UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Robert J. Camm, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 85-3844
) (CRR)
Ralph E. Kennickell, Jr., et al., )
)
Defendants. )
___________________________________)
OPINION OF CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
Before the Court is plaintiffs' motion for summary judgment on
the defendant McMahon's counterclaims and for sanctions under
Fed. R. Civ. P. 11, as well as the defendant McMahon's motion for
partial summary judgment on the counterclaims; plaintiffs' motion
to strike defendant McMahon's answer to plaintiff Camm's
interrogatories and defendant McMahon's corresponding motion for
Rule 11 sanctions; and finally, plaintiffs' motion to reconsider
and to vacate summary judgment on plaintiffs' motion to
reconsider and to vacate summary judgment on plaintiffs' claim.
Upon consideration of the motions, the supporting and opposing
legal memoranda, the underlying law, and the entire record in
this case, the Court will grant plaintiffs' motion for summary
judgment on the defendant McMahon's counterclaim for abuse of
process and intentional infliction of emotional distress. The
remaining motions will be denied.
I. Factual Background
The plaintiffs1 filed this suit charging the defendants2 with
several common law torts and violations under the First and Fifth
Amendments by suspending and disbarring the plaintiffs from doing
business with the Government Printing Office ("GPO"). Then
Anthony McMahon,3 one of the defendants, filed a counterclaim
against the plaintiffs, charging them with abuse of process,
intentional infliction of emotional distress, and malicious
prosecution.
Thereafter, the Court dismissed all of the common law and
constitutional tort claims against the defendants.4 In addition,
the Court dismissed McMahon's counterclaim for malicious
prosecution because he failed to plead special injury.5 Thus,
McMahon's counterclaims for abuse of process and intentional
infliction of emotional distress were the only remaining live
issues in this case. Then the plaintiffs filed a motion for
summary judgment on defendant McMahon's counterclaim and for Rule
11 sanctions, as well as a motion to reconsider. The plaintiffs
also filed a motion to strike defendant McMahon's answers to
interrogatories, and defendant McMahon responded with a motion
for Rule 11 sanctions.
II. Analysis
A. Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure requires that
the Court grant a motion for summary judgment if the pleadings
and supporting affidavits and other submissions "show that there
is no genuine issue as to any material fact and that moving party
is entitled to judgment as a matter of law." Moreover, it is
well established that the Court must believe the non-movant's
evidence and must draw all justifiable inferences in its favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
However, "[t]he mere existence of a scintilla of evidence in
support of the plaintiff's position will be insufficient; there
must be evidence on which the jury could reasonably find for the
plaintiff." Id. at 252.
The movant bears the initial responsibility of informing the
district court of the basis for its motion for summary judgment,
and identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
any affidavits which it believes demonstrate the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986).
1. Abuse of Process
Defendant McMahon alleges in his counterclaim that plaintiffs
have committed the tort of abuse of process. He argues that the
plaintiffs sought to misuse the judicial process by suing him and
others personally to attempt to extort sole source contract
awards from McMahon's former employer, the GPO. The Court finds
that on the record before it defendant McMahon has failed to
raise a genuine issue of material fact regarding the elements of
this tort.
Under District of Columbia law, the test for determining whether
a cause of action for abuse of process will lie is:
'Whether the process has been used to accomplish some end which
is without the regular purview of the process, or which compels
the party against whom it is used to do some collateral thing
which he could not legally and regularly be required to do.'
Morowitz v. Marvel, 423 A.2d 196, 198 (D.C. 1980) (quoting
Jackson v. Thrifty Paper Boxes, Inc., 230 A.2d 710, 711 (D.C.
1967)). In addition to ulterior motive, and claimant must allege
and prove that there has been "a perversion of the judicial
process and achievement of some end not contemplated in regular
prosecution of the charge." Id.; see also McCarthy v.
Kleindienst, 741 F.2d 1406, 1411 (D.C. Cir. 1984); Doe v.
DiGenova, 642 F. Supp. 624, 631 (D.D.C. 1986). In other words,
aside from the causation and damages elements of abuse of
process, the essential parts of the breach of duty element are:
(1) an ulterior purpose, and (2) a willful act in the use of the
process not proper in the regular conduct of the proceeding. See
W. Page, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on
Torts 898 (5th ed. 1984).
