Bel-Ridge, Missouri, (“City”) seeks to hold Defendants liable for certain events that occurred during 2017 and 2018 when Abernathy was serving in a prior term on the Board of Aldermen. Plaintiff alleges that on October 30, 2017, she “cooperated with the initiation of a formal complaint to the Missouri Attorney General” regarding alleged violations of the Missouri Sunshine Law[2] by the City. (Doc. 3 at 3). At that time, Plaintiff signed an affidavit setting forth alleged Sunshine Law violations, and her affidavit was subsequently forwarded to the Missouri Attorney General as an enclosure to a letter prepared by attorney Michael K. Daming, who indicated that he represented the interests of Glenn Tope, a resident of the City of Bel-Ridge. Id.

         Plaintiff alleges that, in retaliation for her cooperation with the Sunshine Law complaint, the Individual Defendants, on February 15, 2018, instituted impeachment proceedings against her. Id. The bill of impeachment set out five charges against Plaintiff, including violations of closed records laws, accepting funds meant as donations to the City and converting them to her personal use, and providing false statements in the affidavit Plaintiff signed. (Doc. 27 at 3). She further alleges that on March 6, 2018, the Individual Defendants adopted an amended bill of impeachment, and finally, in July 2018, the impeachment proceeding was permanently abandoned. Id. Plaintiff also alleges that the Individual Defendants voted in favor of a fine that the City wrongfully imposed against her as a sanction for voicing her objections to the impeachment proceedings, and then approved the withholding of her salary to satisfy the fine. Id. Plaintiff acknowledges that her full salary was later paid to her, but complains that she suffered overdraft fees and reputational harm as a result of the fine.

         Plaintiff’s complaint contains five counts: (1) Count I for Abuse of Process against all Defendants; (2) Count II for Malicious Prosecution against all Defendants; (3) Count III for Defamation against the Individual Defendants; (4) Count IV for Conversion against only the City; and (5) Count V, a 42 U.S.C. § 1983 claim against all Defendants alleging violations of her First and Fourteenth Amendment rights. As the claim for conversion in Count IV is not directed against the individually named Defendants, the Court will not address Count IV in this order.

         Plaintiff seeks damages in excess of $25, 000, plus punitive damages, attorney’s fees and costs.

         II. Discussion

         For a plaintiff to survive a motion to dismiss, “a complaint must contain 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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. The reviewing court accepts the plaintiff’s factual allegations as true and draws all reasonable inferences in favor of the nonmoving party. Torti v. Hoag, 868 F.3d 666, 671 (8th Cir. 2017). But “[c]ourts are not bound to accept as true a legal conclusion couched as a factual allegation, and factual allegations must be enough to raise a right to relief above the speculative level.” Id. “Where the allegations show on the face of the complaint there is some insuperable bar to relief, dismissal under Rule 12(b)(6) is appropriate.” Benton v. Merrill Lynch & Co., Inc., 524 F.3d 866, 870 (8th Cir. 2008).

         A. Count One-Abuse of Process

         To prevail on an abuse of process claim in Missouri, a plaintiff must prove the following elements: “(1) the defendant made an illegal, improper, perverted use of process, which was neither warranted nor authorized by the process; (2) the defendant had an improper purpose in exercising such illegal, perverted, or improper use of process; and (3) the plaintiff sustained damages as a result.” Diehl v. Fred Weber, Inc., 309 S.W.3d 309, 320 (2010) (citations omitted).

         The Individual Defendants argue that Plaintiff cannot state a claim for abuse of process, because Missouri courts “routinely hold that a claim for abuse of process will only lie where the defendant has misused duly issued court process, ” and they did not do so in this case. (Doc. 27 at 15). Plaintiff does not cite to any Missouri case where the court allowed an abuse of process claim to proceed on anything other than the issuance of court process. However, Plaintiff counters that the “process” connected to the impeachment proceedings was sufficiently analogous to the process that emanates from or rests upon court authority as to sufficiently state a claim for abuse of process. Other Missouri plaintiffs have made comparable arguments, asserting that the process involved in administrative or similar proceedings can suffice to state a claim for abuse of process, but so far such attempts have been to no avail. See e.g., Crowe v. Horizon Homes, Inc., 116 S.W.3d 618, 623 (2003) (the defendants’ alleged actions “did not make use of a process that emanated from or rested upon court authority” and thus “do not meet the elements of a recognized cause of action.”); Misischia v. St. John’s Mercy Medical Center, 30 S.W.3d 848, 862 (2000) (“Plaintiff concedes Missouri courts have not addressed this issue [as to whether “process” unrelated to court processes may suffice to state a claim for abuse of process] . . . “but courts in other states have held that abuse of administrative processes may give rise to a claim for abuse of process. Again, we decline to extend the law to the case at bar.”) (overruled on other grounds). Because Plaintiff alleges only the improper filing of impeachment proceedings against her, as opposed to actions that “ma[d]e use of a process that emanated from or rested upon court authority, ” she has failed to state a claim for abuse of process under Missouri law.

         B. Count Two-Malicious Prosecution

         The elements of a malicious prosecution claim in Missouri are: “(1) the commencement of an earlier suit against plaintiff, (2) instigation of the suit by defendant, (3) termination of the suit in plaintiff’s favor, (4) lack of probable cause for the suit, (5) malice by defendant in instituting the suit, and (6) damages to plaintiff resulting ...


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