Opinion
Case No. 2:01-CV-912TC
February 19, 2003
ORDER
Plaintiff Kevin Lee Kerkhoff brings this action under 42 U.S.C. § 1983 and 1985. Mr. Kerkhoff was the victim of an assault committed in 1992 by Foiloloo Leausa. Mr. Leausa was charged with simple assault in the case West Valley City v. Foiloloo Leausa, Third District Court Case Number 921003545. On December 7, 1992, Mr. Leausa plead guilty to the charge. Mr. Kerkhoff alleges that the Defendants violated his civil rights by not notifying him of the disposition of the case against Mr. Leausa. The matter is presently before the court on Mr. Kerkhoff's motion for summary judgment, Defendant Third District Court's motion to dismiss, Defendants Judge Thorne and Elaine Larsen's motion to quash, Defendant West Valley City's motion for summary judgment and motion for judgment on the pleadings, and Mr. Kerkhoff's motion for default judgment.
Mr. Kerkhoff's Complaint does not explicitly mention 42 U.S.C. § 1983 and 1985. The parties and the court, however, analyze Mr. Kerkhoff's Complaint under section 1983 and section 1985.
The Complaint names "Leausa Foiloloo" as a Defendant, but evidence in the record indicates that the Defendant's name is Foiloloo Leausa. The court will refer to the Defendant as Mr. Leausa.
ANALYSIS
I. Mr. Kerkhoff's Motion for Summary Judgment
This matter is complicated by the fact that Mr. Kerkhoff appears to be seeking summary judgement both on his initial Complaint and a proposed amended complaint. Mr. Kerkhoff filed his initial Complaint on November 27, 2001. West Valley City filed an answer to this Complaint on January 2, 2002. After this responsive pleading was served, Mr. Kerkhoff could not amend his Complaint unless he received "leave of court or [the] written consent of the adverse party." Fed.R.Civ.P. 15(a). Mr. Kerkhoff received neither. Nevertheless, Mr. Kerkhoff attempted to file a proposed amended complaint on February 12, 2002. Therefore, Mr. Kerkhoff's February 12, 2002 document is a legal nullity. See, e.g., Colbert v. City of Philadelphia, 931 F. Supp. 389, 393 (E.D. Penn. 1996). Further, "[a] prospective party cannot fairly be required to answer an amended pleading not yet permitted [or] framed." Nelson v. Adams USA, Inc., 529 U.S. 460, 467 (2000). Accordingly, the court denies summary judgment against all of the Defendants based on the February 12, 2002 document.
Judge William A. Thorne was not named as a Defendant in the first Complaint but was named in Mr. Kerkhoff's proposed amended complaint.
Turning then to Mr. Kerkoff's motion for summary judgment on his initial Complaint, Mr. Kerkhoff moves for summary judgment because "the Defendants" have not answered his complaint. (Mr. Kerkhoff does not list those Defendants against whom he seeks summary judgment.) But it appears that Mr. Kerkhoff is seeking summary judgment against the following: (1) the Third District Court; (2) Elaine Larsen; (3) Dan Robinson; (4) Rick Robinson; (5) Foiloloo Leausa; and (6) Tri Transportation Corp. These Defendants, however, were never properly served with process.
Federal Rule of Civil Procedure 4(e) governs service of summons and a complaint on individuals. See Fed.R.Civ.P. 4(e). The Rule provides that a summons and complaint shall be served upon an individual:
(1) pursuant to the law of state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of the general jurisdiction of the State; or
(2) by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.Id. Federal Rule of Civil Procedure 4(h) governs the method of service of process on a corporation. That rule provides that an individual may serve process on a corporation "in the manner prescribed for individuals" or
by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant.
Fed.R.Civ.P. 4(h); see also Utah R. Civ. P. 4(d)(1)(E) (providing similar method of service of process for corporations).
Utah law provides for service of process by mail upon adult individuals of sound mind. See Utah R. Civ. P. 4(d)(2)(A). Utah Rule of Civil Procedure 4(d)(2)(A) provides that the summons and complaint may be served by mail "provided the defendant signs a document indicating receipt." "Service by mail . . . shall be complete on the date the receipt is signed as provided by [Utah Rule of Civil Procedure 4]." Utah R. Civ. P. 4(d)(2)(C). Further, "[p]roof of service made pursuant to paragraph (d)(2) shall include a receipt signed by the defendant or defendant's agent authorized by appointment or by law to receive service of process." Utah R. Civ. P. 4(e)(1).
The Federal Rules of Civil Procedure allow a plaintiff to request waiver of service of process by sending such a request to the defendant through first-class mail "or other reliable means." See Fed.R.Civ.P. 4(d)(2)(B). Among other requirements, the waiver request
(C) shall be accompanied by a copy of the complaint and shall identify the court in which it has been filed;
(D) shall inform the defendant . . . of the consequences of compliance and of a failure to comply with the request;
(E) shall set forth the date on which the request is sent;
(F) shall allow the defendant a reasonable time to return the waiver, which shall be at least 30 days from the date on which the request is sent . . .; and
(G) shall provide the defendant with an extra copy of the notice and request, as well as a prepaid means of compliance in writing.