The plaintiffs seek summary judgment, arguing that defendant
McMahon's abuse of process claim has no basis in fact and that
they are entitled to judgment as a matter of law. Defendant
McMahon asserts that he is entitled to partial summary judgment
as to liability on this counterclaim, and alternatively argues
that plaintiffs are not entitled to summary judgment because
material facts are at issue. The Court finds for the plaintiffs.
It is not necessary to decide whether defendant McMahon has
carried his burden as to causation and damages elements or the
first part of the breach-of-duty element because the Court finds
no genuine issue of material fact as to the second part. Despite
his assertions of improper conduct by the plaintiffs, defendant
McMahon has failed to make a colorable showing of a willful act
in the use of the process not proper in the regular conduct of
the proceeding.
To assert that the plaintiffs had an improper motive in bringing
this lawsuit is not enough. Morowitz 423, A.2d at 198-99
(allegation of mere filing of medical malpractice counterclaim
and subsequent withdrawal, without more, as proof that patient
filed counterclaim with ulterior motive of coercing settlement
did not demonstrate that process was, in fact, used to accomplish
some end not regularly or legally obtainable so as to support
action for abuse of process). In an abuse of process suit, "the
mere issuance of process is not actionable, no matter what action
may have prompted it; the gist of the action lies in the improper
use after issuance." Id. at 198 (quoting Hall v. Hollywood
Credit Clothing Co., 147 A.2d 866, 868 (D.C. 1959)). Put
differently, "a party's ulterior motive does not make the
issuance of process actionable." Epps v. Vogel, 454 A.2d 320,
324 (D.C. 1982).
Defendant McMahon's central factual allegations are that the
plaintiffs filed the lawsuit to coerce the defendants into
awarding the GPO contracts,6 and that plaintiffs suggested
through counsel that the suit could be settled if plaintiffs were
assured of receiving further contract awards from GPO without
competition.7 Yet the law on abuse of process shows that mere
questionable motives by the plaintiffs in bringing suit are not
enough. Hall, 147 A.2d at 868; Geier v. Jordan, 107 A.2d 440,
441 (D.C. 1954). Neither allegations that plaintiff Camm hoped
that defendant McMahon's employer would step in to assist him nor
allegedly improper suggestions by the plaintiffs in settlement
discussions rise to an abuse of process. Oren Royal Oaks Venture
v. Greenberg, Bernhard, Weiss & Karma, Inc., 728 P.2d 1202, 1209
(Cal. 1986) (granting summary judgment against plaintiff where
plaintiff's abuse of process action alleged that defendants
instituted and continued to prosecute environmental suit to
coerce a monetary settlement rather than to further environmental
concerns); Friedman v. Dozorc, 312 N.W. 2d 585, 594-95 (Mich.
1981) (finding plaintiff's case deficient for failing to
demonstrate an act by defendants beyond mere initiation of a
lawsuit).
Here, plaintiffs did not "accomplish some end which is without
the regular purview of the process," nor did they "compel the
party against whom it is used to do some collateral thing which
he could not legally and regularly be required to do." Morowitz,
423 A.2d at 198. The plaintiffs made a settlement suggestion,
and the defendants rejected it. Were this Court to find an abuse
of process claim based on the record in this case,8 it could
chill the public policies of allowing free access to the courts
and encouraging settlement of lawsuits. See id. at 197-198. It
is intended and expected that lawyers in our adversary system
will in some cases probe the outer bounds of the law and explore
unconventional settlement proposals.
2. Intentional Infliction of Emotional Distress
Defendant McMahon also alleges in his counterclaim that the
plaintiffs have intentionally inflicted emotional distress upon
him by filing their lawsuit. Under District of Columbia law, the
specific elements of this tort are: (1) the plaintiffs engaged
in "extreme and outrageous" conduct that (2) "intentionally or
recklessly" (3) caused defendant McMahon "severe emotional
distress." Sere v. Group Hospitalization, Inc., 443 A.2d 33, 37
(D.C.), cert. denied, 459 U.S. 912 (1982); see also Howard Univ.
v. Best, 484 A.2d 958, 985 (D.C. 1984).
