Conkling v. Tri-State Careflight, LLC

Filing 105

MEMORANDUM OPINION AND ORDER by District Judge William P. Johnson DENYING 89 Plaintiff's Motion for Summary Judgment on Count IV for Malicious Abuse of Process. (mag)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
_____________________
MARK CONKLING,
Personal Representative of the Estate of
Bryan Conkling,
Plaintiff,
v.

Case No. 1:14-cv-00234-WJ-KBM

TRI-STATE CAREFLIGHT, LLC and
BLAKE STAMPER, individually,
Defendants.
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
ON COUNT IV FOR MALICIOUS ABUSE OF PROCESS
THIS MATTER comes before the Court upon Plaintiff’s Motion for Summary Judgment
on Count IV for Malicious Abuse of Process, filed February 10, 2017 (Doc. 89). Having
reviewed the relevant pleadings and the applicable law, the Court finds that Plaintiff’s motion is
not well-taken and, therefore, is denied.
BACKGROUND
This is an employment discrimination case, filed in First Judicial District Court, County
of Santa Fe, on January 13, 2014. Defendants removed the case to federal court on March 10,
2014 based on diversity jurisdiction. Bryan Conkling (“Bryan”) worked as a flight paramedic
and base manager for Tri-State Careflight (“Tri-State”), an emergency medical services (“EMS”)
provider that provides air ambulance services in Arizona, Colorado, Nevada and New Mexico.1
Bryan contends that Tri-State and Dr. Stamper began to discriminate against him after he became
1

Bryan Conkling died intestate on September 2, 2015, during the pendency of this case, and his father Mark has
been substituted as the named Plaintiff as his personal representative. See Doc. 72. The Complaint was amended to
reflect that change. See Doc. 11. The Court will refer to “Bryan” where necessary in order to distinguish the
presently-named plaintiff from the original plaintiff in this action.

ill in the summer of 2012 and had to take medical leave. He alleges that when he returned to
work, he was not permitted to work in Santa Fe as he had done in the past, but was assigned to
the Gallup base and was demoted. He eventually was returned to a position as a co-manager at
the Santa Fe base, but found that position intolerable. Bryan also alleges retaliation because he
engaged in protected labor organizing activity when he informed certain governmental
regulatory agencies about safety violations and violations regarding transport, storage and use of
controlled substances.

Bryan was terminated from his position, and he contends that his

termination was based on discrimination on the basis of his serious health condition and in
retaliation for his protected labor organizing (union) activity and for reporting safety violations.
The Amended Complaint (Doc. 11) alleges four counts:2
Count I:

Retaliatory Discharge;

Count II:

Defamation; and

Count IV:

Malicious Abuse of Process.

In this motion, Plaintiff moves for summary judgment on Count IV for Malicious Abuse
of Process. Plaintiff contends that the First judicial District Court in Santa Fe, New Mexico has
already concluded that Dr. Stamper and Tri-State Careflight (“Tri-State”), both Defendants in
this lawsuit, perpetrated fraud on a court in their suit against Conkling, and that such fraudulent
action satisfies the elements of the tort of malicious abuse of process.
I.

Undisputed Facts
The basis for Plaintiff’s malicious abuse of process claim arises from a separate lawsuit

that was filed by Defendants Stamper and Tri-State in state court in Arizona. According to
Defendants, Bryan’s employment at Tri-State was troubled and in the final months before his
2

Count III alleged a violation of the New Mexico Human Rights Act, NMSA 1978, §28-1-7(A), which the Court
dismissed based on Plaintiff’s refusal to comply with the Court’s discovery Order. See Doc. 82.

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termination in July 2013, numerous co-workers complained about his hostile, rude and generally
unprofessional behavior. When Plaintiff allegedly submitted a fraudulent time card, he was
terminated.
About a week after his termination, an “anonymous” posting appeared on a web site
devoted in part to recruiting helicopter pilots. The posting stated, “As you might have heard, I
was notified on Friday, July 26, 2013 of my termination from Tri-State CareFlight after almost 6
years.” Ex. A.3 The posting specifically referred to “Bryan” and discussed the termination of his
employment in the first person. Id. It was also identical to an e-mail that Bryan sent the day
before the posting. Ex. B. The posting contained numerous allegations of supposedly “factual,
documented” events at Tri-State that attacked or impugned Tri-State’s reputation for safety,
among other things. Dr. Stamper believed these representations were factually false and had
caused damage to Tri-State and for this reason he and Tri-State filed a defamation lawsuit
against Bryan in state court in Maricopa County, Arizona Superior Court. Ex. E at 66:6-20.
On April 16, 2014, the Arizona court entered a default judgment against Bryan Conkling
in the Arizona lawsuit, and that judgment was never appealed and remains in full force and effect
under Arizona law. Ex. K.4
On December 15, 2014, Defendants attempted to domesticate that judgment in New
Mexico by filing a “Notice of Filing of Foreign Judgment” in the First Judicial District Court in
Santa Fe, New Mexico. Ex. 2. However, District Court Judge Sarah Singleton refused to apply
full faith and credit to the Arizona state court default judgment because Defendants (who were
plaintiffs in the Arizona lawsuit) never properly served Bryan Conkling. Judge Singleton further

3

Exhibits A through K refer to exhibits attached to Defendants’ Motion for Summary Judgment, Doc. 88 .

