CHURCH OF SCIENTOLOGY OF CALIFORNIA and Founding Church of Scientology of
Washington, D. C., Plaintiffs,
James SIEGELMAN, Flo Conway, J. B. Lippincott Company, and Morris Deutsch,
No. 79 Civ. 1166 (GLG).
United States District Court, S. D. New York.
July 23, 1982.
Plaintiff in defamation action filed motion for summary judgment to dismiss
defendants' counterclaim for prima facie tort and defendants filed motion to
amend their counterclaim by adding the claim for intentional infliction of
emotional distress. The District Court, Goettel, J., held that: (1) additional
allegation that plaintiff undertook its defamation action maliciously and
without justification was not enough to avoid conclusion that prima facie tort
claim was simply the defective claim for malicious prosecution or abuse of
process dressed in other garb, and thus counterclaim had to be dismissed, and
(2) granting defendants' motion to amend counterclaim by adding the claim for
intentional infliction of emotional distress would be inappropriate.
A party will not be allowed to take a defective claim for malicious
prosecution, abuse of process, or any other traditional tort and simply recast
it as one for prima facie tort.
 FEDERAL CIVIL PROCEDURE
Additional allegation that plaintiff undertook its defamation action
maliciously and without justification was not enough to avoid conclusion that
prima facie tort claim was simply defective claim for malicious prosecution or
abuse of process dressed in other garb, and thus prima facie tort claim, which
was based on same factual allegations as legally insufficient counterclaims for
abuse of process and malicious prosecution, had to be dismissed.
 FEDERAL CIVIL PROCEDURE
Granting defendants' motion to amend their counterclaim by adding a claim for
intentional infliction of emotional distress would be inappropriate, where
three years had passed since the filing of the answer, and the defendants had
offered no justifiable excuse for the delay, addition of the new claim would
lead to a new wave of discovery, and defendants could prove no set of facts
that would entitle them to prevail on their proposed claim.
To state a claim for intentional infliction of emotional distress, defendant's
conduct must have been extreme and outrageous.
Actions such as threatening to commence a lawsuit and attempting to review a
manuscript could not be viewed as so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community, and thus these
actions could not support claim of intentional infliction of emotional
*736 Katz & Weinstein, P. C., New York City, for plaintiffs; Sanford M.
Katz, Charlene M. Weinstein, New York City, of counsel.
Clark, Wulf & Levine, New York City, for defendants Siegelman and Conway;
Melvin L. Wulf, New York City, of counsel.
GOETTEL, District Judge:
This lawsuit began in 1979 as a defamation action by the Church of Scientology
of California and the Founding Church of Scientology of Washington, D. C. (the
Church) against James Siegelman, Flo Conway, J. B. Lippincott Company
(Lippincott), and Morris Deutsch. At present, however, all that remains is the
counterclaim of Siegelman and Conway (the defendants) against the Church for
prima facie tort. Before this Court are two motions: the Church's motion for
summary judgment dismissing the counterclaim for prima facie tort and the
defendants' motion to amend their counterclaim by adding a claim for
intentional infliction of emotional distress.
Prior to addressing the legal issues raised by these motions, a brief review
of the history of this litigation is appropriate. The Church commenced this
action on March 6, 1979. It essentially raised three claims: first, that
"Snapping: America's Epidemic of Sudden Personality Change" ("Snapping"), a
book co-authored by Siegelman and Conway and published by Lippincott, contained
a number of highly defamatory comments about the Church; second, that Siegelman
and Deutsch made defamatory comments during the course of an interview on "The
David Susskind Show;" and finally, that Siegelman and Conway made defamatory
remarks in an interview published in "People" magazine. The defendants
responded, inter alia, with counterclaims for abuse of process and prima facie
tort, which alleged that the defamation action was frivolous and that the
Church commenced it solely to harass the defendants and punish them for
expressing adverse opinions about Scientology, and with a counterclaim for
conspiracy to deprive the defendants of their constitutional rights.
