Smith v. Orscheln Farm and Home, LLC et al
Filing
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OPINION AND ORDER by District Judge James H. Payne: granting 4 Motion to Dismiss (cjt, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
1. DAVID G. SMITH,
Plaintiff,
v.
1. ORSCHELN FARM AND
HOME, L.L.C. (d/b/a
ORSCHELN FARM AND
HOME) and
2. JEFFREY BENEDICT,
Defendants.
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Case No. 17-CV-294-JHP
OPINION AND ORDER
Before the Court is Defendant Orscheln Farm & Home, L.L.C.’s
(“Orscheln”) 12(b)(6) Motion to Dismiss (Dkt. 4).
Plaintiff David G. Smith
(“Plaintiff”) has filed a Response in opposition (Dkt. 9), and Orscheln has filed a
Reply (Dkt. 10). After consideration of the briefs, and for the reasons stated
below, Orscheln’s Motion to Dismiss is GRANTED.
BACKGROUND
According to the Petition (Dkt. 2-2) on April 11, 2014, Plaintiff was driving
his truck and was pulled over by Wagoner County Police in Wagoner County, near
Orscheln’s store. (Dkt. 2-2, ¶ 4). The officer told Plaintiff he pulled him over
because his license plate was partially obscured. (Id. ¶ 5). The officer began to
question Plaintiff about some trailer wheels and tires in Plaintiff’s truck. (Id.).
The officer then asked the manager of Orscheln’s store, Defendant Jeffrey
Benedict (“Benedict”) to come out to the traffic stop location and look at the tires.
(Id. ¶ 6). Benedict identified the tires and wheels as belonging to Orsheln’s store
“without a doubt.” (Id. ¶ 7). The officer then placed Plaintiff under arrest. (Id. ¶
8).
Benedict then gave an official written statement to the Wagoner Police
Department, in which he reiterated his prior statement that the tires in Plaintiff’s
truck bed were the store’s tires “without a doubt.” (Id. ¶ 9). Plaintiff alleges these
statements from Benedict caused the officer to charge Plaintiff with the felony
crime of “Larceny from a retailer” and the District Attorney to charge and
prosecute Plaintiff. (Id. ¶¶ 10, 12).1
Plaintiff was released from jail on bond later that day. (Id. ¶ 15; Dkt. 4-2
(Appearance Bond)). The Wagoner County District Court held a preliminary
hearing on August 12, 2015, at which Benedict testified he had identified the tires
in Plaintiff’s truck as belonging to Orscheln’s store. (Dkt. 2-2, ¶ 17). At the
conclusion of the preliminary hearing, Plaintiff’s counsel demurred to the
evidence, arguing the prosecution had been unable to prove the tires in Plaintiff’s
possession were stolen. (Dkt. 4-5 (Preliminary Hearing Transcript), 57:10-58:3).
The court overruled the demurrer, finding that probable cause existed to show
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The Information filed against Plaintiff on April 21, 2014, charged him with the felony offense
of “knowingly concealing stolen property.” (Dkt. 4-3 (Information)).
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Plaintiff committed a crime. (Id. 58:23-59:1; Dkt. 4-6 (Preliminary Hearing Bind
Over Order in Case No. CF-2014-178)).
Plaintiff’s counsel then filed a Demurrer and Motion to Quash Information,
arguing the prosecution had provided insufficient evidence to prove Plaintiff
committed the charged offense of concealing stolen property. (Dkt. 4-8 (Demurrer
and Motion to Quash Information in Case No. CF-2014-178)). Plaintiff’s counsel
thereafter filed a Motion to Suppress and Quash Information, seeking suppression
of the evidence seized pursuant to the traffic stop and statements obtained by the
arresting officer.
(Dkt. 4-9 (Defendant’s Motion to Suppress and Quash
Information in Case No. CF-2014-178)).
The District Court overruled both
motions. (Dkt. 4-10 (Order Overruling Defendant’s Motions in Case No. CF2014-178)). However, the District Court then reversed course and sustained the
Demurrer and Motion to Quash Information, vacating the previous order
overruling the demurrer. (Dkt. 4-11 (Order Sustaining Defendant’s Demurrer and
Motion to Quash Information in Case No. CF-2014-178)). There is no record to
explain why the trial court reconsidered its previous order overruling Plaintiff’s
demurrer.
In this case, Plaintiff brings claims for malicious prosecution and false arrest
against Orscheln and Benedict. Plaintiff alleges Benedict’s “without a doubt”
statements regarding the tires led directly to Plaintiff’s arrest and prosecution, even
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though Benedict knew or should have known that his statements were either false
or unverifiable. (Dkt. 2-2, ¶¶ 22-23). Plaintiff contends Benedict knew, given the
circumstances, that his statements about the tires were important and could lead to
Plaintiff’s arrest and prosecution for stealing the tires. (Id. ¶ 24). Plaintiff further
alleges Orscheln is responsible for Benedict’s statements under a respondeat
superior theory. (Id. ¶¶ 26-27).
