US Dominion, Inc. v. Powell

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
US DOMINION, INC., et al.,
Plaintiffs/Counter-Defendants,
v. Civil Action No. 1:21-cv-00040 (CJN)
SIDNEY POWELL, et al.,
Defendants/Counter-Plaintiffs.
ORDER
U.S. Dominion, Inc., Dominion Voting Systems, Inc., and Dominion Voting Systems
Corporation (collectively, “Dominion”) move to dismiss a counterclaim asserted by Sidney
Powell, Sidney Powell, P.C., and Defending the Republic, Inc. (collectively, “Powell”). See ECF
No. 55. In early 2021, Dominion sued Powell, alleging that she defamed Dominion in connection
with the 2020 presidential election. See US Dominion, Inc. v. Powell, 554 F. Supp. 3d 42, 49
(D.D.C. 2021). Powell later filed a counterclaim against Dominion for abuse of process, alleging
that Dominion filed its suit “to punish and make an example” out of her. See Powell Counterclaim,
ECF No. 49 at ¶ 1. Previously, in related litigation, the Court granted Dominion’s motion to
dismiss a counterclaim for abuse of process asserted by another group of defendants. See US
Dominion, Inc. v. MyPillow, Inc., Civ. A. No. 21-445 (CJN), 2022 WL 1597420, at *3–4 (D.D.C.
May 19, 2022). For substantially similar reasons, the Court will also grant Dominion’s motion to
dismiss Powell’s counterclaim.
To state a claim for abuse of process under D.C. law, a plaintiff must allege “(1) the
existence of an ulterior motive; and (2) an act in the use of process other than such as would be
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proper in the regular prosecution of the charge.” Spiller v. D.C., 362 F. Supp. 3d 1, 6 (D.D.C.
2019) (quotations omitted). In other words, “[a]n ulterior motive is necessary but not sufficient.”
MyPillow, 2022 WL 1597420, at *3. Abuse-of-process claims also have a second element, which
requires “a perversion of the judicial process and achievement of some end not contemplated in
the regular prosecution of the charge.” Spiller, 362 F. Supp. 3d at 6 (quotations omitted).
Even if Powell adequately alleged that Dominion had an ulterior motive in bringing its
lawsuit, her counterclaim fails under the second element. Powell’s core allegation is that
“Dominion’s initiation and maintenance of its lawsuit against Defendants constitutes an abuse of
process.” Powell Counterclaim, ECF No. 49 at ¶ 73. “But the mere pursuit of a lawsuit, just like
the mere filing [of] a lawsuit, does not support an abuse of process claim.” MyPillow, 2022 WL
1597420, at *4. Instead, Powell must allege that Dominion, after filing its suit, performed some
act that perverted the judicial process. See Spiller, 362 F. Supp. 3d. at 6. But Powell’s complaint
fails to link her abuse-of-process claim to any act that Dominion has taken other than filing and
pursuing its lawsuit. See Powell Counterclaim, ECF No. 49 at ¶¶ 67–73 (focusing entirely on an
ulterior motive). She has thus failed to state a claim for abuse of process. 1
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In her opposition to Dominion’s motion to dismiss, Powell points to two allegations made in the
fact section of her counterclaim. First, Powell alleges that Dominion sent a letter—along with a
copy of its complaint against Powell—to an individual demanding that he retract his allegedly
defamatory statements about Dominion’s role in the 2020 election. Second, Powell alleges that
Dominion has made public statements suggesting that it will file more lawsuits like the one it filed
against Powell. Powell claims that both acts support a finding that Dominion is using its lawsuit
to suppress public criticism.
But neither of these acts is improper, and both fall “far short of the usual case of abuse of process
where there is an attempt at extortion in a manner collateral to the litigation.” Houlahan v. World
Wide Ass’n of Specialty Programs and Schs., 677 F. Supp. 2d 195, 201 (D.D.C. 2010). Indeed,
defamation suits, by design, “are meant to silence individuals from making defamatory or
otherwise harmful statements.” Id. at 200. Accordingly, Powell has failed to allege that Dominion
is using its suit to “accomplish an end unintended by law.” Moore v. United States, 213 F.3d 705,
712 (D.C. Cir. 2000) (quotations omitted); see also Houlahan, 677 F. Supp. 2d at 200 (“There is
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Accordingly, it is
ORDERED that Dominion’s Motion to Dismiss Powell’s Counterclaim, ECF No. 55, is
GRANTED.
DATE: September 28, 2022 _____________________
CARL J. NICHOLS
United States District Judge
no action for abuse of process when the process is used for the purpose for which it is intended,
even [if] there is an incidental motive of spite or an ulterior purpose.” (cleaned up)). Because
Powell has failed to state a claim for abuse of process, the Court need not address Dominion’s
alternative argument that Powell improperly brought her counterclaim on behalf of third parties.
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