The plaintiffs seek summary judgment, arguing that defendant's
counterclaim has no basis in fact and that they are entitled to
judgment as a matter of law. For his part, defendant McMahon
seeks partial summary judgment as to liability on this
counterclaim and alternatively argues that summary judgment for
the plaintiffs would be inappropriate because there are material
facts at issue. First, defendant McMahon generally asserts that
there are issues of material fact regarding the elements of this
tort. Second, he argues that in any event a prima facie case of
intentional infliction of emotional distress has been made on the
record before the Court.
The Court disagrees with defendant McMahon's contentions. First,
the filing of the instant suit and the conduct of the plaintiffs
therein is not "extreme and outrageous conduct," and on this
element alone the plaintiffs merits summary judgment on defendant
McMahon's tort claim. The District of Columbia Court of Appeals
has made clear that to be actionable, "conduct must be 'so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency.'" Howard Univ. v. Best,
484 A.2d at 986 (quoting Jackson v. District of Columbia, 412
A.2d 948, 957 (D.C. 1980)). The conduct must be "atrocious and
utterly intolerable in a civilized community." Waldon v.
Covington, 415 A.2d 1070, 1076 (D.C. 1980). The law does not
impose liability for all conduct causing mental distress District
of Columbia v. Thompson, 570 A.2d 277, 290 (D.C. 1990). The
requirement of intentional or reckless conduct that is outrageous
balances the need to prevent the harms of mental distress and the
necessity of allowing beneficial activities that nonetheless may
cause some harms. Id. ("If the claimed distress is the type
people commonly encounter and endure in their lives, the claim
should not be submitted to the jury.") (quoting Lee v.
Metropolitan Airport Comm'n, 428 N.W.2d 815, 823 (Minn. Ct. App.
1985)).
In essence, the conduct defendant McMahon complains of is being
sued, receiving a questionable settlement proposal, and having to
endure a lengthy lawsuit.9 While the Court is willing to
scrutinize this lawsuit and has already dismissed the plaintiffs'
claims, it cannot stretch its imagination-or the law-so far as to
find that plaintiffs' conduct goes beyond all possible bounds of
decency or is atrocious and utterly intolerable in a civilized
community. The American system of justice favors free access to
the courts as a medium of dispute settlement, and this Court does
not wish to chill that privilege for colorable claims.
In addition, defendant McMahon has not shown "severe emotional
distress" sufficient to establish his claim. As the Restatement
(Second) of Torts � 46 comment j puts it:
[Intentional infliction of emotional distress exists] only where
the emotional distress has in fact resulted and where it is
severe... [S]ome degree of transient and trivial emotional
distress is a part of the price of living among people. The law
intervenes only where the distress inflicted is so severe that no
reasonable man could be expected to endure it.
The Maryland Court of Appeals has stated that this "element of
the tort requires the plaintiff to show that he suffered a
severely disabling emotional response to the defendant's
conduct." Harris v. Jones, 380 A.2d 611, 616 (Md. 1977).
Although defendant McMahon has made several allegations of
emotional distress-including insomnia, eczema, gingivitis and the
breakdown of his marriage-the record in this case demonstrates
that the "severe emotional distress" element of this tort is not
met. The defendant claims that he had insomnia for which his
physician prescribed Valium. However, Marsha McMahon, the
defendant's ex-spouse, stated that he had been using Valium since
the 1970's for insomnia. Deposition, p. 10. Moreover, Mr.
McMahon's physician stated that he had prescribed Valium for the
defendant for insomnia in 1979, 1980, 1981, 1982, 1983, 1984, and
1985. Deposition, pp. 11, 18. Thus, even if the defendant
McMahon has suffered from insomnia throughout his life, that
condition predated the filing of this lawsuit and was not caused
by the plaintiffs' action.
Defendant McMahon also claims that the lawsuit caused eczema.
However, the defendant's dermatologist, who has treated the
defendant since 1981, testified in a deposition that he had seen
the defendant in September 1985, and received a single phone call
in February 1986, when Mr. McMahon complained of hand eczema.
The dermatologist prescribed a medication by telephone and did
not see Mr. McMahon until January 1987, when he came in with a
different complaint. Deposition pp. 6-8.
