Holick v. Burkhart

Filing 19

MEMORANDUM AND ORDER denying 5 Motion to Dismiss for Failure to State a Claim; denying 5 Motion to Dismiss for Lack of Jurisdiction. Signed by Chief Judge J. Thomas Marten on 1/6/2017. (sz)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MARK HOLICK,
Plaintiff,

vs.

Case No. 16-1188-JTM

JULIE BURKHART,
Defendant.

MEMORANDUM AND ORDER

Mark Holick is an ordained minister and an opponent of abortion. Julie Burkhart
operates an abortion facility in Wichita, Kansas. In the present action, Holick has sued
Burkhart for malicious prosecution, abuse of process, and defamation based upon
Burkhart’s 2013 petition against him under the state’s anti-stalking statute. Burkhart has
moved to dismiss the action.
Burkhart filed a Protection From Stalking action against Holick on March 7, 2013.
The court issued a temporary order the same day According to Holick’s Complaint,
Burkhart continued the temporary order against him for two years without making it a
permanent injunction. As late as January 2015, the Complaint alleges, Burkhart tried to
influence the Wichita police to arrest Holick for violating the anti-stalking order. Holick
contends that the filing of the petition and false accusations of “stalking” caused extensive

negative media publicity about him.
On or about March 7, 2012, Burkhart filed an anti-stalking petition against Holick
in the Sedgwick County District Court. The petition was on a form personally completed
by defendant in her own handwriting, and included a verification in which she attested
that the information alleged therein was true and correct. Holick’s Complaint alleges that
the petition was based on information that was not true and was incorrect, including the
claim of “stalking” Burkhart by “picketing” in front of her house on November 17, 2012
from 11:30 a.m. to 1:30 p.m., handing out a “wanted-style flyer” about Burkhart, and
having “posters w/inflammatory language.”
Holick contends the petition also falsely alleged that on February 15, 2013, between
7:30 a.m. and 9:30 a.m., Holick was “stalking” Burkhart when he allegedly “pointed a sign
towards my house that said ‘where is your church’” and “used a bull horn or [another] way
to magnify volume.”
The Complaint alleges that Holick was not present in front of Burkhart’s house on
either occasion, and that he was not stalking Burkhart.
Burkhart also alleged in her petition that on an unspecified date in January 2013,
Holick committed an “additional incident” of “stalking” when he “was at my place of
business, standing in the middle of the driveway” and “walked the perimeter of the
building, scoping it out.” Burkhart alleged she needed the “protection from stalking order
because he [plaintiff] is engaging in behavior meant to scare and intimidate me. He also
uses violent language.”

2

After Burkhart filed her petition, the Sedgwick County District Court entered an ex
parte antistalking order against Holick. This order was based solely on the allegations in
the petition, without any evidentiary hearing.
The Complaint filed in the present action alleges Burkhart did not make reasonable
efforts to verify the truth or accuracy of the allegations she personally asserted and verified
in her anti-stalking petition. According to the Complaint, on the date of the first alleged
incident of “stalking,” November 17, 2012, Burkhart and her family were not present at her
address during the times specified in the anti-stalking petition. She did not, and could not,
have witnessed Pastor Holick at that event, it alleges, because he was not there, and she
was not there.
Also according to the Complaint, during the incident on February 15, 2013, Burkhart
called the Wichita Police, who responded to her address. At that time, she made a
complaint against the two protestors who were on the sidewalk in front of her house.
Those persons are identified in the resulting police report. Pastor Holick was not one of
them. (He was not present.) Defendant made no complaint about Mark Holick to the police
that day.
The Complaint alleges that Holick has never stalked Burkhart at her home or
workplace. He never protested in front of defendant’s house at any time. He never held a
sign in front of her house, never used a bullhorn there, and never used “inflammatory
language” at that location. Rather, according to the Complaint, Holick was a “substantial
distance” from Burkhart’s house, at a position on the north side of Douglas Avenue. He

