937 F. Supp. 2d 765
E.D. Va.2013Background
- Ubl, a Florida resident, sues Virginia attorney Kachouroff in federal court under diversity, alleging abuse of process and negligent infliction of emotional distress arising from a declaration Kachouroff filed in a prior qui tam case over three years earlier.
- The qui tam action involved IIF Data Solutions and its president; the government objected to a proposed settlement, and the original May 6, 2008 settlement was deemed void.
- Kachouroff filed a declaration on October 5, 2009 in opposition to enforcing the May 2008 settlement; Ubl claims the declaration was false and intended to influence the district and appellate courts.
- Ubl’s amended complaint asserts misrepresentations in the declaration and seeks at least $3 million in damages.
- The court addresses whether the allegedly false declaration can support Virginia-law abuse of process and whether the negligent infliction of emotional distress claim is viable, granting the motion to dismiss.
- The court does not reach the statute of limitations issue given disposition on the other grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the declaration constitutes abuse of process under Virginia law. | Ubl asserts the declaration was a deliberate misrepresentation used to pervert process. | Kachouroff contends the declaration is not “process” and there was no ulterior purpose. | Abuse of process claim fails; declaration not “process” under Virginia law and no ulterior purpose shown. |
| Whether an attorney’s declaration can be the basis for abuse of process when used in litigation. | Ubl argues broad interpretation of process should cover attorney declarations. | Kachouroff relies on Virginia authority limiting process to traditional court-issued instruments. | Declaration cannot, as a matter of law, constitute process for abuse of process. |
| Whether Ubl can state a viable negligent infliction of emotional distress claim against opposing counsel. | Opposing counsel's conduct caused foreseeable emotional distress to Ubl. | Virginia law protects attorneys from IED claims by opposing parties absent foreseeable reliance. | NIED claim fails under Ayyildiz; no foreseeable reliance by Ubl on Kachouroff’s conduct. |
| Whether the claim is time-barred by statute of limitations. | Accrual or tolling due to incapacity tolls limitations period. | Limitations period may bar the claim. | Court declines to reach limitations issue on the current record. |
Key Cases Cited
- Ross v. Peck Iron & Metal Co., 264 F.2d 262 (4th Cir.1959) (definition of process in Virginia abuse of process context)
- Glidewell v. Murray-Lacy & Co., 98 S.E.2d 665 (Va. 1919) (abuse of process requires improper use after process issued)
- Ely v. Whitlock, 385 S.E.2d 893 (Va. 1989) (declaration in litigation not “process” for abuse of process)
- Mullins v. Sanders, 54 S.E.2d 116 (Va. 1949) (ulterior purpose elements for abuse of process)
- Triangle Auto Auction, Inc. v. Cash, 380 S.E.2d 649 (Va. 1989) (abuse of process involves wrongful use after issuance of process)
- Donohoe Constr. Co., Inc. v. Mount Vernon Assocs., 369 S.E.2d 857 (Va. 1988) (definition and limits of abuse of process elements)
- Montgomery v. McDaniel, 628 S.E.2d 529 (Va. 2006) (analysis of routine use of process for abuse of process)
- Womack v. Eldridge, 210 S.E.2d 145 (Va. 1974) (recognizes private duty limitations in emotional distress claims)