Fed.R.Civ.P. 4(d)(2). Individuals and corporations may waive service of process. See id.
Defendants who have not been properly served with process are under no obligation to file an answer or otherwise respond to a plaintiff's complaint. See Palmer v. Sprint/United Mgmt. Servs. Co., No. 99-2576-JWL, 2000 WL 1472750, at *2 (D. Kan. Aug. 7, 2000), aff'd, 12 Fed. Appx. 883, available at 2001 WL 672745 (10th Cir. 2001) (unpublished decision). Nothing in the record reflects that Dan Robinson, Rick Robinson, or Elaine R. Larsen were served with process or that they waived service of process. Additionally, nothing in the record indicates that an authorized or appointed agent of Tri Transportation, Corp. was served with process or waived service of process. These Defendants were not properly served with process and therefore were not obligated to answer or otherwise respond to Mr. Kerkhoff's Complaint. See Palmer, 2000 WL 1472750, at *2.
Summary judgment based on failure to answer Mr. Kerkhoff's Complaint is also inappropriate as against the Third District Court and Mr. Leausa. In a December 28, 2001 Return of Service form, found in Document 6 of the file, Benjamin Makay "certif[ied] that complaint No. 2:01 CV 00912C was served to Leausa T. Foiloloo via first class mail . . . on behalf of Kevin Klerkhoff." (Doc. 6.) In another Return of Service form, also dated December 28, 2001, Benjamin Makay "certif[ied] that complaint No. 2:01 CV 00912 C was served on the West Valley City Office of the City Attorney for the Third District Court, WV. Dept. . . . by first class mail on behalf of Kevin Kerkhoff." (Doc. 6.)
As explained above, Mr. Kerkhoff's service of process is governed by Utah law, which provides for service of process by mail. See Fed.R.Civ.P. 4(e)(1); Utah R. Civ. P. 4(d)(2). The Return of Service forms for Mr. Leausa and the Third District Court, however, did not include "a receipt signed by the defendant or defendant's agent authorized by appointment or by law to receive service of process." See Utah R. Civ. P. 4(d)(2). Further, Mr. Kerkhoff was entitled to request a waiver of process by sending such a request by mail. See Fed.R.Civ.P. 4(d)(2). The Return of Service forms for Mr. Leausa and the Third District Court do not indicate that Mr. MacKay was requesting waiver of service. Mr. Leausa and the Third District Court therefore have not been properly served with process.
Accordingly, Mr. Kerkhoff's motion for summary judgment is DENIED as to Tri Transportation, Corp., Dan Robinson, Rick Robinson, Ms. Larsen, Mr. Leausa, and the Third District Court.
Similarly, Mr. Kerkhoff's motion for default judgment against the Third District Court, Ms. Larsen, and Tri Transportation, Corp. is DENIED.
Further, Mr. Kerkhoff is ORDERED TO SHOW CAUSE as to why the court should not dismiss the case without prejudice as against the Defendants listed above for failure to comply with Federal Rule of Civil Procedure 4(m).
II. Judge Thorne and Elaine Larsen's Motion to Quash
Judge Thorne and Ms. Larsen move to quash service pursuant to Federal Rule of Procedure 12(b)(5). Because Mr. Kerkhoff's proposed amended complaint is a legal nullity, Judge Thorne and Ms. Larsen's motion to quash is DENIED as moot.
III. Does the Third District Court's Eleventh Amendment Immunity Warrant Dismissal of Mr. Kerkhoff's Case?
The Third District Court moves to dismiss Mr. Kerkhoff's Complaint with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6). Because the Third District Court is entitled to Eleventh Amendment immunity from suit, the court grants the motion to dismiss. A. Legal Standard for Federal Rule of Civil Procedure 12(b)(6)
Mr. Kerkhoff did not oppose the Third District Court's motion to dismiss.
The Third District Court alternatively argues that it is not a proper defendant under the civil rights statutes and cannot be sued under those provisions. The court does not address these arguments, as dismissal of Mr. Kerkhoff's claims against the Third District Court is proper due to the Third District Court's Eleventh Amendment immunity.
Federal Rule of Civil Procedure 12(b)(6) authorizes a court to dismiss a complaint if it "fail[s] to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In evaluating a 12(b)(6) motion, a court must accept all well-pleaded facts as true. See Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002). The court must also "view all reasonable inferences in favor of the plaintiff, and the pleadings must be liberally construed." Id. The Tenth Circuit has noted that a "motion to dismiss may be granted only if it appears beyond a doubt that the plaintiff is unable to prove any set of facts entitling her to relief under her theory of recovery." Id.
B. Does the Eleventh Amendment of the United States Constitution Bar Mr. Kerkhoff's Claims Against the Third District Court?