3

was located at least ten houses, plus the four lanes of Douglas, north of Burkhart’s house,
the equivalent of over two standard city blocks.
Burkhart alleged a third incident of stalking on an unspecified date in January
2013, where Mark Holick was allegedly at the clinic walking “the perimeter” and “scoping
it out.” The Complaint alleges that such allegations do not rise to the level of criminal
stalking, but merely show that he participated in a peaceful protest.
The Complaint alleges that after Holick moved for summary judgment, the
defendant voluntarily dismissed her stalking case, leaving him as the prevailing party.
In support of her Motion to Dismiss, Burkhart presents the orders entered by the
Sedgwick County District and transcripts of the hearings before the two judges assigned
to the case.1
Burkhart filed her Protection From Stalking action against Holick on March 7, 2013.
The court issued a temporary order the same day, and set a hearing for March 21, 2013.
Burkhart continued the hearing for one week, and Holick then continued the scheduled
March 28 hearing until April 11, 2013.

1

In addition, the defendant also repeatedly suggests that the otherwise
remarkable delay in resolving the state action was caused entirely by Holick. (Dkt. 6, ¶¶
e, f, h, k, n). While the ultimate fact-finder may conclude this was the case, this is not
immediately apparent from the pleadings or documents cited. In many instances, it
appears that at least some of the delays were caused by agreed-upon continuances. In
addition, the state court explicitly indicated it could not understand why the case was
delayed so long. “[T]his matter was continued, at least according to the record, several
times by the Court itself. And so it is the Court's opinion that this case was
unnecessarily delayed. I don't know why -- particularly why the Court had to continue
it.” (Tr. at 54).
4

Holick moved to dismiss the action on April 4, 2013 arguing that his activities were
First Amendment protected activities. Holick continued the April 11, 2013 hearing on the
temporary order, and asked for a hearing on his motion to dismiss.
The hearing on his motion to dismiss was continued several times by the court and
Holick, which was not heard until October 22, 2013. Holick argued the acts alleged by
Burkhart could not constitute stalking because they involved expressive conduct protected
by the First Amendment. The court denied the motion to dismiss on November 2, 2013.
Holick asked to depose Burkhart, and did so on April 11, 2014.
At the start of May, 2014, Burkhart moved to for a protective order limiting the use
her deposition to the stalking action. The court subsequently granted the motion.
Holick eventually moved for summary in judgment 2015. On May 7, 2015, Burkhart
filed a motion to dismiss the anti-stalking action as moot because there was no existing
order upon which summary judgment could be granted and responding to it would be an
exercise in futility. According to Holick, Burkhart filed the motion after he objected to her
request for more time to respond to the motion for summary judgment.
On June 10, 2015, the state court heard argument on Burkhart’s motion and
dismissed the action. “The reality is if we had a hearing today on these motions, or
sometime soon, there wouldn’t and couldn’t be an order issue based upon alleged incidents
that happened over two years ago.”
The court also determined Holick was not entitled to attorney fees at the June 10,
2015 hearing on Burkhart’s motion to dismiss as moot. The court stated:

5

The Court may award attorney fees to the defendant in any case where the
Court finds that the petition to seek relief, pursuant to this act, is without
merit, and I believe that that issue was already addressed by Judge Beasley
in his memorandum opinion on your Motion to Dismiss on the constitutional
arguments that you made earlier in the case, so at this time, the Court will
not order attorney fees in this case, based upon the statute.
(Tr. at 8).
Holick subsequently filed a written motion for attorney’s fees, and Holick testified
at the September 24, 2015 hearing that if he would have had a chance to testify on April 11,
2013, he would have testified that he had never been in front of Burkhart’s home. The court
denied the request for attorney fees on November 2, 2013. The court observed:
And I think maybe parts of my ruling were – were misunderstood at the time
I made them back on June 10th of 2015. My point at that time was it would
be an exercise in futility to try to have a hearing and to get a final order on
something on events that happened over two and a half years before June
10th of 201[5]. And the point there was the plaintiff could never prevail.
There would be no way that she could argue for a continued protection from
abuse order for [ ] events that happened two and a half years ago. So it’s just
an exercise in futility, forcing a plaintiff to go forward on something that she
can’t obtain.
The district court further held:
I don’t really see this as finger pointing as to who continued what, but the
reality is the defendant [Holick] did continue the matter. The defendant
[Holick] did choose a strategy of seeking a motion to dismiss rather than
simply having a hearing and requiring Burkhart to prove the allegations.
Burkhart first moves to dismiss the action because Holick did not serve her with
process in a timely manner. Fed.R.Civ.Pr. 4(m) provides that service should occur within
90 days of the filing of the Complaint. In the present case, Holick filed his Complaint on
June 9, 2016, but did not serve the defendant with process until September 10, 2016, when

