Abuse of Process Examined

Combating bullies has recently become a trending topic, particularly with the rise of bullying on social media.  However, in the legal world, bullies also run the risk of being sanctioned, as a recent fashion copyright infringement case illustrates.  The suit, filed by graffiti artist RIME against fashion label Moschino, alleges illegal copying of a design.  In response to the designers’ motion to dismiss, RIME filed its own motion, based in part on abuse of process.  According to RIME, the designers’ motion to dismiss is a tactical and intentional attempt to scare and burden RIME in the hope that he will retract his lawsuit.

The motion states: “Defendants’ everything-but-the-kitchen-sink motions could only have been designed to create work and expense, and to demonstrate to [RIME] what he is in for if he continues to maintain this action.” This suit serves as an important reminder for all attorneys that the legal process must only be used for proper, legitimate means.  If it is not, your adversary could slap you with an abuse of process claim.

Abuse of process occurs when a party uses a legal process against another primarily to accomplish a purpose for which it is not designed.  In such a case, the offending party is subject to liability to the other for harm caused by the abuse.  Abuse of process is different than malicious prosecution, as the latter concerns a meritless lawsuit and all of the damage it caused.  By contrast, abuse of process concerns misuse of the tools the law affords litigants once they are in a lawsuit, regardless of whether there was probable cause to commence that lawsuit in the first place.

The term “process” in this context has been broadly interpreted to encompass the entire range of procedures incident to litigation, a “catch-all” of all improper uses of the judicial machinery that do not fit within the related action of malicious prosecution.

An “improper purpose” can be explained as follows – although a party had a technical right to use the legal process, he or she did so to extort something else from his adversary, as allegedly occurred in the Moschino suit.  An improper purpose can include obtaining a benefit totally extraneous to or of a result not within its legitimate scope.  However, mere ill will against the adverse party in the proceedings does not suffice.

Behind the scenes. The first element of an abuse of process claim is the existence of an ulterior motive underlying the use of process.  Is the only purpose in using the pleading/discovery/tactic an improper one, i.e., attempting to coerce your adversary to drop the case?  The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat.

Cruel intentions. To succeed on an abuse of process claim, your adversary must have committed some willful act in a wrongful manner when using the legal process.  Generally, an action lies only where the process is used to obtain an unjustifiable collateral advantage.  Consequently, mere harassment is not recognized as an objective sufficient to give rise to the tort.  By contrast, engaging in wrongful use of discovery in an attempt to coerce your adversary to settle, or attempting to tie up property in a divorce proceeding in order to force the opposing spouse to agree to certain visitation rights, might fit the abuse of process bill.


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