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ENGEL v. CBS INC.

April 24, 1997

DONALD S. ENGEL, an individual, Plaintiff, against CBS INC., a corporation, MOSES & SINGER, a partnership, and STANLEY ROTHENBERG, an individual, Defendants.


The opinion of the court was delivered by: CEDARBAUM

 CEDARBAUM, J.

 This is an action for malicious civil prosecution. Plaintiff, a well-known music and entertainment lawyer, was himself sued by defendants while he was representing a client in a related suit brought by defendants. Plaintiff has proffered evidence that the civil action filed against him (the "underlying action") was motivated by the desire to interfere with his vigorous representation of his client. After plaintiff won a summary judgment dismissing him from the underlying action and his client won a substantial monetary award in the related suit, plaintiff filed this action for malicious prosecution.

 For the reasons that follow, defendants' motion is granted.

 Undisputed Facts

 In 1983, CBS filed suit against the musical group Boston and against Donald Thomas Scholz, leader of the group, for breach of contract. (Second Am. Compl. ("Compl.") P 10; Defs.' Statement of Facts ("Defs.' Facts") P 8.) Scholz and Boston retained Engel as their attorney and counterclaimed for breach of contract, unfair competition, breach of fiduciary obligation and tortious interference with contractual relations. (Compl. P 10; Defs.' Facts P 8.) On August 23, 1984, CBS filed an action in this court against Scholz, Scholz's agent Jeff Dorenfeld, MCA Records and Engel (the "underlying action"). (Compl. P 15; Defs.' Facts P 11-13; Pl.'s Facts P 12.) The underlying action concerned the defendants' alleged participation in negotiations to deliver Boston's third album to a record company other than CBS, in violation of the contract between Scholz and CBS. (Defs.' Ex. 12.) On February 8, 1985, Judge Broderick granted a motion for summary judgment in favor of Engel in the underlying action. (Compl. P 22; Defs.' Facts P 16.) The judge stated that he was "so outraged by the suggestion here contained in the complaint that an attorney can be effectively immobilized from representing a client by naming him as a defendant" that he seriously considered awarding attorneys' fees to Engel. (Defs.' Ex. 13.)

 In November 1985, Engel commenced this action in the Central District of California, alleging various claims in connection with the filing of the underlying action against him. All claims but one for malicious prosecution were eventually dismissed. (Defs.' Ex. 16; Defs.' Ex. 18.) In 1991, the California district court granted defendants' motion for summary judgment on the malicious prosecution claim, reasoning that, under California law, that claim was barred as a matter of law because defendants had probable cause to institute the underlying action. (Def. Ex. 17.) On appeal, the Ninth Circuit reversed the district court's finding of probable cause and also held that New York law rather than California law governed the case. Engel v. CBS Inc., 981 F.2d 1076 (9th Cir. 1992). Applying New York law, the Ninth Circuit held that the complaint did not allege facts meeting New York's special injury requirement for malicious civil prosecution claims. Id. at 1083. It then stated:

 
New York decisional authority suggests there may be some narrow grounds upon which a plaintiff might be able to state a valid claim for malicious prosecution without showing injury to person or property. Engel has never had an opportunity to plead his claim knowing that New York law applies, and we hesitate to conclude that Engel cannot allege any set of facts that would state a claim for malicious prosecution under New York law. These two factors convince us that, on remand, the district court should allow Engel to amend his complaint, if he can, to state a claim under New York law.

 Id.

 Following the Ninth Circuit's remand, Engel filed a Second Amended Complaint asserting claims of malicious prosecution and prima facie tort. (Defs.' Ex. 1; Pl.'s Ex. A.) The complaint alleges that defendants brought the underlying action "to embarrass and malign plaintiffs, *fn1" to punish them for representing Scholz against CBS, to dissuade them from continuing to represent Scholz zealously and vigorously, or at all, to obstruct and damage plaintiffs' business and reputation and to cause maximum financial, physical and emotional harm to plaintiffs." (Compl. P 17.) The complaint further alleges that defendants' prosecution of the underlying action interfered with Engel's personal and property rights. (Compl. P 27.)

 Defendants again moved to dismiss the complaint. The California district court granted the motion to dismiss the prima facie tort claim, but denied the motion to dismiss the malicious prosecution claim. (Defs.' Ex. 18.) Following the district court's denial of the motion to dismiss, the case proceeded to discovery. On May 18, 1995, after discovery was concluded, the case was transferred to the Southern District of New York. The California district court noted in its transfer order that "a court in New York is in a considerably better position to handle this case, particularly because 'heightened injury,' a legally complex issue of New York law, is involved." (Defs.' Ex. 24 at 11.)

 Discussion

 Defendants move for summary judgment on the sole ground that plaintiff cannot establish the essential element of special injury. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). To defeat a motion for summary judgment brought by the party that does not bear the burden of proof, the party with the burden of proof must make a showing sufficient to establish the existence of every element essential to that party's claim. Celotex Corporation v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In deciding whether a genuine issue of material fact exists, the court must "examine the evidence in the ...


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