Mr. McMahon further claims the lawsuit caused gingivitis, but his
dentist testified that the gingivitis antedated by several years
the filing of the instant law suit. Apparently, after the
lawsuit was filed, there was a slight swelling of the gum which
did not result in gingivitis and which soon disappeared. Mr.
McMahon's physician declared that there was no reoccurrence of
the gingivitis since his dentist had asked him to use a water
pick in 1982. Deposition, p. 21.
Finally, defendant McMahon alleges that the filing of the instant
lawsuit led to his divorce. Yet, the defendant's ex-spouse
stated that the divorce was caused by a "basic personality
conflict that was exaggerated as our marriage went on" and that
"the personality conflict is [un]related to the events that might
have bearing on this issue." Deposition, pp. 8, 9. Thus, there
is no genuine issue of material fact concerning whether defendant
McMahon suffered "severe emotional distress." Here too
plaintiffs must be granted summary judgment as to defendant
McMahon's claim of intentional infliction of emotional distress.
B. Plaintiffs' Motion for Rule 11 Sanctions
The Court also has before it plaintiffs' motion for sanctions,
alleging that, as to defendant McMahon's claims for abuse of
process, intentional infliction of emotional distress, and
malicious prosecution,10 the law is so clear and the lack of
factual basis is so apparent that filing the counterclaim
violated Rule 11.
It is now well settled that the signature of an attorney on a
pleading or motion "constitutes a certificate by the signer that
the signer has read the pleading, motion, or other paper [and]
that to the best of the signer's knowledge, information and
belief formed after reasonable inquiry it is well grounded in
fact and is warranted by existing law or a good faith argument
for the extension, modification, or reversal of existing law."
Fed. R. Civ. P. 11. Since Rule 11 was amended in 1983, courts
must apply the more stringent objective test of reasonableness
under the circumstances at the time as opposed to the old
subjective inquiry as to counsel's good faith or lack thereof.
Allen v. Utley, 129 F.R.D. 1, 3 (D.D.C. 1990) (citing
Westmoreland v. CBS, 770 F.2d 1168, 1177 (D.C. Cir. 1985)).
Under Rule 11, attorneys have an affirmative duty to conduct a
reasonable inquiry before concluding that a motion, pleading, or
other paper is well grounded in fact. Danik, Inc. v. Hartmarx
Corp., 875 F.2d 890, 985-96 (D.C. Cir. 1989); Allen, 129 F.R.D.
at 3-6. "To state as a fact what is at best a guess and a hope,
or is an extravagant inference based on a vague recollection,
violates the rule." 5A Wright & Miller, Federal Practice and
Procedure � 1335 at 66-67. However, Rule 11 only requires a
reasonable inquiry; the challenged attorney or party cannot be
held to what might be required by an exhaustive inquiry. Id.
Sanction will not be imposed when factual errors are not critical
and the surrounding circumstances indicate that counsel did
conduct a reasonable inquiry. Id.
Although defendant McMahon's claims for abuse of process and
intentional infliction of emotional distress cannot survive
summary judgment, the Court finds that on this record there is a
sufficient basis for these claims to avoid the imposition of
sanctions. Based on the record before the Court, it appears that
at the time the counterclaim was filed in May 1986, counsel had
some grounds to believe it was reasonable. Although discovery
ultimately did not produce facts sufficient to prevail on those
claims, the counterclaim is not so lacking in factual basis or so
unwarranted by existing law as to violate Rule 11.
C. Plaintiff's Motion to Strike
The Court also has before it plaintiffs' motion to strike and
defendant McMahon's opposing motion for Rule 11 sanctions.
Plaintiffs argue that counsel for defendant McMahon failed to
sign the defendant's answers to the plaintiffs' interrogatories,
as is required by Fed. R. Civ. Pro. 26(g). Plaintiffs argue that
even after they pointed this matter out twice in their memorandum
in support of their motion for summary judgment, counsel for the
defendant still failed to sign the answers. However, counsel for
defendant McMahon disputes plaintiffs' characterization, and the
Court need not labor over plaintiffs' contentions on this issue.
