Engels et al v. Kirkes et al

Filing 20

OPINION AND ORDER by District Judge James H. Payne: granting 7 Defendant Jimmy Long's Partial Motion to Dismiss; denying 17 Plaintiffs' Motion to Dismiss Counterclaims (cjt, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
KERRY JOSEPH ENGELS, and
JENNIFER LORI ENGELS,
Plaintiffs,
v.

BRIAN DEWAYNE KIRKES,
RANDY KENNEDY, PUSHMATAHA
COUNTY BOARD OF COUNTY
COMMISSIONERS, and JIMMY LONG,
in his individual capacity,
Defendants.

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Case No. 13-CV-0136-JHP

OPINION AND ORDER
Before the Court are Defendant Jimmy Long’s Partial Motion to Dismiss [Doc. No. 7]
and Plaintiffs’ Motion to Dismiss [Doc. No. 17]. After review of the briefs, and for the reasons
stated below, Defendant Long’s Partial Motion to Dismiss is GRANTED, and Plaintiffs’ Motion
to Dismiss is DENIED.
BACKGROUND
On October 31, 2012, Plaintiffs commenced the instant action in the District Court of
Pushmataha County, Oklahoma, seeking a variety of legal remedies for damages arising from a
property dispute in Pushmataha County, Oklahoma. [Doc. No. 2, Ex. 1]. On March 29, 2013,
this action was removed to this Court through the filing of a Notice and Petition of Removal by
Defendant Long. [Doc. No. 2]. In their Complaint, Plaintiffs assert the following claims: (1)
negligent infliction of emotional distress claims against Defendants Kirkes and Kennedy; (2) a
claim for failure to restrain domestic animals in violation of Okla. Stat. tit. 4, § 98 against

Defendant Kirkes; (3) claims against Defendants Board of County Commissioners of
Pushmataha County, Kirkes, and Long, pursuant to 42 U.S.C. § 1985 for violation of Plaintiffs’
civil rights; (4) a claim against Defendant Long for deceit and false representation; and (5) a
claim for relief pursuant to Okla. Stat. tit. 69, § 635 against Defendant Long. [Doc. No. 2, Ex.
1].

On April 8, 2013, Defendants Kirkes and Kennedy filed their Joint Answer and

Counterclaim, wherein Defendants Kirkes and Kennedy asserted counterclaims for libel, slander,
and intentional infliction of emotional distress against Plaintiffs. [Doc. No. 10]. On April 5,
2013, Defendant Long filed a Partial Motion to Dismiss, seeking dismissal of Plaintiffs’ claim
for relief brought pursuant to Okla. Stat. tit. 69, § 635. [Doc. No. 7]. Then, on May 6, 2013,
Plaintiffs filed a Motion to Dismiss the counterclaims for libel, slander, and intentional infliction
of emotional distress asserted against them by Defendants Kirkes and Kennedy. [Doc. No. 17].
These motions to dismiss are fully briefed and before the Court.
DISCUSSION
“To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)); see Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678. Determining whether a complaint states a plausible claim for relief is a “context-specific
task that requires the reviewing court to draw on its judicial experience and common sense.” See
id. at 679. The question to be decided is “whether the complaint sufficiently alleges facts

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supporting all the elements necessary to establish an entitlement to relief under the legal theory
proposed.” Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir. 2007) (internal quotation omitted).
A. Defendant Jimmy Long’s Partial Motion to Dismiss
Defendant Long seeks dismissal of Plaintiffs’ claim for relief brought pursuant to Okla.
Stat. tit. 69, § 635. Specifically, Defendant Long argues that the Court does not have the legal
authority to suspend or remove Defendant Long because § 635 does not provide a civil litigant
with a private right of action to seek the suspension and removal of a public official for failure to
comply with the provisions of the Oklahoma Highway Code, Okla. Stat. tit. 69, § 101 et seq.
[Doc. No. 14, 3]. Plaintiffs dispute this interpretation of § 635.
Section 635 provides, in relevant part, the following:
(a) Any road, county, or other official charged with duties herein who shall
violate any of the terms or provisions of this article the punishment for which is
not prescribed elsewhere in this Code, shall be deemed guilty of a misdemeanor
and upon conviction shall be fined not less than One Hundred Dollars ($100.00)
for each offense, or imprisoned in the county jail not less than thirty (30) days, or
suffer both such fine and imprisonment.
(b) Upon presentation in court of complaint in legal form, alleging violation of
any provision of this Article, any road official charged with the duties herein shall
be, at the option of the court, immediately suspended from office pending final
judgment, and upon being found guilty shall forfeit his office in addition to any
punishment imposed.
(Emphasis added).
The Court could find only one case referencing the provisions contained in § 635. In
Board of County Commissioners of Oklahoma County v. Litton, 315 P.2d 239 (Okla. 1957), the
Oklahoma Supreme Court discussed Okla. Stat. tit. 69, § 327 (1951), a provision virtually
identical to its successor, Okla. Stat. tit. 69, § 635.1 In Litton, a former county commissioner

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 Okla. Stat. tit. 69, § 327 (1951) provided, in relevant part the following: 
(Continued…) 

