US judge United States District Court, Eastern District of Pennsylvania, has dismissed the counterclaims of Jackson Ude, publisher of Pointblancknews.com, who is the defendant in the case he has with Simbi Kesiye Wabote, executive secretary of the Nigerian Content Development and Monitoring Board, NCDMB. The court also granted the motion Wabote brought in his case against Ude in the same court.
The court in United States, USalso ordered Ude to enter into a protective order before Wabote is required to disclose any banking or other personal and sensitive information. It gave Ude December 22, 2021, deadline for completion of fact discovery in the original scheduling order and to file dispositive motions by January 4, 2022, while all other deadlines remain in full force and effect.
He ordered that Ude’s failure to comply with this Order may result in a Show Cause Order or contempt proceedings.
According to court document sighted by Realnews, “Jackson Ude, a former Nigerian citizen now residing in Pennsylvania, owns and maintains a website where he publishes Nigerian news articles. One such article accuses Simbi Kesiye Wabote of accepting bribes and paints him as a corrupt Nigerian government official. Wabote filed suit against Ude in this Court, claiming that the article constitutes defamation.
“From Ude’s perspective, Wabote’s lawsuit is baseless, and its true purpose is to harass Ude. For this reason, Ude filed counterclaims against Wabote alleging abuse of process, intentional infliction of emotional distress, and negligence.
“Both parties then filed motions to dismiss the others’ claims. For the reasons below, the Court denies Ude’s motion and grants Wabote’s motion.”
The court dismissed the counterclaims on November 24, upon consideration of the parties’ letter briefs and after a telephone conference held on November 22, during which both parties presented argument.
The court document sighted by Realnews stated that both Wabote (Plaintiff) and Ude (defendant) were represented by their attorneys Michael D. Cilento and Benneth Onyema Amadi, respectively.
Joseph F. Leeson, Jr., United States District judge, Eastern District of Pennsylvania, who presided over the case, ordered that “The court Plaintiff’s Request .. is moot because Defendant’s counterclaims have been dismissed.” Leeson stated that Ude’s (Plaintiff) Interrogatory is moot because his counterclaims have been dismissed.
The order stated that: “Depositions for Mr. Wabote and Mr. Ude are to be held in person within the area encompassed by the Eastern District of Pennsylvania.
The judge overruled Ude’s objections to Wabote’s requests for production of evidence. “Defendant is ordered to produce the documents requested in Plaintiff’s Requests for Production 1–14 or, if Defendant does not possess the requested documents, inform Plaintiff of such, in a writing signed by defense counsel and also signed by the defendant,” the judge ordered.
The court also overruled Ude’s objections to Wabote’s interrogatories and ordered him to answer them fully and completely.
According to the court documents, “the facts of this section are taken largely from the Amended Complaint and accepted as true, with all reasonable inferences drawn in Wabote’s favor for purposes of deciding Ude’s Motion to Dismiss. See Lundy v. Monroe Cty. Dist. Attorney’s Office, No. 3:17-CV-2255, 2017 WL 9362911, at *1 (M.D. Pa. Dec. 11, 2017), report and recommendation adopted, 2018 WL2219033 (M.D. Pa. May 15, 2018). The Court’s recitation of the facts does not include legal conclusions or contentions unless necessary for context. See Brown v. Kaiser Found. Health Plan of Mid-Atl. States, Inc., No. 1:19-CV-1190, 2019 WL 7281928, at *2 (M.D. Pa. Dec. 27, 2019). For purposes of deciding Wabote’s Motion to Dismiss, the Court accepts as true all facts alleged by Ude in the Counterclaim. See Counter. ECF No. 14.”
The document noted that Wabote resides in Nigeria and serves on the Nigerian Content Development and Monitoring Board (the Board). “The Board oversees compliance with Nigerian policy that encourages participation of Nigerian ventures and workforce in the oil sector. It reviews “Content Plans” for technical compliance but does not set policy, manage projects, or award contracts. Wabote’s role on the Board as Executive Secretary is a non-elected position. He does not have any enforcement authority. See id. Nor does he have regular access to the press or media.”