Orscheln removed Plaintiff’s case to this Court on July 31, 2017.2 Orscheln
has now moved to dismiss the Complaint for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6). (Dkt. 4). Plaintiff filed a Response in
opposition (Dkt. 9), and Orscheln filed a Reply (Dkt. 10). The pending motion is
fully briefed and ripe for review.
DISCUSSION
I.
Standard of Review
In considering a Rule 12(b)(6) motion, the Court must accept all well-
pleaded allegations of the complaint as true, and must construe them in the light
most favorable to the plaintiff. See Anderson v. Merrill Lynch Pierce Fenner &
Smith, Inc., 521 F.3d 1278, 1284 (10th Cir. 2008).
The Court is limited to
consideration of specific allegations of the pleadings, documents attached to the
pleadings or incorporated by reference, and documents “central to the plaintiff’s
2
Benedict has never entered an appearance in this matter, and it is unclear whether he has been
served.
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claim and referred to into the complaint,” at least “where the document’s
authenticity is not in dispute.” Pace v. Swerdlow, 519 F.3d 1067, 1072 (10th Cir.
2008) (quoting Utah Gospel Mission v. Salt Lake City Corp., 425 F.3d 1249, 125354 (10th Cir. 2005) (quotation marks omitted). In addition, the Court may consider
matters of public record, such as records from Plaintiff’s Wagoner County criminal
case (Case No. CF-2014-178), by taking judicial notice of such documents,
without converting the motion to dismiss into a motion for summary judgment.
Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006).
Orscheln argues Plaintiff’s claims are barred by the doctrine of issue
preclusion. Issue preclusion bars “relitigation of factual or legal issues that were
decided in a previous case, regardless of whether that case was based on the same
cause of action.” Willner v. Budig, 848 F.2d 1032, 1034 (10th Cir. 1988). Issue
preclusion is properly applied when (1) the issue to be precluded was actually and
necessarily decided in the prior case and (2) the party against whom the doctrine is
invoked had a full and fair opportunity in the prior case to litigate the issue to be
precluded. Id. (citing Ten Mile Indus. Park v. W. Plains Serv. Corp., 810 F.2d
1518, 1523 (10th Cir. 1987)).
The party invoking the doctrine bears the burden to show he is entitled to the
issue-preclusion defense by including with the motion the judgment record.
Salazar v. City of Oklahoma City, Okla., 976 P.2d 1056, 1061-62 (Okla. 1999); 12
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Okl. St. § 32.1. It appears Orscheln has submitted the entire record from the
Wagoner County criminal case against Plaintiff (Dkts. 4-1 to 4-6, 4-8 to 4-11, 101, 10-3), and Plaintiff has raised no objection to submission of this record. Based
on these records, the Court may determine what claims were presented for
adjudication and which issues were actually decided.
II.
Issue Preclusion
Orscheln contends Plaintiff’s claims for malicious prosecution and false
arrest are barred, because the Wagoner County District Court found at the
preliminary hearing that probable cause existed to bind Plaintiff over for
arraignment. (Dkt. 4-5, 58-59 (Preliminary Hearing Transcript in Case No. CF2014-178); Dkt. 4-6 (Preliminary Hearing Bind Over Order in Case No. CF-2014178)). Based on this finding, Orscheln argues issue preclusion should apply to bar
relitigation of the probable cause issue. Because the finding of probable cause is
fatal to both claims, Orscheln argues they must be dismissed.
A.
Malicious Prosecution
A malicious prosecution claim requires a plaintiff to prove: “1) that the
defendant maliciously instituted the action; 2) without probable cause; 3) which the
plaintiff successfully defended; and 4) with resulting damage to the plaintiff.”
Roberts v. Goodner’s Wholesale Foods, Inc., 50 P.3d 1149, 1152 (Okla. Civ. App.
2002) (citing Callaway v. Parkwood Village, L.L.C., 1 P.3d 1003, 1005 n.1 (Okla.
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2000)).
“In an action for malicious prosecution if probable cause for the
prosecution be found to have existed, such constitutes a complete defense
irrespective of the motive or malice of the person prosecuting.” Patrick v. Wigley,
242 P.2d 423, 425 (Okla. 1952) (quoting Southern Ice & Utilities Co. v. Bench, 64
P.2d 668 (Okla. 1937)) (quotation marks omitted).
