FKB’s Andrew Jones and Jason Seiler successfully obtained the dismissal of Plaintiff’s appeal to the US Court of Appeals for the Second Circuit on behalf of their attorney-client in an action brought by the ex-husband of the attorney’s former client.  In that action, Plaintiff alleged that his ex-wife’s attorney had committed an abuse of process by refusing Plaintiff’s settlement offer and pursuing a judgment in favor of his client.

FKB submitted a motion to dismiss Plaintiff’s Complaint for failure to state a claim pursuant to FRCP 12(b)(6) on the grounds that the mere continuation of civil litigation cannot constitute “process” for purposes of an abuse of process claim, that Plaintiff failed to identify any interference with person or property and/or any qualifying discovery device that was improperly utilized,  and that the Plaintiff could not state any special damages beyond vague assertions of “unjustified legal fees” and “emotional distress”. FKB’s motion was ultimately granted by the Hon. Judge Eric R. Komitee, U.S.D.J.

Plaintiff thereafter appealed Court’s decision to the US Court of Appeals for the Second Circuit to which FKB argued in response that the EDNY had gotten the decision correct and that Plaintiff failed to adequately make out a claim for abuse of process.  The Second Circuit affirmed the District Court’s Decision and dismissed the appeal on the grounds that the appeal “lacked an arguable basis either in law or in fact.”

If you have any questions regarding the above, please feel free to contact Andrew R. Jones and Jason H. Seiler