United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE
matter is before the court on motions by plaintiff Northern
Natural Gas to strike various counterclaims (Dkt. 572) and to
dismiss a counterclaim for abuse of process (Dkt. 597). For
the reasons set forth herein, the motion to strike is granted
in part and denied in part, and the motion to dismiss the
abuse of process claims is granted.
Motion to Strike (Dkt. 572).
Abuse of process claims. Northern moves to strike
defendants' abuse of process claims. For reasons set
forth infra the court finds that Northern's
separate motion to dismiss these claims for failure to state
a valid claim for relief should be granted. The court
therefore does not address the argument that the claims are
Overriding royalty interest owner counterclaims.
Northern moves to strike counterclaims asserted by the L.D.
Group and Val Energy Group on behalf of
overriding royalty interest owners. The defendants concede
this portion of Northern's argument. Dkt. 581 at 12. The
court will therefore grant the motion to strike counterclaims
on behalf of overriding royalty interest owners.
Nash counterclaim for slander of title. Northern
argues this claim is precluded by a prior stipulation of
dismissal. See Dkt. 124 (stipulation dismissing with
prejudice Nash's counterclaim for slander of title). It
also contends the alleged false statements are absolutely
privileged and were not false at the time they were made.
Dkt. 587 at 1-4. In response, Nash argues that the claim now
asserted accrued after the prior stipulation of
dismissal and is not barred. Nash also contends Northern has
waived any privilege defense and, in any event, that the
statements are not protected by privilege.
motion to strike this claim is denied. As Northern
recognizes, “where the facts that have accumulated
after the first action are enough on their own to sustain [a]
second action, the new facts clearly constitute a new
claim.” Dkt. 587 at 2 (quoting Hatch v. Boulder
Town Council, 471 F.3d 1142, 1150 (10th Cir. 2006)
(citing Storey v. Cello Holdings, LLC, 347 F.3d 370,
3842nd Cit. 2003)). Nash claims the statements underlying its
slander of title claim were made after the August 2009
dismissal of its earlier claim. If so, and if the allegations
are otherwise sufficient to support a claim, then the August
2009 order of dismissal does not bar the claim. See
also Dkt. 152 at 17 (“subsequent conduct, …
even if it is of the same nature as the conduct complained of
in a prior suit, may give rise to an entirely separate cause
of action.”) [citing Waddell & Reed Financial,
Inc. v. Torchmark Corp., 292 F.Supp.2d 1270, 1281 (D.
Kan. 2003) (quoting Kilogar v. Colbert County Bd. of
Educ., 578 F.2d 1033, 1035 (5th Cir. 1978))].
privilege, the court first rejects Nash's contention that
Northern waived this defense. It is true that Rule 8(c)
generally requires an affirmative defense to be included in a
responsive pleading, and Northern failed to assert privilege
in its answer. Dkt. 575. But discovery still has months to
go, the dispositive motion deadline is months off as well,
and the trial is more than a year away. Northern has timely
alerted Nash to the defense via the motion to strike, and
Nash offers no suggestion of prejudice or unfair surprise.
Under the circumstances, the court finds no waiver. See
Creative Consumer Concepts, Inc. v. Kreisler, 563 F.3d
1070, 1076 (10th Cir. 2009) (when the failure to raise an
affirmative defense does not prejudice the plaintiff, it is
not error for the trial court to consider the issue);
Ahmad v. Furlong, 435 F.3d 1196, 1201 (10th Cir.
2006) (“strict adherence to the pleading requirement is
inappropriate when the [notice] purpose of the requirement
has been otherwise fulfilled”). As for application of
the defense, however, both parties allude to facts outside
the pleadings to support their positions. The court cannot
make such factual findings on a motion to strike. Similarly,
Northern's argument that its statements “were not
or could not have been false or slanderous at the time”
depends upon facts outside of the pleadings, and is more
properly the subject of a motion for summary judgment than a
motion to strike. Accordingly, the motion to strike the
slander of title claim is denied.
Request to strike allegations under Fed.R.Evid. 408.
Northern argues that L.D. Drilling's answer improperly
includes statements made by Northern during compromise
negotiations, contrary to Fed.R.Evid. 408(a). While the
admissibility of such material under Rule 408 appears
questionable, the court agrees with L. D. Drilling that the
request to strike the allegations from the pleadings is
premature. Rule 12(f), which allows the court to strike any
“redundant, immaterial, impertinent, or scandalous
matter, ” should be used “only when the material
may be prejudicial to a party and lacks any ‘possible
relation to the controversy.'” Sawo v. Drury
Hotels Co., LLC, 2011 WL 3611400, *2 (D. Kan. Aug. 15,
2011) (citing Rubio ex rel. Z.R. Turner Unif. Sch. Dist.
No. 202, 475 F.Supp.2d 1092, 1101 (D. Kan. 2007)). The
rule is not designed to allow parties to obtain advance
rulings on the admissibility of evidence. Thus, “Rule
408 disputes are more appropriately resolved in the context
of a motion in limine instead of prematurely through a Rule
12(f) motion.” Sawo, 2011 WL 3611400 at *2.
See also Fed. R. Civ. P. 56(c)(2) (party may object
that material cited on summary judgment cannot be presented
in a form that would be admissible). The motion to strike the
material is therefore denied.
Motion to Dismiss (Dkt. 597).
moves to dismiss defendants' abuse of process claims for
failure to state a claim upon which relief can be granted.
Dkt. 598. Northern essentially argues that defendants have
failed to allege facts showing an improper use of court
complaint must contain sufficient factual matter to
“state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). Only a complaint that states a plausible
claim for relief survives a motion to dismiss. Id.
at 679. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. at 678. All
well-pleaded factual allegations in the complaint are
accepted as true and viewed in the light most favorable to
the plaintiff for purposes of determining whether the
complaint states a plausible claim for relief. Smith v.
United States, 561 F.3d 1090, 1098 (10th Cir. 2009).
dismissing defendants' prior attempt to assert an abuse
of process claim, Judge Brown identified the following
essential elements under Kansas law: (1) the defendant made
an illegal, improper, perverted use of the process, a use
neither warranted nor authorized by the process; (2) the
defendant had an ulterior motive or purpose in exercising
such illegal, perverted, or improper use of process, and (3)
damage resulted to plaintiff from the irregularity. Dkt. 382
at 10 (citing Merkel v. Keller, 232 P.3d 887, 2010
WL 2670846 (Kan. App. June 25, 2010) (Table, text in
Westlaw); Porter v. Stormont-Vail Hospital,
228 Kan. 641, 647, 621 P.2d 411 (1980); and Welch v.
Shepherd, 169 Kan. 363, 366, 219 P.2d 444 (1950)). Judge
Brown also cited the following standards from Am.Jur.2d,
Abuse of Process § 11:
Abuse of process contemplates some overt act done in addition
to the initiating of the suit; thus, the mere filing or
maintenance of a lawsuit, even for an improper purpose, is
not a proper basis for an abuse of process action. Generally,
therefore, no right of action exists for damages resulting
from the institution and prosecution of a civil action if the
action is confined to its regular and legitimate function in
relation to the cause of action stated in the complaint, even
if the plaintiff had an ulterior motive in bringing the
action, or if the plaintiff knowingly brought suit upon an
unfounded claim. However, if the suit is brought not ...