ORDER ON PENDING MOTIONS
Thomas Mangan was disbarred on March 10, 2000. Board of Overseers ofthe Bar v. Mangan, No. Bar 99-5 (findings), ¶ 54, (Me. 2000); Boardof Overseers of the Bar v. Mangan, No. Bar 99-5 (sanction) (Me. 2000);Board of Overseers of the Bar v. Mangan, 763 A.2d 1189 (Me. 2001)(affirming sanction). The disbarment action grew out of accusationsbrought by Thuy Thi Rumo, a former client. Mangan now has sued Rumo formalicious prosecution, abuse of process, intentional interference with anadvantageous relationship, defamation, and intentional infliction ofsevere emotional distress. Rumo has counterclaimed for malpractice;negligent and intentional infliction of emotional distress; and punitivedamages. Jurisdiction is based on diversity of citizenship and Maine lawapplies. Both parties have moved for summary judgment and other relief.
I. PLAINTIFF'S CLAIMS; DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Rumo's motion for summary judgment is GRANTED on the claims ofmalicious prosecution, abuse of process, interference with anadvantageous relationship and defamation, and DENIED on the claim ofintentional infliction of emotional distress.
Under Maine law, a claim for malicious prosecution requires thatcriminal prosecution have been initiated with malice and without probablecause and that the prosecution have ended favorably to the accused.Nadeau v. State of Maine, 395 A.2d 107, 116 (Me. 1978). Although Rumo didmake a complaint to the Lewiston police, prosecution was never initiatedagainst Mangan. He therefore has no claim for malicious prosecution.
Abuse of Process
Under Maine law, a claim for abuse of process requires an ulteriormotive and an improper use of process in a civil lawsuit that hasotherwise been filed properly. Pepperell Trust Co. v. Mountain Heir Fin.Corp., 708 A.2d 651, 655, n. 8 (Me. 1998) (citation omitted). Examplesare abuse of discovery, subpoenas, or attachments. Id., quoting Simon v.Navon, 71 F.3d 9, 15 (1st Cir. 1995). There is nothing in Mangan's claimsthat fits abuse of process.
Interference With an Advantageous Relationship
Under Maine law, a successful claim of interference with anadvantageous relationship requires "the existence of a valid contract orprospective economic advantage, interference with that contract oradvantage through fraud or intimidation, and damages proximately causedby the interference." Barnes v. Zappia, 658 A.2d 1086, 1090 (Me. 1995).Usually a specificcurrent or prospective business relationship isinvolved, but I will assume (without deciding) that destroying the entireability to practice a profession by disbarment also qualifies.1
Mangan claims that the interference here was by fraud and that thefraud was in accusing him of rape or otherwise forced sexual conduct. Butthe disbarment decision forecloses his arguments. The single justice,Justice Saufley, rejected Rumo's claims of rape and physically forcedsexual conduct. Justice Saufley based her disbarment decision solely onMangan's improper use of a client escrow account; his neglect of legalmatters and failure to account for receipts; and engaging in a sexualrelationship with a client that adversely affected representation of theclient and abused the attorney-client relationship in the context of thesexual relationship. Board of Overseers of the Bar v. Mangan,763 A.2d 1189, 1190, n. 1 (Me. 2001); see also Board of Overseers of theBar v. Mangan, No. Bar 99-5 (order on motion for relief from judgment),¶¶ 10-12 (Me. 2001) (stating specifically that rape was not found andthat the allegations of rape had no impact on the decision). The SupremeJudicial Court affirmed on the same grounds. Board of Overseers of theBar v. Mangan, 763 A.2d 1189 (Me. 2001). The allegedly fraudulentaccusations of rape and physically forced sexual conduct therefore simplydid not produce the disbarment which, in the end, is the claimedinterference.2
Mangan's two counts of defamation were dismissed following Rumo's12(b)(6) motion because he failed to allege any defamatory statementsoccurring recently enough to meet statute of limitations requirements.His motion to amend the pleadings to add reference to an allegedstatement of January 13, 2000, was subsequently granted. But Mangan hasnever filed an amended complaint, and Rumo's current motion for summaryjudgment has revived the statute of limitations issue: once raised itbecomes one of the elements that Mangan is required to support withrecord evidence. He has provided no record evidence of a January 13, 2000statement. Mere assertions that such evidence exists are insufficient todefeat a motion for summary judgment. Because Mangan has elected to reston his pleadings with respect to this element, Rumo is entitled tosummary judgment on these counts.
