John M. Kirby
Livingston v. Bakewell, North Carolina State Bar | Malicious Prosecution | Pleading requirements
In Livingston v. Bakewell, North Carolina State Bar the Court of Appeals (on 2/4/2014; unpublished) addressed a case dismissing (12(b)(6)) claims for malicious prosecution. In this case, the plaintiff, a lawyer, alleged that the North Carolina State Bar wrongly pursued administrative action against him based on committing the unauthorized practice of law (UPL) in another state, and on acting improperly in filing a motion for a federal judge to recuse himself. The lawyer was admonished for UPL, but was found to not have violated any rules regarding the motion to recuse. (The disciplinary panel found that the conduct was "unprofessional," and the plaintiff agreed with this.) The lower court dismissed the case, and the Court of Appeals affirmed.
The court held that on the claim for malicious prosecution, there was sufficient evidence of probable cause that the lawyer had violated the rules to preclude a claim for malicious prosecution. The lawyer was censured for the UPL conduct, and he admitted that his actions in filing the motion to recuse were unprofessional. The court also ruled that the plaintiff had not sufficiently alleged malice. This is peculiar becuase the plaintiff had alleged that the defendants knowingly falsely prosecuted him for UPL, that the defendants filed complaints against him for the purpose of retaliation and harassment, that they acted unprofessionally, that they they frivolously argued wrong law and misrepresented the facts of binding caslaw, and intentionally wasted his time. The court wrote, "Even treating these allegations as true, they are insufficient to establish that defendants acted with a personal desire for revenge or were done in wanton disregard of plaintiff's rights."
The court also rejected claims based on 42 USC 1983. The court held that this claim could not support an award of monetary relief against the State, and that as to the individual defendants, they were entitled to qualified immunity.
John Kirby has represented parties in prosecuting and defending claims for malicious prosecution in North Carolina.