Appeal from dismissal for failure to state a claim upon which relief may be granted, in the United States District Court for the Southern District of New York, John M. Cannella, Judge . Held that district court properly dismissed two federal civil rights counts but erred in dismissing two other counts, the first of which, although mislabelled, sufficiently alleged the tort of abuse of process and the second of which sufficiently alleged the tort of intentional infliction of emotional distress. Reversed and remanded.
Before Feinberg, Chief Judge, Lumbard and Oakes, Circuit Judges.
This case arises out of the age-old conflict between parents and their offspring occurring when the latter affiliate with a new, and perhaps different, sect that at least purports to be religious in nature. Appellants are so-called "deprogrammers" who work on behalf of parents in what they characterize as an effort to restore new converts of unorthodox religious groups to society by dissuading them from their new-found beliefs.*fn1 In this case the deprogrammers have brought suit against the Unification Church of America ("Unification Church"), its president, Neil Salonen, and its leader, Sun Myung Moon. The action was begun after, and partly in response to, a suit in the United States District Court for the Southern District of New York,*fn2 which was filed in the name of, if not actually initiated by, a young adult member of the Unification Church whose parents had sought to have "deprogrammed." After defendants-appellees moved to dismiss this case below for failure to state a claim and for insufficiency of service of process, plaintiffs-appellants moved to consolidate the suit with one brought by Theodore Roosevelt Patrick, Jr., which was making similar claims for relief against the same parties. The United States District Court for the Southern District of New York, John M. Cannella, Judge, not ruling on the motion to consolidate, simply dismissed appellants' complaint for failure to state a ground upon which relief could be granted. The lower court dismissed Patrick's complaint for failure to state a claim and for lack of subject matter jurisdiction. Only Joseph Alexander, Sr., and Esther Alexander appeal. We reverse and remand.
THE DECISION OF THE COURT BELOW
The court below found that service on appellees Unification Church and Moon was insufficient, but properly declined to dismiss the complaint against them on that ground because there may be other means available to effect valid service of process. See Hill v. W. Bruns & Co., 498 F.2d 565, 568 (2d Cir. 1974); Grammenos v. Lemos, 457 F.2d 1067, 1071 (2d Cir. 1972). The court did not grant appellants an opportunity to make proper service, however, because it went on to consider the merits and dismiss the complaint on substantive grounds.
The complaint was in four counts, the first labelled "maintenance," the second "42 U.S.C. § 1985(3)," the third "42 U.S.C. § 1986," and the fourth "intentional infliction of emotional distress." Count One, the "maintenance" claim, referred to the earlier filed and still pending lawsuit, allegedly brought in name only by Wendy Helander, Helander v. Patrick, Civ. No. 77-2401 (S.D.N.Y., filed May 16, 1977) (Lowe, J.), in which Ms. Helander sought $3 million in compensatory damages and $6 million in punitive damages, as well as injunctive relief, under 42 U.S.C. § 1985, 42 U.S.C. § 1983, and Section 40-d of the Civil Rights Law of the State of New York. The count alleged that Ms. Helander was without funds to bring the suit, that all legal expenses were being paid by the appellees, and that Ms. Helander would turn over to the Unification Church any judgment she receives. Appellants further alleged that the Helander suit is only one of approximately a dozen similar suits instituted in Unification Church members' names but maintained by the Church "as part of a general policy to destroy so-called "deprogrammers', and others who had the courage to oppose the viewpoints of the Unification Church." The maintenance count claimed that these arrangements constitute champertous agreements. It also alleged that the appellees were maliciously intermeddling with the Helander suit not for the legitimate purposes outlined in the complaint in that case, but for the purpose of financially destroying appellants and discouraging them from "attempting to assert their constitutional rights."
This count was dismissed on the ground that New York does not recognize champerty as a legal wrong except as provided in a state penal statute, see Lost Lots Associates, Ltd. v. Bruyn, 68 A.D.2d 1006, 415 N.Y.S.2d 99 (1979). The district court held that the statute, set out in the margin,*fn3 is inapplicable here because, with respect to individuals, it applies only to persons engaged directly or indirectly in the business of collection and adjustment of claims, and because it prohibits only the purchase of a claim for the purpose of bringing an action on the claim. Appellees Salonen and Moon were not in the business of collecting claims, and neither they nor the Unification Church purchased or bargained for an assignment of the Helander claim, or any other claims, for the sole purpose of bringing an action. Additionally, the lower court said that the New York penal statute does not authorize a private cause of action for damages, see Coopers & Lybrand v. Levitt, 52 A.D.2d 493, 497, 384 N.Y.S.2d 804, 807 (1976).
