Mullen v. Taylor
ORDER; denying 23 Motion to Dismiss Case and granting 27 Motion to Dismiss. CASE DISMISSED WITHOUT PREJUDICE, as set forth. Signed by Honorable Paul K. Holmes, III on April 18, 2011. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
THURSTLE DALE MULLEN
CASE NO. 2:10-CV-02019
JAMES MICHAEL TAYLOR
Currently before the Court are Defendant’s Motion to Dismiss
Prejudice (Doc. 27) and Defendant’s Response (Doc. 28). For the
reasons set forth herein, Defendant’s Motion to Dismiss is DENIED.
Plaintiff’s Motion to Dismiss without Prejudice is GRANTED.
Plaintiff Thurstle Dale Mullen brought this action against
Defendant James Michael Taylor alleging malicious prosecution. The
parties have a history of litigation dating back at least six years
to 2005. The Court has reviewed that history insofar as it relates
to this case, in addition to conducting a thorough review of the
record in the instant matter. Without unnecessarily belaboring the
record with a further recitation of the facts and procedural
history, the Court, being well and sufficiently advised, turns to
the Motions now before the Court.
Taylor’s Response (Doc. 28) and accompanying brief in support
(Doc. 29) to Mullen’s Motion to Dismiss (Doc. 27), raises many of
the same arguments which were previously raised by Taylor in his
Motion to Dismiss (Doc. 23). The Court will address Taylor’s
arguments in turn. Taylor signed an affidavit for warrant of arrest
charging Mullen with filing instruments affecting title or interest
in real property. (Doc. 1-1). Taylor argues that he cannot be held
amending the charge to a felony and later electing to dismiss the
charge. Mullen is alleging malicious prosecution based on the
initial signing of the affidavit for warrant of arrest, claiming
that any subsequent action stemmed from Taylor’s initial decision
to prosecute. The Court cannot find that Taylor could not be held
liable for his actions, as alleged by Mullen, as a matter of law.
Taylor also argues that Mullen has failed to comply with
orders of the Court and his Complaint should be dismissed on those
grounds. Mullen did not file a response to Taylor’s Motion to
dismissal - some of the issues raised by Taylor. In pertinent part,
Mullen states in his Motion to Dismiss (Doc. 27) that he has been
unable to find another attorney to represent him in this matter
after the withdrawal of his attorneys just two months before the
Court’s scheduled trial date. As a pro se litigant, Mullen is
entitled to some concessions by the Court. See e.g. Whitson v.
Stone County Jail, 602 F.3d 920, 922 n.1 (8th Cir. 2010). However,
substantive and procedural law. Am. Inmate Paralegal Ass’n v.
Cline, 859 F.2d 59, 61 (8th Cir. 1988).
Taylor cites several instances in which he characterizes
Mullen’s actions (or failure to act) as failures to follow court
orders. (Doc. 29 at p. 9). Taylor argues, for instance, that Mullen
“inexplicably inform[ed] the Magistrate that he would not attend
the Pretrial Conference”. Mullen informed the Magistrate that he
would not be attending the settlement conference. While parties are
encouraged to engage in a settlement conference with the Magistrate
if such a conference would be useful to resolve claims, they are
not required to do so. (Doc. 14 at para. 9). The Court also notes
that Mullen did comply with the Court’s order to notify that he was
proceeding pro se after being given an extension of time to do so,
and Taylor was informed of his compliance.
(Doc. 25 at para. 1).
The Court finds that any remaining failure of Mullen alleged by
Taylor was not so egregious so as to warrant the harsh remedy of
dismissal with prejudice in light of the circumstances.
The Court declines to consider the imposition of sanctions, as
the current matter has not been fully litigated, and the Court
cannot simply rely on Taylor’s assertions alone that the claim has
not been brought in good faith. The Court notes that Taylor cites
the findings of Arkansas state courts in arguing that Mullen must
have brought the action in bad faith. At the time when Mullen
initiated this action on February 11, 2010, the state case cited by
Taylor was pending Mullen’s appeal. Furthermore, Taylor did not win
that case at the appellate level. Rather, in the state appellate
court case cited by Taylor the court found that it lacked appellate
jurisdiction because the lower court’s finding lacked finality.
Mullen v. Taylor, 2010 Ark. App. 398. That opinion was issued May
5, 2010. Furthermore, to the extent that Taylor again raises the
issue of subject matter jurisdiction, the reasoning fully explained
in the Court’s previous order (Doc. 8) remains valid on that point.
Finally, Federal Rule of Civil Procedure 41(a)(2) provides
that “[i]f a defendant has pleaded a counterclaim before being
served with the plaintiff’s motion to dismiss, the action may be
dismissed over the defendant’s objection only if the counterclaim
can remain pending for independent adjudication.” Taylor included
in his Answer (Doc. 9) a counterclaim for mandatory attorney’s fees
under Arkansas law A.C.A. § 16-22-309. After reviewing the filings
and the cited statute, the Court must conclude that Taylor’s
counterclaim would be more appropriately characterized as a motion
or request for attorney’s fees and cannot properly be construed as
a true counterclaim.
Furthermore, the Arkansas statute requires a
finding by the court that there
is a complete absence of a
justiciable issue before consideration of a mandatory award of
attorney’s fees becomes appropriate. A.C.A. § 16-22-309. No such
determination has been made in this case. As such, any claim,
motion, or request for attorney’s fees under such statute would be
premature at this stage of the proceedings. The Court, therefore,
finds no procedural bar to granting Plaintiff’s Motion to Dismiss
under Federal Rule of Civil Procedure 41(a)(2).
Upon due consideration, and for all of the reasons outlined
Plaintiff’s Motion to Dismiss (Doc. 27) is GRANTED, and Plaintiff’s
complaint is hereby DISMISSED WITHOUT PREJUDICE pursuant to Federal
Rule of Civil Procedure 41(a)(2).
Should Plaintiff re-file his
complaint in this Court, the Court will award duplicative costs and
fees to Taylor at that time, and the proceedings will be stayed
until Mullen has complied. Should Mullen attempt to re-file his
case in another Court, duplicative costs and fees may, and likely
will, be considered by such Court at that time.
IT IS SO ORDERED this 18th day of April 2011.
/s/ Paul K. Holmes, III
Paul K. Holmes, III
United States District Judge
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