Estate of Colton Peterson et al v. City of Missoula, Montana et al
ORDER granting 231 Motion to Dismiss; denying 221 Motion for Reconsideration; denying 224 Motion to Stay. Signed by Judge Donald W. Molloy on 11/7/2017. (NOS)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
NOV 0 7 2017
Cle~, l!·S District Court
Dtstrict Of Montana
ESTATE OF COLTON PETERSON,
CITY OF MISSOULA, et al.,
Colton Peterson ("Colton") committed suicide on July 27, 2010. Plaintiffs
(Colton's estate, his mother, and his step-father) brought this action against
several Missoula City and County defendants seeking damages for Colton's death
under 42 U.S.C. § 1983 and various state theories. At this point, the only
surviving claim is that brought by Colton's mother, Juliena, against the City of
Missoula ("the City") for emotional distress. All other claims have been
dismissed. (See Doc. 199.) Three motions are currently pending: (1) the City
seeks reconsideration of its summary judgment motion as to Juliena's claim for
emotional distress, (Doc. 221 ); (2) Plaintiffs seek to stay the case pending the
Montana Supreme Court's answer to the certified question posed in Bassett v.
Lamantia, No. 17-0322 (Mont. May 30, 2017), (Doc. 224); and (3) Detective
Krueger seeks to be dismissed as a named defendant, (Doc. 231 ). The Court heard
argument on all three motions on November 7, 2017. The City's and Plaintiffs'
motions are denied. Detective Krueger's motion is granted.
As the parties are familiar with the factual background, it is not restated
here. 1 However, consideration of the present motions requires an appreciation of
the procedural background of the case; that history is outlined below.
In July 2012, Plaintiff sued the City of Missoula, the County of Missoula,
the Police Department, the Sheriffs Department, Missoula County Sheriff Mike
McMeekin, Missoula City Police Chief Mark Muir, and Detectives Krueger and
Gunter in their capacity as officers of their respective departments. (Doc. 1.)
That original complaint raised claims under 42 U.S.C. § 1983, the Montana
Constitution, and state law negligence and emotional distress theories. United
States Magistrate Judge Jeremiah Lynch held the initial preliminary pretrial
conference in November 2012, (Min. Entry, Doc. 32), and set trial before Chief
District Judge Dana Christensen in February 2014, (Doc. 33). In December 2012,
The factual background is also discussed in detail in Judge Christensen's
August 6, 2014 Order. (See Doc. 199 at 2-15.)
Plaintiff filed an amended complaint, providing more detail as to the existing
claims and adding causes of action for survival and wrongful death. (Doc. 35.)
In September 2013, the City moved unopposed to continue the trial date,
(Doc. 64 ), and the trial was reset for April 28, 2014, (Doc. 65). That same month,
Plaintiffs sought leave to amend their complaint, (Doc. 68), on the basis that a
Montana Supreme Court decision2 changed the law regarding wrongful death
claims, (Doc. 69). Judge Lynch denied the motion. (Doc. 83.)
In October 2013, the defendants filed various motions for summary
judgment, (Docs. 84, 86, 87, 90), and motions in limine, (Docs. 96, 111, 135, 140,
141). Plaintiffs also filed motions in limine, (Docs. 133, 137), and sought to strike
a number of the defendants' summary judgment filings, (Doc. 130). In December
2013, Judge Lynch recused himself from the case, (Doc. 145), and the case was
reassigned to United States Magistrate Judge Keith Strong, (Doc. 14 7).
In January 2014, Judge Strong held a motions hearing on all of the
outstanding motions. (Minute Entry, Doc. 178: Transcript, Docs. 180, 188). On
March 25, 2014, he issued findings, recommending that the defendants' motions
for summary judgment, (Docs. 84, 86, 87), be granted. (Doc. 189.) As to the
federal claims, he concluded that the individual officers were not deliberately
In re Estate ofBennett, 308 P.3d 63 (Mont. 2013).
indifferent and each was entitled to qualified immunity; he therefore also found no
Monell liability. (Id. at 5-7.) As to the state law claims, Judge Strong concluded
that the facts fell short of the threshold requirement of emotional distress and that
the public duty doctrine barred Plaintiffs' negligence and state constitutional
claims. (Id. at 8-10.) Upon Plaintiffs' request, the April 2014 trial was vacated to
allow time for objections. (Doc. 192.)
In August 2014, Judge Christensen issued a 52-page order adopting in part
and rejecting in part Judge Strong's Findings and Recommendation. (Doc. 199.)
