Virginia Lawyers Weekly VA Lawyers Weekly
Where the husband alleged his ex-wife reported to law enforcement that he sexually abused their minor daughter while knowing the allegations were false, and that he was arrested before the charges were dismissed, his malicious prosecution claim survived the ex-wife’s motion to dismiss.
Background
Kevin Plantan brings this action against his former wife, Kelly Smith, Cornerstone Therapy Associates LLC and a Cornerstone employee. Plantan’s claims stem from his arrest and subsequent detention based on allegations that he sexually assaulted his minor daughter, S.P. Against Smith, Plantan brings Virginia state law claims of malicious prosecution, false arrest, intentional infliction of emotional distress and abuse of process. Smith has filed a motion for judgment on the pleadings.
Malicious prosecution
To state a claim for malicious prosecution under Virginia law, a plaintiff has the burden to prove that “the prosecution was (1) malicious, (2) instituted by or with the cooperation of the defendant, (3) without probable cause, and (4) terminated in a manner not unfavorable to the plaintiff.”
As to the first factor, a favorable reading of Plantan’s complaint provides sufficient allegations that Smith reported the alleged claims of sexual abuse against Plantan with malice. As to the second factor, Plantan alleges that Smith herself reported the allegations. Because Plantan asserts that Smith acted maliciously, or untruthfully, in her reporting, she is not protected from civil liability for acting as a witness.
As to the third factor, Plantan states a claim that Smith knew that S.P. did not make any claims of sexual abuse against Plantan, meaning that she would not have any “facts and circumstances to raise the belief in a reasonable mind … that [Plantan was] guilty of [sexually abusing S.P.]” As to the final factor, Smith does not challenge that the circuit court terminated the criminal prosecution in Plantan’s favor. In sum, at this procedural posture, Plantan bears his burden to state in the complaint each of the factors required to establish a malicious prosecution claim.
IIED
Plantan brings a Virginia intentional infliction of emotional distress, or IIED, claim against Smith. To state a claim for IIED under Virginia law, a plaintiff must plausibly allege: (1) “the wrongdoer’s conduct was intentional or reckless”; (2) “the conduct was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality”; (3) “there was a causal connection between the wrongdoer’s conduct and the emotional distress” and (4) “the emotional distress was severe.”
Smith argues that Plantan fails to allege that Smith’s “conduct was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality.” Based on the favorable reading afforded to Plantan’s complaint on a motion for judgment on the pleadings, Plantan sufficiently alleges outrageous and intolerable conduct by Smith. Although Smith does not make any arguments regarding Plantan’s failure to sufficiently plead the remining factors of a Virginia IIED claim, the court analyzes each factor, and finds it sufficiently pleaded. Thus, the court will deny the motion for judgment on the pleadings as to the IIED count against Smith.
Remaining claims
Plantan concedes that the court should rule in Smith’s favor as to the false arrest claim. Therefore, the court will grant the motion for judgment on the pleadings as to this count.
Plantan finally brings a Virginia state law abuse of process claim against Smith. The court finds that the allegations in the complaint do not sustain Plantan’s abuse of process count against Smith because Plantan does not specify a particular legal process that Smith abused. Thus, the court will grant the motion for judgment on the pleadings as to the abuse of process count against Smith.
Defendant’s motion for judgment on the pleadings granted in part, denied in part.
Plantan v. Smith, Case No. 3:22-cv-407, May 10, 2023. EDVA at Richmond (Lauck). VLW 023-3-253. 22 pp.
