Tort/Negligence – Malicious Prosecution – Unfair & Deceptive Trade Practices – Civil Conspiracy

Kirkman v. Tison.  (Lawyers Weekly No. 10-03-0854, 14 pp.) (L. Patrick Auld, USMJ). M.D.N.C.

Holdings: In claims relating to the defendants’ alleged involvement in procuring a misdemeanor summons charging the plaintiff with sending harassing e-mail, the plaintiff pled facts sufficient to support the elements of claims of malicious prosecution, unfair and deceptive trade practices and civil conspiracy, therefore those claims should not be dismissed pursuant to Rule 12(b)(6).

The motion to dismiss under Rule 12(b)(2) of individual defendants should be denied because the actions they were alleged to have taken – even if taken in their capacity as officers, agents and board members of a company – warrant the court’s exercise of personal jurisdiction over them in this case.

Facts

  The plaintiff filed a complaint in Forsyth County alleging state-law causes of action for malicious prosecution, libel per se, violation of North Carolina’s unfair and deceptive trade practices statute and civil conspiracy. The plaintiff’s claims all relate to the defendants’ alleged involvement in the procuring of a misdemeanor criminal summons charging the plaintiff with sending harassing e-mail.

The defendants removed this case to this court based on diversity jurisdiction and then filed the instant motion to dismiss.

Malicious Prosecution

The defendants seek dismissal of the complaint for failure to state a claim under Rule 12(b)(6).

Under N.C. law, the elements of a malicious-prosecution claim consist of (1) initiation of a criminal proceeding by defendant; (2) malice on the part of the defendant in doing so; (3) lack of probable cause for bringing the criminal proceeding; and (4) termination of the criminal proceeding in favor of the plaintiff.

The defendants assert that the plaintiff failed to state a claim for malicious prosecution because “the dismissal document attached to the plaintiff’s complaint does not suggest that the defendants lacked probable cause in initiating the criminal complaint against the plaintiff.”

The defendants noted that the prosecutor “did not select the box on the dismissal form that states, ‘There is insufficient evidence to warrant prosecution.'”

The absence of such a mark fails to demonstrate as a matter of law that probable cause existed. The defendants’ argument in this regard thus does not warrant dismissal of the plaintiff’s malicious prosecution claim under Rule 12(b)(6).

 Unfair & Deceptive Trade Practices

In the context of making the unfair-and-deceptive-trade-practices claim, the plaintiff expressly incorporated into said claim all of the factual contentions in the prior portions of the complaint, including information regarding the defendants’ initiation of a criminal charge against the plaintiff in a manner that the prosecutor deemed not to state an offense, as well as the competitive relationship between the defendant CRBG, Inc. and the plaintiff.

Accordingly, the court should reject the defendants’ request for dismissal based on the complaint’s alleged failure to provide “any facts or details” in support of the UDTPA claim.

Civil Conspiracy

Only where there exists a separate, but underlying claim for unlawful conduct, may a plaintiff state a claim for civil conspiracy.

The defendants argued that the plaintiff’s civil conspiracy claim should be dismissed because the underlying “malicious prosecution” claim was not pled with facts that could support the elements of the claim.

The defendants failed to show that the plaintiff’s malicious prosecution claim should be dismissed, so their attack on the civil conspiracy claim likewise fails.

12(b)(2) Motion to Dismiss

The individual defendants sought dismissal of the complaint as to each of them for lack of personal jurisdiction under Rule 12(b)(2).

The plaintiff’s complaint contains specific allegations that the individual defendants procured the criminal summons charging the plaintiff with an offense from an N.C. state magistrate. Given these allegations, the position of the individual defendants lacks any plausible basis, and the court should deny their request for dismissal predicated on that contention.

It is recommended that the defendants’ motion to dismiss under Rule 12(b)(6) be denied. It is recommended that individual defendants’ motion to dismiss under Rule 12(b)(2) be denied.