Serving Rule 11 Motion on Opposing Counsel Not Considered “Process” for Abuse of Process Claim

In Montpelier v. Moncier, No. E2016-00246-COA-R3-CV (Tenn. Ct. App. June 1, 2017), the Tennessee Court of Appeals affirmed dismissal of an abuse of process claim.

The background of this case was fairly unique, as it involved attorneys suing another attorney due to defendant attorney’s actions in an underlying case. Plaintiff attorneys had removed the underlying case to federal court and filed a notice of removal with the state court. Within 24 hours after the notice of removal was filed, defendant attorney served a Rule 11 motion on plaintiffs in the state court case. The Rule 11 motion, however, was never filed with the court, but only served on plaintiffs.*

Plaintiffs filed this abuse of process claim based on the Rule 11 motion served by defendant. Plaintiffs asserted that defendant was using Rule 11 improperly to attempt to fee-shift and that he committed an “intentional abuse of process” by refusing “to file the Rule 11 motions until he first determines how the underlying ‘offending’ pleading is decided.” Plaintiffs argued that defendant used his Rule 11 motion as an “open-ended threat of obtaining money from his adversaries and their attorneys unless they withdrew facts and claims,” and that he “primarily sought to increase the burden and expense of litigation[.]” Further, plaintiffs argued that the proper place for defendant to have filed this particular Rule 11 motion was federal court, but that defendant could not comply with the proper filing because he was disbarred from the federal court.

Defendant, on the other hand, asserted that an abuse of process claim could not stand here because he only served the Rule 11 motion on opposing counsel and did not file it with the court. He argued that “a Rule 11.03(1)(a) safe harbor motion served but unfiled is not process within the meaning of state statutes or Rule 4 of the Tennessee Rules of Civil Procedure.”

The trial court agreed with defendant, dismissing the case, and the Court of Appeals affirmed.

In its analysis, the Court noted that “an action for abuse of process lies for the use of legal process to obtain a result that it was not intended to effect, for a wrongful purpose.” (internal citation omitted). The Court cited one of its previous cases where it found “that the mere filing of a motion or document by a party is not automatically considered process within the context of a claim for abuse of process.” (internal citation omitted). While noting that “[o]ther states have defined ‘process’ more broadly,” the Court here decided to adhere to the more narrow definition. The Court ultimately held that serving the motion on plaintiffs did not constitute “process.” The Court found that while plaintiffs had “arguably met the pleading requirement that [defendant] had an ulterior motive,” “there was no use of process sufficient to sustain the cause of action.” Because the Court found no “improper use of the court’s authority,” it affirmed dismissal of the case.

Judge Swiney wrote a short dissenting opinion, stating that he believed “the complaint sufficiently alleges that [defendant’s] use, and specifically the manner of his use of Rule 11 of the Tennessee Rules of Civil Procedure, was not done for legitimate or reasonably justifiably purposes of advancing his clients’ litigation but instead for improper purposes[.]” The majority opinion quoted quite extensively from Givens v. Mullikin, 75 S.W.3d 383 (Tenn. 2002), where the Tennessee Supreme Court “ruled that a claim for abuse of process was made out by a law firm’s use of discovery subpoenas, depositions, and interrogatories[.]” Judge Swiney opined in his dissent that the serving of the Rule 11 motion here was “equivalent for our analysis to the alleged misuse of discovery in Givens.” Thus, he would have allowed the claim to move forward.

It will be interesting to see whether this case is appealed to and taken up by the Supreme Court. It appears there is a lack of clarity over what exactly can constitute “process” for an abuse of process claim, and a Supreme Court opinion in this case could provide guidance on this issue.


*Rule 11 provides that a motion thereunder “shall not be filed with or presented to the court unless, within 21 days after service of the motion…, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.”

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