UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Robert J. Camm, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 85-3844 ) (CRR) Ralph E. Kennickell, Jr., et al., ) ) Defendants. ) ___________________________________) OPINION OF CHARLES R. RICHEY UNITED STATES DISTRICT JUDGE Before the Court is plaintiffs' motion for summary judgment on the defendant McMahon's counterclaims and for sanctions under Fed. R. Civ. P. 11, as well as the defendant McMahon's motion for partial summary judgment on the counterclaims; plaintiffs' motion to strike defendant McMahon's answer to plaintiff Camm's interrogatories and defendant McMahon's corresponding motion for Rule 11 sanctions; and finally, plaintiffs' motion to reconsider and to vacate summary judgment on plaintiffs' motion to reconsider and to vacate summary judgment on plaintiffs' claim. Upon consideration of the motions, the supporting and opposing legal memoranda, the underlying law, and the entire record in this case, the Court will grant plaintiffs' motion for summary judgment on the defendant McMahon's counterclaim for abuse of process and intentional infliction of emotional distress. The remaining motions will be denied. I. Factual Background The plaintiffs1 filed this suit charging the defendants2 with several common law torts and violations under the First and Fifth Amendments by suspending and disbarring the plaintiffs from doing business with the Government Printing Office ("GPO"). Then Anthony McMahon,3 one of the defendants, filed a counterclaim against the plaintiffs, charging them with abuse of process, intentional infliction of emotional distress, and malicious prosecution. Thereafter, the Court dismissed all of the common law and constitutional tort claims against the defendants.4 In addition, the Court dismissed McMahon's counterclaim for malicious prosecution because he failed to plead special injury.5 Thus, McMahon's counterclaims for abuse of process and intentional infliction of emotional distress were the only remaining live issues in this case. Then the plaintiffs filed a motion for summary judgment on defendant McMahon's counterclaim and for Rule 11 sanctions, as well as a motion to reconsider. The plaintiffs also filed a motion to strike defendant McMahon's answers to interrogatories, and defendant McMahon responded with a motion for Rule 11 sanctions. II. Analysis A. Summary Judgment Rule 56(c) of the Federal Rules of Civil Procedure requires that the Court grant a motion for summary judgment if the pleadings and supporting affidavits and other submissions "show that there is no genuine issue as to any material fact and that moving party is entitled to judgment as a matter of law." Moreover, it is well established that the Court must believe the non-movant's evidence and must draw all justifiable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252. The movant bears the initial responsibility of informing the district court of the basis for its motion for summary judgment, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 1. Abuse of Process Defendant McMahon alleges in his counterclaim that plaintiffs have committed the tort of abuse of process. He argues that the plaintiffs sought to misuse the judicial process by suing him and others personally to attempt to extort sole source contract awards from McMahon's former employer, the GPO. The Court finds that on the record before it defendant McMahon has failed to raise a genuine issue of material fact regarding the elements of this tort. Under District of Columbia law, the test for determining whether a cause of action for abuse of process will lie is: 'Whether the process has been used to accomplish some end which is without the regular purview of the process, or which compels the party against whom it is used to do some collateral thing which he could not legally and regularly be required to do.' Morowitz v. Marvel, 423 A.2d 196, 198 (D.C. 1980) (quoting Jackson v. Thrifty Paper Boxes, Inc., 230 A.2d 710, 711 (D.C. 1967)). In addition to ulterior motive, and claimant must allege and prove that there has been "a perversion of the judicial process and achievement of some end not contemplated in regular prosecution of the charge." Id.; see also McCarthy v. Kleindienst, 741 F.2d 1406, 1411 (D.C. Cir. 1984); Doe v. DiGenova, 642 F. Supp. 624, 631 (D.D.C. 1986). In other words, aside from the causation and damages elements of abuse of process, the essential parts of the breach