It also noted that Ude, a former resident of Nigeria now living in Reading, Pennsylvania, operates an online blog at pointblanknews.com (the Blog). “The Blog proclaims to be a Nigerian news platform and boasts that it receives “fifty thousand unique visitors daily,” most of which come from Nigeria. See id. To date, Nigerian courts have found the Blog liable for approximately $263,000 in damages for publishing defamatory articles.”
It stated that “On February 10, 2021, Ude published an article on the Blog titled, in part, “Wabote Also Fingered With $2million Bribe” (the Article). The Article contains the following statements:
“• Also caught in the web of the Bonny NLNG kickback scandal is the Executive Secretary of the Nigerian Local Content Board, Engr. Simbi Wabote, who allegedly collected $2million from a Kelvion, a German equipment manufacturing company.”
“• Wabote allegedly gave a waiver to the German company to export its equipment into Nigeria for the Bonny LNG train 7 project against the Nigeria local content policy and against protests from Nigerian local equipment manufacturers.
“• According to sources as soon as Wabote who heads the Local Content Board heard about the kickbacks to Sylva, he devised his own means, fired a letter to Saipem in October 2020, raising concern over noncompliance to Local Content Laws.
“• Saipem, which had subcontracted Kelvion for equipment, swiftly directed them to deal with the Local Content boss. Sources said the German Company and Saipem paid a kickback of $2million to continue importations of equipment and materials from Germany.
“• According to the group, the alleged fraud and wanted disregard for local content laws by Saipem is enabled by the [Board] boss, Wabote.”
Ude also published the Article on Twitter.
In response, Wabote sent Ude a cease-and-desist letter, outlining the falsehoods in the article and demanding its removal. Instead of removing the article, Ude made the following post on Twitter:
“After collecting $5 million bribe from Kelvion to circumvent Nigeria’s local content Laws, Simbi Wabote, ES of [the Board] hires a lawyer to sue but suing the wrong company, wrong persons. This is how you know looting can make people stupid!”
The court papers stated that the procedural history of this case is somewhat complicated with both parties bringing claims against the other, and both parties filing motions to dismiss.
“Wabote filed an Amended Complaint with the Court on May 18, 2021. The Amended Complaint asserts that the Article and Ude’s twitter posts constitute defamation per se. Pursuant to Rule 44.1 of the Federal Rules of Civil Procedure, the Amended Complaint also provides notice that Wabote intends “to rely on Nigeria’s civil defamation and libel law, including Nigeria’s common-law and caselaw.”
Also, “Ude failed to answer the Amended Complaint within the required time frame,” it stated.
However, the parties stipulated to an extension, giving Ude more time to file a response to the Amended Complaint.
The Court granted the stipulation in part, and issued an Order on June 28, 2021, which stated that Ude’s “deadline to file an Answer to [the Amended Complaint], only, and for no other purpose, is extended through and including July 12, 2021.”
In compliance with the June Order, Ude filed with the Court an Answer and Counterclaim on July 12, 2021. See Counter, ECF No. 14.
The Counterclaim asserts the following claims against Wabote based on the filing of the Amended Complaint: Abuse of Process (Count I); Intentional Infliction of Emotional Distress (Count II); and Negligence (Count III). According to the Counterclaim, Wabote filed the Amended Complaint with ulterior motives to harass Ude, and Ude has suffered emotional distress as a result. See generally Counter. The Counterclaim also raises a smorgasbord of affirmative defenses, including forum non convenience and each defense under Rule 12(b) of the Federal Rules of Civil Procedure.
According to the court, “Rule 12(b) of the Federal Rules of Civil Procedure provides for the following defenses: “(1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19.”
After filing the Counterclaim, Ude filed with the Court a Motion to Dismiss the Amended Complaint and a memorandum in support. Ude’s Motion essentially elaborates on the many defenses raised in the Counterclaim. Also, Wabote filed with the Court a response to Ude’s Motion, and Ude filed with the Court a reply.
In addition, Wabote filed his own motion to dismiss the Counterclaim and a supporting memorandum. Wabote’s Motion asserts that the Counterclaim.
