19-3441 Manhattan Enterprise Group LLC v. Higgins

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

1 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 2 SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY 3 FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN 4 CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE 5 EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION 6 “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON 7 ANY PARTY NOT REPRESENTED BY COUNSEL.

8 At a stated term of the United States Court of Appeals for the Second Circuit, held at 9 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 10 on the 1st day of June, two thousand twenty. 11 12 PRESENT: 13 BARRINGTON D. PARKER, 14 SUSAN L. CARNEY, 15 STEVEN J. MENASHI, 16 Circuit Judges. 17 _________________________________________ 18 19 MANHATTAN ENTERPRISE GROUP LLC, D/B/A 20 MANHATTAN ELITE PREP AND TRACY YUN, 21 22 Plaintiffs-Appellants, 23 24 v. No. 19-3441 25 26 THOMAS P. HIGGINS AND JOERN MEISSNER, 27 28 Defendants-Appellees. 29 _________________________________________ 30 31 FOR APPELLANTS: TRACY YUN, pro se, New York, NY. 32 33 JUSTIN KUEHN, Moore Kuehn, PLLC, 34 New York, NY. 35 1 FOR APPELLEES: THOMAS P. HIGGINS, Higgins & Trippett 2 LLP, New York, NY. 3 4 Appeal from a judgment of the United States District Court for the Southern District 5 of New York (Broderick, J.).

6 UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 7 ADJUDGED, AND DECREED that the judgment entered on September 23, 2019, is 8 AFFIRMED.

9 Plaintiffs-Appellants Tracy Yun and Manhattan Enterprise Group LLC (together, 10 “Plaintiffs”) appeal from the judgment of the United States District Court for the Southern 11 District of New York (Broderick, J.) dismissing their state-law claim for abuse of process 12 against Defendants-Appellees Thomas Higgins and Joern Meissner (together, 13 “Defendants”). We assume the parties’ familiarity with the underlying facts, procedural 14 history, and arguments on appeal, to which we refer only as necessary to explain our decision 15 to affirm.

16 The following statement of facts is drawn from the allegations in the Amended 17 Complaint, which we must take as true for the purposes of this appeal. In 2005, Yun and 18 Meissner formed Manhattan Review LLC, a Delaware company that offered test preparation 19 and admissions consulting for college and graduate school applicants. Meissner began 20 embezzling funds from the company, however, leading Yun to cancel Manhattan Review in 21 December 2011. Shortly thereafter, Yun started Manhattan Enterprise Group LLC (d/b/a 22 Manhattan Elite Prep), a new test preparation company.

23 Several months later, in March 2012, Meissner filed suit in New York State Supreme 24 Court, accusing Yun of “stealing” assets from Manhattan Review. App’x 35 (internal 25 quotation marks omitted). Over the next five years, Meissner initiated six additional legal 26 proceedings against Plaintiffs and/or their employees and associates. Defendant Thomas P. 27 Higgins, a named partner at Higgins & Trippett LLP, represented Meissner in these lawsuits.

28 On July 15, 2018, Plaintiffs filed this diversity action against Defendants, asserting a 29 claim for abuse of process under New York law. According to the Amended Complaint,

2 1 Defendants have waged a “bad faith and vexatious litigation campaign against Plaintiffs,” 2 bringing “frivolous” and “duplicative” lawsuits that relitigate the same set of issues in 3 different forums. App’x 21-23, 36. The goal of these civil actions, Plaintiffs assert, is to sue 4 Manhattan Enterprise Group “out of its existence, by forcing [Plaintiffs] to expend 5 exorbitant legal costs.” App’x 28. Plaintiffs allege that they have spent “hundreds of hours” 6 and roughly $450,000 on defending themselves in these various legal proceedings. App’x 41- 7 42.

8 In September 2019, the District Court granted Defendants’ motion to dismiss the 9 Amended Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, rejecting 10 Plaintiffs’ contention that an abuse-of-process claim could be predicated on the filing and 11 prosecution of multiple civil lawsuits. We now review that decision de novo. See Montero v. City 12 of Yonkers,

(2d Cir. 2018).