Because this Court's rulings announced herein on other
dispositive motions will extinguish the remaining live issues in
this case, plaintiffs motion to strike is moot and will be
denied. Moreover, the Court will deny defendant McMahon's motion
for sanctions under Fed. R. Civ. P. 11 because the Court does not
find plaintiffs' motion to strike so unsupported in fact or upon
existing law as to warrant sanctions.
D. Motion for Reconsideration
Finally, the Court must rule on plaintiffs' motion to reconsider
and to vacate summary judgment on plaintiffs' claim. The
plaintiffs request that the Court vacate its grants of summary
judgment on November 3, 1986, and July 23, 1987, for the
defendant on plaintiffs' claims. The plaintiffs argue that the
Court erred in dismissing their due process claims and that the
Court should hold that there is an action for damages for the
alleged violation of plaintiff Camm's right to grand jury
secrecy.
The Court will deny plaintiffs' motion for several reasons.
First, plaintiffs have not demonstrated a due process violation.
Although plaintiff Camm claims that upon receipt of the June 18,
1984, suspension notice he had no idea whatever of the overt acts
supporting the charge, this notice was based on a lengthy
investigation by the GPO's Office of Inspector General in which
Mr. Camm participated. Plaintiff Camm also complains that the
GPO delayed providing a detailed statement of the overt acts
underlying the suspension based on the "bogus ground'' that the
Justice Department was still considering criminal action.
However, the record shows that the GPO did not receive formal
notification from the Justice Department until September 6, 1984,
and shortly thereafter GPO complied with the notice and hearing
requirements of its regulations. Although plaintiff Camm
complains that he was maliciously denied an adequate hearing, the
record indicates he reached a settlement prior to his scheduled
hearing and opted to forego his opportunity to respond to the
charges in front of a neutral adjudicator.11 The plaintiff also
fails to substantiate his allegations of unfairness and
manipulation of the suspension and debarment proceedings.
Second, the Court does not find sufficient reasons to reconsider
its conclusion that plaintiffs waived any due process claims by
entering into a settlement of debarment. The Court reaffirms its
July 23, 1987, Opinion which concluded that the settlement
agreement resulting in plaintiffs' one year debarment
extinguished any right to complain of the events surrounding the
suspension.
Third, plaintiffs cannot maintain a Bivens claim based upon an
alleged violation of Fed. R. Crim. P. 6(e). Even assuming
arguendo that there was a breach of grand jury secrecy in the
events underlying this case, the plaintiffs have not shown that
they may maintain an action for money damages based on a breach
of Rule 6(e). As this Court stated, grand jury secrecy "is not a
constitutional demand, but a creature of the Federal Rules of
Criminal Procedure." November 3, 1986, Opinion at 11. Although
courts have allowed targets of grand jury investigations to seek
injunctive relief to protect against future disclosures of grand
jury information, Blalock v. United States, 844 F.2d 1546 (11th
Cir. 1988), plaintiffs fail to provide persuasive authority for
the proposition that an individual may maintain a cause of action
for money damages based upon a breach of Rule 6(e)'s requirement
of grand jury secrecy.
Finally, plaintiffs have not succeeded in demonstrating as to any
of their claims that the defendants are not entitled to qualified
immunity. Anderson v. Creighton, 483 U.S. 635, 638 (1987).
Government officials, such as defendant McMahon and the other
defendants who have been involved in this case, perform their
discretionary functions with a qualified immunity which shields
them from civil damages liability so long as their actions could
reasonably have been thought consistent with the rights they are
alleged to have violated. Id.; Malley v. Briggs, 475 U.S. 335,
341 (1986); Mitchell v. Forsyth, 472 U.S. 511, 528 (1985). As a
general rule, whether an official protected by qualified immunity
may be held personally liable for an allegedly unlawful official
action depends on the "objective legal reasonableness" of the
action assessed in light of the legal rules that were clearly
established at the time it was taken. Harlow v. Fitzgerald, 457
U.S. 800, 818-19 (1982). Although the official conduct need not
previously have been held unlawful to be actionable, in the light
of the preexisting law, the unlawfulness of the official conduct
must be apparent. Anderson, 483 U.S. at 640.