Deciding to both motions, Judge Leeson, noted “that the suit must be between citizens of different states or “citizens of a State and citizens or subjects of a foreign state.” “For individuals, their citizenship is where they are domiciled. (“Citizenship and domicile are substantially synonymous terms and, with respect to the jurisdiction of federal courts, domicile is the test of citizenship.” (citing, inter alia, Bjornquist v. Bos. & A.R. Co., 250 F. 929, 933 (1st Cir. 1918)).”
Ude’s Motion asserts that this Court lacks subject matter jurisdiction in this case for a variety of reasons. First, it argues that this Court lacks subject matter jurisdiction because Wabote’s injuries occurred in Nigeria. Second, it argues that this Court lacks subject matter jurisdiction because the Article was not directed at this forum. Third, it argues that this Court lacks subject matter jurisdiction because Wabote did not bring his defamation claim under the ATS.
According to the judge, “These arguments are misplaced; they either go towards personal jurisdiction or are not applicable in this case. Ude’s Motion does not make any arguments that address the true test for whether this Court has subject matter jurisdiction through diversity.
“In addition to punitive and exemplary damages, Wabote seeks damages not less than $10,000,000. This is clearly above the $75,000 threshold, and it is not a legal certainty that Wabote cannot recover the necessary amount. The first element for diversity jurisdiction is therefore satisfied. Moreover, complete diversity of citizenship exists between Wabote and Ude; Wabote is a citizen of Nigeria, and Ude is a citizen of Pennsylvania. The second element for diversity jurisdiction is therefore satisfied. As a result, this Court has subject matter jurisdiction over Wabote’s claim by way of diversity.”
The Court has personal jurisdiction over Ude
Wabote’s response asserts that Ude waived this defense and other defenses provided by Rule 12(b) because the Court’s June Order stated that “Defendant’s deadline to file an Answer to Plaintiff’s Complaint, only, and for no other purpose, is extended.” However, Rule 12(b) defenses may be raised in an answer. See In re Arthur Treacher’s Franchise Litig., 92 F.R.D. 398, 413 (E.D. Pa. 1981) (“[T]he Court holds that defendant’s filing of an answer which raises the defense of lack of personal jurisdiction prior to the filing of a Rule 12(b)(2) motion does not remove this motion from consideration by the Court on the ground that it is untimely.”). For this reason, the Court addresses the merits of these defenses.
Ude’s Motion next asserts that the Amended Complaint should be dismissed because this Court lacks personal jurisdiction over Ude. “Personal jurisdiction refers to a court’s ability to exercise control over a defendant based on “the defendant’s relationship to the forum State.” Bristol-Myers Squibb Co. v. Superior Ct. of California, San Francisco Cnty., 137 S. Ct. 1773, 1779 (2017) (citing, inter alia, Walden v. Fiore, 571 U.S. 277, 283 (2014)). There are two types of personal jurisdiction—general and specific. Specific jurisdiction requires that the plaintiff’s claim “arise out of or relate to the defendant’s contacts with the forum.” Id. (cleaned up). General jurisdiction, however, gives a State the authority to exercise jurisdiction over any individual who is domiciled in the State. Id.
“A court with general jurisdiction may hear any claim against that defendant, even if all the incidents underlying the claim occurred in a different State.” Id. (emphasis in original) (citing Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 918 (2011)). A federal court’s personal jurisdiction reaches as far as the State in which the federal court sits. See Fed. R. Civ. P. 4(k)(1)(A).
Ude’s Motion asserts that this Court lacks personal jurisdiction because Ude did not direct the Article to Pennsylvania and because Wabote’s injuries occurred in Nigeria. See Ude’s Mot. 17–19. While this argument might support a finding that this Court lacks specific personal jurisdiction in this case, it does not negate general jurisdiction. As a citizen domiciled in Pennsylvania, Ude is subject to the State’s general jurisdiction. (granting the Commonwealth general jurisdiction over individuals who are “[d]omicile[d] in this Commonwealth at the time when process is served)”.
The judge ruled that “Since this Court’s jurisdiction reaches as far as the State in which it sits, and this Court sits in Pennsylvania, it follows that this Court has general jurisdiction over Ude, which means it may “hear ‘any and all claims’ against” him, Skidmore v. Led Zeppelin, 106 F. Supp. 3d 581, 585 (E.D. Pa. 2015) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)), including Wabote’s defamation claim.
