10th Circuit Nixes VFW Abuse-of-Process Lawsuit

(CN) - The 10th Circuit affirmed dismissal of an abuse-of-process lawsuit filed by two members of the Veterans of Foreign Wars, who say they were wrongly accused of defamation for handing out flyers that criticized California leaders of the group.

In 2005, Ron Rusakiewicz and Paul Spera handed out flyers at a VFW convention in Salt Lake City, alleging that officers of the Veterans of Foreign Wars, Department of California (VFWCA) had hacked into computers at national headquarters and converted the names of national members into VFWCA members in order to pad their member rolls and coffers.

John Lowe, one of those accused, filed a defamation claim against Rusakiewicz and Spera. But before he filed the complaint, he sought the advice of other officers of the California department, including Shirley Shaw, David Norris and John Wolfe. They offered their support and agreed to use VFWCA funds to pay for Lowe's legal expenses.

Lowe later voluntarily dismissed his complaint.

Rusakiewicz and Spera then sued Lowe for abuse of process and unlawful use of civil proceedings. They named Shaw, Norris, Wolfe and the VFWCA as defendants, saying the California group had "authorized, approved, ratified, and/or instituted" Lowe's defamation suit.

A federal judge in Utah dismissed the case for lack of personal jurisdiction over the individual defendants, who live in California.

The judge told the plaintiffs' attorney that if he "had the facts to support some notion that [Shaw, Norris and Wolfe] were colluding with Mr. Lowe to file a baseless lawsuit in Salt Lake, well, then there would be jurisdiction over them. ... But I didn't see that you have anything like that."

The federal appeals court in Denver upheld dismissal of the lawsuit, but disagreed with the jurisdiction ruling.

"We reverse the district court's judgment that it lacked jurisdiction over Mr. Norris, Ms. Shaw and Mr. Wolfe," Judge McConnell wrote, "but we affirm the district court's dismissal of the abuse of process and wrongful use of civil proceedings claims."

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