of duty element are: (1) an ulterior purpose, and (2) a willful act in the use of the process not proper in the regular conduct of the proceeding. See W. Page, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Torts 898 (5th ed. 1984). The plaintiffs seek summary judgment, arguing that defendant McMahon's abuse of process claim has no basis in fact and that they are entitled to judgment as a matter of law. Defendant McMahon asserts that he is entitled to partial summary judgment as to liability on this counterclaim, and alternatively argues that plaintiffs are not entitled to summary judgment because material facts are at issue. The Court finds for the plaintiffs. It is not necessary to decide whether defendant McMahon has carried his burden as to causation and damages elements or the first part of the breach-of-duty element because the Court finds no genuine issue of material fact as to the second part. Despite his assertions of improper conduct by the plaintiffs, defendant McMahon has failed to make a colorable showing of a willful act in the use of the process not proper in the regular conduct of the proceeding. To assert that the plaintiffs had an improper motive in bringing this lawsuit is not enough. Morowitz 423, A.2d at 198-99 (allegation of mere filing of medical malpractice counterclaim and subsequent withdrawal, without more, as proof that patient filed counterclaim with ulterior motive of coercing settlement did not demonstrate that process was, in fact, used to accomplish some end not regularly or legally obtainable so as to support action for abuse of process). In an abuse of process suit, "the mere issuance of process is not actionable, no matter what action may have prompted it; the gist of the action lies in the improper use after issuance." Id. at 198 (quoting Hall v. Hollywood Credit Clothing Co., 147 A.2d 866, 868 (D.C. 1959)). Put differently, "a party's ulterior motive does not make the issuance of process actionable." Epps v. Vogel, 454 A.2d 320, 324 (D.C. 1982). Defendant McMahon's central factual allegations are that the plaintiffs filed the lawsuit to coerce the defendants into awarding the GPO contracts,6 and that plaintiffs suggested through counsel that the suit could be settled if plaintiffs were assured of receiving further contract awards from GPO without competition.7 Yet the law on abuse of process shows that mere questionable motives by the plaintiffs in bringing suit are not enough. Hall, 147 A.2d at 868; Geier v. Jordan, 107 A.2d 440, 441 (D.C. 1954). Neither allegations that plaintiff Camm hoped that defendant McMahon's employer would step in to assist him nor allegedly improper suggestions by the plaintiffs in settlement discussions rise to an abuse of process. Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., 728 P.2d 1202, 1209 (Cal. 1986) (granting summary judgment against plaintiff where plaintiff's abuse of process action alleged that defendants instituted and continued to prosecute environmental suit to coerce a monetary settlement rather than to further environmental concerns); Friedman v. Dozorc, 312 N.W. 2d 585, 594-95 (Mich. 1981) (finding plaintiff's case deficient for failing to demonstrate an act by defendants beyond mere initiation of a lawsuit). Here, plaintiffs did not "accomplish some end which is without the regular purview of the process," nor did they "compel the party against whom it is used to do some collateral thing which he could not legally and regularly be required to do." Morowitz, 423 A.2d at 198. The plaintiffs made a settlement suggestion, and the defendants rejected it. Were this Court to find an abuse of process claim based on the record in this case,8 it could chill the public policies of allowing free access to the courts and encouraging settlement of lawsuits. See id. at 197-198. It is intended and expected that lawyers in our adversary system will in some cases probe the outer bounds of the law and explore unconventional settlement proposals. 