- Jeff Vail vail-law.com
Abuse of Process
This article is part of Vail Law’s open-source litigation and legal risk management checklist. Connect with me on LinkedIn.
Abuse of process focuses on the wrongful use of process – typically service of a subpoena, restraining order, complaint, etc. – as opposed to the related tort of malicious prosecution which focuses on the wrongful motive in bringing a baseless claim.
The elements of abuse of process are:
(1) The defendant intentionally caused some process to be served upon plaintiff (e.g., “service of a subpoena”);
(2) The principal reason for defendant’s action was other than the proper use of legal process (e.g., “to obtain testimony from the witness at deposition”); and
(3) This action cause plaintiff damages.
CJI-Civ. 17:10. See Hewitt v. Rice, 154 P.3d 408, 414 (Colo. 2007) (distinguishing between abuse of process and malicious prosecution).
When a claim for abuse of process is based on the exercise of defendant’s First Amendment right to petition the government for redress of grievances, there is a “heightened standard” that must be met to show the defendant is not immunized from liability under the First Amendment. See Protect our Mtn. Env’t, Inc. v. District Court, 677 P.2d 1361, 1369 (Colo. 1984) (“POME”). To meet this POME standard, the plaintiff in an abuse of process claim must show (1) the underlying claims were devoid of reasonable factual support or lacked any cognizable basis in law; (2) the primary purpose of the underlying claims was to harass the plaintiff or to effectuate some other improper objective, and (3) the defendant’s underlying petitioning activity had an adverse legal effect on plaintiff. Id.
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