6

a copy of the Complaint was left with Burkhart’s husband at their home. Thus, service
occurred 93 days after the Complaint.
Burkhart stresses that Holick has known her address throughout the state action,
and indeed testified at the September 24, 2015 hearing that he knew where she lived. His
delay, accordingly, cannot be justified on the grounds of ignorance.
In response, Holick stresses that at the time he represented himself pro se, he
assumed that previous version of Rule 4(m) providing for service within 120 days
remained in effect, and the delay was brief.
Pro se litigants are not excused from the rule requiring timely service of process. See
Espinoza v. United States, 52 F.3d 838, 840 (10th Cir.1995). “[M]ere ignorance of the rules ...
is insufficient to rise to the level of demonstrating good cause sufficient to warrant a
mandatory extension of time, even for a pro se litigant.” Quarles v. Williams, 2004 WL
2378840, *2 (D. Kan. October 21, 2004) (citing Espinoza). Further, “[a]lthough a small delay
in achieving service may not prejudice the defendant, absence of prejudice alone does not
constitute good cause.” In re Kirkland, 86 F.3d 172, 176 (10th Cir. 1996) (“inadvertence or
negligence[,] mistake of counsel or ignorance of the rules also usually do not suffice”).
Even if a party fails to demonstrate good cause, and so be entitled to an extension
of time for service under Rule 4(m) as a matter of right, the court retains discretion to
dismiss an action without prejudice or to permit an extension. See Espinoza, 52 F.3d at 842.
Rule 4(m) explicitly authorizes the court to consider whether the applicable statute of
limitations would bar the re-filed action. See Fed. R. Civ. P. 4(m) Advisory Committee's

7

Note to 1993 Amendment. This court has found that “[in determining whether to grant a
permissive extension, several factors are appropriate to consider, including whether
defendant was on notice of the lawsuit, whether defendant has been prejudiced by delay
of service, and whether the applicable statute of limitations would bar the refiling of the
action.” Hagan v. Credit Union of America, No. 2011 WL 6739595, *3 (D. Kan. Dec. 22, 2011)
(citations omitted). Further, while the pro se status of a party will not support a finding of
“good cause” warranting a mandatory extension, it remains a factor which the court may
consider in deciding whether to grant a permissive extension. Sanchez v. City of Albuquerque,
2014 WL 1953499, *8 (D.N.M. April 30, 2014).
The court finds that the three-day delay does not warrant dismissal of the action. At
the time of the Complaint, the plaintiff was pro se, had a colorable rationale for believing
that he had 120 days to serve process, and Burkhart has also failed to make any credible
showing of prejudice arising from the relatively brief delay. While these factors would not
individually constitute “good cause” for a mandatory extension of time for service under
Rule 4(m), the court finds that collectively they warrant a permissive, limited extension
which would effectuate the service and allow the action to proceed.
Next, Burkhart argues the court should dismiss the action because there is no
diversity of citizenship, noting that although the Complaint states that Holick is a citizen
of Oklahoma, the summons lists his residence as 543 S. Limuel Court in Wichita, Kansas.
The court will not dismiss the action for a lack of subject matter jurisdiction. The
Complaint itself states that Holick resides at 1604 Whispering Creek Drive in Edmond