13 Under New York law, “a malicious abuse-of-process claim lies against a defendant 14 who (1) employs regularly issued legal process to compel performance or forbearance of 15 some act (2) with intent to do harm without excuse or justification, and (3) in order to obtain 16 a collateral objective that is outside the legitimate ends of the process.” Savino v. City of New

F.3d 63, 76 (2d Cir. 2003) (internal quotation marks omitted). Although the torts 18 of abuse of process and malicious prosecution are “frequently confused,” they constitute 19 distinct causes of action: whereas malicious prosecution concerns the issuance of process 20 without justification, abuse of process concerns the use of lawfully issued process to 21 accomplish some unjustified purpose. See Bd. of Educ. of Farmingdale Union Free Sch. Dist. v. 22 Farmingdale Classroom Teachers Ass’n, Inc., Local 1889,

,

(1975) (“Farmingdale”). “The gist of the action for abuse of process,” the New York Court of 24 Appeals has said, “lies in the improper use of process after it is issued.” Williams v. Williams, 25

,

(1969) (internal quotation marks omitted). However, 26 the Court of Appeals has also rejected a holding “that abuse of process requires some 27 improper conduct after issuance of process” because “nothing” in its precedents “would 28 seem to preclude an abuse of process claim based on the issuance of the process itself.” 29 Parkin v. Cornell Univ.,

,

(1991).

3 1 Here, the District Court correctly dismissed the Amended Complaint insofar as it was 2 predicated upon the filing of lawsuits. The core of Plaintiffs’ grievance is that Defendants 3 filed and prosecuted a series of duplicative, frivolous, and malicious lawsuits aimed at 4 harassing Plaintiffs and draining their resources. Under New York law, however, the mere 5 “institution of a civil action by summons and complaint is not legally considered process 6 capable of being abused.” Curiano v. Suozzi,

,

(1984). 7 The New York Court of Appeals has explained that, to qualify as legal process for purposes 8 of an abuse-of-process claim, the court-issued writ must not only “direct[] or demand that 9 the person to whom it is directed shall perform or refrain from the doing of some prescribed 10 act,” but also “interfere[] with one’s person or property.” Williams,

(internal 11 quotation marks omitted). Because no such interference flows from the issuance of a civil 12 summons, the commencement of a civil action cannot, by itself, support a plaintiff’s claim 13 for abuse of process, even when the civil action was “intended to cause the plaintiff[] 14 expense and to burden [him] with the defense of a protracted legal proceeding.” Curiano, 63 15 N.Y.2d at 116 (internal quotation marks omitted); see also Williams,

. Given 16 the disinclination of New York courts to say that the institution of a frivolous lawsuit is 17 actionable as abuse of process, we decline to adopt Plaintiffs’ novel argument that those 18 courts would treat the aggregation of such suits differently. See Travelers Ins. Co. v. 633 Third 19 Assocs.,

(2d Cir. 1994) (“Where the substantive law of the forum state is 20 uncertain or ambiguous, the job of the federal courts is carefully to predict how the highest 21 court of the forum state would resolve the uncertainty or ambiguity.”).

22 For similar reasons, Plaintiffs cannot successfully rest their abuse-of-process claim on 23 Defendants’ use of appeals, objections, and motions to prosecute their civil lawsuits against 24 Plaintiffs. See PSI Metals, Inc. v. Firemen’s Ins. Co. of Newark,

(2d Cir. 1988) 25 (concluding that, under New York law, “there could be no abuse of process claim where the 26 only process employed by the defendant was the filing of an answer and counterclaim”). 27 Those various court filings do not qualify as legal process because these mechanisms do not 28 require Plaintiffs to “perform or refrain from the doing of some prescribed act” and are no 29 more encumbering of Plaintiffs’ persons or property than a civil summons and complaint.

4 1 Julian J. Studley, Inc. v. Lefrak,

,

(1977) (holding that a 2 defendant’s filing of an affidavit requesting that an agency investigate a plaintiff’s alleged 3 misdeeds does not constitute legal process).

4 Plaintiffs argue that they satisfied the first element of an abuse-of-process claim 5 because they alleged that Defendants employed depositions, subpoenas, and other tools of 6 the discovery process to harass Plaintiffs. These forms of process might form the basis of 7 an action for abuse of process. See Roelcke v. Zip Aviation, LLC, No. 15-CV-6284,

Dist. LEXIS 4257, at *13 (“While the mere institution of a civil action by summons and 9 complaint is not legally considered a process that is capable of being abused for the purposes 10 of this tort, repeated and improper use of other processes in combination with the filing of a 11 civil lawsuit has been found sufficient to state a cause of action for abuse of process.”) 12 (citing cases). We do not address the merits of Plaintiffs’ argument, however, because it is 13 waived. Plaintiffs did not present this argument to the district court, and “[i]t is a ‘settled 14 appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some 15 effort at developed argumentation, are deemed waived.’” Tolbert v. Queens College,

, 16 75 (2d Cir. 2001) (quoting United States v. Zannino,

(1st Cir. 1990)). Plaintiffs 17 cannot now rely on a theory they failed to develop before the district court.

18 * * *

19 We have considered Plaintiffs’ remaining arguments and conclude that they are 20 without merit. Accordingly, the District Court’s judgment is AFFIRMED.

21 FOR THE COURT:

22 Catherine O’Hagan Wolfe, Clerk of Court

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