Opinion
No. 2:00-CV-412 TC
April 13, 2004
ORDER
This matter is before the court on the motion of the Defendants, the University of Utah and Om P, Gandhi, for partial judgment on the pleadings and Defendant Joann S. Lightly's motion for judgment on the pleadings. The factual background of the case is thoroughly explained in the pleadings of the parties and the previous order of the court (Jan. 15, 2001 Order, Dkt. # 36, hereinafter "Jan. 15 Order") and will not be repeated here except as necessary.
DISCUSSION
Legal Standard
These motions are governed by Rule 12(c) of the Federal Rules of Civil Procedure. A Rule 12(c) motion for judgment on the pleadings is treated as a motion to dismiss under Rule 12(b)(6). Mock v. T.G. Y. Stores Co. 971 F.2d 522, 528 (10th Cir. 1992). Rule 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), cert. denied 123 S.Ct. 1908 (2003). 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. The Fifth Claim for Relief
The Plaintiff styles this claim as "Breach of Contract-Failure to Protect Plaintiffs position and Reputation after She Reported Apparent Misconduct." (Second Am. Compl. at 39.) She alleges that the University is liable for "injury to her [Plaintiffs] reputation, humiliation, emotional distress, the loss of her position as Associate Chair, a loss of income, great expense and other damage. . . ." (Id.) The University of Utah and Om P. Gandhi (collectively the "University Defendants") argue that the Plaintiff may not recover damages for "mental anguish" as consequential damages in this breach of contract action. The University Defendants therefore ask the court to dismiss Plaintiff's damage claim for injury to reputation, humiliation, and emotional distress in the Fifth Claim for Relief.
Ms. Lighty is only named in the Seventeenth Claim for Relief and so has not filed a motion challenging the Fifth Claim for Relief.
The University Defendants cite Billings v. Union Bankers Insurance Co., 918 P.2d 461, 466 (Utah 1996), to support the proposition that a plaintiff may not recover damages for "mental anguish" as consequential damages in a breach of contract action as a matter of law. (See Defs.' Supporting Mem, at 2; Defs.' Reply Mem. at 2.) In Billings, the plaintiff father sued insurance companies on behalf of his injured son, alleging that the defendants "breached both the express terms and the implied covenant of good faith and fair dealing contained in a catastrophic health insurance contract." Billings. 918 P.2d at 462-63. The district court instructed the jury that if it found that the defendants "breached either the express coverage provision or the implied covenant of good faith and fair dealing, it could award [the plaintiff] consequential damages for emotional suffering and mental anguish."Id at 464 (emphasis in the original.) A jury found a breach of both the express and implied terms of the contract and returned a verdict in the plaintiff's favor. See Id. at 463. On appeal, the Utah Supreme Court held that an "expanded consequential damage measure," which could include damages for mental anguish, "should be available only for breach of [an] implied covenant, not . . . for breach of the express terms of the contract."Id. at 466.
The University Defendants additionally contend that "the law precludes general damages for mental anguish arising from a breach of contract." (Defs.' Reply Mem. at 2 (citing 3 E.A. Farnsworth,Farnsworth on Contracts. § 12.17, p. 274 (1990)).)
Although it is instructive, the decision in Billings does not definitively resolve the issue. The Billings court did not hold as a matter of law that a plaintiff may never recover damages for mental anguish as consequential damages in a breach of contract action.See Id.(Cf. Defs.' Reply Mem. at 2.) Nevertheless, the case did reject any "expanded consequential damage[s]" for breach of the express terms of a contract. Billings. 918 P.2d at 466.
The Plaintiff cites case law for the proposition that "[i]n Utah, both general damages and consequential damages are recoverable for breach of contract." (Pl's Opp'n Mem. at 2 (citing Mahmood v. Ross. 990 P.2d 933, 938 (Utah 1999), and Billings. 918 P.2d at 466).) She additionally explains that "consequential damages are those which are reasonably foreseeable or within the contemplation of the parties at the time the contract was made." (Pl.'s Opp'n Mem. at 3.) She argues that she bargained for the peace of mind that she would not be retaliated against for having reported research misconduct. Therefore, she contends that "injury to reputation, humiliation, and emotional distress are general damages which naturally flow from the University's breach of contract." (Id.) But Plaintiff provides no case law supporting this argument. As the University Defendants point out, the established law is contrary to Plaintiff's argument. For example, one treatise reports that courts "generally deny recovery for emotional disturbance, or `mental distress,' resulting from breach of contract, even if the limitations of unforeseeability and uncertainty can be overcome." 3 E, A. Farnsworth, Farnsworth on Contract § 12.17, p. 288(1990). (See Defs.' Reply Mem. at 2.)
