Grabinski

dissenting:

I respectfully dissent. We have “consistently emphasized ... that conclusory allegations of law and unwarranted inferences will not defeat an otherwise proper motion to dismiss.” Vasquez v. Los Angeles County, 487 F.3d 1246, 1249 (9th Cir.2007) (citation and internal quotation marks omitted).

The majority disposition faults the esteemed district court judge for relying on language from Crackel v. Allstate Ins. Co., 208 Ariz. 252 , 92 P.3d 882 (Ariz.App.2004) requiring a showing that “the defendant’s improper purpose was the primary motivation for its actions ...” Id. at 889 (citations omitted) (emphasis added). Crackel also held that the plaintiff asserting an abuse-of-process claim “must establish that the defendant used a court process in a fashion inconsistent with legitimate litigation goals.” Id.

The elements that must be established to support a claim must necessarily be alleged in the Complaint. See Jones v. Cmty. Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir.1984) (“[A] pleading must give fair notice and state the elements of the claim plainly and succinctly.”) (citation, internal quotation marks, and alterations omitted). I…

MEMORANDUM *

Plaintiffs-Appellants Thomas and Deanne Grabinski appeal the district court’s dismissal of them complaint, which alleged an abuse of process claim, for failure to state a claim. The district court erred by evaluating the Grabinskis’ complaint under the requirements for sufficiency of proof at trial, instead of the far less stringent requirements for stating a claim under federal pleading standards. We therefore reverse the district court’s dismissal of the Grabinskis’ complaint pursuant to Fed.R.Civ.P. 12(b)(6).

This action stems from defendant National Union Fire Insurance Co.’s (“National Union”) refusal to provide coverage to Thomas Grabinski under directors’ and officers’ liability insurance policies issued by National Union. Thomas Grabinski sued and ultimately prevailed in a bad faith and breach of contract action against National Union. A jury entered a $2.5 million judgment in Mr. Grabinski’s favor awarding compensatory damages, punitive damages, costs and attorneys’ fees.

The Grabinskis subsequently sued National Union and its counsel, Steven Kent, for abuse of process in state court based on National Union’s conduct during the insurance coverage…