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sought recovery for compensation lost after his office was judicially forfeited pursuant to Okla.
Stat. tit. 59, § 327 (1951) in a prior criminal trial following his conviction for violations of the
Oklahoma Highway Code. Id. The Court found the former commissioner’s removal from office
pursuant to § 327 unlawful because the conviction for violation of the Oklahoma Highway Code
was subsequently overturned by the Oklahoma Court of Criminal Appeals. See id. at 242. The
Litton case, while confirming that § 635(b) applies to criminal actions brought against road
officials for violation of the Oklahoma Highway Code, is not dispositive on the issue of whether
§ 635(b) applies exclusively to criminal actions. Therefore, the Court must look to the language
of the statute, utilizing cannons of statutory interpretation, in order to determine whether
Plaintiffs may assert a claim under § 635(b).
“[T]he primary goal of statutory interpretation is to ascertain and follow the Legislature's
intention.” Head v. McCracken, 102 P.3d 670, 680 (Okla. 2004) (citing Fulsom v. Fulsom, 81
P.3d 652, 655(Okla. 2003)). As such, “the plain meaning of a statute's language is conclusive
except in the rare case when literal construction produces a result demonstrably at odds with
legislative intent.” Id. (quoting Samman v. Multiple Injury Trust Fund, 33 P.3d 302, 307(Okla.
2001)).

“In construing statutes, relevant provisions must be considered together whenever

possible to give full force and effect to each.” Oklahoma Ass'n for Equitable Taxation v. City of
Oklahoma City, 901 P.2d 800, 803 (Okla. 1995). Thus, “[i]n the interpretation of statutes, courts

Any road, county, or other official charged with duties herein who shall violate any of the terms 
or provisions of this Act shall be deemed guilty of a misdemeanor and upon conviction shall be 
fined not less than One Hundred ($100.00) Dollars for each offense, or imprisoned in the County 
Jail not less than Thirty (30) Days, or suffer both such fine and imprisonment. Upon presentation 
in court of complaint in legal form, alleging violation of any provision of this Act, any road official  
charged with the duties herein shall be, at the option of the court, immediately suspended from 
office pending final judgment, and upon being found guilty shall forfeit his office in addition to 
any punishment imposed. 
Bd. of Cnty. Comm'rs of Oklahoma Cnty. v. Litton, 315 P.2d 239, 241 (Okla. 1957). 

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do not limit their consideration to a single word or phrase in isolation to attempt to determine
their meaning, but construe together the various provisions of relevant legislative enactments to
ascertain and give effect to the legislature's intention and will, and attempt to avoid unnatural and
absurd consequences.” McNeill v. City of Tulsa, 953 P.2d 329, 332 (Okla. 1998).
The question of whether this Court has been vested with the power to act turns on
whether § 635(b) may be invoked in civil actions. At the outset, the Court notes that the
meaning of § 635(b) cannot be determined without regard for § 635(a). Section 635(a) makes
violations of the provisions contained in Article 6 of the Oklahoma Highway Code misdemeanor
crimes. Therefore, pursuant to § 635(a), any violation of the provisions outlined in Article 6 of
the Oklahoma Highway Code must be prosecuted just as any other misdemeanor violation of
Oklahoma law would be prosecuted—in a criminal action.

Significantly, § 635(b) makes

reference to the same provisions criminalized by § 635(a) without providing for a separate
avenue for relief, which suggests that § 635(b) is meant to expand on the consequences for the
misdemeanor violations created by § 635(a).2
The Court finds that § 635(b) is intended to provide an additional punishment for
misdemeanor violations of the Oklahoma Highway Code by road officials in conjunction with
criminal prosecution of any such violations. Accordingly, § 635(b) is not a remedy available to
private citizens seeking to remove road officials from office in a civil action. Interpreting §
635(b) as providing any such remedy would allow county commissioners to be suspended from
office based merely upon unverified allegations in a civil complaint, and provide for the
forfeiture of a county commissioner’s office based on a finding that a commissioner violated the

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 The Court finds that no private right of action may be implied from Okla. Stat. tit. 69, § 635.  See Howard v. 
Zimmer, Inc., 299 P.3d 463, 473 n.38 (Okla. 2013). 

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Oklahoma Highway Code by a preponderance of the evidence. This could not have been the
intent of the Oklahoma Legislature in enacting § 635(b), and the Court declines to adopt any
interpretation of § 635(b) that would lead to these unnatural and absurd consequences.
Accordingly, Defendant Long’s Partial Motion to Dismiss must be granted.
B. Plaintiffs’ Motion to Dismiss
Plaintiffs seek dismissal of counterclaims for libel, slander, and intentional infliction of
emotional distress asserted against them by Defendants Kirkes and Kennedy.

Plaintiffs

specifically argue that Defendants Kirkes and Kennedy failed to plead a sufficient factual basis
for their counterclaims.
Defendant Kirkes and Kennedy allege the following facts in support of their
counterclaims:
Such statements and/or electronic publications by Plaintiffs include slander or
libel per se and include statements that these Defendants are criminals by way of
having performed the crimes of poisoning Plaintiffs’ dog, armed assault,
vandalism, and attempted robbery or burglary of Plaintiffs (sic.) property or
premises.
[Doc. No. 10, 8]. These specific factual allegations are sufficient to meet the pleading standards
set out by Fed.R.Civ.P. 8(a). Accordingly, Plaintiffs’ Motion to Dismiss must be denied.
CONCLUSION
For the reasons detailed above, After review of the briefs, and for the reasons stated
below, Defendant Long’s Partial Motion to Dismiss is GRANTED, and Plaintiffs’ Motion to
Dismiss is DENIED.
IT IS SO ORDERD this 3rd day of July, 2013.

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