Accordingly, based on the above, the court grants the motion to dismiss Plaintiff's Fifth Claim for Relief.
The Ninth Claim for Relief
In her Ninth Claim for Relief, Plaintiff alleges that the University Defendants negligently failed to protect her invention disclosures. (Second Am. Compl. at 44.) She specifically alleges that the University Defendants (1) failed to keep the disclosures confidential; (2) failed to promote and develop the inventions; (3) failed to seek prompt patent protection for them; and (4) permitted "Research Misconduct," a term that "means fabrication, falsification, plagiarism, or other practices that seriously deviate" from commonly accepted research practices. (Id. at p. 2 and ¶ 234.) The University Defendants point out that the court previously dismissed a breach of fiduciary duty claim based on the same facts. (See Jan. 15 Order (Dkt. # 36) at 24.) The court dismissed the fiduciary duty claim for failure to file a timely notice of claim. (SeeId. at 24-26.) The University Defendants argue that the Second Amended Complaint's Ninth Claim for Relief similarly should be dismissed.
The Plaintiff contends that the University Defendants' negligence constituted a continuing breach of its duty to exercise reasonable care to avoid injuring her property interests in her inventions, and therefore that she timely filed a notice of claim on December 28, 1999.
1. Does the Court's Earlier Dismissal of Plaintiff's Breach of Fiduciary Duty Claim Apply to Plaintiff's Claim of Negligent Injury to Property?
Because the University Defendants are a state agency, they fall under the Utah Governmental Immunity Act ("UGIA"). See Utah Code Ann. § 63-30-12 (2002). Under the UGIA, a plaintiff bringing suit against the state or a state employee must file a notice of claim with the attorney general within one year of the alleged injury.See Id The University Defendants contend that the Plaintiffs ninth claim, which is at issue here, must be dismissed for the same reason that the court earlier dismissed her eleventh claim: the Plaintiff failed to timely file a notice of claim as required by the UGIA.
The Plaintiff alleged in the Amended Complaint's Eleventh Claim that the University Defendants breached a fiduciary duty owed to her by "failing to keep her inventions confidential, to promote and develop her inventions, and to timely and adequately seek patent protection for her inventions." (Am. Compl. ¶¶ 252-53, 255.) In the eleventh claim the Plaintiff also contended that the University's failures "permit[ted] and influence[d] the misappropriation of Plaintiff's inventions." (Id. at ¶ 254.) The court dismissed this claim because the Plaintiff did not file a timely notice of claim after becoming aware of the facts on which it was based. (See Jan. 15 Order (Dkt. # 36) at 24-26.) The court specifically stated that "Sadwick became aware of the facts giving rise to her fiduciary duty claim in mid-1996 or early-1997 at the latest. . . . Under the UGIA, she had to file her notice of claim no later than early-1998. Sadwick did not file her notices of claim, however, until November 12 and December 28, 1999." (Id. at 24-25 (internal citation omitted).)
In its January 15 Order, the court also rejected the Plaintiff's argument that there had been a continuing violation. (See Id. at 25.) The court stated that "[t]he Tenth Circuit has specifically ruled against the `continuing violation' theory, holding that the clock begins to run on a misappropriation claim once the plaintiff becomes aware of the facts giving rise to his or her suit." (Id. (citing Chasteen v. UNISIA JECS Corp. 216 F.3d 1212, 1217 (10th Cir. 2000)).)
The Plaintiff does not explain how the Second Amended Complaint's Ninth Claim for Relief differs from the dismissed Eleventh Claim for Relief in the Amended Complaint. But the court notes that there is an obvious difference, that is, the dismissed Eleventh Claim for Relief in the Amended Complaint alleged a breach of fiduciary duty (See Am. Compl, ¶ 255), while the Second Amended Complaint's Ninth Claim for Relief alleges negligence (See Second Am. Compl. ¶¶ 234-35). Additionally, the Eleventh Claim for Relief primarily alleged misappropriation. (See Am. Compl. ¶¶ 254-55). The Ninth Claim for Relief alleges that the University Defendants breached their duty to use reasonable care to avoid injuring the Plaintiff's property interests in her inventions, by, among other actions, permitting "Research Misconduct"-a term that includes "misappropriating trade secrets," (See Second Am. Compl. at p. 2 and ¶ 234.)