It is undisputed that the issue of probable cause was actually and necessarily
decided at Plaintiff’s preliminary hearing, or that the issue was fully and fairly
litigated during Plaintiff’s preliminary hearing. (See Dkt. 9 (Plaintiff’s Response
Brief), at 9-10). Accordingly, the Court agrees with Orscheln that the malicious
prosecution claim is barred, because probable cause was found at Plaintiff’s
preliminary hearing. Because Plaintiff is barred from relitigating whether probable
cause existed, his claim for malicious prosecution fails as a matter of law.
In his Response, Plaintiff argues issue preclusion should not apply to the
issue of probable cause, because the Wagoner County District Court ultimately
sustained Plaintiff’s demurrer and Plaintiff’s criminal case was closed. Plaintiff
asserts the District Court’s final order “constitutes, for all intents and purposes, a
finding and order of the Court that there never was probable cause for Plaintiff’s
arrest, imprisonment, and prosecution.” (Dkt. 9, at 10). Plaintiff further argues the
authority Orscheln cites is distinguishable, because the plaintiffs in those cases
were tried and acquitted, and the findings of probable cause to bind them over for
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trial were never changed or withdrawn. See Southern Ice, 64 P.2d at 669; Roberts,
50 P.3d at 1153; Adamson v. Dayton Hudson Corp., 774 P.2d 478, 479 (Okla. Civ.
App. 1989). In this case, by contrast, Plaintiff was never tried for the charges
against him, and Plaintiff asserts the probable cause finding was ultimately
reversed and vacated by the District Court. Plaintiff admits, however, that he was
unable to locate any case law to support his contentions.
Plaintiff’s arguments are not compelling. Although the Wagoner County
District Court failed to explain its reasons for dismissing the case against Plaintiff,
Oklahoma law does not support the proposition that the subsequent dismissal of
Plaintiff’s criminal case voids the probable cause finding. The one-page Order
sustaining Plaintiff’s Demurrer and Motion to Quash Information vacates the onepage Order overruling Plaintiff’s Demurrer and Motion to Quash Information.
(Dkts. 4-11, 4-10). The Wagoner County court did not vacate the finding of
probable cause at the preliminary hearing, and this Court will not read such an
order into the record of the criminal proceeding. Therefore, Plaintiff’s argument
does not affect the Court’s conclusion.
Finally, Plaintiff attempts to analogize his case to Patrick v. Wigley, which
Orscheln cites in its brief. 242 P.2d at 425. In Patrick, the plaintiff had received a
preliminary hearing on criminal charges and was bound over for trial. Id. The
plaintiff then filed a motion to quash and set aside the information on the ground
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that no competent proof was introduced at the preliminary hearing to show the
plaintiff had committed an illegal act. Id. The motion to quash was sustained, and
the plaintiff was discharged. Id. The plaintiff then filed a malicious prosecution
claim and obtained a jury verdict in his favor. Id. The defendant appealed,
arguing the trial court erred by not granting the defendant’s request for
“peremptory instructions,” or a directed verdict, because defendant had established
a complete defense to the malicious prosecution suit by showing probable cause
existed. Id. The Oklahoma Supreme Court concluded that submission of the case
to the jury was appropriate, because there was disputed evidence pertaining to the
issue of probable cause. Id. at 427.
While the facts presented in Patrick bear some similarity to the facts of this
case, the Supreme Court in Patrick did not address whether the finding of probable
cause at the plaintiff’s preliminary hearing precluded his malicious prosecution
claim. Therefore, the factual similarity does not aid Plaintiff’s argument with
respect to issue preclusion.3 Plaintiff’s malicious prosecution claim fails, and
dismissal of this claim is warranted.
B.
False Arrest
Similarly, the finding of probable cause at Plaintiff’s preliminary hearing
precludes Plaintiff’s claim for false arrest.
Like the claim for malicious
3
The Court denies Plaintiff’s request to submit a question to the Oklahoma Supreme Court
through the certified question process.
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prosecution, a false arrest claim is negated by a finding of probable cause. See
Roberts, 50 P.3d at 1153 (affirming dismissal of false arrest and false
imprisonment claims based on presence of probable cause); Adamson, 774 P.2d at
480 (stating that “probable cause constitutes a complete defense to an action for
false arrest.”) (quotation and alteration omitted). Therefore, dismissal of the false
arrest claim is warranted.4
CONCLUSION
For the reasons detailed above, Orscheln’s Motion to Dismiss (Dkt. 4) is
GRANTED. Plaintiff’s Petition is DISMISSED with respect to both defendants.
IT IS ORDERED this 30th day of March, 2018.
4
Because the Court dismisses Plaintiff’s false arrest claim on other grounds, the Court will not
address Orscheln’s separate arguments for dismissal of this claim based on the statute of
limitations and failure to state a claim.
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