4

There is no explanation given why either Bryan or his father Mark ever sought to have the Arizona default
judgment set aside.

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found that the Arizona judgment was secured through fraud because Defendants had represented
to the Arizona court that Bryan had been served when in fact he had not. Ex. 3. The court found
that this conduct was “unprofessional” and “constitutes intrinsic fraud.”

Id. at 3.

Judge

Singleton also found that the court “lacked authority” to dismiss the default judgment in the
Arizona Court.
Notwithstanding Judge Singleton’s denial of full faith and credit to the foreign judgment,
the facts surrounding service of process in the Arizona case are still disputed. Plaintiff’s position
is that Defendants elected to sue Bryan for defamation in Arizona even though he lived in Santa
Fe. They then “deliberately avoided properly serving” Bryan with process in New Mexico and
instead had process delivered to Bryan’s father’s address despite having been informed by Bryan
years earlier that he did not use that address. See Doc. 89 at 7. Defendants’ position is that
service of the Arizona lawsuit was particularly difficult because Bryan did not give a valid
physical address. They contend that they relied on the services of a professional process server in
New Mexico and an Arizona lawyer who engaged that individual’s services, to comply with their
legal obligations with respect to service of process. Ex. H (affidavit of counsel of record in
Arizona lawsuit).
II.

Legal Standard
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the Court may grant

summary judgment where “the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as to any material
fact and the . . . moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c);
see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); EEOC v. Horizon/CMS
Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). “A fact is ‘material’ if, under the

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governing law, it could have an effect on the outcome of the lawsuit.” Horizon, 220 F.3d at 1190.
Here, because Plaintiff is the movant who will bear the ultimate burden of proof at trial,
summary judgment can be entered only if he “submits evidentiary materials to establish all of the
elements of the claim . . . .” Resolution Trust Corp. v. Northpark Joint Venture, 958 F.2d 1313,
1322 (5th Cir.1992), cert. denied sub nom., Dannis v. Resolution Trust Corp., 506 U.S. 1048,
113 S.Ct. 963 (1993), cited in Stat-Tech Liquidating Trust v. Fenster, 981 F.Supp. 1325, 1335
(D.Colo., 1997).5 This means that Plaintiff must show that he is entitled to summary judgment
on all the elements of a malicious abuse of process claim.
DISCUSSION
The elements of the tort of malicious abuse of process are (1) use of process in a judicial
proceeding that would be improper in the regular prosecution or defense of a claim or charge; (2)
primary motive in the use of process to accomplish an illegitimate end; and (3) damages.
Curham v. Guest, 2009-NMSC-007,¶31 (citing Richardson v. Rutherford, 1990-NMSC-015,
¶23)). In any malicious prosecution claim, “the use of process for an illegitimate purpose forms
the basis of the tort . . . some definite act or threat not authorized by the process.” Id.
Plaintiff contends that the facts underlying these elements have “already been adjudicated
by a competent court” based on Judge Singleton’s state court order denying full faith and credit
to the Arizona default judgment (“Judge Singleton’s Order”), and are therefore undisputable and
undisputed.

Plaintiff claims that (1) Defendants misused the legal process by making

misrepresentations to a judge in order to obtain an improper judgment (improper use of service
satisfying the first element); (2) that they deliberately and fraudulently misled the Arizona court
in order to obtain default judgment against Bryan, then sought to collect that judgment from him
5

By contrast, a moving party that does not bear the burden of proof at trial (such as when a defendant files a
summary judgment motion) “need only demonstrate the absence of an essential element of the opponent’s case.
Stat-Tech Liquidating Trust, 981 F.Supp. at 1322 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).

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in New Mexico (satisfying second element of motive to accomplish an illegitimate end); and that
(3) Bryan suffered damages as a result in the form of attorney fees and personal anxiety, based
on deposition testimony of Brian’s father who stated that he “watched [Bryan’s] anguish over
knowing that any credit check or job search . . . would be shot down by a judgment that was filed
against him.” Ex. 4 at 51:20-23 (third element satisfied).
Defendants argue that none of the elements for the tort claim is satisfied based on Judge
Singleton’s Order and that the material facts are still disputed.

A plaintiff can prove the first

element of a malicious abuse of process claim either by establishing either (1) that the filer of a
complaint lacked probable cause, or (2) that there was an “irregularity or impropriety suggesting
extortion, delay or harassment.”

Lenscrafters, Inc. v. Kehoe, 2012-NMSC-020, ¶30.

