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Big Cat Rescue Corp. v. Schreibvogel

United States District Court, W.D. Oklahoma

September 11, 2017

BIG CAT RESCUE CORP., a Florida not-for-profit corporation, Plaintiff,
v.
SHIRLEY M. SCHREIBVOGEL, an individual, and GREATER WYNNEWOOD DEVELOPMENT GROUP, LLC, Defendants.

          ORDER

          VICKI MILES-LaGRANGE, UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Shirley Schreibvogel's (“Schreibvogel”) Motion for Leave of Court to File Counterclaim Against Plaintiff, filed October 27, 2016. On November 17, 2016, Big Cat Rescue responded, and on November 28, 2016, Schreibvogel replied. Also before the Court is Plaintiff's Motion to Dismiss Defendant Greater Wynnewood Development Group, LLC's Counterclaim for Failure to State a Claim, and Motion to Strike Certain Affirmative Defenses Asserted by Defendant Greater Wynnewood Development Group, LLC, and Brief in Support, filed October 31, 2016. On November 21, 2016, defendant, Greater Wynnewood Development Group, LLC (“Greater Wynnewood D.G.”), responded, and on November 30, 2016, plaintiff Big Cat Rescue (“Big Cat Rescue”) replied. Based on the parties' submissions, the Court makes its determination.

         I. Introduction

         On August 22, 2016, Big Cat Rescue filed its First Amended Complaint against Schreibvogel and Greater Wynnewood D.G. alleging: (1) fraudulent transfers/conveyances - actual fraud (Schreibvogel only); (2) fraudulent transfers/conveyances - constructive fraud (Schreibvogel only); (3) constructive trust; and (4) equitable lien. On September 14, 2016, Schreibvogel filed her Answer; and on October 10, 2016, Greater Wynnewood D.G. filed its Answer and Counter Claim alleging abuse of process against Big Cat Rescue. Schreibvogel now seeks leave from the Court to file a counter claim against Big Cat Rescue for abuse of process. Big Cat Rescue objects to Schreibvogel filing a counter claim for abuse of process and, further, seeks to dismiss Greater Wynnewood D.G.'s counter claim for abuse of process, pursuant to Federal Rule of Civil Procedure 12(b)(6), and moves to strike certain affirmative defenses asserted by Greater Wynnewood D.G., pursuant to Rule 12(f).

         II. Discussion

         A. Motion to Dismiss Counter-Claim

         Regarding the standard for determining whether to dismiss a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), the United States Supreme Court has held:

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement, ” but it asks for 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.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citations omitted). Further, “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.” Id. at 679 (internal quotations and citations omitted). Additionally, “[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Id. at 678 (internal quotations and citations omitted). “While the 12(b)(6) standard does not require that Plaintiff establish a prima facie case in her complaint, the elements of each alleged cause of action help to determine whether Plaintiff has set forth a plausible claim.” Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012). Finally, “[a] court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).

         “The quintessence of abuse of process is not the wrongfulness of the prosecution, but some extortionate perversion of lawfully initiated process to illegitimate ends.” Greenberg v. Wolfberg, 890 P.2d 895, 905 (Okla. 1994) (internal citation omitted). In order to allege an abuse of process claim, Greater Wynnewood D.G. must allege that Big Cat Rescue improperly used the Court's process primarily for an ulterior or improper purpose which resulted in damage to Greater Wynnewood D.G. See Id. “To establish the element of improper use of the process, it is clear that the plaintiff must show some definite act or threat by the defendant not authorized by the process.” Meyers v. Ideal Basic Indus., Inc., 940 F.2d 1379, 1382 (10th Cir. 1991) (citing Gore v. Taylor, 792 P.2d 432, 435 (Okla.Ct.App.1990)).

         Big Cat Rescue contends that Greater Wynnewood D.G.'s counter claim should be dismissed because the only willful act in the use of process that Greater Wynnewood D.G. attributes to Big Cat Rescue is the fact it filed this lawsuit. Big Cat Rescue contends that Greater Wynnewood D.G. has failed to identify some definite act or threat involving the Court's process. In its counter claim, Greater Wynnewood D.G. alleges that:

[Big Cat Rescue] has filed this lawsuit against Greater Wynnewood [D.G.] in an effort to coerce Greater Wynnewood [D.G.] to surrender property and/or pay the debts of Joe Schreibvogel, G.W.
Exotic Animal Memorial Foundation and The Garold Wayne Interactive Zoological Foundation.
Greater Wynnewood [D.G.] is not liable for the debts of Joe Schreibvogel, G.W. Exotic Animal Memorial Foundation and the Garold Wayne Interactive Zoological Foundation, and Greater Wynnewood ...

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