The University Defendants point out that "[t]he Amended Complaint's Eleventh Claim and the Second Amended Complaint's Ninth Claim are factually identical because both are based on the University's failure to protect plaintiff's invention disclosures." (Defs.' Supporting Mem. at 3.) Nevertheless, the court dismissed the Amended Complaint's Eleventh Claim because the continuing violation theory did not apply to misappropriation claims. (See Jan. 15, 2001 Order (Dkt. # 36) at 25.) The Second Amended Complaint's Ninth Claim alleges more varied misconduct than mere misappropriation, which is only one of many acts included in the definition of "Research Misconduct." (See Second Am. Compl. at p. 2 and ¶ 234.) Because it relied upon case law dismissing the continuing violation theory for misappropriation claims, the court's January 15 Order dismissing the Amended Complaint's Eleventh Claim does not apply to the Second Amended Complaint's Ninth Claim.
2. Does the Continuing Violation Theory Apply to Plaintiff's Negligence Claim?
As a second reason to dismiss the Plaintiff's ninth claim, the University Defendants argue that the Plaintiff's "negligence claim is not one to which the continuing violation theory applies." (Defs.' Reply Mem. at 3.) It points to the decision in Moskowitz v. Trustees of Purdue University, 5 F.3d 279, 282 (7th Cir. 1993), an employment discrimination decision.
In Moskowitz. the plaintiff, a tenured professor at Purdue University, was denied requested laboratory space, research funds, and travel grants several times over the course of three years. See Moskowitz. 5 F.3d at 281. The plaintiff subsequently "was forced to retire . . . upon reaching the age of seventy, the age at which the Age Discrimination in Employment Act [the "ADEA," or "Act"] permits mandatory retirement of professors."Id at 280. He sued Purdue University under the Act, "charging that the university had discriminated unlawfully against him on account of his age by denying him research funds and facilities and travel grants before his retirement."Id The plaintiff filed suit over 180 days-the applicable statute of limitations under 29 U.S.C. § 626(d)(1)-after the University first told him specifically that it would not give him suitable laboratory space. See Id at 281.
The court explained:
If it is only with the benefit of hindsight, after a series of discriminatory acts, that the plaintiff can realize that he is indeed a victim of unlawful discrimination, he can sue in regard to all of the acts provided he sues promptly after learning their character, even if the statute of limitations has run on all of them. If, however, he knows or with the exercise of reasonable diligence would have known after each act that it was discriminatory and harmed him, he may not sit back and accumulate all the discriminatory acts and sue on all within the statutory period applicable to the last one.Id. at 281-82. But the court stated that a plaintiff could nevertheless sue for later acts falling within the applicable statute of limitations, despite the plaintiff's failure to timely sue for the earlier acts. See Id at 282. Apparently, a plaintiff could do so regardless of whether all acts constituted one alleged continuing violation. See Id The court stated that "the fact that a series of . . . unlawful acts is indeed a series, a continuum, rather than a concatenation of unrelated acts, will delay the deadline for suing with respect to the earliest acts in the series only if their character was not apparent when they were committed but became so when viewed in the light of the later acts."Id at 282 (emphasis added). And although the plaintiff "had no excuse for waiting more than 180 days after [learning that he had lost laboratory use rights], before filing a charge in which he complained about the denial of laboratory space," the court allowed the plaintiff's claim concerning loss of research grants because the plaintiff had discovered this fact within 180 days of filing suit. See Id.
Based on the case law provided by the University, it appears that the continuing violation theory does not excuse the Plaintiff's untimely filing of a notice of claim as to the research misconduct and failure to promote the Plaintiff's invention that occurred before December 28, 1998-the year preceding the Plaintiff's December 28, 1999 second notice of claim.
It is also significant that the Plaintiff recognized in mid-1996 or early 1997 that the University Defendants had allegedly failed to keep her invention disclosures confidential, failed to promote and develop the inventions, and permitted research misconduct." The Plaintiff complained to her supervisors about the alleged misconduct in 1996, 1997, and 1998. (See Second Am. Compl. ¶¶ 57, 67, 70-73, 123-24), conduct which shows that she immediately deemed the University Defendants' alleged acts of negligence to be wrongful and therefore, cannot rely on a continuing violation theory. See Moskovitz. 5 F.3d at 282. The continuing violation theory therefore does not "delay the deadline for suing with respect to the earliest acts" in the alleged series of wrongful acts. See Id.