Venue is proper
The court noted that “Ude’s Motion also asserts that the Amended Complaint should be dismissed because venue is improper. “To support this, Ude’s Motion essentially recycles the same argument it made for lack of personal jurisdiction. Since this Court has determined that it has personal jurisdiction over Ude, venue is proper in this case in “a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located.” Ude is the only defendant, and he resides in this district. Venue is therefore proper.”
Forum non convenience does not warrant dismissal
The judgement stated that “Even though this Court has both subject matter and personal jurisdiction in this case, and that venue is proper, Ude’s Motion asserts that this Court should still dismiss the Amended Complaint under the doctrine of forum non convenience. “Under the doctrine of forum non convenience, a court may dismiss a claim it has jurisdiction over when “trial in the plaintiff’s chosen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specific reasons of convenience supporting his choice.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249 (1981). In the Third Circuit, courts consider four factors when ruling on a motion to dismiss based on forum non convenience: “(1) the availability of an alternative forum; (2) the amount of deference to be accorded to the plaintiff’s.choice of forum; (3) the private interest factors; and (4) the public interest factors.” Tech. Dev. Co. v. Onischenko, 174 F. App’x 117, 119–20 (3d Cir. 2006) (citing Lony v. E.I. Du Pont de Nemours & Co., 886 F.2d 628, 633 (3d Cir. 1989)).
“[T]he defendant bears the burden of persuasion” in a forum non convenience analysis. (citing Lony, 886 F.2d at 632).
“Regarding the first factor—availability of an alternative forum—“this requirement is usually satisfied where the defendant is amenable to process in the other jurisdiction.” Id. at 120 (cleaned up) (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 n.22 (1981)). Ude’s Motion argues that Nigeria is a better forum for this case but does not put forward any specific reasons as to why. Wabote’s Response on the other hand, puts forward at least one persuasive argument as to why Nigeria is not available as an alternative forum; it suggests that Ude is not amenable to process in Nigeria. Specifically, Wabote’s Response points out that Nigerian courts have already entered damages against the Blog but that Ude uses his residency in the U.S. to shield himself from those judgments. See Wabote’s Resp. 8–9. Moreover, Ude does not agree to litigate the case in Nigeria. Despite the assertion made in Ude’s Motion that Nigeria is an available alternative forum, Ude’s Motion provides no rationale to persuade the Court that such is the case. The first factor therefore weighs in favor of retaining jurisdiction.
“Regarding the second factor—the amount of deference to be accorded to the plaintiff’s choice of forum—while a plaintiff’s choice of forum normally receives great deference, this Court gives “potentially less” deference to Wabote’s choice of forum because he is a foreign plaintiff. Tech. Dev. Co., at 120 (citing Piper at 255–56).
“[T]he reason for giving a foreign plaintiff’s choice less deference is not xenophobia, but merely a reluctance to assume that the choice is a convenient one.” However, reluctance to give deference to a foreign plaintiff’s choice of forum can “be overcome by a strong showing of convenience.” Here, Wabote’s Response argues that Pennsylvania is a convenient forum because Ude resides in Pennsylvania and because Ude engaged in the defamatory conduct in Pennsylvania.
“This demonstrates at least some convenience. For this reason, while the Court does not put Wabote on the same footing as a domestic plaintiff, it does give his choice of forum more deference than the average foreign plaintiff. (holding that a “district court must indicate” how much deference it gives to a foreign plaintiff’s choice of forum (citing Lacey v. Cessna Aircraft Co., 862 F.2d 38, 45 (3d Cir. 1988))). What’s more, this case does not involve the usual facts where a defendant seeks dismissal under forum non convenience for being “sued far from home.” Instead, Ude’s Motion argues that it would be more convenient for Ude to litigate on a different continent than in his home neighborhood. The Court finds this difficult to believe, and Wabote’s decision to sue Ude in his “home forum [is] itself a factor suggesting that [Wabote’s] decision was based on convenience rather than some ulterior motive.” The second factor therefore weighs in favor of retaining jurisdiction, the judged ruled.
