                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


 THOMAS G. HOULAHAN,

                       Plaintiff,

                       v.
                                                   Civil Action 04-01161 (HHK)
 WORLD WIDE ASSOCIATION OF
 SPECIALTY PROGRAMS AND
 SCHOOLS, et al.,

                       Defendants.


                            MEMORANDUM OPINION AND ORDER

       In this suit, plaintiff Thomas Houlahan, a journalist, brings various causes of action

against several defendants, including World Wide Association of Specialty Programs and

Schools (“WWASPS”) and its President, Kenneth Kay (collectively “defendants”) asserting

claims arising from defendants’ actions allegedly in response to Houlahan’s investigation of the

teen behavior modification industry.

       Before the Court is defendants’ second renewed motion for partial summary judgment as

to Houlahan’s claim of abuse of process [#103], a claim that is grounded on a lawsuit defendants

filed against Houlahan in Utah. Houlahan asserts that the lawsuit was baseless and was instituted

to deter him from further investigating WWASPS and his publisher from publishing his work.

Upon consideration of the motion, the opposition thereto, and the record of this case, the Court

concludes that the motion should be granted.1



       1
                Houlahan’s claims against WWASPS and Kay have been resolved except for his
claims of libel, defamation, and abuse of process.
                                      I. BACKGROUND

A. Factual Background

       WWASPS is an association of teen behavior modification facilities located around the

world. Houlahan, a journalist writing principally for United Press International (“UPI”), began to

investigate the teen behavior modification industry in the spring of 2003. His investigation

focused on alleged improprieties within facilities operated by WWASPS and led him to draft a

series of articles focused on WWASPS and its member schools. During the investigation,

Houlahan’s work came to the attention of WWASPS and its president Kenneth Kay.

       Houlahan’s investigation of WWASPS led WWASPS to file a lawsuit against Houlahan

in Utah, alleging claims of intentional interference with prospective economic advantage,

injurious falsehood, and defamation. The Utah suit was ultimately dismissed for lack of personal

jurisdiction, a decision that was affirmed on appeal. See World Wide Assoc. of Specialty

Programs & Sch. v. Houlahan, 2005 WL 1097321, at *1 (10th Cir. May 10, 2005). Houlahan

claims that the Utah lawsuit was an abuse of process for which defendants should be held liable.

B. Procedural Background

        Defendants previously sought partial summary judgment on Houlahan’s abuse of process

claim. This Court granted defendants’ initial motion for summary judgment, but later granted

Houlahan’s motion to alter or amend the judgment and denied defendants’ motion for summary

judgment without prejudice. The Court indicated, however, that the motion could be renewed

after discovery had been completed. After the completion of discovery, defendants renewed their

motion for partial summary judgment as to Houlahan’s abuse of process claim, to which

Houlahan filed an opposition. In their filings, however, neither party addressed the threshold


                                                2
question of whether it is the law of the District of Columbia or Utah that supplies the substantive

law by which to measure Houlahan’s claim. Therefore, the Court denied without prejudice

defendants’ renewed motion and ordered that any future motion must address the threshold issue

of which jurisdiction’s substantive law should govern the abuse of process claim. Defendants’

second renewed motion and Houlahan’s opposition to it addresses this threshold issue.

                                    II. LEGAL STANDARD

A. Summary Judgment

       Summary judgment may be granted only where the “pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(c); Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002). A material

fact is one that is capable of affecting the outcome of the litigation. Anderson v. Liberty Lobby,

477 U.S. 242, 248 (1986). A genuine issue is one where the “evidence is such that a reasonable

jury could return a verdict for the nonmoving party,” as opposed to evidence that “is so one-sided

that one party must prevail as a matter of law.” Id. at 248, 252.

       A court considering a motion for summary judgment must draw all “justifiable

inferences” from the evidence in favor of the nonmovant. Id. at 255. But the non-moving party’s

opposition must consist of more than mere unsupported allegations or denials; it must be

supported by affidavits or other competent evidence setting forth specific facts showing that there

is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986). By pointing to the absence of evidence proffered by the nonmoving party, a moving

party may succeed on summary judgment. Celotex, 477 U.S. at 322. If the evidence “is merely


                                                  3
colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477

U.S. at 249-50 (internal citations omitted).