Most of these claims were short-lived. In an opinion dated August 27, 1979,
Church of Scientology of California v. Siegelman, 475 F.Supp. 950
(S.D.N.Y.1979), this Court dismissed the complaint against Siegelman, Conway,
and Lippincott because the allegedly defamatory statements were either
nondefamatory or statements of opinion, which cannot form the basis of an
action in defamation. (Although the claim against Deutsch was not dismissed,
the parties subsequently settled the matter.) Additionally, this Court
dismissed the counterclaims for conspiracy to deprive the defendants of their
constitutional rights and abuse of process.[FN1]
FN1. The counterclaim for abuse of process was dismissed because although
"allegations (that the Church served the defendants with process for the
sole purpose of harassing them) may succeed in a suit for malicious
prosecution (brought after a successful termination of this litigation),
they are insufficient to sustain a cause of action for abuse of process."
Church of Scientology of California v. Siegelman, supra, 475 F.Supp. at
With the lawsuit having terminated in their favor, Siegelman and Conway filed
a separate suit for malicious prosecution on *737 July 17, 1980. (The
allegations set forth in the complaint were essentially the same as those
underlying the counterclaims for abuse of process and prima facie tort.)
Shortly thereafter, the Church moved to dismiss the complaint for failure to
state a claim because the Church had not interfered with the person or property
of the defendants by the use of a provisional remedy in the prior lawsuit-a
prerequisite to maintaining a suit for malicious prosecution in New York. See
Kalso Systemet, Inc. v. Jacobs, 474 F.Supp. 666, 670 (S.D.N.Y.1979).
Recognizing the correctness of this position, the defendants filed a Notice of
Dismissal pursuant to Fed.R.Civ.P. 41(a)(1).[FN2]
FN2. At oral argument on these motions, the defendants' counsel admitted
that the malicious prosecution cause of action was defective.
The present motions were brought this Spring, and oral argument was held on
May 28, 1982. The first motion that will be considered is the Church's motion
for summary judgment. The Church argues that the counterclaim for prima facie
tort must be dismissed because it merely realleges the defective claims for
abuse of process and malicious prosecution. Moreover, it contends that
dismissal is warranted because the defendants have neither pleaded nor suffered
any legally cognizable special damages. In opposition to the motion, the
defendants have asserted only that there is a material issue of fact concerning
the existence of special damages; they have not addressed the Church's first
The second motion is the defendants' motion to amend their counterclaim by
adding a claim for intentional infliction of emotional distress-a claim that
the defendants' counsel has thus far "overlooked." [FN3] They argue that leave
to amend should be granted in light of the policy of the Federal Rules of Civil
Procedure that leave to amend should be freely granted and the fact that, in
their view, the Church will not be prejudiced by the amendment. The Church, on
the other hand, advances three arguments in opposition to the motion: first,
that the proposed counterclaim is time-barred and is not saved by the relation
back doctrine of Fed.R.Civ.P. 15(c); second, that the defendants are guilty
of laches by waiting nearly three years to bring this motion; and finally, that
the proposed counterclaim is legally deficient. For the reasons stated below,
the Church's motion for summary judgment is granted, and the defendants' motion
to amend is denied.
FN3. According to the defendants, the prima facie tort theory "is not very
satisfactory because it requires proof of special damages in very limited
areas and does not allow defendants the possibility of recovering a sum of
money which can realistically compensate them for the serious harm done to
them by the (Church)." Defendants Siegelman and Conway's Memorandum of Law
in Support of Their Motion to Amend Their Counterclaim at 2.
I. Motion for Summary Judgment
The Church's motion for summary judgment raises the question whether a cause
of action for prima facie tort should be dismissed when it simply realleges a
defective cause of action for a traditional tort. After reviewing the relevant
authorities on the subject, we feel constrained to answer this question
A prima facie tort is " 'the infliction of intentional harm, resulting in
damage, without excuse or justification, by an act or a series of acts which
would otherwise be lawful.' " ATI, Inc. v. Ruder & Finn, Inc., 42 N.Y.2d
454, 458, 368 N.E.2d 1230, 1232, 398 N.Y.S.2d 864, 866 (1977) (quoting Ruza
v. Ruza, 286 A.D. 767, 769, 146 N.Y.S.2d 808, 811 (1st Dep't 1955)). Until
recently, it appeared quite clear that a litigant could not maintain an action
for prima facie tort if it was premised on conduct that could form the basis of
a cause of action for a traditional tort. National Nutritional Foods
Association v. Whelan, 492 F.Supp. 374, 382-83 (S.D.N.Y.1980); Belsky v.