Regarding the third and fourth factors—private and public interest—Ude’s Motion argues that these factors favor dismissal because Nigeria has a local interest in deciding the matter. It also points out that trying the case in Pennsylvania would cause some confusion if Nigeria law is applied.
However, the Court is not persuaded by these undeveloped arguments because they do not establish a “‘strong preponderance in favor of dismissal.’”
It said: “Even if the Court gave Ude the benefit of the doubt, “dismissal is not appropriate just because the private and public factors do not favor retaining jurisdiction.” Tech. Dev. Co., 174 Fed. Appx. at 123 (emphasis in original) (citing Lony, 886 F. 2d at 635). The third and fourth factors therefore do not weigh heavily in favor one way or the other.
“In sum, the first two factors weigh in favor of retaining jurisdiction, and Ude has not met his burden of showing that factors three and four support dismissal. Considering this, and the fact that this Court “‘will not lightly disturb plaintiff’s choice of forum,’” Lewis, 917 F. Supp. 2d at 371 (quoting Lacy, 932 F. 2d at 179), this Court finds that forum non convenience does not warrant dismissal of the Amended Complaint.”
Wabote sufficiently pled his claim of defamation
Ude’s Motion asserts that the Amended Complaint should be dismissed for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. According to the judge, “When ruling on a motion to dismiss under Rule 12(b)(6), this Court must “accept all factual allegations as true [and] construe the complaint in the light most favorable to the plaintiff.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (cleaned up). Only if “the ‘[f]actual allegations . . . raise a right to relief above the speculative level’” has the plaintiff stated a plausible claim. Id. at 234 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 540, 555 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” (explaining that determining “whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense”). The defendant bears the burden of demonstrating that a plaintiff has failed to state a claim upon which relief can be granted. See Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)). Additionally, when ruling on a motion to dismiss, the Court may “consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputed authentic documents if the complainant’s claims are based upon these documents.” Mayer v. Belichick, 605 F. 3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus. Inc., 998 F. 2d 1192, 1196 (3d Cir. 1993)).”
Once again, the argument in Ude’s Motion here focuses entirely on the fact that the Article was not directed at this forum, and that Wabote’s injuries occurred in Nigeria. See Ude Mot. 21–24. While this argument may pertain to specific personal jurisdiction, it does not shed any light on how the Amended Complaint supposedly failed to sufficiently plead defamation. Indeed, the Amended Complaint sufficiently pleads each element of defamation.6 As a result, Wabote’s claim survives Ude’s Motion to dismiss for failure to state a claim.
Under Pennsylvania law, a prima facie case of defamation includes seven elements: “(1) the defamatory nature of the communication; (2) publication by the defendant; (3) the application of the communication to the plaintiff; (4) a recipient’s understanding of the communication’s defamatory meaning; (5) a recipient’s understanding that the communication was intended to apply to plaintiff; (6) special harm resulting to the plaintiff from its publication; and (7) abuse of a conditionally privileged occasion.” Franklin Prescriptions, Inc. v. The New York Times Co., 267 F. Supp. 2d 425, 434 (E.D. Pa. 2003) (quoting Fanelle v. Lojack Corp., No. Civ.A.99–4292, 2000 WL 1801270, at *2 (E.D.Pa. Dec. 7, 2000)).
US Judge: Court Proceedings
Ude waived the remaining 12(b) defenses
In addition to the defenses discussed above, the Counterclaim lists the remaining defenses provided under Rule 12(b) in conclusory, boilerplate type language: insufficient process; insufficient service of process; and failure to join a party under Rule 19. However, Ude’s Motion does not mention these defenses again. Nor are these defenses mentioned in Ude’s Reply. As a result, the Court finds these defenses to be “[t]hrow-away arguments left undeveloped [and they] are also considered waived.” Markert v. PNC Fin. Servs. Grp., Inc., 828 F. Supp. 2d 765, 773 (E.D. Pa. 2011) (citing Aiellos v. Zisa, No. 2:09–3076, 2010 WL 421083, at *3 (D.N.J. Feb. 2, 2010)).