B. Choice of Law Analysis

        A federal court exercising diversity jurisdiction applies the choice of law rules of the

forum state, Liberty Mut. Ins. Co. v. Travelers Indem. Co., 78 F.3d 639, 642 (D.C. Cir. 1996)

(citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)), here the District of

Columbia. Under District of Columbia law, the first step in the choice of law analysis requires

the court to determine whether there is any conflict among the potentially applicable legal

standards. Young Women’s Christian Ass’n of the Nat’l Capital Area v. Allstate Ins. Co. of

Canada, 275 F.3d 1145, 1150 (D.C. Cir. 2002) (citing Eli Lilly & Co. v. Home Ins. Co., 764 F.2d

876, 882 (D.C. Cir. 1985)). “Only if such a conflict exists must the court then determine,

pursuant to District of Columbia choice of law rules, which jurisdiction has the ‘more substantial

interest’ in the resolution of the issues.” Id. In tort cases, the substantial interest inquiry requires

consideration of (1) “the place where the injury occurred,” (2) “the place where the conduct

causing the injury occurred,” (3) “the domicile, residence, nationality, place of incorporation and

place of business of the parties,” and (4) “the place where the relationship” was centered.

Herbert v. Dist. of Columbia, 808 A.2d 776, 779 (D.C. 2002) (quoting RESTATEMENT (SECOND )

OF CONFLICT OF LAWS     (1971), § 145 (2)).

                                         III. DISCUSSION

        Defendants’ renewed motion for summary judgment on Houlahan’s abuse of process

claim does not require the Court to determine whether the District of Columbia or Utah has the

more substantial interest in Houlahan’s abuse of process claim because the laws of both


                                                   4
jurisdictions2 are the same and produce the same result when applied to the facts. See Eli Lilly &

Co. v. Home Ins. Co., 653 F. Supp. 1, 5 (D.D.C.1984) (federal courts entertaining a diversity

action will not engage in a choice of law exercise when the laws of the interested states do not

conflict with one another).

       Under District of Columbia law, abuse of process occurs when “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 Jacobson v.

Thrifty Paper Boxes, Inc., 230 A.2d 710, 711 (D.C.1967)). There are two essential elements to

an abuse of process claim: “(1) the existence of an ulterior motive; and (2) an act in the use of

process other than such as would be proper in the regular prosecution of the charge.” Hall v.

Hollywood Credit Clothing Co., 147 A.2d 866, 868 (D.C. 1959) (emphasis in original).3 Utah



       2
                 Utah, the place where the suit was filed, has an interest in governing the use of the
courts in its jurisdiction. The District of Columbia is where Houlahan resided at the time the
lawsuit was filed and has an interest in protecting its citizens from allegations of wrongdoing.
       3
                Houlahan repeatedly cites Neumann v. Vidal, 710 F.2d 856 (D.C. Cir. 1983), and
Whelan v. Abell, 953 F.2d 663 (D.C. Cir. 1992), in support of his argument that District of
Columbia law does not require a distinct act outside of the initiation of process for the tort of
abuse of process to lie and that collateral damage caused by the process itself is sufficient. Both
Neumann and Whelan set forth an expansive formulation of the abuse of process standard that is
arguably inconsistent with the stricter standard formulated by the D.C. Court of Appeals in Bown
v. Hamilton, 601 A.2d 1074, 1080 n.14 (D.C. 1992), and Morowitz. Several courts in this
jurisdiction properly have declined to adopt the expansive formulation outlined in Neumann and
Whelan. See Nader v. Democratic Nat’l Comm., 555 F. Supp. 2d 137, 160-61 (D.D.C. 2008),
aff’d on other grounds, Nader v. Democratic Nat’l Comm., 567 F.3d 692 (D.C. Cir. 2009)
(noting that Neumann and Whelan have been “superceded by more recent decisions embracing
the more restrictive standards of Bown v. Hamilton and Morowitz”); Bannum, 383 F.Supp. 2d 32,
46 n.10 (D.D.C. 2005) (same); see also Harrison v. Howard Univ., 846 F. Supp. 1, 2-3, n.3
(D.D.C. 1993).

                                                  5
law is similar: “to establish a claim for abuse of process, a claimant must demonstrate ‘[f]irst, an

ulterior purpose; [and] second, an act in the use of the process not proper in the regular

prosecution of the proceedings.’” Anderson Dev. Co. v. Tobias, 116 P.3d 323, 341 (Utah 2005)

(alterations in original) (quoting Hatch v. Davis, 102 P.3d 774, 782 (Utah Ct. App. 2004)).

Regardless of which jurisdiction’s law is applied, Houlahan fails to establish the elements of a

cause of action for abuse of process.