8

Oklahoma. Holick asks that the court take judicial notice of the Sedgwick County Register
of Deeds record showing that he sold the Wichita house in 2013. In addition, he states by
affidavit that the Limuel address was included on the summons without his knowledge
and by mistake:
When I got ready to serve my lawsuit in September, 2016, I contacted a friend
in Wichita, a receptionist at a law firm, and asked her to find a process server
for me and to complete the paperwork necessary for service. She typed up
a summons, something she had never done before. She inadvertently put my
old Wichita address on the summons. She arranged for service and provided
the summons directly to the process server. I did not have an opportunity to
review it. The use of my old address was a clerical error on her part. I did not
know to correct it because I was in Oklahoma and did not have a chance to
review it before it was served.
Burkhart does not respond to respond to the plaintiff’s request for taking judicial
notice of the sale of the Limuel Court house in 2013, but does argue that his affidavit relies
on inadmissible hearsay as to what the his friend, the law firm receptionist, may have done.
(Dkt. 18, at 12-13).
Even assuming that the affidavit does contain some hearsay, it also reflects Holick’s
direct averment of a matter within his own personal knowledge, affirmatively stating that
he did not supply the information as to his address to the Clerk of the Court, but delegated
preparation of the summons to a third party. That explanation provides a credible
explanation for why the Limuel Court residence was included in the Summons. More
importantly, as noted earlier, Burkhart supplies no reason not to accept the fact that Holick
sold the Limuel Court residence in 2013. Collectively, the court finds that the plaintiff has
shown by a preponderance of the evidence shows that he is a resident of Oklahoma. See

9

Middleton v. Stephenson, 749 F.3d 1197, 1200 (10th Cir. 2014).
Next, Burkhart argues Holick’s action is precluded by the Rooker-Feldman doctrine,
since he is attempting to relitigate matters resolved by earlier state litigation.
“The Rooker-Feldman doctrine establishes, as a matter of subject-matter
jurisdiction, that only the United States Supreme Court has appellate
authority to review a state-court decision.” Merrill Lynch Bus. Fin. Servs., Inc.
v. Nudell, 363 F.3d 1072, 1074–75 (10th Cir. 2004) (footnote omitted). RookerFeldman “is confined to ... cases brought by state-court losers complaining of
injuries caused by state-court judgments rendered before the [federal] court
proceedings commenced and inviting district court review and rejection of
those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,
284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). In other words, “Rooker-Feldman
bars cases in federal court that are inextricably intertwined with a prior state
court judgment.” Johnson v. Riddle, 305 F.3d 1107, 1116 (10th Cir. 2002)
(internal quotation marks omitted).
Bradshaw v. Gatterman, 658 F. App'x 359 (10th Cir. 2016)
Burkhart notes that Holick seeks his attorneys fees as damages in the claims for
abuse of process and malicious prosecution, while the Sedgwick County District Court
twice refused to award attorney fees to Holick. She also agues that his defamation claim
is “inextricably intertwined” with the state court’s decision addressing the merits of her
claim. See Bolden v. City of Topeka, Kan., 441 F.3d 1129, 1141 (10th Cir. 2006) (Rooker-Feldman
precludes relitigation of issues actually addressed and matters inextricabably intertwined
with them). According to Burkhart, “[t]he district court first ruled that the PFS petition was
not meritless in the November 2, 2013 Memorandum Opinion. That ruling was affirmed
at the June 10, 2015 hearing. And it was reaffirmed at the September 24, 2015 hearing.”
(Dkt. 6, at 5) (citations omitted).
Holick argues that the doctrine has no application here because he was not the
10

“loser” in state court, but effectively the prevailing party, since Burkhart only moved to
voluntarily dismiss her claim after Holick moved for summary judgment. him. AeroTech,
Inc. v. Estes, 110 F.3d 1523, 1527 (10th Cir. 1997) (“a defendant is a prevailing party ... when,
in circumstances not involving settlement, the plaintiff dismisses its case against the
defendant, whether the dismissal is with or without prejudice”). In addition, the decision
of the state court to decline to grant attorney fees in a case considered moot was a matter
of discretion, and unrelated to proper consideration of those fees as damages arising from
the advancement of a meritless claim.
The court finds that the Rooker-Feldman doctrine does not apply because, as the
plaintiff correctly notes, the state court never addressed the merits of Burkhart’s claims.
Accordingly, consideration of the present action presented by Holick does not reflect an
attempt to appeal any judgment by the state court. See, e.g., Whiteford v. Reed, 155 F.3d 671,
674 (3d Cir.1998) (“where a state action does not reach the merits of a plaintiff's claims, then
Rooker–Feldman does not deprive the federal court of jurisdiction”).
Judge Beasley of the Sedgwick County District Court did not reach the merits of
Burkhart’s claims in his November 2 ruling. For purposes of resolving Holick’s motion to
dismiss, the court assumed the truth of Burkhart’s factual allegations:
Incident #1: Saturday, November 17, 2012, 11:30 A.m.-1:30 p.m. Picketing
@my house and my neighborhood, handing out a wanted style flyer
about me, Julie Burkhart, had posters w/inflammatory language.
Incident #2: Fir. Feb. 15, 2013, 7:30-9:30 a.m. Pointed a sing towards my
house that said “Where’s Your Church.” My former boss was