2. Intentional Infliction of Emotional Distress Defendant McMahon also alleges in his counterclaim that the plaintiffs have intentionally inflicted emotional distress upon him by filing their lawsuit. Under District of Columbia law, the specific elements of this tort are: (1) the plaintiffs engaged in "extreme and outrageous" conduct that (2) "intentionally or recklessly" (3) caused defendant McMahon "severe emotional distress." Sere v. Group Hospitalization, Inc., 443 A.2d 33, 37 (D.C.), cert. denied, 459 U.S. 912 (1982); see also Howard Univ. v. Best, 484 A.2d 958, 985 (D.C. 1984). The plaintiffs seek summary judgment, arguing that defendant's counterclaim has no basis in fact and that they are entitled to judgment as a matter of law. For his part, defendant McMahon seeks partial summary judgment as to liability on this counterclaim and alternatively argues that summary judgment for the plaintiffs would be inappropriate because there are material facts at issue. First, defendant McMahon generally asserts that there are issues of material fact regarding the elements of this tort. Second, he argues that in any event a prima facie case of intentional infliction of emotional distress has been made on the record before the Court. The Court disagrees with defendant McMahon's contentions. First, the filing of the instant suit and the conduct of the plaintiffs therein is not "extreme and outrageous conduct," and on this element alone the plaintiffs merits summary judgment on defendant McMahon's tort claim. The District of Columbia Court of Appeals has made clear that to be actionable, "conduct must be 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.'" Howard Univ. v. Best, 484 A.2d at 986 (quoting Jackson v. District of Columbia, 412 A.2d 948, 957 (D.C. 1980)). The conduct must be "atrocious and utterly intolerable in a civilized community." Waldon v. Covington, 415 A.2d 1070, 1076 (D.C. 1980). The law does not impose liability for all conduct causing mental distress District of Columbia v. Thompson, 570 A.2d 277, 290 (D.C. 1990). The requirement of intentional or reckless conduct that is outrageous balances the need to prevent the harms of mental distress and the necessity of allowing beneficial activities that nonetheless may cause some harms. Id. ("If the claimed distress is the type people commonly encounter and endure in their lives, the claim should not be submitted to the jury.") (quoting Lee v. Metropolitan Airport Comm'n, 428 N.W.2d 815, 823 (Minn. Ct. App. 1985)). In essence, the conduct defendant McMahon complains of is being sued, receiving a questionable settlement proposal, and having to endure a lengthy lawsuit.9 While the Court is willing to scrutinize this lawsuit and has already dismissed the plaintiffs' claims, it cannot stretch its imagination-or the law-so far as to find that plaintiffs' conduct goes beyond all possible bounds of decency or is atrocious and utterly intolerable in a civilized community. The American system of justice favors free access to the courts as a medium of dispute settlement, and this Court does not wish to chill that privilege for colorable claims. In addition, defendant McMahon has not shown "severe emotional distress" sufficient to establish his claim. As the Restatement (Second) of Torts § 46 comment j puts it: [Intentional infliction of emotional distress exists] only where the emotional distress has in fact resulted and where it is severe... [S]ome degree of transient and trivial emotional distress is a part of the price of living among people. The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The Maryland Court of Appeals has stated that this "element of the tort requires the plaintiff to show that he suffered a severely disabling emotional response to the defendant's conduct." Harris v. Jones, 380 A.2d 611, 616 (Md. 1977). Although defendant McMahon has made several allegations of emotional distress-including insomnia, eczema, gingivitis and the breakdown of his marriage-the record in this case demonstrates that the "severe emotional distress" element of this tort is not met. The defendant claims that he had insomnia for which his physician prescribed Valium. However, Marsha McMahon, the defendant's ex-spouse, stated that he had been using Valium since the 1970's for insomnia. Deposition, p. 10. Moreover, Mr. McMahon's physician stated that he had prescribed Valium for the defendant for insomnia in 1979, 1980, 1981, 1982, 1983, 1984, and 1985. Deposition, pp. 11, 18. Thus, even if the defendant McMahon has suffered from insomnia throughout his life, that condition predated the filing of this lawsuit and was not caused by the plaintiffs' action. Defendant McMahon also claims that the lawsuit caused eczema. However, the defendant's dermatologist, who has treated the defendant since 1981, testified in a deposition that he had seen the defendant in September 1985, and received a single phone call in February 1986, when