12-4357-cv
Hoffman v. Town of Southampton

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

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

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
29th day of April, two thousand thirteen.

Present:
               PETER W. HALL,
               CHRISTOPHER F. DRONEY,
                          Circuit Judges,
               JANE A. RESTANI,
                          Judge.*

____________________________________________________

PETER L. HOFFMAN, LOTTE, LLC,

                       Plaintiffs-Appellants,

       v.                                                           12-4357-cv

TOWN OF SOUTHAMPTON, BOARD OF TRUSTEES OF
THE FREEHOLDERS AND COMMONALTY OF THE TOWN
OF SOUTHAMPTON, SCOTT A. STROUGH, Individually and
in his Official Capacity as a Former Member and President of the
Board of Trustees of the Freeholders and Commonalty of the
Town of Southampton, FREDERICK C. HAVEMEYER,
Individually and in his Official Capacity as a Member of the
Board of Trustees of the Freeholders and Commonalty of the

*
 The Honorable Jane A. Restani, of the United States Court of International Trade, sitting by
designation.


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Town of Southampton, JOSEPH R. LOMBARDO, Individually
and in his Official Capacity as a Town of Southampton Senior
Assistant Town Attorney, THEODORE H. SADLEIR,
Individually and in his Official Capacity as a Town of
Southampton Senior Bay Constable,

                       Defendants-Appellees.

____________________________________________________

FOR APPELLANTS:                BRIAN S. COHEN, Cohen Law Group, P.C., New York, NY.

FOR APPELLEES:          RICHARD C. CAHN, Cahn & Cahn, LLP, Huntington, NY.
____________________________________________________


       Appeal from a judgment of the United States District Court for the Eastern District of

New York (Bianco, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiffs Peter L. Hoffman and Lotte, LLC appeal from a Memorandum and Order of the

United States District Court for the Eastern District of New York (Bianco, J.) entered on

September 28, 2012, dismissing plaintiffs’ Amended Complaint pursuant to Fed. R. Civ. P.

12(b)(6). Plaintiffs asserted claims for malicious abuse of process under 42 U.S.C. § 1983, and

malicious prosecution and abuse of process under New York law, and sought a declaratory

judgment that the policy of the Town of Southampton Board of Trustees (“Trustees”) “of

revoking . . . legal preexisting, nonconforming uses and structures, is unconstitutional.” Am.

Compl. ¶ 155. Plaintiffs’ only argument on appeal is that the district court improperly dismissed

their malicious abuse of process claim asserted under section 1983. We assume the parties’

familiarity with the facts and procedural history of this case.

       We review de novo the district court’s dismissal of a complaint for failure to state a claim

pursuant to Fed. R. Civ. P. 12(b)(6). Freedom Holdings, Inc. v. Spitzer, 357 F.3d 205, 216 (2d


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Cir. 2004). In reviewing a decision on a motion to dismiss, we must “accept[] all factual

allegations in the complaint as true, and draw[] all reasonable inferences in the plaintiff’s favor.”

Bayerische Landesbank v. Aladdin Capital Mgmt. LLC, 692 F.3d 42, 51-52 (2d Cir. 2012)

(internal quotation marks omitted). “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.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

        Although plaintiffs did not allege that they were denied any federal right—a prerequisite

to asserting a claim under section 1983—we have said that where the process alleged to have

been abused is criminal in nature, an adequately pled claim for malicious abuse of process is “by

definition a denial of procedural due process.” Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994)

(internal quotation marks omitted). A claim for malicious abuse of criminal process—assuming

it is adequately pled—therefore alleges a deprivation of a federal right and may be asserted under

section 1983. To plead adequately a claim for malicious abuse of process under New York law,

a plaintiff must allege that a defendant “(1) employ[ed] regularly issued legal process to compel

performance or forbearance of some act (2) with intent to do harm without excuse [or]

justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of

the process.” Savino v. City of New York, 331 F.3d 63, 76 (2d Cir. 2003) (internal quotation

marks omitted). Because we hold that plaintiffs have failed to allege that defendants sought to

advance a collateral objective, we need not address whether the Amended Complaint satisfies the

first and second elements of this test.

        Plaintiffs allege that defendants filed criminal charges against them in retaliation for

plaintiffs’ application to the local Justice Court to enjoin defendants from filing criminal charges

in addition to those already filed. Am. Compl. ¶ 66. Neither retaliation nor a malicious motive,




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however, is a sufficient collateral objective to satisfy that element of a cognizable malicious

abuse of process claim. Savino, 331 F.3d at 77. Rather, New York law requires “an ulterior

purpose or objective in facilitating [the] prosecution.” Id. at 78.

       Plaintiffs next maintain that defendants filed additional charges in order to “coerce and

pressure [p]laintiffs into refraining from (a) pursuing [p]laintiffs’ right to defend themselves

against criminal prosecution, (b) proving that the dock and catwalk are not illegal—and, in turn,

challenging the Town’s and the Trustees’ power to revoke legal, preexisting and nonconforming

uses, (c) asserting that the commencement of the criminal prosecution was improper and

defective, and (d) challenging the jurisdiction of the Town and the Trustees.” Am. Compl. ¶ 66.

Each of these objectives is a potential defense or litigation strategy that was available to

plaintiffs in defending the criminal charges lodged against them. As such, these purposes, too,

are directly related to the underlying litigation rather than collateral to it. Moreover, considering

these allegations as pleaded, plaintiffs’ claim boils down to the following: by seeking to prevent

plaintiffs from pursuing the alleged objectives, defendants sought to prevail on the underlying

criminal prosecution.1 Even so, it cannot be said that defendants “aimed to achieve a collateral

purpose beyond or in addition to [the] criminal prosecution.” Savino, 331 F.3d at 77.2

1
  Although plaintiffs did not request leave to replead in their opposition to the motion to dismiss
below, the district court nonetheless granted such leave “in an abundance of caution” in the event
that plaintiffs could allege “that defendants sought a collateral objective independent of winning
the prosecution.” Hoffman v. Town of Southampton, 893 F. Supp. 2d 438, 450 (E.D.N.Y. 2012).
Plaintiffs nonetheless did not file an amended complaint after the district court’s grant of the
motion to dismiss.
2
 Accordingly, plaintiffs may not succeed on their claim that the Town of Southampton is liable
under Monell v. Department of Social Services, 436 U.S. 658 (1978), based on its alleged
“policy, custom, usage, and/or practice of the Town and the Trustees of charging property
owners with violations of the Town Code and Trustees’ Rules and Regulations without probable
cause” and “without regard for whether or not the Trustees have jurisdiction.” Am. Compl. ¶¶
149, 148. See Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006) (“Monell does not
provide a separate cause of action . . . ; it extends liability to a municipal organization where that


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       We have considered all of plaintiffs’ remaining arguments and find them to be without

merit. The judgment of the district court is AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




organization’s . . . policies or customs that it has sanctioned, led to an independent constitutional
violation.” (second emphasis added)).


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