Nevertheless, nothing in Moskovitz prevents a plaintiff from suing on allegedly wrongful acts that fall within the respective statute of limitations, regardless of whether the acts constitute mere parts of an alleged continuing violation. See Id at 282. Dismissal of Plaintiff's Ninth Claim for Relief is proper only as to those alleged acts of negligence that occurred before December 28, 1998-the year preceding Plaintiff's second notice of claim.
Fourteenth Claim for Relief
In the Fourteenth Claim for Relief Plaintiff alleges that she was falsely blamed for causing the University to pay unexpected costs associated with her research project. (See Second Am. Compl. ¶ 269.) The Plaintiff claims that she received a low pay raise in 1999 because she was falsely blamed. (See id.) She additionally alleges that in 1998, another professor mismanaged the costs of a research project but nevertheless received a high pay raise. (See id.) The Plaintiff alleges that this unequal treatment denied her "right to uniform operation of laws," in violation of Article I, Section 24 of the Utah Constitution. (Id ¶¶ 268-72.)
The University points out that the Plaintiff's December 28, 1999 notice of claim alleged that she had "been unequally paid" due to gender and race discrimination, not that such unequal pay resulted from the University Defendants' alleged false blaming of Plaintiff for increased costs in a research project. (See Defs.' Supporting Mem. at 4.) Accordingly, the University seeks dismissal of the Second Amended Complaint's Fourteenth Claim for Relief because the December 28, 1999 notice of claim did not allege facts on which the Fourteenth Claim for Relief is based.
A notice of claim must include, among other things, "a brief statement of the facts" and "the nature of the claim asserted." Utah Code Ann. § 63-30-1 l(3)(a). The Utah Supreme Court has stated that "[t]here must be enough specificity in the notice to inform as to the nature of the claim so that the defendant can appraise its potential liability."Yearsley v. Jensen. 798 P.2d 1127, 1129 (Utah 1990). The notice of claim requirement applies to claims under the Utah Constitution. See Jensen v. Reeves. 45 F. Supp.2d 1265, 1278 (D. Utah 1999), aff'd 3 Fed. Appx. 905, available at 2001 WL 113829 (10th Cir. 2001).
The University Defendants rely on Yearsley to support their argument that Plaintiff's notice of claim does not state the nature of the claim asserted. In Yearsley. the plaintiff had sent a notice of claim "for damages for an assault and battery" that the plaintiff alleged occurred during an arrest. Yearsley. 798 P.2d at 1128. The plaintiff filed suit, and the trial court granted the defendants' motion for summary judgment. See Id. The plaintiff "then moved for leave to file an amended complaint in which `malicious' assault and battery and `malicious' arrest and prosecution were alleged."Id. The court refused the motion in part "because the cause of action for malicious prosecution alleged therein was `quite different' from the claim stated in her notice of claim which was for only assault and battery." See id.
On appeal, the court stated that "[b]y no stretch of the facts can a claim for the physical beating be construed to include a claim for malicious prosecution."Id. at 1129. The court additionally explained that "the amended complaint seeking damages for malicious prosecution presented a new claim charging new and different misconduct from the claim made in the notice for assault and battery, . . . [T]he new allegations are distinctly different and defendants' liability would be altered significantly if relief was granted on them." Id.. The court made clear, however, that some variance from the initial notice of claim would be permitted: "[t]he amended complaint [was] much more than a mere expansion or amplification of what was alleged in the notice. Indeed, a notice of assault and battery does not contemplate a malicious prosecution or a false arrest claim."Id. For theYearsley court, the question of whether a claim for relief could constitute an allowable variance from the notice of claim was a matter of degree. The court in that case could not "permit the amended complaint to vary so profoundly from the notice." Id.
As in Yearsley, the question of whether the Plaintiffs Fourteenth Claim for Relief permissibly varies from the December 28, 1999 notice of claim is a matter of degree. See Yearsley. 798 P.2d at 1129. The question is whether the allegations in the Fourteenth Claim "are distinctly different and [whether] defendants' liability would be altered significantly if relief [is] granted." Plaintiff's December 28, 1999 notice of claim alleged that she had "been unequally paid." (See Defs.' Supporting Mem. at 4; Aff. of Emily Olsen (Dkt. # 8), Ex. B, UK 8-10.) The notice of claim appears to attribute this unequal treatment to gender and race discrimination. (See Aff. of Emily Olsen (Dkt. # 8), Ex. B, ¶ 10.) The notice of claim makes no mention of Plaintiff's being "falsely blamed for the University having to absorb contract costs." (See Second Am. Compl. ¶ 269.) It also fails to identify the persons who subjected her to unequal pay.