Mr. McMahon complained of hand eczema. The dermatologist prescribed a medication by telephone and did not see Mr. McMahon until January 1987, when he came in with a different complaint. Deposition pp. 6-8. Mr. McMahon further claims the lawsuit caused gingivitis, but his dentist testified that the gingivitis antedated by several years the filing of the instant law suit. Apparently, after the lawsuit was filed, there was a slight swelling of the gum which did not result in gingivitis and which soon disappeared. Mr. McMahon's physician declared that there was no reoccurrence of the gingivitis since his dentist had asked him to use a water pick in 1982. Deposition, p. 21. Finally, defendant McMahon alleges that the filing of the instant lawsuit led to his divorce. Yet, the defendant's ex-spouse stated that the divorce was caused by a "basic personality conflict that was exaggerated as our marriage went on" and that "the personality conflict is [un]related to the events that might have bearing on this issue." Deposition, pp. 8, 9. Thus, there is no genuine issue of material fact concerning whether defendant McMahon suffered "severe emotional distress." Here too plaintiffs must be granted summary judgment as to defendant McMahon's claim of intentional infliction of emotional distress. B. Plaintiffs' Motion for Rule 11 Sanctions The Court also has before it plaintiffs' motion for sanctions, alleging that, as to defendant McMahon's claims for abuse of process, intentional infliction of emotional distress, and malicious prosecution,10 the law is so clear and the lack of factual basis is so apparent that filing the counterclaim violated Rule 11. It is now well settled that the signature of an attorney on a pleading or motion "constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper [and] that to the best of the signer's knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law." Fed. R. Civ. P. 11. Since Rule 11 was amended in 1983, courts must apply the more stringent objective test of reasonableness under the circumstances at the time as opposed to the old subjective inquiry as to counsel's good faith or lack thereof. Allen v. Utley, 129 F.R.D. 1, 3 (D.D.C. 1990) (citing Westmoreland v. CBS, 770 F.2d 1168, 1177 (D.C. Cir. 1985)). Under Rule 11, attorneys have an affirmative duty to conduct a reasonable inquiry before concluding that a motion, pleading, or other paper is well grounded in fact. Danik, Inc. v. Hartmarx Corp., 875 F.2d 890, 985-96 (D.C. Cir. 1989); Allen, 129 F.R.D. at 3-6. "To state as a fact what is at best a guess and a hope, or is an extravagant inference based on a vague recollection, violates the rule." 5A Wright & Miller, Federal Practice and Procedure § 1335 at 66-67. However, Rule 11 only requires a reasonable inquiry; the challenged attorney or party cannot be held to what might be required by an exhaustive inquiry. Id. Sanction will not be imposed when factual errors are not critical and the surrounding circumstances indicate that counsel did conduct a reasonable inquiry. Id. Although defendant McMahon's claims for abuse of process and intentional infliction of emotional distress cannot survive summary judgment, the Court finds that on this record there is a sufficient basis for these claims to avoid the imposition of sanctions. Based on the record before the Court, it appears that at the time the counterclaim was filed in May 1986, counsel had some grounds to believe it was reasonable. Although discovery ultimately did not produce facts sufficient to prevail on those claims, the counterclaim is not so lacking in factual basis or so unwarranted by existing law as to violate Rule 11. C. Plaintiff's Motion to Strike The Court also has before it plaintiffs' motion to strike and defendant McMahon's opposing motion for Rule 11 sanctions. Plaintiffs argue that counsel for defendant McMahon failed to sign the defendant's answers to the plaintiffs' interrogatories, as is required by Fed. R. Civ. Pro. 26(g). Plaintiffs argue that even after they pointed this matter out twice in their memorandum in support of their motion for summary judgment, counsel for the defendant still failed to sign the answers. However, counsel for defendant McMahon disputes plaintiffs' characterization, and the Court need not labor over plaintiffs' contentions on this issue. Because this Court's rulings announced herein on other dispositive motions will extinguish the remaining live issues in this case, plaintiffs motion