The Eleventh Amendment precludes suits against non-consenting states, whether brought by a state's own citizens or by citizens of other states. See Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). The amendment bars suits seeking monetary, equitable, and injunctive relief against a state or arms of a state. See Puerto Rico Aqueduct and Sewer Auth. v. Metcalf Eddy, Inc., 506 U.S. 139, 146 (1993) (stating that "suits against the States and their agencies . . . are barred regardless of the relief sought"); Alabama v. Pugh, 438 U.S. 781, 781-82 (1978) (ordering dismissal of state from a lawsuit seeking an injunction). "Eleventh Amendment immunity, like qualified immunity, provides not only a defense to liability, but operates as an immunity to suit, including the burdens of discovery and trial." Olson v. Finney, 885 F. Supp. 1480, 1485 (D. Kan. 1995). Consequently, in order for anyone other than the federal government or another state to sue a state, the defendant must either waive immunity or Congress must specifically abrogate Eleventh Amendment immunity pursuant to Article 1, section 5 of the Fourteenth Amendment to the United States Constitution. See Estes v. Wyoming Dep't of Transp., 302 F.3d 1200, 1203 (10th Cir. 2002).
The Eleventh Amendment provides that:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S. Const. amend. XI.
The Third District Court is part of the state court system. State courts "are protected by immunity under the eleventh amendment." Midfelt v. Circuit Court of Jackson County, Missouri, 827 F.2d 343, 345 (8th Cir. 1987); see also Waller v. Muskogee County Bd. of Comm'rs, 67 F.3d 312,available at 1995 WL 567655, **2 (10th Cir. 1995) (stating that state courts "are protected by Eleventh Amendment immunity") (unpublished decision); Entrup v. Colorado, 127 F.3d 1109, available at 1997 WL 639322, **1 (10th Cir. 1997) (barring claims against the Boulder County District Court pursuant to the Eleventh Amendment) (unpublished decision). The State of Utah has not waived its Eleventh Amendment immunity or in any other way consented to this lawsuit. See Richins v. Indus. Constr., Inc., 502 F.2d 1051, 1055 (10th Cir. 1974) (holding that the Utah Governmental Immunity Act did not constitute waiver of Eleventh Amendment immunity). Moreover, the Supreme Court has held that no Congressional abrogation of Eleventh Amendment immunity was intended by the passage of 42 U.S.C. § 1981, 1983, or 1985. See, e.g., Quern v. Jordan, 440 U.S. 332, 341-42 (1979); Ellis v. University of Kansas Med. Ctr., 163 F.3d 1186, 1196, 1196 n. 13 (10th Cir. 1998). Therefore, all of the claims against the Third District Court are dismissed with prejudice.
The Third District Court's motion to dismiss is GRANTED.
IV. West Valley City's Motion for Summary Judgment and for Judgment on the Pleadings
West Valley City moves for summary judgment and for judgment on the pleadings. Because Mr. Kerkhoff's claims are barred by the applicable four year statute of limitations, the court grants West Valley City's motion for summary judgment.
Mr. Kerkhoff did not oppose West Valley City's motion for summary judgment and motion for judgment on the pleadings.
The court treats West Valley City's motion as a motion for summary judgment only.
Mr. Kerkhoff sued West Valley City in October of 2001 for events that took place in 1992. Under Utah law, a plaintiff must file a 42 U.S.C. § 1983 action within four years after a claim has accrued.See Utah Code Ann. § 78-12-25(3); see also Arnold v. Duchesne County, 26 F.3d 982, 983 (10th Cir. 1994); Adamson v. City of Provo, 819 F. Supp. 934, 945-46 (D. Utah 1993) (indicating that Utah's four-year statute of limitations would likely apply to a claim under 42 U.S.C. § 1985). Because Mr. Kerkhoff did not file his action within four years of his claim accruing, the court GRANTS West Valley City's motion for summary judgment.
West Valley City additionally argues (1) that Mr. Kerkhoff does not have a federal constitutional right to notice of court proceedings to which he is not a party or a right to object to a plea bargain and (2) that Mr. Kerkhoff has not identified a custom or policy that caused his injury. The court need not address these arguments, as Mr. Kerkhoff's did not file his claim against West Valley City within the applicable statute of limitations. See Utah Code Ann. § 78-12-25(3).
ORDER
1. Mr. Kerkhoff's motion for summary judgment, (Doc. 15), is DENIED;
2. Mr. Kerkhoff's motion for default judgment, (Doc. 24), is DENIED;
3. Judge Thorne and Ms. Larsen's motion to quash, (Doc. 20), is DENIED as moot;
4. The Third District Court's motion to dismiss, (Doc. 18), is GRANTED;
5. West Valley City's motion for summary judgment, (Doc. 22), is GRANTED;
6. Further, Mr. Kerkhoff is ORDERED TO SHOW CAUSE within ten days of the date of this Order as to why the court should not dismiss the case without prejudice as against the remaining Defendants for failure to comply with Federal Rule of Civil Procedure 4(m).
IT IS SO ORDERED.