Although the difference between the Fourteenth Claim for Relief and the December 28, 1999 notice of claim is not as great that inYearsley. it is a significant difference. A notice of unequal pay due to race and gender discrimination "does not contemplate" a claim for unequal pay due to a false accusation against Plaintiff. Acts of race and gender discrimination are "distinctly different" from acts motivated by an incorrect accusation concerning research costs.
Accordingly, the court concludes that the Fourteenth Claim for Relief must be dismissed for failure to meet the requirements of the UGIA, Fifteenth Claim for Relief
The University Defendants contend that Plaintiff's Fifteenth Claim for Relief should be dismissed as duplicative of the constitutional claims. In the Fifteenth Claim for Relief Plaintiff alleges that the University Defendants breached a contractual obligation "to not violate Plaintiff's Constitutional rights including her rights to property, equal protection and due process." (See Second Am. Compl. ¶ 275.) The University Defendants argue that this claim "depends entirely on the success of the constitutional claims because there can be no breach of contract without a constitutional violation." (Defs.' Supporting Mem. at 5.) It contends that because the Fifteenth Claim "provides no relief in addition to that which the constitutional claims provide," the court should dismiss the Fifteenth Claim. (Id. at 5-6.) The University Defendants provide no case law to support their argument that duplicative claims should be dismissed.
Plaintiff contends that unlike her claims based on alleged violations of the Utah Constitution, the Fifteenth Claim for Relief for alleged breach of contract is not subject to the UGIA. See Utah Code Ann. § 63-30-5(1). The Plaintiff also explains that unlike her section 1983 claims, the Fifteenth Claim for Relief is not "subject to a statute of limitations defense" that the University might raise on appeal. (Pl.'s Opp'n Mem. at 7.)
The University Defendants have previously challenged Plaintiff's section 1983 claims on statute of limitations grounds. (See Order, Doc. 36, at 8.) The court rejected this challenge in its January 15, 2001 Order.
In response, the University Defendants argue that "the contract claim, being dependent on the constitutional claims, is indirectly subject to all defenses governing the constitutional claims, including the notice of claim and two year statute of limitations defenses." (Defs.' Reply Mem. at 6.) But the University Defendants provide no legal support for their argument that the claim should be dismissed. And the Plaintiff has indiciated significant distinctions between the Fifteenth Claim for Relief and her constitutional claims.
In view of the above, the court denies the University Defendants' Motion for Judgment on the pleadings on the Fifteenth Claim for Relief.
Seventeenth Claim for Relief
Plaintiffs Seventeenth Claim for Relief alleges that Defendant Joann Li ghty published a November 25, 1998 memorandum containing false and defamatory statements about the Plaintiff. (See Second Am. Compl. ¶¶ 132, 290-95.) Ms. Lighty contends that "[a] suit based on this claim was not properly filed within the one year limitation period and therefore is time-barred." (Defs.' Supporting Mem. at 6.)
Specifically, Ms. Lighty contends that the Plaintiff did not strictly follow the procedures set forth in the Utah Governmental Immunity Act ("UGIA"), which dictates when a notice of claim must be filed with the government and when a follow-up complaint may be filed in court.See Utah Code Ann. §§ 63-30-13 (notice of claim must be filed within one year after claim arises), 63-30-14 (requiring 90-day period within which the government may approve or deny the claim, with claim deemed denied at expiration of 90 days if government has not responded to claim), and 63-30-15 (requiring filing of court action within one year after expiration of the 90-day denial period).
Plaintiff filed a notice of claim on November 11, 1999. No one disputes that the notice of claim was timely (i.e.. within one year from the date of the November 25, 1998 allegedly defamatory memo). Rather, Ms. Lighty takes issue with the timing of Plaintiff's original complaint, which was filed on November 24, 1999. Ms. Lighty specifically cites to Utah Code Ann. § 63-30-15, which provides that if a claim under the UGIA is denied by the government or the 90-day denial period has expired with no answer from the government (as is the case here), the claimant may institute an action in court "within one year after denial of the claim or within oneafter the denial period . . . has expired." § 63-30-15(2) (emphasis added).
According to Ms. Lighty, Plaintiff's defamation claim against her must be dismissed because Plaintiff filed her complaint on November 24, 1999,before the denial period expired on February 9, 2000. It follows, according to Ms. Lighty, that because Utah law requires strict compliance with the UGIA, and Plaintiff did not follow the strict procedure of the UGIA, Plaintiff's November 24, 1999 filing had no effect.