Judge Christensen sustained a number of Plaintiffs' factual objections and
determined that Plaintiffs presented sufficient evidence for a reasonable jury to
conclude that Detective Krueger acted with deliberate indifference to Colton's risk
of suicide, establishing that Detective Krueger's actions violated Colton's
Fourteenth Amendment right to substantive due process. (Id. at 30-31.) Judge
Christensen also determined that Detective Krueger was not entitled to qualified
immunity, (id. at 33), and that Juliena, Colton's mother, could maintain her
emotional distress claim against the City (but not the County). (Id. at 40.) Judge
Christensen agreed with Judge Strong, however, that the public duty doctrine
barred Plaintiffs' remaining state common law and constitutional claims. And,
Judge Christensen found no supervisory liability for either SheriffMcMeekin or
Police ChiefMuir. (Doc. 199 at 45-49.) Following Judge Christensen's ruling,
only two claims against two defendants survived: ( 1) the § 1983 claim against
Detective Krueger and (2) Juliena's emotional distress claim against the City. (See
Doc. 46 (order dismissing Police Department); Doc. 159 (stipulated dismissal of
Detective Jon Gunter); Doc. 178 (terminating Sheriffs Department).)
Detective Krueger filed an interlocutory appeal of Judge Christensen's
qualified immunity determination. (Doc. 200.) The Ninth Circuit held that
Detective Krueger is entitled to qualified immunity because the law was not
clearly established at the time of the violation. (Doc. 214.) Following remand, the
case was reassigned to the undersigned, (Doc. 234), and the current motions were
filed. Those motions are now addressed in tum.
Detective Krueger's Motion to Dismiss
Detective Krueger seeks to be dismissed as a named defendant from the case
in light of the Ninth Circuit's qualified immunity determination. (Doc. 231.)
Although Plaintiffs indicated that they opposed the motion, (see id. at 2), they did
not file any responsive briefing, see L.R. 7.l(d)(l)((b)(ii) ("[F]ailure to file a
response brief may be deemed an admission that the motion is well-taken."). And,
at oral argument, Plaintiffs stated that they did not oppose the motion, but merely
did not know if relief was warranted.
Krueger's motion is granted. Judge Christensen initially granted summary
judgment relief to Krueger as to all claims but Plaintiffs' federal civil rights claim.
That matter was appealed and the Ninth Circuit determined Krueger was entitled
to qualified immunity. (See Doc. 214.) Given the Ninth Circuit decision, there are
no remaining claims against Krueger and no possibility of recovery by Plaintiffs.
In the absence of any just reason for delay, it is appropriate to dismiss Krueger
from the action and enter judgment in his favor. See Fed. R. Civ. P. 54(b ).
Plaintiffs' Motion to Stay
Plaintiffs seek to stay the case pending the Montana Supreme Court's
answer to the certified question addressing the public duty doctrine posed in
Bassett v. Lamantia, No. 17-0322 (Mont. May 30, 2017). (Doc. 224.) That
motion is denied.
This Court has the discretion to stay a matter before it under its authority to
control its docket and the cases before it. Landis v. N. Am. Co., 299 U.S. 248,
254-55 (1936). Where there is an independent proceeding related to a matter
before the trial court, the court may "find it is efficient for its own docket and the
fairest course for the parties to enter a stay of an action before it, pending
resolution of independent proceedings which may bear upon the case." Mediter.
Enters., Inc. v. Ssanyong Corp., 708 F.2d 1458, 1465 (9th Cir.1983) (quoting
Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 863-64 (9th Cir.1979)).
The independent proceeding in question here is Bassett, a case presently before
the Ninth Circuit Court of Appeal, No. 15-35045, with a certified question to the
Montana Supreme Court, No. OP 17-0322. There, an officer tackled an
uninvolved third party while on a call about a neighborhood disturbance. The
Ninth Circuit certified the following question to the Montana Supreme Court:
Whether, under Montana law, the public duty doctrine shields a law
enforcement officer from liability for negligence where the officer is the
direct and sole cause of the harm suffered by the plaintiff?