to strike is moot and will be denied. Moreover, the Court will deny defendant McMahon's motion for sanctions under Fed. R. Civ. P. 11 because the Court does not find plaintiffs' motion to strike so unsupported in fact or upon existing law as to warrant sanctions. D. Motion for Reconsideration Finally, the Court must rule on plaintiffs' motion to reconsider and to vacate summary judgment on plaintiffs' claim. The plaintiffs request that the Court vacate its grants of summary judgment on November 3, 1986, and July 23, 1987, for the defendant on plaintiffs' claims. The plaintiffs argue that the Court erred in dismissing their due process claims and that the Court should hold that there is an action for damages for the alleged violation of plaintiff Camm's right to grand jury secrecy. The Court will deny plaintiffs' motion for several reasons. First, plaintiffs have not demonstrated a due process violation. Although plaintiff Camm claims that upon receipt of the June 18, 1984, suspension notice he had no idea whatever of the overt acts supporting the charge, this notice was based on a lengthy investigation by the GPO's Office of Inspector General in which Mr. Camm participated. Plaintiff Camm also complains that the GPO delayed providing a detailed statement of the overt acts underlying the suspension based on the "bogus ground'' that the Justice Department was still considering criminal action. However, the record shows that the GPO did not receive formal notification from the Justice Department until September 6, 1984, and shortly thereafter GPO complied with the notice and hearing requirements of its regulations. Although plaintiff Camm complains that he was maliciously denied an adequate hearing, the record indicates he reached a settlement prior to his scheduled hearing and opted to forego his opportunity to respond to the charges in front of a neutral adjudicator.11 The plaintiff also fails to substantiate his allegations of unfairness and manipulation of the suspension and debarment proceedings. Second, the Court does not find sufficient reasons to reconsider its conclusion that plaintiffs waived any due process claims by entering into a settlement of debarment. The Court reaffirms its July 23, 1987, Opinion which concluded that the settlement agreement resulting in plaintiffs' one year debarment extinguished any right to complain of the events surrounding the suspension. Third, plaintiffs cannot maintain a Bivens claim based upon an alleged violation of Fed. R. Crim. P. 6(e). Even assuming arguendo that there was a breach of grand jury secrecy in the events underlying this case, the plaintiffs have not shown that they may maintain an action for money damages based on a breach of Rule 6(e). As this Court stated, grand jury secrecy "is not a constitutional demand, but a creature of the Federal Rules of Criminal Procedure." November 3, 1986, Opinion at 11. Although courts have allowed targets of grand jury investigations to seek injunctive relief to protect against future disclosures of grand jury information, Blalock v. United States, 844 F.2d 1546 (11th Cir. 1988), plaintiffs fail to provide persuasive authority for the proposition that an individual may maintain a cause of action for money damages based upon a breach of Rule 6(e)'s requirement of grand jury secrecy. Finally, plaintiffs have not succeeded in demonstrating as to any of their claims that the defendants are not entitled to qualified immunity. Anderson v. Creighton, 483 U.S. 635, 638 (1987). Government officials, such as defendant McMahon and the other defendants who have been involved in this case, perform their discretionary functions with a qualified immunity which shields them from civil damages liability so long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated. Id.; Malley v. Briggs, 475 U.S. 335, 341 (1986); Mitchell v. Forsyth, 472 U.S. 511, 528 (1985). As a general rule, whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action depends on the "objective legal reasonableness" of the action assessed in light of the legal rules that were clearly established at the time it was taken. Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). Although the official conduct need not previously have been held unlawful to be actionable, in the light of the preexisting law, the unlawfulness of the official conduct must be apparent. Anderson, 483 U.S. at 640. As this Court previously stated, plaintiff Camm's due process claim regarding his suspension and debarment must fail because, although a suspended government contractor is entitled to notice of the alleged malfeasance to clear his or her name, Old Dominion Dairy Products, Inc. v. Secretary of Defense, 631 F.2d 953, 963 (D.C. Cir. 1980), plaintiff Camm was given an adequate opportunity to present his story and to clear his name and that of the corporation of which he was president. July 23, 1987, Opinion at 4. As to plaintiffs' breach of grand jury secrecy claim, such a breach is not a constitutional violation and therefore is not a proper predicate for a constitutional tort claim. November 3, 1986, Opinion at 11. Finally, plaintiffs fail to persuade this Court that it should fashion an action for money damages to compensate plaintiffs for the alleged violation of their right to grand jury secrecy. III. Conclusion Today, the Court grants plaintiffs' motion for summary judgment on defendant McMahon's counterclaim for abuse of process and intentional infliction of emotional distress. The Court also denies plaintiffs' motion for Rule 11 sanctions, plaintiffs' motion to strike and defendant McMahon's motion for Rule 11 sanctions. Finally, the Court denies plaintiffs' motion to reconsider and to vacate summary judgment on plaintiffs' claim. Thus, the remaining live issues in this case have been extinguished. The Court will issue an Order of even date herewith memorializing these findings. November 20, 1990 CHARLES R. RICHEY UNITED STATES DISTRICT JUDGE _______________ 1 The plaintiffs are Quadra Graphics, Inc., a Pennsylvania corporation with its principal place of business in New Jersey and Robert J. Camm, the president and 50 percent shareholder of Quadra Graphics, Inc. 2 The defendants were officials at the Government Printing Office involved in an investigation of alleged improprieties by the plaintiffs in their dealings with employees of the Philadelphia Regional Printing Procurement Office, an arm of the GPO from which the plaintiffs sought government contracts. 3 Anthony McMahon was employed by GPO from January 17, 1983, until July 18, 1985. During the acts plaintiffs complain of, he was Deputy General Counsel of GPO. 4 See November 3, 1986, Opinion (dismissing plaintiffs' common law claims and constitutional tort claims that defendants violated their first amendment rights and fifth amendment interests in reputation) and July 23, 1987, Opinion (dismissing plaintiffs' constitutional tort claim that defendants violated due process before suspending their government contracts). 5 See July 23, 1987, Opinion at p. 8-9. 6 Although defendant McMahon contends otherwise, the record is not clear as to plaintiffs' motives for suing him. For example, when plaintiff Camm was asked at his March 28, 1989, deposition whether he thought GPO would protect its employees from suit by awarding contracts to Quadra Graphics, plaintiff Camm responded, "Absolutely not." Deposition, p. 32. 7 Although defendant McMahon has alleged that the plaintiffs were seeking to force improper official acts by suing him, it is unclear how plaintiffs could have succeeded at the time defendant McMahon filed his abuse of process claim, given that he was no longer employed at GPO at the time he filed his counterclaim in May 1986. 8 Although the Court previously held in its July 23, 1987, Opinion that defendant McMahon's claims for abuse of process and intentional infliction of emotional distress could survive a motion to dismiss by plaintiffs pursuant to Fed. R. Civ. P. 12(b) (6), the claims fail to survive dismissal under plaintiffs' motion for summary judgment based on the record subsequently developed. 9 Defendant McMahon's other complaints as to plaintiffs' commission of multiple felonies, settlement of the suspension and debarment case, and plaintiffs' acceptance of benefits of settlement are not relevant to defendant McMahon's counterclaim. 10 In its Opinion of July 23, 1987, this Court dismissed defendant McMahon's claim for malicious prosecution for failure to plead special injury. 11 In a September 13, 1989, deposition of William winning, plaintiffs' counsel during the events in question, defense counsel asked Mr. Winning whether he believed GPO purposely or deliberately delayed in providing Mr. Camm with a suspension hearing. Mr. Winning responded, "I don't think that there was any intentional or malicious conduct on anybody's part to deprive Mr. Camm of his right to have a hearing." Deposition, p. 62.