“Having dismissed Ude’s Motion in its entirety, the Court addressed Wabote’s Motion.
On Wabote’s motion to dismiss and strike certain affirmative defenses, the judge ruled as follows
“Wabote’s Motion contends that each claim in the Counterclaim should be dismissed for failure to state a claim. It also moves this Court to strike certain affirmative defenses raised in the Counterclaim.
Failure to State a Claim Under Rule 12(b)(6) – Review of Applicable Law
“Having already laid out the standard for ruling on a motion to dismiss under Rule 12(b)(6), see supra III.A.4, the Court will not belabor it here. The Court emphasizes only that a complaint “requires more than labels and conclusions, and a formulaic recitation of a cause of action’s elements will not do.” Twombly, 550 U.S. at 545. With that in mind, the Court discusses each of Ude’s counterclaims in turn.
i. Abuse of process: Ude failed to sufficiently plead his claim.
“Wabote’s Motion asserts that Ude’s abuse of process claim should be dismissed because the Counterclaim fails to allege the required elements for such a claim. See Wabote’s Mot. 3. “To state a proper claim for abuse of process under Pennsylvania law, a plaintiff must allege that: (1) the defendant used a legal process against the plaintiff; (2) the action was primarily to accomplish a purpose for which the process was not designed; and (3) harm was caused to the plaintiff.” Peek v. Whittaker, No. 2:13-CV-OI188, 2014 WL 2154965, at *6 (W.D. Pa. May 22, 2014) (citing Rosen v. Am. Bank of Rolla, 627 A.2d 190, 192 (Pa. Super. Ct. 1993)). An abuse of process claim “does not lie where the defendant simply had cruel intentions or acted from spite or with an ulterior motive.” “[T]here must be an act or threat not authorized by the process, or the process must be used for an illegitimate aim such as extortion, blackmail, or to coerce or compel the plaintiff to take some collateral action.” Al Hamilton Contracting Co. v. Cowder, 644 A.2d 188, 192 (Pa. Super. Ct. 1994) (citing Rosen v. Tesoro Petroleum Corp., 582 A.2d 27, 32–33 (Pa. Super. Ct. 1990).
“Wabote’s motion argues that the counterclaim fails to sufficiently allege the first element. According to Wabote’s motion, an abuse of process claim lies only when a plaintiff perverts a process after it has already been initiated. It argues that Ude’s abuse of process claim is improper because the suit has only just begun. Essentially, Wabote’s motion suggests that a proper claim would have been for malicious prosecution, not abuse of process.
“The Court acknowledges that the difference between abuse of process and malicious prosecution is somewhat murky. For example, Pennsylvania state courts “have drawn a distinction between actions for abuse of legal process and those for malicious prosecution, which, when founded on civil prosecutions, are usually described as malicious use of civil process.” Dumont Television & Radio Corp. v. Franklin Elec. Co. of Phila., 154 A.2d 585, 587 (Pa. 1959); see also Mcgee v. Feege, 535 A.2d 1020, 1024 (Pa. 1987).
“For a time, “[malicious] use ha[d] to do with the wrongful initiation of civil process, as contrasted with abuse, which [was] concerned with perversion after litigation ha[d] begun.”
“However, the Third Circuit has stated that, at least to some degree, the distinction between these claims lost its importance when the Dragonetti Act was adopted. See U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 394 (3d Cir. 2002) (“Whatever may have been the importance of that distinction before the Dragonetti Act was adopted, it appears that both torts are subsumed within the general scope of the Act, which includes persons who take part in the procurement, initiation or continuation of civil proceedings for wrongful purposes.” (citing 42 Pa.C.S.A. § 8351(a))).
The Dragonetti Act codified “the common law cause of action for malicious use of civil proceedings.” Peek v. Whittaker, No. 2:13-CV-OI188, 2014 WL 2154965, at *4 (W.D. Pa. May 22, 2014); 42 Pa. Cons. Stat. § 8351(a), (a)(1). Nevertheless, under Pennsylvania law, a plaintiff may still bring a claim of abuse of process under the Dragonetti Act or under the common law. See U.S.”