Defendants argue that neither method is proven here. They maintain that they had probable
cause for filing the lawsuit against Bryan, based on their belief that the false statements he made
about Tri-State were damaging to Tri-State’s reputation. See DeVaney v. Thriftway Mktg. Corp.,
1998 NMSC-001, ¶27, 124 N.M. 512 (to prove that a lawsuit lacks probable cause, a claimant
must show that “the opponent did not hold a reasonable belief in the validity of the allegations of
fact or law of the underlying claim”), overruled on other grds. by Durham, 2009-NMSC-007,
¶13, 145 N.M. 694. As for the second method of proving the first element, Defendants contend
that Plaintiff cannot prove that the service of process issue is an “irregularity or impropriety
suggesting extortion, delay or harassment” because “there is a dispute as to whether Defendants
took sufficient additional steps to satisfy a rule of civil procedure.” Doc. 95 at 9-10.
Defendants also claim that the second element of a malicious abuse of process claim is
disputed as well, and they offer facts showing that the Arizona lawsuit was filed for the
legitimate motive of stopping Bryan from making defamatory comments about Tri-State.

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Finally, Defendants dispute whether Bryan suffered any damages from their conduct in filing the
lawsuit and obtaining a judgment against him, and offer as evidence medical records in order to
show that any anxiety or “anguish” experienced by Bryan was not the result of the Arizona
judgment, but from his own health issues.6
Plaintiff maintains that all of the elements of malicious abuse of process have already
been decided by Judge Singleton’s Order. However, in order to use Judge Singleton’s Order to
establish the elements of a malicious abuse of process claim, this Court must be required to give
that Order full faith and credit—and therein lies the rub.
Federal courts are required by the Full Faith and Credit provision of 28 U.S.C. § 1738
(1982) to “give to a state-court judgment the same preclusive effect as would be given that
judgment under the law of the state in which the judgment was rendered.” Bolling v. City & Cty
of Denver, Colo., by Migra v. Warren City School District Board of Education, 465 U.S. 75
(1984). Judge Singleton’s Order is not a judgment; it is an Order which denied Defendant’s
request to domesticate the Arizona judgment, leaving it intact, valid and enforceable because
Judge Singleton found that she did not have the authority to dismiss the Arizona default
judgment. Therefore, there is no “judgment” for this Court to give deference to, nor is this Court
required to adopt or consider any of the findings in Judge Singleton’s Order to resolve the factual
disputes in this case for summary judgment purposes.
The Full Faith and Credit doctrine leads to another consideration which in the Court’s
view makes Judge Singleton’s Order even less applicable to this motion: issue preclusion, also
known as collateral estoppel.7 See Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507, 1520, n.3 (10th

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Exhibits L through N are sealed medical records filed by Defendants separately from the response. See Doc. 96.
The Court notes that neither party discussed the “full faith and credit” doctrine or issue preclusion in arguing their
respective positions. Plaintiff merely insisted that Judge Singleton’s Order controls, without providing any legal
7

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Cir. 1990) (the terms “collateral estoppel” and “issue preclusion” are used interchangeably).
There are two prerequisites to the application of collateral estoppel: (1) the issue to be precluded
must have been actually and necessarily decided in the prior case, and (2) the party against
whom collateral estoppel is invoked must have had a full and fair opportunity in the earlier case
to litigate the issue to be precluded. Ten Mile Industrial Park v. Western Plains Service Corp.,
810 F.2d 1518, 1523 (10th Cir.1987).
Judge Singleton denied full faith and credit to the Arizona default judgment based on her
findings that the judgment had been secured through fraud related to lack of service and that
Arizona counsel had made misrepresentations to that court. Because the matter in front of Judge
Singleton concerned the domestication of the Arizona judgment, the issue of fraud was not
“actually and necessarily decided,” and Defendants did not have an opportunity to fully and
fairly litigate that issue. Thus, Judge Singleton’s Order and her findings on fraudulent conduct
on the part of Defendants cannot be used to prove the elements of Plaintiff’s malicious abuse of
process claim or to resolve the factual disputes which have been raised on the elements of that
claim in this motion.
In support of the motion for summary judgment, Plaintiff relies solely on the “facts”
relating to findings of fraud in Judge Singleton’s Order to prove each of the elements in the
malicious abuse of process claim. Plaintiff presents no other evidence other than these “facts” to
rebut Defendant’s additional facts, which the Court finds have created material factual disputes
for Count IV. Material factual disputes exist as to whether Defendants made numerous attempts
to deliver the summons and complaint to Bryan Conkling and whether these attempts were made
in good faith; there are factual disputes regarding Defendants’ motive in bringing the Arizona
basis for that argument; and Defendants simply claimed that factual disputes exist which preclude summary
judgment, without explaining why this Court could not rely on Judge Singleton’s Order.

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lawsuit; and there are disputes about whether the alleged damages suffered by Bryan resulted
from Defendants’ alleged conduct. Because these disputes will have to be resolved by a factfinder at trial, Plaintiff is not entitled to summary judgment on Count VI.8
THEREFORE,
IT IS ORDERED that Plaintiff’s Motion for Summary Judgment on Count IV for
Malicious Abuse of Process (Doc. 89) is hereby DENIED for reasons described in this
Memorandum Opinion and Order.

________________________________
UNITED STATES DISTRICT JUDGE

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Defendants have also filed a motion for summary judgment (Doc. 88) which is pending before the Court and which
also seeks dismissal of Count IV. Thus, unless the Court grants Defendants summary judgment on that claim, it will
proceed to trial.

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