Lowenthal, 62 A.D.2d 319, 322, 405 N.Y.S.2d 62, 64 (1st Dep't 1978), aff'd,
47 N.Y.2d 820, 392 N.E.2d 560, 418 N.Y.S.2d 573 (1979). Board of
Education v. Farmingdale Classroom Teachers Association, 38 N.Y.2d 397, 343
N.E.2d 278, 380 N.Y.S.2d 635 (1975), however, muddied the waters somewhat. In
*738 that case, the New York Court of Appeals allowed the plaintiff to
maintain an action for abuse of process and, in the alternative, for prima
facie tort. It noted that
(i)t is our view that a modern system of procedure, one which permits
alternative pleading, should not blindly prohibit that pleading in the area of
prima facie tort. Of course, double recoveries will not be allowed, and once a
traditional tort has been established the allegation with respect to prima
facie tort will be rendered academic. Nevertheless there may be instances
where the traditional tort cause of action will fail and plaintiff should be
permitted to assert this alternative claim.
Id. at 406, 343 N.E.2d at 285, 380 N.Y.S.2d at 645.
(1) Although the precise import of Farmingdale on the law of prima facie
tort is unclear,[FN4] one thing can be stated with certainty: "(p)rima facie
tort (is not) a 'catch-all' alternative for every cause of action (that) cannot
stand on its (own) legs." Belsky v. Lowenthal, supra, 62 A.D.2d at 323, 405
N.Y.S.2d at 65; accord, Ann-Margret v. High Society Magazine, Inc., 498
F.Supp. 401, 408 (S.D.N.Y.1980); Kalso Systemet, Inc. v. Jacobs, supra, 474
F.Supp. at 671. A party will not be allowed to take a defective claim for
malicious prosecution, abuse of process, or any other traditional tort and
simply recast it as one for prima facie tort. See Ann-Margret v. High
Society Magazine, Inc., supra, 498 F.Supp. at 408; National Nutritional
Foods Association v. Whelan, supra, 492 F.Supp. at 382-84; Kalso Systemet,
Inc. v. Jacobs, supra, 474 F.Supp. at 671-72; Scully v. Genesee Milk
Producer's Cooperative, Inc., 78 A.D.2d 982, 982, 434 N.Y.S.2d 48, 50 (4th
Dep't 1980), appeal dismissed, 52 N.Y.2d 969, 419 N.E.2d 875, 437 N.Y.S.2d
972 (1981); Belsky v. Lowenthal, supra, 62 A.D.2d at 322-23, 405 N.Y.S.2d at
64-65; see also Sadowy v. Sony Corp. of America, 496 F.Supp. 1071, 1076
(S.D.N.Y.1980) (although court noted that "an action for prima facie tort will
not lie where the allegations fall within the scope of a traditional tort
theory," it allowed a claim for prima facie tort to be pleaded in the
alternative when it was not "merely a (traditional tort) count dressed in other
garb"). In Belsky v. Lowenthal, supra, for example, the plaintiff based an
action for malicious prosecution and prima facie tort on essentially the same
facts. After upholding the trial court's dismissal of the malicious
prosecution claim because there had been no interference with the plaintiff's
person or property through the use of a provisional remedy in the prior
proceeding, the Appellate Division held that the prima facie tort claim must
also fall. It noted that
FN4. National Nutritional Foods Association v. Whelan, supra, offered
this explanation of the holding in Farmingdale.