11

murdered In Church. Used a bullhorn to magnify volume.2

Order of Nov. 2, 2013, at 1. The court found ambiguity in the “Where’s Your Church?”
statement. “The Plaintiff is concerned that it references a connection to the murder of her
former employer. The Defendant argues that it references his concern toward the Plaintiff’s
need for religious affiliation.” Id. at 2. The court concluded, “Only by testimony at trial can
the meaning of the statement be discerned.” Id. at 2-3. Questions of fact and law existed
which “must be resolved prior to a resolution of the matter. Only at trial can these concerns
be addressed.” Id. at 3. Indeed, the court not only accepted the truth of Burkhart’s factual
allegations, it refrained from any determination that her allegations stated a claim for relief
under Kansas law:
In the opinion of Schulze v. Coykendall, 218 Kan. 653, 545 P.2d 392, the
court recognized that with the advent of the rules of civil procedure on
January 1, 1964, notice pleading was authorized. That is, a pleading need
only contain ‘(1) a short and plain statement of the claim showing that the
pleader is entitled to relief, and (2) a demand for judgment for the relief to
which (the pleader) deems himself (or herself) entitled; and Malone v.
University of Kansas Medical Center, 220 Kan. 371, 373, 552 P.2d 885. There is
no requirement to state facts sufficient to constitute a cause of action.
After a review of the Petition, the Court is satisfied that the Plaintiff
has met the requirements of the law to provide notice to the Defendant.

2

The court also noted a third allegation that Holick was also “at my place of
business ... walking the perimeter of the building scoping it out” in January, 2013. The
incident seems to have played no role in the court’s decision, which focused entirely the
incidents alleged to have occurred at Burkhart’s home, and relying on the Supreme
Court’s recognition of the “sanctity of the home” with the “special benefit of the privacy
all citizens enjoy within their own walls ... to avoid intrusions.” Order of Nov. 2, 2103,
quoting Frisby v. Schultz, 487 U.S. 474, 484-85 (1988).
12

Id. at 2 (emphasis added).
It is also incorrect to state that on June 10, 2015 Judge O’Connor “affirmed” the
November 2, 2013 determination that Burkhart’s claim was “not meritless.” First, as noted
above, Judge Beasley explicitly disclaimed any “requirement to state facts sufficient to state
a cause of action.” Second, Judge O’Connor explicitly observed that “[t]here has been no
determination on the merits,” and “it comes back to they [Plaintiff’s allegations] were never
more than mere allegations.” (Tr. at 6).
Burkhart’s reliance on a comment by Judge O’Connor at the September 24, 2015
hearing in which the court denied Holick’s request for attorney fees is also unfounded,
indicating that Judge Beasley, “did address whether or not the plaintiff's petition to seek
relief lacked merit -- or was without merit.” (Tr. at 53). Read in context, the court was not
suggesting there had been an actual assessment of the merits of Burkhart’s claims:
When I said in the last hearing that Judge Beasley had addressed this matter,
I didn't mean that he had addressed specifically attorney fees. He did
address whether or not the plaintiff's petition to seek relief lacked merit -- or
was without merit. At least that's how I took his order to mean, is that it had
to be resolved at a -- at a [future] hearing.
(Tr. 53-54). Throughout the rest of the court’s observations, it is apparent that the court
understood there had been no resolution of the merits of Burkhart’s claims. Judge
O’Connor earlier noted the limited nature of Judge Beasley’s ruling.
[Judge Beasley] cites -- and then states that the defendant's request for
dismissal of the petition is overruled. So at that point, the defendant's
attempt to have this dismissed for constitutional, protected free speech
argument had been ruled upon.
There was still the ability, as Judge Beasley points out, to have a
13

