DOCTRINE OF ABUSE OF PROCESS AND THE RIGHT TO PROCEDURAL DUE PROCESS
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The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. As can be seen from the above passage, the focus of the abuse of process doctrine is on the integrity of the judicial process and not on the motive, however dishonorable, or status of the parties. The word “process” as used in the tort of abuse of process “has been interpreted broadly, and encompasses the entire range of procedures incident to the litigation process.” Thus, it is broad enough to include discovery proceedings, the noticing of depositions and the issuing of subpoenas. Citing Rosen v. Am. Bank of Rolla, 627 A.2d 190, 192 (Pa. Super. 1993)
In Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, the Superior Court of Pennsylvania held that correspondence between a party’s attorney and expert was not discoverable. The court held that the defendant’s subpoena and related interrogatories exceeded the scope of Pennsylvania Rule of Civil Procedure pertaining to discovery of expert testimony. (November 23, 2011)
The Durhams argue that DeVaney’s requirement that the defendants must have initiated the judicial proceedings in which they allegedly abused process is unfair because it allows defendants to abuse process within those proceedings simply because the defendants did not commence them. We agree. (Durham v. Guest).
In Devany, we acknowledge that typical abuses of process involve the misuse of procedures, such as discovery abuses or the improper issuance of subpoenas. (Durham v. Guest).
In addition, on remand, the District Court should take note that an attorney is liable for abuse of process only “when the acts complained of are his own personal acts or acts of other wholly instigated and carried on by him. Hart, 647 A.2d at 553; see also Adelman v. Rosenbaum, 133 Pa.Super. 386, 3 A.2d 15, 18 (1937)
In addition, on remand, the District Court should take note that an attorney is liable for abuse of process only “when the acts complained of are his own personal acts or acts of other wholly instigated and carried on by him. Hart, 647 A.2d at 553; see also Adelman v. Rosenbaum, 133 Pa.Super. 386, 3 A.2d 15, 18 (1937)
The common law tort of abuse of process arises when one uses the court’s process for a purpose other than that for which the process was designed. (5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 459, p. 547; see also Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1463.)
“It has been “interpreted broadly to encompass the entire range of ‘procedures’ incident to litigation.” (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 104, fn. 4 (Barquis ).)“
“[T]he essence of the tort [is] … misuse of the power of the court; it is an act done in the name of the court and under its authority for the purpose of perpetrating an injustice.” (Meadows v. Bakersfield S. & L. Assn. (1967) 250 Cal.App.2d 749, 753.)
To succeed in an action for abuse of process, a litigant must establish that the defendant (1) contemplated an ulterior motive in using the process, and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings. (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1168 (Oren Royal Oaks Venture).)
In re Dubov, 410 N.J. Super. 190 (N.J. Super. 2009) Moreover, in the circumstance, we view an analysis under fairness principles to coincide with a procedural due process analysis, since at its core, due process calls for those procedural protections that fairness demands. See, e.g., New Jersey Dept. of Labor v. Pepsi-Cola Co., 336 N.J.Super. 532, 536, 765 A.2d 760 (App.Div.) (quoting Mettinger v. Globe Slicing Mach. Co., 153 N.J. 371, 389, 709 A.2d 779 (1998)), aff’d, 170 N.J. 59, 784 A.2d 64(2001). See also Rivera, supra, 127 N.J. at 583, 606 A.2d 1087(“Put simply, the citizen facing a loss at the hands of the State must be given a real chance to present his or her side of the case before a government decision becomes final.”)