       Houlahan alleges that there is “ample evidence of Defendants’ attempts to achieve ten

related but distinct improper purposes.” Pl.’s Opp’n to Def.’s Second Renewed Mot. for Partial

Summ. J. (“Pl.’s Opp’n”) at 5. Houlahan’s allegations fall under two general alleged improper

purposes: (1) “Defendants filed their suit in order to prevent publication of [Houlahan]’s work”4

and (2) Defendants filed suit “in order to obtain public relations advantages.”5 Id. at 5, 8.




       4
                Specifically, Houlahan alleges that WWASPS filed their suit to prevent
publication by: (1) “Effecting a prior restraint on publication by intimidating [Houlahan]’s
publisher”; (2) “Obtaining the dismissal of [Houlahan] from United Press International by using
the lawsuit as a weapon with which to denounce [Houlahan] in the eyes of his editor”; (3)
“Getting [Houlahan]’s editor not to run the series by using the lawsuit as a weapon with which to
discredit [Houlahan] in the eyes of his editor”; (4) “Relaying charges against [Houlahan] to his
editor”; and (5) “Wrongfully drawing [Houlahan] into distant and costly bad faith litigation in the
hope that [Houlahan] lacked the resources to fight the false claims and would be bankrupted in
the process.” Pl.’s Opp’n at 5-8.
       5
                Specifically, Houlahan alleges that WWASPS filed their suit in order to obtain a
public relations advantage by using the lawsuit: (1) “To immunize themselves in the public eye
against the revelations they expected should their primary object of preventing publication fail”;
(2) “To divert media attention away from charges of abuse and neglect at their facilities”; (3) “As
a weapon with which to discredit [Houlahan] in the eyes of the public at large”; (4) “To make
public charges against [Houlahan], which, if made outside of court, would have been legally
actionable”; and (5) “To attempt to give the allegations creditability [sic] in the minds of the
general public where there is actually no creditability [sic] to these claims.” Pl.’s Opp’n at 8-10.

                                                  6
       Defendants rejoin that Houlahan’s evidence regarding the ulterior purpose of the lawsuit

is irrelevant because the alleged ulterior purpose of the lawsuit and the stated purpose of the

lawsuit are the same. Defendants argue that “[Houlahan]’s claim that the filing of the lawsuit

was successful in such things as causing bad publicity, causing [Houlahan] the expense of

defending the lawsuit or stopping the publication of the articles, is no different than stating the

express purpose of the lawsuit,” since “the regular prosecution of the libel case against Houlahan

would have achieved these ends” Def.’s Reply to Pl.’s Opp’n to Second Renewed Mot. For

Summ. J. at 2-3. In addition to claiming that there was no ulterior motive to the Utah lawsuit,

defendants further argue that Houlahan offers no evidence of any action taken by defendants

following the filing of the Utah lawsuit that could constitute an abuse of process.

       Defendants’ arguments have merit. Even assuming that Houlahan’s allegations establish

an ulterior purpose, his claim still fails. “‘[T]here is no action for abuse of process when the

process is used for the purpose for which it is intended, [even though] there is an incidental

motive of spite or an ulterior purpose of benefit to the defendant.’” Francisconi v. Hall, 2008

WL 1971336 at *3 (Utah Ct. App. May 8, 2008) (quoting RESTATEMENT (SECOND ) OF TORTS §

682 cmt. b (1977)); see also Scott v. Dist. of Columbia, 101 F.3d 748, 755 (D.C. Cir. 1996)

(quoting same language).

       Houlahan contends that WWASPS filed suit against him in an effort to silence him. By

design, however, defamation claims, one of the claims in the Utah suit, are meant to silence

individuals from making defamatory or otherwise harmful statements. Therefore, the Utah suit

was used “for the purpose for which it is intended.” See Rusakiewicz v. Lowe, 556 F. 3d 1095,

1104 (10th Cir. 2009) (applying Utah law in holding that “it is not a step ‘beyond the purview’ of


                                                  7
legal action for defamation to seek an end to the defendant’s alleged defamatory

statements–whether the defamation defendant regards those statements as truthful or not”); see

also Francisconi, 2008 WL 1971336 at *3 (finding defendant’s claim that plaintiff served

process for the improper purpose of forcing vacation of the premises insufficient when “unlawful

detainer proceedings are, by design, intended to ‘force vacation of the premises’” (citation

omitted)).6

       Furthermore, Houlahan has failed to make a colorable showing that defendants

committed a willful “act in the use of the process other than such as would be proper in the

regular prosecution of the charge” Hall, 147 A.2d at 868 (emphasis in original); see also