The second count, under 42 U.S.C. § 1985(3), charged that appellees formed a conspiracy for the purpose of depriving appellants, by reason of their membership in a class of persons known as "religious counselors," "deprogrammers," or "rehabilitators," of the equal protection of the laws and of the privileges and immunities granted to them under the laws and Constitution of the United States. This count alleged "class based animus" and a malicious intent to deprive appellants of the rights of interstate travel, freedom of speech, free exercise of religion, and freedom of association, as well as the "right to pursue gainful employment." The means allegedly used by appellees were the "maintenance of specious and groundless lawsuits and the use of force, threats of use of force and intimidation." Count Three, based on 42 U.S.C. § 1986, simply alleged that appellees Moon and Salonen had the power to aid in preventing the conspiracy alleged under Count Two but failed or refused to do so. These two federal civil rights claims obviously stand or fall together. They were dismissed on the ground that there was not, as required by Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971), "racial, or perhaps otherwise class-based, invidiously discriminatory animus" behind the alleged conspirators' actions; "deprogrammers" are not cognizable as a class for purposes of Section 1985(3).
Count Four, incorporating all earlier allegations into a claim of intentional infliction of emotional distress, further alleged that "by constant surveillance of the plaintiffs, by having agents patrol the home of plaintiffs, by maintaining in an unlawful manner lawsuits ... with the sole purpose of ruining them financially and emotionally and by other equally outrageous activities which will be more fully developed through discovery," appellees have intentionally, knowingly, and maliciously inflicted "severe emotional distress and grievous mental suffering."
With respect to this count, on the motion to dismiss, the district court quite properly considered the allegations as true, despite the fact that they were lacking in detail and conclusory. The court went on to say that appellants were not entitled to relief, on the facts alleged, under the demanding standard of New York law, which permits recovery for intentional infliction of emotional distress only in cases of "extreme outrage where the tortfeasor's conduct exceeds all bounds of decency usually tolerated by society and is calculated to and does cause mental distress of a serious nature." Cohen v. Varig Airlines, 62 A.D.2d 324, 335, 405 N.Y.S.2d 44, 50 (1978). The court concluded that the conduct alleged in the complaint "cannot be considered extremely outrageous," as required by Fischer v. Maloney, 43 N.Y.2d 553, 557-58, 373 N.E.2d 1215, 1217, 402 N.Y.S.2d 991, 992-93 (1978).
We believe that the dismissal of Count One was erroneous and that the dismissal of Count Four failed to take into account certain allegations made in that count. We also believe that the court should have permitted appellants to amend and allege, as Patrick's amended complaint had alleged, that the appellees had committed a prima facie tort.
Because the parties are citizens of different states, Counts One and Four, if they state claims for relief, may be maintained under diversity jurisdiction.
We agree with the district court's conclusions as to the champerty claim made in Count One, although we believe that the court may have misconceived the issue as simply a question whether appellees' alleged conduct violated the New York penal statute*fn4 outlawing certain types of champerty,*fn5 and, if so, whether a private cause of action is available under the statute.*fn6 Count One liberally construed, however, may assert a claim for abuse of process.*fn7 As this court noted in Weiss v. Hunna, 312 F.2d 711, 716 (2d Cir.), cert. denied, 374 U.S. 853, 83 S. Ct. 1920, 10 L. Ed. 2d 1073 (1963), the tort of abuse of process is recognized not only under the law of most American states but under the law of New York. See, e. g., Board of Education v. Farmingdale Classroom Teachers Association, 38 N.Y.2d 397, 343 N.E.2d 278, 380 N.Y.S.2d 635 (1975); Hauser v. Bartow, 273 N.Y. 370, 7 N.E.2d 268 (1937); Rothbard v. Ringler, 77 N.Y.S.2d 351 (Sup.Ct.1947). The gist of the tort " "is not commencing an action or causing process to issue without justification, but misusing or misapplying process justified in itself for an end other than that which it was designed to accomplish.' " Weiss v. Hunna, 312 F.2d at 717 (quoting W. Prosser, Handbook of the Law of Torts 667-68 (2d ed. 1955)). The New York courts appear to proceed on the reasonable assumption that a ...