In Farmingdale the Court clearly regarded the facts alleged by plaintiff
as constituting a facially sufficient claim of the tort of abuse-of-
process. The defendant's conduct there, in other words, was not only
within the area intended to be regulated by abuse-of-process doctrine, it
was conduct that the doctrine made unlawful. Alternative pleading of prima
facie tort in such a case served as a device to enable plaintiff to assert
what appeared to be a meritorious claim under a different theory.
Where the conduct alleged is implicitly or explicitly permitted by
traditional doctrine, the catch-all prima facie tort has no useful service
to perform. If the conduct is to be proscribed, the straight-forward way
to do it is to revise traditional doctrine to punish what has gone
unpunished. By contrast, where the complaint's pleading appears to be
sufficient to establish a traditional tort, as in Farmingdale, the prima
facie tort doctrine serves the useful function of providing an alternative
rationale for relief in the event some technicality or other unimportant
shortcoming prevents relief under the traditional rubric.
Id. at 383-84.
(i)t would make little sense to hold that plaintiff may not prevail on a
cause of action, having failed to establish certain elements, which are
essential thereto, and then in the exercise of flexibility, apply a different
name to it, and without correcting any of the fatal defects, permit the cause
of action (absent a unique quality) to stand.
*739 The just and reasonable concept that the law should never suffer an
injury and a damage without a remedy has its limitations. To blindly accept
this rationale should not be an occasion for setting aside large bodies of case
law which have defined our limits, established our guidelines and set forth the
essential elements of traditional tort.
Id. at 322-23, 405 N.Y.S.2d at 65 (citations omitted).
(2) Upholding the defendants' claim for prima facie tort would amount to
sanctioning its use as a "catch-all" alternative for defective causes of
action. As noted above, the gist of the defendants' counterclaim for abuse of
process and its cause of action for malicious prosecution, which were both
legally deficient, was that the Church instituted the defamation action against
the defendants to punish them for expressing adverse opinions about the
Church. The prima facie tort claim is based on the same factual allegations.
Indeed, in the defendants' answer, the facts on which the abuse of process
claim was based were simply realleged in the prima facie tort claim. See
Answer of Defendants James Siegelman and Flo Conway PP 17-19. The only
addition was the allegation that the Church undertook these actions maliciously
and without justification. Id. P 18. This is not enough to avoid the
conclusion that the prima facie tort claim is simply a defective claim for
malicious prosecution or abuse of process "dressed in other garb."
Accordingly, the Church's motion for summary judgment dismissing the
counterclaim for prima facie tort is granted.[FN5]
FN5. In light of our disposition of the Church's motion for summary
judgment, we need not consider the Church's argument that the defendants
have neither pleaded nor suffered any legally cognizable special damages,
although it appears that the pleadings are presently defective.
II. Motion to Amend
(3) The defendants' motion to amend their counterclaim by adding a claim for
intentional infliction of emotional distress is governed by Rule 13(f) of
the Federal Rules of Civil Procedure, which provides that "(w)hen a pleader
fails to set up a counterclaim through oversight, inadvertence, or excusable
neglect, or when justice requires, he may by leave of court set up the
counterclaim by amendment." Fed.R.Civ.P. 13(f). This rule vests a great
deal of discretion in the trial court. Accordingly, it is virtually impossible
to state precise guidelines for deciding a Rule 13(f) motion. 6 C. Wright &
A. Miller, Federal Practice and Procedure s 1430, at 153 (1971). See
generally id. s 1430, at 152 (Rule 13(f) is liberally construed).
"The usual judicial practice is to examine each case on its facts and to deny
leave to amend only when the delay is inexcusable, or when the pleader has
displayed a lack of good faith, or when the omitted counterclaim can be left to
an independent action or when it is totally lacking in merit." Id. s
1430, at 153-55 (footnotes omitted). See generally Parness v. Lieblich, 90
F.R.D. 178, 182 (S.D.N.Y.1981) (motion to amend under Rule 15(a) should be
decided on "the particular facts and circumstances" of each case). The facts
and circumstances of this case lead this Court to the conclusion that granting
leave to amend would be inappropriate.