In support of her argument, Ms. Lighty cites to Hall v. Utah State Dep't of Corrections. 24 P.3d 958 (Utah 2001), andHansen v. Department of Fin. Insts. 858 P.2d 184 (Utah Ct.App. 1993). In Hall the Utah Supreme Court held that "plaintiffs with claims against the state `may institute an action in the district court' only after their `claim is denied,' [Utah Code Ann.] § 63-30-15(1)." Hall. 24 P.3d at 966 (emphasis added). "Once a plaintiff's notice of claim is filed, the [UGIA]continues to bar its initiation in court until the state either denies the claim in writing or fails to act for ninety days[.]"Id. at 964 (emphasis added). The court found that the plaintiff in Hall had not complied with the UGIA notice of claim requirements because he filed his complaint on the same day that he filed his notice of claim. Id.. at 966. Hall, however, did not address the situation faced by Plaintiff here (at least according to Ms. Lighty's reading of the law), where if Plaintiff did not file her complaint by November 24, 1999, the one-year statute of limitation for claims of defamation, see Utah Code Ann. § 78-12-29(4), would bar her defamation claim, and if shedid file her complaint within the defamation statute of limitation period, the UGIA would bar her claim by making her complaint a nullity, Hansen. also cited by Ms. Lighty, is not helpful here. The court in Hansen simply held that a Third Amended Complaint filed without leave of court was a nullity. See Hansen. 858 P.2d at 186-87. It does not apply to the factual situation in this case.
Ms. Lighty's reading of the law would effectively amend the statute of limitation for defamation claims brought against a government employee by shortening the period by 90 days in order to allow for compliance with both the UGIA and the original statute of limitations. This seems contrary to legislative intent.
Plaintiff relies on Johnson v. Utah State Retirement Office. 621 P.2d 1234 (Utah 1980), in support of her position that her November 24, 1999 complaint was not a nullity. The court in Johnson held that the plaintiff's filing of his original complaint on the same day as his notice of claim "did not nullify the effect of the notice of the claim."Id. at 1236. Further, because the plaintiff filed an amended complaint as a matter of right within one year after the end of the 90-day denial period, the court found that he had complied with the UGIA. Id. Ms. Lighty counters Plaintiff's reliance onJohnson by arguing that Hall implicitly overruledJohnson. (See Defs.' Reply Mem. at 7.) Having reviewed both Hall and Johnson, it is not clear to the court that Hall impliedly overruled Johnson. See, e.g. Bank One Utah. N.A. v. West Jordan City. 54 P.3d 135, 139 n. 2 (Utah Ct.App. 2002) (citing Johnson in dicta stating that filing a notice of claim after a complaint is served is "not fatal to a claim so long as the proper notice is filed within the one-year period").
Even if Johnson is no longer good law, the court nevertheless finds that the Plaintiff complied with the UGIA with respect to filing her defamation claim against Ms. Lighty. Whether Plaintiffs November 24, 1999 Complaint was a nullity seems beside the point. UGIA § 63-30-15 says that the "claimant shall begin the action within one year after denial of the claim or within one year after the denial period . . . has expired." The Plaintiff filed an amended complaint, as a matter of right, in state court (before the case was removed to federal court) on March 29, 2000, The amended complaint was filed after the expiration of the 90-day denial period (i.e., after February 9, 2000) and within a year of that February 9, 2000 denial date.
Accordingly, Ms. Lighty's Motion to Dismiss is DENIED.
ORDER
For the foregoing reasons, the court ORDERS as follows:
1. The Motion for Partial Judgment on the Pleadings filed by Defendants University of Utah and Om P. Gandhi is GRANTED IN PART AND DENIED PART. Specifically:
a. Plaintiff's Fifth Claim for Relief is DISMISSED.
b. Plaintiff's Ninth Claim for Relief is DISMISSED with respect to those alleged acts of negligence that occurred on or before December 28, 1998. Plaintiff's Ninth Claim for Relief, however, is NOT DISMISSED with respect to those alleged acts of negligence that occurredafter December 28, 1998.
c. Plaintiff's Fourteenth Claim for Relief is DISMISSED,
d. Plaintiff's Fifteenth Claim for Relief is NOT DISMISSED.
2. Defendant Joann Lighty's Motion for Judgment on the Pleadings is DENIED. Specifically, Plaintiff's Seventeenth Claim for Relief is NOT DISMISSED.
IT IS SO ORDERED.