Anderson Dev. Co, 116 P.3d at 341 (holding that “to establish a claim for abuse of process, a

claimant must demonstrate . . . an act in the use of the process not proper in the regular

prosecution of the proceedings”). The only act beyond the mere issuance of process that

Houlahan points to is the contact by James Wall with Houlahan’s editor at UPI, Tobin Beck.7


       6
                 Houlahan’s allegation that defendants knowingly brought suit on an unfounded
claim is not by itself sufficient to support an abuse of process cause of action under District of
Columbia or Utah law. See Hall, 147 A.2d at 868; Keller v. Ray, Quinney & Nebeker, 896 F.
Supp. 1563, 1571 (D. Utah 1995); see also Geier v. Jordan, 107 A.2d 440, 441 (D.C. 1954)
(stating that a claim that a lawsuit was brought for the unlawful purpose to extort money was not
sufficient to support an abuse of process suit because it “amount[ed] to no more than an
allegation that the . . . suit was based on an unfounded claim”). To permit the use of abuse of
process in such a situation would blur a critical distinction between the tort of abuse of process
and the tort of malicious prosecution, which lies where the action was brought without probable
cause and terminated successfully in favor of the aggrieved party. See Bown, 601 A.2d at 1080
n.14 (stating that “to the extent that the alleged tort is based upon a lack of sound foundation for
the instigation of the possession action recovery would appear best determined within the limits
of malicious prosecution”).
       7
                In an attempt to satisfy the “act” element of the abuse of process claim, Houlahan
also points to several acts that the defendants engaged in prior to the filing of the Utah lawsuit.
The Court, however, does not consider these acts because an action for abuse of process “lies in

                                                 8
Houlahan alleges that defendants sent Wall, a partner in the public relations firm Freeman Wall

Aiello,8 to contact Houlahan’s editor “to use the lawsuit as a weapon to discredit [Houlahan] in

order to prevent publication of the series and cause his termination.” Pl.’s Opp’n at 6. There is

nothing improper, however, about Wall’s e-mail to Beck. Wall simply informed Beck of the

lawsuit against Houlahan and assured him that UPI was not a party to the suit. See Pl.’s Opp’n

Ex. 6.9 The contact between Wall and Beck falls far short of the usual case of abuse of process

where there is an attempt at extortion in a manner collateral to the litigation. See Hatch v. Davis,

102 P.3d 774, 782 (Utah Ct. App. 2004) (“The usual case of abuse of process is one of some

form of extortion, using the process to put pressure upon the other to compel him to pay a

different debt or to take some other action or refrain from it.” (quoting RESTATEMENT (SECOND )

OF TORTS §   682 cmt. b (1977))); Scott v. Dist. of Columbia, 101 F. 3d 748, 755-56 (D.C. Cir.

1996) (quoting same language). No reasonable juror could find that defendants took any specific

action in connection with their filing of the Utah suit which can be characterized as unlawful or

not “proper in the regular prosecution of the proceedings.” Therefore, Houlahan is unable to




the improper use after issuance.” Morowitz, 423 A.2d at 198 (quoting Hall, 147 A.2d at 868;
see also Kool v. Lee, 134 P. 906, 910 (Utah 1913) (stating identical principle under Utah law).
       8
               James Wall and Freeman Wall Aiello are also defendants in this case. Houlahan
does not allege an abuse of process claim against either of them.
       9
               The Utah lawsuit was filed a day before Wall sent the e-mail to Beck. In the e-
mail, Wall informed Beck that “WWASPS will today serve a summons and complaint on
Thomas Houlahan.” Pl.’s Opp’n Ex. 6.

                                                 9
establish the essential elements of an abuse of process claim.10 Accordingly, defendants are

entitled to summary judgment on Houlahan’s claim for abuse of process.

                                      IV. CONCLUSION

       Accordingly, it is this 5th day of January 2010 hereby

       ORDERED that defendants’ second renewed motion for partial summary judgment as

to Houlahan’s claim of abuse of process [#103] is GRANTED.


                                                            Henry H. Kennedy, Jr.
                                                            United States District Judge




       10
               Defendants also argue that the Noerr-Pennington doctrine defeats Houlahan’s
abuse of process claim. See Mine Workers v. Pennington, 381 U.S. 657 (1965); Eastern
Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961). This
doctrine holds that persons who petition the government for redress of their grievances are
immune from liability for such activity under the First Amendment. Because Houlahan’s abuse
of process claim fails on other grounds the Court does not reach the issue of whether the Noerr-
Pennington doctrine also operates to defeat his claim.

                                               10