Initially, it should be noted that three years have passed since the filing of
the answer, and the defendants have offered no justifiable excuse for the
delay. This is not a case in which the discovery of new facts has precipitated
an amendment. On the contrary, even though the facts giving rise to the
proposed amendment were not contained in the original answer, the defendants
were cognizant of them at the time the answer was filed. Proposed Counterclaim
P 31; see Dow Corning Corp. v. General Electric Co., 461 F.Supp. 519, 520
(N.D.N.Y.1978). The only reason now advanced for the delay in seeking to amend
is that the defendants' attorney "overlooked" the possibility of utilizing this
legal theory. This type of excuse, however, has not fared very well in the
courts. As the Sixth Circuit has noted, "(a) misconception of the law is not
an excuse for the late presentation of an *740 alternative theory of
recovery." Troxel Manufacturing Co. v. Schwinn Bicycle Co., 489 F.2d 968,
971 (6th Cir. 1973), cert. denied, 416 U.S. 939, 94 S.Ct. 1942, 40 L.Ed.2d
290 (1974); accord, Goss v. Revlon, Inc., 548 F.2d 405, 407 (2d Cir. 1976)
(leave to amend has been denied when "no reason for ... extended and undue
delay, other than ignorance of the law," has been advanced).
It appears that this unexcused delay, coupled with the probability that the
addition of a new claim would lead to a new wave of discovery, is an adequate
basis for denying leave to amend. See Goss v. Revlon, Inc., supra 548 F.2d
at 407; Ralston-Purina Co. v. Bertie, 541 F.2d 1363, 1367 (9th Cir. 1976);
Troxel Manufacturing Co. v. Schwinn Bicycle Co., supra, 489 F.2d at 971;
Dow Corning Corp. v. General Electric Co., supra, 461 F.Supp. at 520-21. We
need not, however, rest the decision entirely on these grounds. Leave to amend
is also inappropriate because the proposed counterclaim is legally deficient
and fails to state a claim on which relief can be granted. See Ganguly v.
New York State Department of Mental Hygiene-Dunlap Manhattan Psychiatric
Center, 92 F.R.D. 125, 128 (S.D.N.Y.1981) (leave to amend can be denied when
the proposed amendment is legally deficient); Vulcan Society of Westchester
County v. Fire Department of the City of White Plains, 82 F.R.D. 379, 386-87
(4) Unquestionably, intentional infliction of emotional distress is a cause
of action recognized in New York. See Fischer v. Maloney, 43 N.Y.2d 553,
373 N.E.2d 1215, 402 N.Y.S.2d 991 (1978); Long v. Beneficial Finance Co. of
New York, 39 A.D.2d 11, 330 N.Y.S.2d 664 (4th Dep't 1972); Halio v. Lurie,
15 A.D.2d 62, 222 N.Y.S.2d 759 (2d Dep't 1961). Thus, "(o)ne who by extreme
and outrageous conduct intentionally or recklessly causes severe emotional
distress to another is subject to liability for such emotional distress."
Fischer v. Maloney, supra, 43 N.Y.2d at 557, 373 N.E.2d at 1217, 402
N.Y.S.2d at 992-93 (quoting Restatement (Second) of Torts s 46(1) (1965)); see
W. Prosser, Handbook of the Law of Torts s 12, at 56 (4th ed. 1971) ("there is
liability for conduct exceeding all bounds usually tolerated by decent society,
of a nature which is especially calculated to cause, and does cause, mental
distress of a very serious kind" (footnote omitted)). It is important to
remember, however, that not all intentional inflictions of emotional distress
are actionable. To state a claim, the defendant's conduct must have been
extreme and outrageous. As noted in the Restatement,
(i)t has not been enough that the defendant has acted with an intent which is
tortious or even criminal, or that he has intended to inflict emotional
distress, or even that his conduct has been characterized by "malice," or a
degree of aggravation which would entitle the plaintiff to punitive damages for
another tort. Liability has been found only where the conduct has been so
outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in
a civilized community. Generally, the case is one in which the recitation of
the facts to an average member of the community would arouse his resentment
against the actor, and lead him to exclaim, "Outrageous!"
