Virginia Lawyers Weekly VA Lawyers Weekly
Where a woman filed multiple claims arising out of a “prolonged relational conflict” with two persons, but each of her causes of action failed as a matter of law, and the woman had already amended her complaint numerous times, her second amended complaint was dismissed with prejudice.
Background
This case involves a prolonged relational conflict, which has morphed into a multi-year legal battle. The matter is now before the court on Rafer Weigel and Jennifer Waldo’s motions to dismiss the second amended complaint filed by Kathy Browne. Also before the court is Waldo’s motion to quash and dismiss and Browne’s opposed motions seeking leave to file a surreply.
Motion to quash
Waldo argues that service was not perfected because Browne served Waldo’s husband, but not Waldo herself. Waldo argues that service was insufficient because Waldo had not lived at that residence for two months because, at the time, the Waldos were in the process of divorcing. Furthermore, Waldo asserts that she had a protective order against her husband at the time plaintiff served him, so service on Waldo through her husband is not valid service.
The court concludes that service was sufficient. Waldo only recently moved out of the residence she shared with her husband, still spent time at the residence and was in contact with her husband during the time period in which service was effectuated. Plaintiff sought the assistance of a local deputy to serve Waldo, and it was reasonable for her to believe Waldo resided at the home that Waldo and her husband jointly owned. And since Waldo has filed motions in this court, Waldo has therefore waived her personal jurisdiction defense because she has “indicate[d] an intent to litigate the case on the merits.”
Surreplies
Plaintiff’s motions seeking leave to file surreplies were denied. Plaintiff’s filings are not responsive to any new arguments raised in defendants’ replies. She merely attempts to “have the last word on the matter” and uses the brief “to further support an argument made in [her] opening brief.”
Merits
Plaintiff alleges the following counts against defendants: (1) abuse of process; (2) false arrest; (3) fraud, misrepresentation and extortion; (4) slander and libel; (5) violating the Virginia Computer Crimes Act; (6) civil conspiracy and (7) civil perjury. All of plaintiff’s allegations fail to state a claim upon which relief can be granted.
Plaintiff alleges that Waldo “retaliated against” her by obtaining a protective order against her and filing a false police report “to have [her] arrested.” While plaintiff may assert that Waldo had bad intentions by initiating these legal processes against Waldo, that allegation is insufficient. Plaintiff fails to necessarily allege any facts to suggest that Waldo perverted process “to accomplish some ulterior purpose for which the procedure was not intended.”
Second, plaintiff alleges that Waldo made a “false statement with malice” in order “to have [her] arrested.” Even assuming this assertion is true, it is insufficient to establish a claim for arrest. As for Weigel, plaintiff does not allege that he engaged in any conduct that could plausibly state a claim that he falsely arrested her, or caused plaintiff’s arrest.
Third, plaintiff has failed to assert that any “material fact’ was misrepresented by either defendant. Plaintiff also fails to adequately plead that she relied upon any false representations or that she suffered any injury as a result of relying upon them. And plaintiff has no private right of action for imposing civil liability for extortion.
Fourth, plaintiff maintains that Waldo’s conduct of filing a police report and making inconsistent statements during judicial proceedings constitute slander or libel. As an initial matter, Virginia Code § 18.2-417 is only a vehicle for criminal liability, and this statute does not provide civil relief. Moreover, even under Virginia common law, plaintiff’s allegations are still insufficient. As to Weigel, plaintiff does not allege that he published any actionable statement that could plausibly be said to be false or defamatory concerning plaintiff.
Fifth, plaintiff does not allege that either defendant obtained, accessed or recorded any of plaintiff’s identifying information as defined by Virginia Code § 18.2-186.3(C). Sixth, while plaintiff maintains that Weigel “conspired” with Waldo to hack into her accounts, this bare-bones allegation does not survive a motion to dismiss. And there is no proof that defendants committed an underlying tort.
Finally, Virginia does not recognize a civil cause of action for perjury. Because plaintiff has already amended her complaint numerous times, the court will dismiss her second amended complaint with prejudice.
Plaintiff’s motions seeking leave to file surreplies denied. Waldo’s motion to quash denied. Defendants’ motions to dismiss granted.
Browne v. Waldo, Case No. 3:22-cv-648, April 17, 2023. EDVA at Richmond (Hudson). VLW 023-3-211. 21 pp.