hearing where the plaintiff would have been required to prove by a
preponderance of the evidence that Mr. Holick – or Pastor Holick did what
she claims that he did.
Id. at 47-48. And he stressed that his own decision granting Burkhart’s request for
voluntary dismissal was not a comment on the merits of the action, only its mootness:
I struggled at the last [June 10, 2015] hearing to — whether I grant the motion
for summary judgment, whether we're in the same place or not. That would
have required me to rule on the merits, which I don't believe I could do at the time
because there was no way for the plaintiff to prevail on what this -- on
getting a final order at that time. I didn't -- there is just simply no way she
could win. And my point about the sheer allegations, which probably should
be mere allegations is what I should have said, is that I understand that
Pastor Holick wasn't happy about these things being said. I understand -- I
don't recall media coverage of this situation. I personally don't recall it. I'm
not saying it didn't happen, I'm just saying I don't recall it. But at that point,
without a final order and without a final hearing, they were nothing more than
mere allegations was my point. She never proved what she claimed, and
certainly not by a preponderance of the evidence.
Id. at 54-55 (emphasis added).
Burkhart also argues that the claims advanced by Holick are time-barred under the
relevant Kansas statutes of limitations. The present action was filed on June 9, 2016. Under
Kansas law, claims for malicious prosecution and defamation must be brought within one
year. K.S.A. 60-514(a), (b). Abuse of process has a two-year statute of limitations. K.S.A. 60513(a)(4).
Burkhart agues that the limitation period on the malicious prosecution claim would
have begun to run, at the latest, on March 7, 2015, two years after the date she filed her

14

anti-stalking petition.3 (Dkt. 6, at 13). Thus, the filing of the present action on June 9, 2016
was outside the one-year limitations period for malicious prosecution claims. Holick’s
claim for abuse of process and defamation, she argues, would similarly be barred because
the underlying claims commenced on March 7, 2013, when she filed her state stalking claim
which included the factual allegations of harassment at her residence.
Holick argues that none of the claims are time-barred, because the statute of
limitations on the malicious prosecution action would not have commenced until the time
for appealing the dismissal of the action had passed, that is, 30 days after the July 29, 2015
Journal Entry granting the Motion to Dismiss — August 28, 2015. Moreover, Holick argues,
the Kansas limitation statutes were tolled while the protection from abuse claim remained
pending. See Mo-Kan Teamsters Pension Fund v. Creason, 669 F.Supp. 1532, 1537-1538 (D.
Kan. 1987) (recognizing tolling “where a party is prevented from exercising a legal remedy
3

Under K.S.A. 60-31a06(b), a protection from stalking order “shall remain in effect until
modified or dismissed by the court and shall be for a fixed period of time not to exceed one
year.” Under subsection (c), “[u]pon motion of the plaintiff the court may extend the order for
an additional year.” It is unclear when the order issued on March 7, 2013 effectively ended.
Judge O’Connor indicated at the September 24, 2015 hearing that, although Burkhardt had not
formally moved for an extension of the original order, it had remained in effect for more than
one year.
It's the Court's opinion, I don't know if I necessarily ruled because it's neither
here nor there at this point, but it was the Court's opinion based upon what I see
written, what the law is, that that temporary order may very well have been in
place, even though I would have to respectfully disagree with, I guess, assistant
district, Wichita Police Department officers, and assistant United States attorney,
and FBI agencies as cited in the plaintiff's motion as saying that the temporary
wasn't in effect at the time. As I read it, the statute says the temporary shall
remain in effect until service of final order or until terminated by order of the
Court.
(Tr. at 41.)