Restatement (Second) of Torts s 46, Comment d (1965); accord, Fischer v.
Maloney, supra, 43 N.Y.2d at 557, 373 N.E.2d at 1217, 402 N.Y.S. at 993; W.
Prosser, supra, s 12, at 56; see O'Rourke v. Pawling Savings Bank, 80 A.D.2d
847, 847-48, 444 N.Y.S.2d 471, 472 (2d Dep't 1981); Luciano v. Handcock, 78
A.D.2d 943, 943-44, 433 N.Y.S.2d 257, 258 (3d Dep't 1980); Century
Apartments, Inc. v. Yalkowsky, 106 Misc.2d 762, 763-64, 766-67, 435 N.Y.S.2d
627, 628-29, 631 (Civ.Ct.1980).
(5) The conduct at issue in this case falls short of the level needed to
sustain an action for intentional infliction of mental distress. This conduct,
which is delineated in the defendants' proposed counterclaim, can be summarized
as follows.[FN6] First, the *741 Church told Lippincott, Donald Farber, the
defendants' literary agent, and Dell Publishing Company (Dell), which had
contracted to publish the paperback edition of "Snapping," that "Snapping"
contained false and misleading information. Second, the Church attempted to
persuade Lippincott not to publish the book. Third, the Church attempted to
persuade Lippincott, Farber, Dell, and the defendants to revise the book.
Fourth, the Church threatened Lippincott, Farber, and the defendants with a
libel action, knowing it was bound to fail. Fifth, the Church sought
permission from Lippincott, Farber, Dell, and the defendants to review the
manuscript prior to publication. Sixth, the Church accused the defendants of
harboring malice toward the Church. Seventh, the Church distributed "False
Corrections Reports," "which supposedly but falsely showed that ("Snapping
") contained false and misleading statements regarding Scientology," Proposed
Counterclaim P 25, and "which supposedly but falsely showed that defendants'
statements on a David Susskind television program concerning Scientology were
false and misleading." Id. P 27. Eighth, the Church commenced a frivolous
libel action. Ninth, the Church threatened to sue the defendants in a
defamation action based on the statements on the Susskind show. Finally, the
Church threatened to commence another defamation action after the first one was
dismissed. This alleged course of conduct can at most be characterized as
annoying. Actions such as threatening to commence a lawsuit and attempting to
review a manuscript cannot be viewed as "so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community."
[FN7] Restatement (Second) Torts s 46, Comment d (1965); see Fischer v.
Maloney, supra, 43 N.Y.2d at 557, 373 N.E.2d at 1217, 402 N.Y.S.2d at 992-93;
O'Rourke v. Pawling Savings Bank, supra, 80 A.D.2d at 847-48, 444 N.Y.S.2d
at 472; Luciano v. Handcock, supra, 78 A.D.2d at 943-44, 433 N.Y.S.2d at
258; Century Apartments, Inc. v. Yalkowsky, supra, 106 Misc.2d at 763-64,
766-67, 435 N.Y.S.2d at 628-29, 631. Thus, as the defendants can prove no set
of facts that will entitle them to prevail on their proposed claim for
intentional infliction of mental distress, leave to amend is denied.[FN8]
FN6. For the purposes of this motion, we will assume that the defendants'
allegations are true.
FN7. Moreover, paragraph 26 of the proposed counterclaim is legally
deficient because it merely realleges the facts underlying the counterclaim
for abuse of process and the cause of action for malicious prosecution.
Alexander v. Unification Church of America, 634 F.2d 673, 679 (2d Cir.
1980); see Fischer v. Maloney, supra, 43 N.Y.2d at 557-58, 373 N.E.2d at
1217, 402 N.Y.S.2d at 993; pt. I supra.
FN8. In light of our disposition of this motion, we need not consider the
Church's argument that the proposed counterclaim is time-barred, although
the argument may well have merit.