MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS
The court has jurisdiction over this action pursuant to 28 U.S.C. § 1332. The parties are citizens of different States; Plaintiff, Michael Owens ("Plaintiff"), was and still is a resident of the State of California, County of Tulare and Defendant, Stephen B. Chasko ("Defendant"), is a resident of State of Pennsylvania, community of Newmanstown. The parties agree that more than $75,000 is in controversy.
On March 22, 2011, Plaintiff filed his First Amended Complaint ("complaint") for Damages. Count One alleges Abuse of Process - Misuse of the discovery process to shock, humiliate, and embarrass. Count Two alleges Abuse of Process - Misuse of the discovery process to obtain information relating to the Hamilton Cove Homeowners Association. Count Three alleges Abuse of Process - Improper filing of an action in Pennsylvania. Count Four alleges Intentional Infliction of Emotional Distress.
On April 8, 2011, Defendant filed a motion to dismiss. Defendant contends that the complaint fails to allege sufficient facts to support Defendant's alleged ulterior motive concerning the service of discovery. Defendant contends that no abuse of process claim can be based on the filing of an alleged improper action in Pennsylvania. Defendant contends Plaintiff's intentional infliction of emotional distress claim fails to allege outrageous conduct.
On May 16, 2011, Plaintiff filed an opposition to the motion to dismiss.
On May 23, 2001, Defendant filed a reply brief.
The court determined this matter suitable for decision without oral argument, and took the matter under submission on May 27, 2011.
Under Federal Rule of Civil Procedure 12(b)(6)a claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In reviewing a complaint under Rule 12(b)(6) all of the complaint's material allegations of fact are taken as true, and the facts are construed in the light most favorable to the non-moving party. Marceau v. Balckfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1999). The court must also assume that general allegations embrace the necessary, specific facts to support the claim. Smith v. Pacific Prop. and Dev. Corp., 358 F.3d 1097, 1106 (9th Cir. 2004). However, the court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Although they may provide the framework of a complaint, legal conclusions are not accepted as true and "[t]hreadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). As the Supreme Court has explained:
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949.
The plausibility standard is not akin to a 'probability requirement,' but it asks more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of 'entitlement to relief.' . . .
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. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not shown -- that the pleader is entitled to relief.
Iqbal, 129 S.Ct. at 1949-50. "In sum, for a complaint to survive a motion to dismiss, the nonconclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
The complaint alleges that, in January of 2009, Defendant initiated a lawsuit by filing a complaint in the Court of Common Pleas, located in West Chester, Pennsylvania, against Plaintiff, a resident of the County of Tulare, City of Visalia, State of California ("Pennsylvania action"). To date, Defendant has never served Plaintiff with a summons or a copy of the complaint that was filed in Pennsylvania.
The complaint alleges that on or about March 5, 2009, Defendant served written discovery requests via facsimile, including form interrogatories and a request for the production of documents ("discovery requests"), upon Plaintiff at his business, Pacific West Controls, Inc., located in Visalia, California. The discovery requests concerned information for the Pennsylvania action and were entitled ". . . . Chasko's First Set of Interrogatories and Request for Documents to . . . . Owens." The complaint alleges that Defendant misused the legal process by serving discovery requests via facsimile to Plaintiff's business in California without having served Plaintiff with a copy of the summons ...