Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rodenburg Law Firm v. Sira

Supreme Court of North Dakota

July 30, 2019

Rodenburg Law Firm, Plaintiff and Appellant
v.
Kathy Sira, aka Kathy Jimenez, Mikhail Usher, and Usher Law Group, P.C., Defendants and Appellees

          Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven L. Marquart, Judge.

          Stacey J. Hummel (argued), Clifton G. Rodenburg (on brief), and Eeva M. Wendorf (on brief), Fargo, ND, for plaintiff and appellant.

          Mikhail Usher, self-represented and as pro hac vice for Kathy Sira, aka Kathy Jimenez, and Usher Law Group, P.C., Brooklyn, NY, and William C. Peacock, Broadchannel, NY, for defendants and appellees; submitted on brief.

          OPINION

          Jensen, Justice

         [¶1] The Rodenburg Law Firm appeals from a judgment dismissing its action against Kathy Sira, Mikhail Usher, and the Usher Law Group, P.C., for malicious prosecution, abuse of process, and exemplary damages. We conclude the district court did not clearly err in dismissing Rodenburg's claims for abuse of process and malicious prosecution. We affirm the judgment.

         I

         [¶2] Sira initiated a Fair Debt Collection Practices Act ("FDCPA") action against Rodenburg in New Jersey federal court, alleging Rodenburg, a North Dakota law firm, engaged in harassment and abusive debt collection tactics and violated 15 U.S.C. § 1692 et. seq. Sira's action was ultimately dismissed by agreement of the parties. After the dismissal of Sira's action, Rodenburg sued Sira and her attorney, Usher and the Usher Law Group, in this action, alleging malicious prosecution. Rodenburg subsequently amended its complaint to include claims for abuse of process and exemplary damages.

         [¶3] After a bench trial, the district court dismissed Rodenburg's claims . The court found Sira lived in New Jersey, her allegations in the federal FDCPA action stated a claim for relief, and her allegations were based on reasonable trustworthy information made after a reasonable inquiry under the circumstances. The court found Sira's lawsuit was not for an improper purpose and was not an abuse of process. The court also found her lawsuit was not a malicious prosecution because there was probable cause for the action and there was no malice.

         II

         [¶4] Rodenburg argues the district court misapplied the law in determining Sira and Usher had probable cause to bring the FDCPA action against Rodenburg in New Jersey federal court. Rodenburg also argues that the court misapplied the law in determining Usher and the Usher Law Group satisfied their obligation to make a reasonable inquiry into the validity of the claims before bringing the FDCPA action. Rodenburg further argues the court made clearly erroneous findings regarding Sira's credibility, the court misapplied the law regarding probable cause and malice for a malicious prosecution claim, and the court misapplied the law regarding abuse of process.

         III

         [¶5] We initially consider Rodenburg's challenge to the district court's dismissal of the abuse of process claim.

         [¶6] An "[a]buse of process occurs when a person uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed." Jordet v. Jordet, 2015 ND 76, ¶ 20, 861 N.W.2d 147. The two essential elements of an abuse-of-process claim are: (1) an ulterior purpose; and (2) a willful act in the use of the process not proper in the regular conduct of the proceeding. Id. "In cases involving abuse-of-process claims, our decisions require some overt act akin to extortion or attempting to obtain a collateral advantage beyond the issuance of the formal use of process." Riemers v. Hill, 2016 ND 137, ¶ 22, 881 N.W.2d 624 (citing Jordet, at ¶ 20; Wachter v. Gratech Co., Ltd., 2000 ND 62, ¶¶ 33-34, 608 N.W.2d 279; Kummer v. City of Fargo, 516 N.W.2d 294, 297-99 (N.D. 1994); Volk v. Wisconsin Mortg. Assurance Co., 474 N.W.2d 40, 43-44 (N.D. 1991); Stoner v. Nash Finch, Inc., 446 N.W.2d 747, 751-52 (N.D. 1989)).

         [¶7] A district court's findings on the elements of a claim for an abuse of process are questions of fact. Riemers, 2016 ND 137, ¶ 24, 881 N.W.2d 624. A question of fact will not be reversed on appeal unless it is clearly erroneous under N.D.R.Civ.P. 52(a). Schindler v. Wageman, 2019 ND 41, ¶ 8, 923 N.W.2d 507. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.