Intentional Infliction of Severe Emotional Distress
There is a material question of fact whether Rumo made allegations ofrape and if so, whether they were intentionally false. Because JusticeSaufley did not find that rape or physically forced sexual conductoccurred,3 Mangan is not foreclosed from claiming that Rumo falselyaccused him of rape. Intentionally false allegations of rape could amountto outrageous behavior intolerable in a civilized society. See, e.g.,Vicnire v. Ford Motor Credit Co., 401 A.2d 148, 154 (Me. 1979); Latremorev. Latremore, 584 A.2d 626, 633 (Me. 1990). Rumo's request for summaryjudgment on this count is therefore DENIED.
II. DEFENDANT'S COUNTERCLAIMS; PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON COUNTERCLAIMS; AND DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT
Rumo has filed four counterclaims against Mangan: lawyer malpractice;negligent and intentional infliction of emotional distress; and punitivedamages. Both parties have moved for summary judgment on all fourcounterclaims.
Mangan's motion for summary judgment on the counterclaims is DENIED forthe following reasons. Mangan seeks elimination of Count 1 because Rumohas not listed an expert to testify about the applicable standard of carefor a lawyer, but a lawyer's duty to a client is also that of afiduciary. See Sargent v. Buckley, 697 A.2d 1272, 1275 (Me. 1997); JackH. Simmons, et al., Maine Tort Law § 9.27 (2001). No expert isrequired to let a factfinder determine whether Mangan breached that dutyas, for example, by divided loyalties if he was using his fiduciaryposition to carry on a sexual relationship with Rumo.
Counts 2 and 3 are respectively the negligent and intentionalinfliction of severe emotional distress. There is enough on the summaryjudgment record to permit these claims to reach a factfinder.
As for Count 4, the punitive damages claim, Rumo does not claim expressmalice, but implied malice. Recklessness is not enough, Tuttle v.Raymond, 494 A.2d 1353, 1361 (Me. 1985), and perhaps recklessness is whatMangan is guilty of, but the factfinder will have to hear the facts andcircumstances of Mangan's conduct to determine, by clear and convincingevidence, whether it reaches the implied malice threshold. Id. at 1354.
Rumo's motion for summary judgment on her own counterclaims is likewiseDENIED. I have permitted Rumo to rely upon some of the disciplinaryfindings and conclusions in defending against Mangan's summary judgmentmotion, but I am far less willing to let her rely upon them offensivelyin seeking liability against Mangan. The Maine Law Court has made clearthat offensive use of collateral estoppel is more problematic and must beaddressed on a case-by-case basis. See Hossler v. Barry, 403 A.2d 762,769 (Me. 1979). "We require that the identical issue necessarily wasdetermined by a prior final judgment and that the party estopped had afair opportunity and incentive to litigate the issue in the priorproceeding." State Mutual Ins. Co. v. Bragg, 589 A.2d 35, 37 (Me. 1991).On the summary judgment record, I am not satisfied those criteria havebeen met. Perhaps I will be satisfied at trial.
Mangan's motion for sanctions (actually, a request that I dismiss thecounterclaims for failing to list expert witnesses) isDENIED. Rumo's motion to strike is also DENIED.
What remains for trial, then, are Mangan's claim of intentionalinfliction of emotional distress through false rape allegations andRumo's counterclaims based upon a sexual liaison during a lawyer-clientrelationship. The trial will not be pretty. Both parties would be welladvised to put this matter behind them before then. The record they havecompiled in this court, however, gives little reason for optimism.
1. It actually sounds more like a defamation claim.
2. In his memorandum only, Mangan alleges that Rumo also falselyclaimed that she was induced to exchange sex for his services in lieu offees. Not only did he fail to properly plead the allegation in hiscomplaint or raise it in his response to Rumo's statement of materialfacts, see Loc.R. 56(e), but he is also collaterally estopped fromlitigating that claim due to the holdings of Justice Saufley. "Collateralestoppel bars plaintiff from asserting an issue of fact or law that wasactually litigated on the merits and determined by a valid final judgmentin a prior action if the issue was essential to the judgment." Sargentv. Buckley, 697 A.2d 1272, 1274 (Me. 1997) (citation omitted). In this, acase of defensive collateral estoppel, mutuality of the parties is not anissue. Id., at 1275, citing Hossler v. Barry, 403 A.2d 762, 768 (Me.1979). Mangan was under a similar incentive to prevail on this issue inhis disbarment proceeding and failed. In paragraphs 52 and 53 of heropinion (No. Bar 99-5 (Me. 2000)), Justice Saufley details what may befairly characterized as a lawyer using the fact that a client could notpay for services to coerce that client into having sex with him.Accordingly, he will not be afforded an opportunity to re-litigate ithere.
3. Justice Saufley found that they did not occur, but that findingdoes not bind Rumo because Rumo was not a party to the disbarmentproceeding. If this case proceeds, therefore, the claim of false rapeallegations will require the factfinder to determine (a) whether theallegations were made and (b) whether they were false.