Svistina v. Elbadramany
1:22-cv-20525
S.D. Fla.Jan 3, 2023Background
- Plaintiff Elena Svistina alleges Defendant Mark Elbadramany sexually assaulted and secretly video-recorded her in a Trump Towers cabana; she filed a civil suit.
- Elbadramany alleges Svistina falsely accused him, tampered with cabana fixtures, called police, and caused a criminal battery prosecution that was later dropped; he asserts Svistina sought to extort/financially benefit from criminal and civil proceedings.
- Elbadramany filed counterclaims for malicious prosecution (targeting the closed criminal case) and abuse of process (alleging misuse of both criminal and civil processes).
- Svistina moved to dismiss, arguing the counterclaims are barred (litigation privilege, failure to state a claim, probable cause/good faith), and asked to strike attorneys’ fees and sever or abate the counterclaims.
- The Court: granted in part and denied in part — allowed malicious prosecution and abuse-of-process allegations relating to the criminal investigation to proceed (as pleaded), dismissed abusive-process allegations tied solely to the civil suit, rejected privilege as a bar to claims about pre-prosecution police statements, denied striking attorneys’ fees, and denied severance now but granted leave to amend counterclaims with specified edits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether malicious prosecution and abuse of process may be asserted as counterclaims | Both torts cannot be maintained as counterclaims directed at the pending civil action | Malicious prosecution targets the closed criminal case; Blue permits abuse of process as a counterclaim | Malicious prosecution allowed as to the terminated criminal case; abuse of process may be pleaded as a counterclaim (Blue governs) |
| Whether abuse of process sufficiently pleads misuse of judicial process | Using judicial process to obtain civil damages or pursue vengeance is not abuse of process | Svistina used the criminal process primarily to extort/force settlement | Abuse-of-process allegations tied to the civil suit fail (civil damages are a proper purpose); allegations that Svistina used the criminal process to extort are sufficiently pleaded |
| Whether Florida's litigation privilege bars the counterclaims | Litigation privilege immunizes statements/acts made during judicial proceedings | Privilege does not cover false pre-prosecution statements to law enforcement; Debrincat limits privilege for malicious prosecution | Privilege does not bar malicious prosecution; privilege bars abuse-of-process claims based solely on civil-case conduct; false police statements pre-criminal-proceeding are not protected by absolute privilege |
| Probable cause/good faith; attorneys’ fees; severance; immigration references | There was probable cause and good faith; attorneys’ fees are not recoverable; sever or strike counterclaims; remove prejudicial citizenship references | Existence of probable cause/good faith are factual issues; attorneys’ fees can be recoverable as damages; severance would waste resources | Probable cause and good-faith are factual issues for trial; attorneys’ fees may be recoverable; severance denied without prejudice (may renew later); Court ordered removal of irrelevant immigration/citizenship references and allowed amended counterclaims |
Key Cases Cited
- Blue v. Weinstein, 381 So.2d 308 (Fla. 1980) (abuse of process may be pleaded as a counterclaim in the main action)
- Debrincat v. Fischer, 217 So.3d 68 (Fla. 2017) (Florida litigation privilege does not bar malicious prosecution claims)
- Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606 (Fla. 1994) (scope of Florida's litigation privilege)
- Scozari v. _, 546 So.2d 751 (Fla. DCA) (abuse of process requires use of process for an immediate improper purpose)
- Bothmann v. Harrington, 458 So.2d 1163 (Fla. DCA) (abuse-of-process inquiry focuses on primary purpose of process use)
- American Nat’l Title & Escrow of Fla., Inc. v. Guarantee Title & Tr. Co., 810 So.2d 996 (Fla. 4th DCA) (false info given to law enforcement to extort is not protected by absolute litigation privilege)
- Jackson v. BellSouth Telecomms., 372 F.3d 1250 (11th Cir. 2004) (discussing applicability of litigation privilege in federal diversity cases)
- In re Fundamental Long Term Care, Inc., 873 F.3d 1325 (11th Cir. 2017) (abuse-of-process requires showing process was used primarily for an improper purpose)
- Hartman v. Moore, 547 U.S. 250 (U.S. 2006) (probable cause often an evidentiary issue for the jury)