15

by pendency of legal proceedings” which were “provoked, induced or promoted by the
other party”); Keith v. Schiefen-Stockham Ins., 209 Kan. 537, 544, 498 P.2d 265, 272 (1972)
Holick contends that the abuse of process claim is timely both because of the same
tolling doctrine, and because, while the abuse of process tort requires “the existence of an
ulterior motive and an improper act in the regular prosecution of a proceeding,” Kansas
law recognizes that the statute for such claims “begins to run at the time both elements
have occurred and the injured party would have been able to successfully prosecute the
action.” Lindenman v. Umscheid, 255 Kan. 610, Syl. ¶ 6, 875 P.2d 964 (1994). See Voth v.
Coleman, 24 Kan.App.2d 450, 945 P.2d 426 (1997). Holick contends he could not have
“successfully prosecuted” his abuse of process claim while the state stalking action
remained pending. Finally, Holick argues that the defamation claim also should not be
deemed to have commenced until the state action was formally dismissed.
The court will not dismiss the action as untimely. With respect to the claim for
malicious prosecution, the Kansas Court of Appeals has observed that “a plaintiff's cause
of action for malicious prosecution does not accrue until the time for appeal has passed on
the original action.” Voth, 24 Kan.App.2d 450, 452 (1997). See also Hutchinson Travel Agency,
Inc. v. McGregor, 10 Kan.App.2d 461, 701 P.2d 977 (1985) (quoting H&H Farms v. Halett, 6
Kan.App.2d 263, 627 P.2d 1161, 1167 (1981) (“‘[a] plaintiff's cause of action for malicious
prosecution does not accrue until the time for appeal has passed on the original action’”).
This court has followed the same rule:
Accrual of a cause of action for malicious prosecution from the time of entry
of judgment would result in wasted judicial resources. If the filing of an
16

appeal occurred after the filing of the malicious prosecution action, the
malicious prosecution claim would be subject to dismissal as premature
because the plaintiff would not have obtained a favorable termination of the
underlying case.
Defendants distinguish these cases in that no appeal was taken in the
instant case. This is a distinction without a difference. The rationale behind
the rule that the statute of limitations runs from the expiration of the time for
appeal has equal applicability to the instant case. A claim for malicious
prosecution would have been premature had an appeal been filed. The court
believes that the Kansas Supreme Court, if presented with this question
under the circumstances of this case, would hold that Webb's cause of action
accrued on December 13, 1991, the final day on which an appeal could have
been filed.
Webb. v. Airlines Reporting Corp., 825 F.Supp. 273, 275-76 (D. Kan. 1993) (citations omitted).
In her response, Burkhart cites several decisions dismissing as moot appeals taken
from protection from abuse or stalking orders outside expiration of the effective date of the
orders. She therefore argues that “even if Holick had appealed the order, the appeal would
have been dismissed as moot, thus the 30 days for an appeal need not be taken into
consideration.” (Dkt. 18, at 19).
But the cited cases do not present statute of limitations issues, only questions of
mootness for purposes of appeal. Thus, in Piazza v. Piazza, 2004 WL 1443899, *1 (Kan. App.
June 25, 2004), the court found moot an appeal from a protection from an abuse order
obtained by appellant’s former wife, which had been issued after the trial of the abuse
allegations. The appeal was filed more than 30 days after the final order was entered, and
the appellant “conceded the stalking order had expired.” Id. Similarly, in Rice v. Rice, 2010
WL 922966, (Kan. App. March 12, 2010) the court found moot an appeal from a final
protection order which was entered after a trial on the merits. The court stressed that
17

it is undisputed that the PFA order expired more than 10 months ago and the
record reveals no effort to renew the order. And despite at least two
opportunities to respond to the mootness issue, Daniel has failed to do so.
Nor has Daniel suggested that he suffered any collateral consequence as a
result of the entry of the PFA order or that any of the exceptions to the
mootness doctrine apply.
Id.
In the present case, no final order was ever issued and no trial conducted. Indeed,
as noted earlier, the state court never addressed the merits of Burkhart’s claims at all. More
importantly, all of the cited cases simply recognize that the doctrine of mootness may
apply to appeals from abuse or anti-stalking orders. None of the cases involve or purport
to qualify the otherwise clear rule in Kansas that for statute of limitations purposes a claim
malicious prosecution claim commences only after the time to appeal has passed, or 30
days after a final judgment. Here, no resolution of the stalking claim was made until July
29, 2015. The time for an appeal passed on August 28, 2015, and the present claim for
malicious prosecution is therefore timely.
Moreover, Burkhart’s Reply provides no rejoinder to Holick’s contention that the
malicious prosecution claim was effectively tolled, pursuant to Voth or Mo-Kan Teamsters
Pension Fund. while the state stalking action was pending. See Voth, 24 Kan.App.2d at 452
(citing Lindenman v. Umsheid, 255 Kan. 610, 624-25, 875 P.2d 964 (1994)) (“malicious
prosecution action cannot be brought until the underlying action is concluded and the time
for appeal of the underlying suit has passed”). Nor does Burkhart address the tolling
argument advanced by Holick that the same policy reasons supporting the tolling of
malicious prosecution claims should also apply to defamation claims, where the
18

