Arnett v. Howard et al

Filing 81

MEMORANDUM DECISION AND ORDERdenying 60 Motion to Expedite Inquiry Regarding a Violation of 18 U.S.C. § 1512(b). Signed by Magistrate Judge Dustin B. Pead on 10/29/13. (ss)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

JAMES ARNETT,
MEMORANDUM DECISION & ORDER

Plaintiff,

Case No. 2:13-cv-00591-TS

v.
BENJAMIN SNOW HOWARD;
LIFELINE MEDIA LLC, a Utah entity;
NATIONWIDE AFFORDABLE
HOUSING, a Texas corporation; and the
BEN HOWARD TRUST, an Idaho trust,

United States District Court
Judge Ted Stewart
Magistrate Judge Dustin Pead

Defendants.

This matter comes before the Court pursuant to a 28 U.S.C. §636(b)(1)(A) referral from
District Court Judge Ted Stewart (doc. 61). Currently pending before the Court, is pro se
Plaintiff James Arnett’s (Plaintiff) “Motion To Expedite Inquiry, Regarding A Violation of 18
USC §1512(b)” (doc. 60).1 Defendants Benjamin Snow Howard, Lifeline Media, LLC,
Nationwide Affordable Housing, and the Ben Howard Trust (collectively “Defendants”) oppose
the motion (doc. 64).
PENDING MOTION
On August 8, 2013, Plaintiff filed his “Motion To Expedite Inquiry, Regarding A
Violation of 18 USC § 1512(b)” alleging that a key witness in the case, Ms. Robin Howard (Ms.
Howard), who has the “immediate potential to confirm the allegations of Plaintiff Arnett”, has

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The caption listed on Plaintiff’s pending matter is simply “Motion”. However, in light
of the relief requested therein, the Court shall refer to the motion as Plaintiff’s “Motion To
Expedite Inquiry, Regarding A Violation of 18 USC § 1512(b)”.

been intimidated and threatened by Defendant Benjamin Snow Howard in order to induce her to
“withhold testimony from an official proceeding and to withhold making [an] affidavit, reciting
the account of her testimony” (doc. 60, p.2, 4). As a result, Plaintiff requests that the Court
expedite an inquiry into this alleged witness tampering by conducting an ex parte interview with
Ms. Howard and by prohibiting Defendant Howard from “being in possession of any firearms for
the duration of this case. . .” (doc. 60, p. 3-4).2
ANALYSIS
The provision of the United States Criminal Code relied upon by Plaintiff states:
(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another
person, or attempts to do so, or engages in misleading conduct toward another person, with the
intent to—
(1) influence, delay, or prevent the testimony of any person in an official proceeding;
(2) cause or induce any person to—
(A) withhold testimony, or withhold a record, document, or other object from an
official proceeding;
(B) alter, destroy, mutilate, or conceal an object with intent to impair the object’s
integrity or availability for use in an official proceeding; or
(C) evade legal process summoning that person to appear as a witness, or to
produce a record, document, or other object, in an official proceeding; or
(D) be absent from an official proceeding to which such person has been
summoned by legal process; or
(3) hinder, delay, or prevent the communication to a law enforcement officer or judge of
the United States of information relating to the commission or possible commission of a
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In Plaintiff’s reply memorandum Plaintiff appears to also assert a Rule 11 violation
based upon the “frivolous and harassing nature” of Defendants’ opposition “offered in lieu of any
denial or reasonable justification for this honorable Court to turn a blind-eye to the allegation of a
Title 18 USC§1512(b) [sic] violation” (doc 66, pg. 2). Upon consideration, however, any request
for Rule 11 sanctions must be denied as Plaintiff did not file the motion separately and did not
comply with the rule’s safe harbor notice requirements. See Fed. R. Civ. P. 11(c)(2) (“A motion
for sanctions must be made separately from any other motion and must describe the specific
conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must
not be filed or be presented to the court if the challenged paper, claim defense, contention, or
denial is withdrawn or appropriately corrected within 21 days after service or within another time
the court sets.”); see also (doc. 79).
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Federal offense or a violation of conditions of probation, supervise release, or release
pending judicial proceedings;
shall be fined under this title or imprisoned not more than 20 years, or both.
18 U.S.C. §1512(b).
A reading of § 1512(b) reveals that the referenced provision does not provide any legal
basis for Plaintiff’s request—an expedited inquiry into suspected criminal activity through the
private investigation of a potential witness by the Court. In civil matters, there is no procedural
mechanism by which to compel a potential witness to provide or sign an affidavit. Instead, at the
appropriate time, Plaintiff may proceed by deposing or subpoenaing Ms. Howard in accordance
with the federal rules. Further, Plaintiff’s request for an order restricting Defendant Howard
from possessing a firearm is not appropriate in the context of a civil breach of contract action and
has absolutely no bearing on the issues in the case. Accordingly, for the reasons stated,
Plaintiff’s Motion To Expedite Inquiry, Regarding A Violation of 18 USC §1512(b) (doc. 60) is
denied.
Defendants request an award of attorney fees for having to respond to Plaintiff’s
“improper” motion (doc. 80). While a pro se litigant’s pleadings are to be “construed liberally
and held to a less stringent standard than formal pleadings drafted by lawyers,” Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991), the Court will not permit the continued filing of motions
that lack any basis in law. Accordingly, Plaintiff is hereby instructed that the continued filing of
improper and frivolous motions may result in the future imposition of sanctions. See Mann v.
Boatright, 477 F.3d 1140, 1150 (10th Cir. 2007) ( A Court may impose sanctions “to regulated its
docket, promote judicial efficiency, and deter frivolous filings.”).

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ORDER
For the reasons now stated herein, Plaintiff’s “Motion To Expedite Inquiry Regarding A
Violation of 18 U.S.C. § 1512(b)” is hereby DENIED (doc. 60).

Dated this 29th day of October, 2013

______________________________
Dustin Pead
U.S. Magistrate Judge

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