As this Court previously stated, plaintiff Camm's due process
claim regarding his suspension and debarment must fail because,
although a suspended government contractor is entitled to notice
of the alleged malfeasance to clear his or her name, Old Dominion
Dairy Products, Inc. v. Secretary of Defense, 631 F.2d 953, 963
(D.C. Cir. 1980), plaintiff Camm was given an adequate
opportunity to present his story and to clear his name and that
of the corporation of which he was president. July 23, 1987,
Opinion at 4. As to plaintiffs' breach of grand jury secrecy
claim, such a breach is not a constitutional violation and
therefore is not a proper predicate for a constitutional tort
claim. November 3, 1986, Opinion at 11. Finally, plaintiffs
fail to persuade this Court that it should fashion an action for
money damages to compensate plaintiffs for the alleged violation
of their right to grand jury secrecy.
III. Conclusion
Today, the Court grants plaintiffs' motion for summary judgment
on defendant McMahon's counterclaim for abuse of process and
intentional infliction of emotional distress. The Court also
denies plaintiffs' motion for Rule 11 sanctions, plaintiffs'
motion to strike and defendant McMahon's motion for Rule 11
sanctions. Finally, the Court denies plaintiffs' motion to
reconsider and to vacate summary judgment on plaintiffs' claim.
Thus, the remaining live issues in this case have been
extinguished.
The Court will issue an Order of even date herewith memorializing
these findings.
November 20, 1990
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
_______________
1 The plaintiffs are Quadra Graphics, Inc., a Pennsylvania
corporation with its principal place of business in New Jersey
and Robert J. Camm, the president and 50 percent shareholder of
Quadra Graphics, Inc.
2 The defendants were officials at the Government Printing
Office involved in an investigation of alleged improprieties by
the plaintiffs in their dealings with employees of the
Philadelphia Regional Printing Procurement Office, an arm of the
GPO from which the plaintiffs sought government contracts.
3 Anthony McMahon was employed by GPO from January 17, 1983,
until July 18, 1985. During the acts plaintiffs complain of, he
was Deputy General Counsel of GPO.
4 See November 3, 1986, Opinion (dismissing plaintiffs' common
law claims and constitutional tort claims that defendants
violated their first amendment rights and fifth amendment
interests in reputation) and July 23, 1987, Opinion (dismissing
plaintiffs' constitutional tort claim that defendants violated
due process before suspending their government contracts).
5 See July 23, 1987, Opinion at p. 8-9.
6 Although defendant McMahon contends otherwise, the record is
not clear as to plaintiffs' motives for suing him. For example,
when plaintiff Camm was asked at his March 28, 1989, deposition
whether he thought GPO would protect its employees from suit by
awarding contracts to Quadra Graphics, plaintiff Camm responded,
"Absolutely not." Deposition, p. 32.
7 Although defendant McMahon has alleged that the plaintiffs
were seeking to force improper official acts by suing him, it is
unclear how plaintiffs could have succeeded at the time defendant
McMahon filed his abuse of process claim, given that he was no
longer employed at GPO at the time he filed his counterclaim in
May 1986.
8 Although the Court previously held in its July 23, 1987,
Opinion that defendant McMahon's claims for abuse of process and
intentional infliction of emotional distress could survive a
motion to dismiss by plaintiffs pursuant to Fed. R. Civ. P. 12(b)
(6), the claims fail to survive dismissal under plaintiffs'
motion for summary judgment based on the record subsequently
developed.
9 Defendant McMahon's other complaints as to plaintiffs'
commission of multiple felonies, settlement of the suspension and
debarment case, and plaintiffs' acceptance of benefits of
settlement are not relevant to defendant McMahon's counterclaim.
10 In its Opinion of July 23, 1987, this Court dismissed
defendant McMahon's claim for malicious prosecution for failure
to plead special injury.
11 In a September 13, 1989, deposition of William winning,
plaintiffs' counsel during the events in question, defense
counsel asked Mr. Winning whether he believed GPO purposely or
deliberately delayed in providing Mr. Camm with a suspension
hearing. Mr. Winning responded, "I don't think that there was
any intentional or malicious conduct on anybody's part to deprive
Mr. Camm of his right to have a hearing." Deposition, p. 62.