In Osbekoff v. Mallory, 188 N.W.2d 294 (Iowa 1971), an owner’s vehicle was involved in an accident which was driven by another person. The owner appeared before the mayor who was acting in his role as magistrate, to answer certain criminal charges. The mayor ordered that the possession of the owner’s vehicle will be retained by the mayor until the owner pays off certain civil debts. The owner filed an action against the mayor alleging abuse of process. The court observed that the mayor was not judicially immune from the owner’s lawsuit. The owner’s presence in the mayor’s court to answer to a criminal charge did not give the mayor any jurisdiction to hear and determine the owner’s property rights in the vehicle.” In Holmes v. Electronic Document Processing, Inc., 2013 WL 4456544 (N.D.Cal. 2013), Judge Koh found that an FDCPA/Rosenthal Act claim predicated on ‘sewer service’ of process was not protected by the litigation privilege. See also KEETON ET AL., supra note 9, § 114, at 816-17; cf. Legal Services Corporation Act, 42 U.S.C. § 2996e(f) (2001) (denying legal service lawyers immunity from abuse of process and malicious prosecution claims).See LatAm Invs., LLC v. Holland & Knight, LLP., 88 So.3d 240 (Fla. 3d DCA 2011) (concluding that the application of the litigation privilege to a cause of action for abuse of process does not eliminate that cause of action because the privilege only applies to acts taken during and related to the judicial proceedings).
To the extent Plaintiff attempts to assert a procedural due process claim, such a claim is similarly infirm. To state a claim of a procedural due process violation, a plaintiff must allege (1) an asserted individual interest encompassed within the Fourteenth Amendment’s protection of “life, liberty, or property,” and (2) that the procedures available denied him or her of “due process of law.” Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000) (citing Robb v. City of Phila., 733 F.2d 286, 292 (3d Cir. 1984)).
“Holding that the Due Process Clause requires the responsible government or governmental agency to provide medical care to suspects in police custody who have been injured while being apprehended by the police” Revere v. Massachusetts General Hospital 463 U.S. 239 (1983)
To have a protected property interest, “a person clearly must have more than an abstract need or desire for it” or “a unilateral expectation of it,” but rather must have “a legitimate claim of entitlement to it.” Robb, 733 F.2d at 292. Courts look to state law to determine whether an asserted property interest exists. Dee v. Borough of Dunmore, 549 F.3d 225, 229-30 (3d Cir. 2008).
The court recognized that when an inmate is put in segregated confinement, the failure to conduct a hearing within the time allowed by state regulations may constitute a due process violation, id. at 1143-44 (citing Russell v. Coughlin, 910 F.2d 75, 78 (2d Cir. 1990), and Matiyn v. Henderson, 841 F.2d 31, 36 (2d Cir.), cert. denied, 487 U.S. 1220, 108 S.Ct. 2876, 101 L.Ed.2d 911 (1988))
This opportunity to be heard is all procedural due process requires. See Stanko v. Mahar, 419 F.3d 1107, 1115 (10th Cir.2005) (due process requires “opportunity to be heard at a meaningful time and in a meaningful manner”) (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)) (emphasis added); Boddie v. Connecticut, 401 U.S. 371, 378-79, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) (holding that “the hearing required by due process is subject to waiver”); Miller v. Campbell County, 945 F.2d 348, 354 (10th Cir.1991) (finding no procedural due process violation when plaintiffs were offered but did not use opportunity for hearing). Holding that a “groundless charging decision may abuse the criminal process, but it does not, in and of itself, violate the Fourth Amendment absent a significant restriction on liberty.” Becker v. Kroll 494 F.3d 904 (10th Cir. 2007)
Becker v. Kroll 494 F.3d 904 (10th Cir. 2007)
[1] United States v. Minker 350 U.S. 179 (1956)
[1] 22 U.S. Code § 7102 Definitions (1) Abuse or threatened abuse of law or legal process The term “abuse or threatened abuse of the legal process” means the use or threatened use of a law or legal process, whether administrative, civil, or criminal, in any manner or for any purpose for which the law was not designed, in order to exert pressure on another person to cause that person to take some action or refrain from taking some action.
[1] Coleman-Hill v. Governor Mifflin School District 271 F.R.D. 549, 552 (E.D. Pa. 2010)
https://casetext.com/case/coleman-hill-v-governor-mifflin-school-district-2
[1]
[1] Coercion is defined to include: (A) threats of serious harm to or physical restraint against any person; (B) any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; or (C) the abuse or threatened abuse of law or legal process. https://www.justice.gov/usao/page/file/1008856/download
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