defamation arose in the context of earlier litigation.4
Burkhart does mention Lindenman in her Reply, but only for purposes of noting the
essential elements of the abuse of process claim. and otherwise repeats the contention made
with respect to the Rooker-Feldman doctrine — that Holick “is seeking review” of the
November, 2013 “state court rul[ing] that there were allegations in the petition that could
support” an inference of threatening conduct. (Dkt. 18, at 20).
As noted above, the state court explicitly eschewed any determination that the
allegations in Burkhart’s petition set forth a valid cause of action. More importantly, the
defendant shows no argument or explanation why the court should not accept plaintiff’s
contention that the Sedgwick County action effectively precluded any action for abuse of
process while it remained pending.5

4

The rule requiring a prior favorable termination

is required ... for several reasons. First, a complaining party cannot show lack of
probable cause in instituting the proceeding until it is finally terminated in his
favor. Additionally, a complaining party cannot show all damages from the
institution of legal proceedings until they are terminated. And, finally, it is
recognized that the requirement of final termination serves to help avoid
inconsistent judgments from the courts.
Voth, 24 Kan.App.2d at 453 (quoting Hutchinson Travel Agency, 10 Kan.App.2d at 463) (citations
omitted).
5

The court notes the existence of an unresolved issue suggested by the defendant. At
the conclusion of her statute of limitations argument as to the malicious prosecution claim,
Burkhart also adds, as if an after thought, that the state court’s determination on June 10, 2015
that the matter was moot “is not a finding that satisfies the element of a malicious prosecution
which requires a proceeding terminate in favor of Plaintiff.” (Dkt. 6, at 13). The argument is
advanced only in passing, and only as a part of her statute of limitations argument. Holick does
not address the matter in his Response, and Burkhart does not address the issue in her Reply.
To be sure, Holick does argue (Dkt. 17, at 17) that he “was not a ‘state-court loser’” in
the state action because Burkhart dismissed her claims after he moved for summary judgment,

19

IT IS ACCORDINGLY ORDERED this 6th day of January, 2017, that the defendant’s
Motion to Dismiss (Dkt. 5) is hereby denied.

s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE

but he raises this argument only in response to Burkhart’s Rooker-Feldman claim, and only
supports it by citing federal cases concluding, for purposes of awarding costs under
Fed.R.Civ.Pr. 54(d), a party is a “prevailing party”when his opponent voluntarily dismisses the
action. See AeroTech, Inc. v. Estes, 110 F.3d 1523, 1527 (10th Cir. 1997); Zenith Ins. v. Breslaw, 108
F.3d 205, 207 (9th Cir. 19979). Holick supplies no authority for the proposition that the state
court’s “proceeding terminated in [his] favor” under Kansas law. Bergstrom v. Noah, 266 Kan.
829, 836–37, 974 P.2d 520 (1999).
A voluntary dismissal may be sufficient to constitute a favorable termination, but this is
resolved by a review of “case-specific circumstances.” See Ball v. Credit Bureau Services, Inc., 2015
WL 4366440, *6 (Kan. App. June 26, 2015) (citing Nelson v. Miller, 227 Kan. 271, 280, 607 P.2d 438
(1980). (“Whether a withdrawal or an abandonment constitutes a final termination of the case
in favor of the person against whom the proceedings are brought and whether the withdrawal
is evidence of a lack of probable cause for their initiation, depends upon the circumstances
under which the proceedings are withdrawn”) and RESTATEMENT (SECOND) OF TORTS § 674,
comment j (same)).
Because the parties have not addressed the issue appropriately, the court cannot resolve
it. Because the court denies the motion to dismiss with respect to the abuse of process and
defamation claims, the court will defer any ruling on the issue until summary judgment.

20