This question suggests adding an exception to the public duty doctrine where the
injury sustained by the plaintiff was due to the direct and sole actions of a law
Plaintiffs insist that in answering this question, the Montana Supreme Court
will clarify the circumstances under which a municipality may be liable for the
negligent actions of its law enforcement officers. They are correct that the
certified question in Bassett will clarify the parameters of the public duty doctrine
relating to law enforcement officers; however they fail to show these parameters
would have any effect on the current proceedings. Both the facts and the
suggested exceptions to the public duty doctrine in Bassett and the present case
are distinguishable. Colton's injuries were sustained as a result of a culmination
of circumstances, not a sole and direct act of Detective Krueger. And, Plaintiffs
seek to introduce a broad exception to the public duty doctrine based on the
foreseeability of harm, a matter beyond the scope of Bassett. A stay is therefore
not warranted. Moreover, the Court has already ruled on the applicability of the
public duty doctrine to this case, (see Docs. 189, 199), and there has been no
request to reconsider this issue. 3
The City's Motion to Reconsider
Reconsideration of a ruling on summary judgment is generally reviewed
under Rule 59(e) (motion to alter or amend judgment) or Rule 60(b) (relief from
judgment or order). See Sch. Dist. No. JJ, Multnomah Cnty., Or. v. ACandS, Inc.,
5 F.3d 1255, 1262 (9th Cir. 1993). However, because the order at issue is the
denial of summary judgment, and is therefore not a final order or judgment, it may
be revised pursuant to Rule 54(b). See Fed. R. Civ. P. 54(b) (allowing revision of
all orders and decisions prior to entry of judgment). Notwithstanding the wide
latitude of Rule 54(b), previous ruling will not be reconsidered absent good cause,
Should the Montana Supreme Court answer the certified question while
this matter is still pending, the parties may seek leave to move for relief in light of
that decision. Only then will the application of that decision and the merits of
such a motion be considered.
such as "ifthe district court (1) is presented with newly discovered evidence, (2)
committed clear error or the initial decision was manifestly unjust, or (3) if there is
an intervening change in controlling law." ACandS, Inc., 5 F.3d at 1263. No such
cause exists here.
The City argues that summary judgment should be granted in its favor as to
Juliena's state law emotional distress claims because the only wrongful conduct at
issue is an alleged violation of federal constitutional law. The City makes its
request on the heels of the Ninth Circuit's qualified immunity decision as to
Detective Krueger. However, Juliena's emotional distress claim against the City is
premised on an independent state law cause of action, regardless of Krueger's
immunity for the federal claims. Or, to put it another way, the Ninth Circuit
decision did not have any impact on Judge Christensen's decision regarding the
remaining independent, state law claim against the City. As a result, it is not
appropriate to reconsider Judge Christensen's ruling.
Even if the Court were inclined to consider the City's argument, it lacks
merit. The City argues that allowing Juliena's emotional distress claim to proceed
improperly conflates vicarious liability under state and federal law. But that is
incorrect. Juliena's state law claims are based entirely on a state law theory of
recovery. Under Montana law, a plaintiff may have an independent claim for
emotional distress "where serious or severe emotional distress to the plaintiff was
the reasonably foreseeable consequence of the defendant's intentional act or
omission." Sacco v. High Country Indp. Press, Inc., 896 P .2d 411, 428 (Mont.
1995). Montana immunizes an employee for conduct arising out of the course and
scope of his or her employment and places liability with the municipality. See
Mont. Code Ann.§ 2-9-305(5); Kenyon v. Stillwater Cnty., 835 P.2d 742, 745
(Mont. 1992) ("Governmental entities in Montana are subject to liability for their
own wrongful conduct and that of their employees acting within the scope of their
duties."). The acts and omissions here are those of Detective Krueger, an
employee of the City. The conduct at issue, while coextensive with the now
dismissed federal claims, supports an independent claim under state law against
Detective Krueger, and therefore, the City. For the same reason, the City is
mistaken that the only "wrongful" conduct is a federal civil rights violation.
An uncertainty remains, however, as to the nature of the surviving
emotional distress claim. Plaintiffs' amended complaint raises both negligent
(Count VII, iii! 93-97) and intentional (Count VIII, ifil 98-100) infliction of
emotional distress. (See Doc. 35.) Judge Christensen's order does not explicitly
state which claims remain. Given Judge Christensen's conclusion that the public
duty doctrine bars the remainder of Plaintiffs' state law negligence claims,
(see Doc. 199 at 34-38), Juliena's surviving claim is limited to an intentional tort,
see Kent v. City of Columbia Falls, 350 P.3d 9, 17 (Mont. 2015) ("If a private
person would be liable to the plaintiff for the acts that were committed by the
government, then the governmental entity would similarly be liable. Where such a
specific duty and breach exists, the public duty doctrine has no application.").
For the reasons stated above, IT IS ORDERED that Detective Krueger's
motion to dismiss (Doc. 231) is GRANTED. He is DISMISSED as a named
defendant in this action and the Clerk of Court is directed to enter judgment in his
favor and against Plaintiffs. See Fed. R. Civ. P. 54(b).
IT IS FURTHER ORDERED that Plaintiffs' motion to stay (Doc. 224) and
the City's motion to reconsider (Doc. 221) are DENIED. Accordingly, this action
is limited to Juliena' s claim of intentional infliction of emotional distress against
the City. This Court has supplemental jurisdiction over that claim, see 28 U.S.C. §
1367, and the matter will be set for trial by separate order.
day ofNovember, 2017.
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