Kerkhoff v. West Valley City

Filing 54

MEMORANDUM DECISION AND ORDER denying as moot 5 Motion for Service of Process; denying 6 Motion to Appoint Counsel; denying 7 Motion to Appoint Counsel; denying 12 Motion for Default Judgment; denying 17 Motion for Summ ary Judgment; denying 18 Motion for Summary Judgment ; denying 19 Motion for Summary Judgment; denying 20 Motion for Summary Judgment; denying 29 Motion for Default Judgment; granting 23 Motion to Dismiss; granting 24 Motion to Dism iss for Lack of Jurisdiction; granting 24 Motion to Dismiss for Failure to State a Claim; granting 26 Motion to Dismiss for Failure to State a Claim; granting 47 Motion to Dismiss for Failure to State a Claim; granting 46 Motion for Extension of Time; granting 30 Motion to Strike; denying as moot 40 Motion for ADR - Arbitration. Signed by Judge Ted Stewart on 3/20/14 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
KEVIN LEE KERKHOFF,
MEMORANDUM DECISION AND
ORDER ON PENDING MOTIONS

Plaintiff,
v.
JAMES B. AUSENBAUGH, CORY R.
WALL, THADDEUS WENDT, BRUCE
WILSON, BRETT BOLTON and WEST
VALLEY CITY,

Case No. 2:13-CV-801 TS
District Judge Ted Stewart

Defendants.

This matter is before the Court on a number of pending motions. For the reasons
discussed below, the Court will deny Plaintiff’s motions for service of process, appointment of
counsel, default judgment, and summary judgment, as well as other miscellaneous motions. The
Court will grant Defendants’ motions to dismiss.
I. BACKGROUND
Plaintiff, proceeding pro se and in forma pauperis, filed his initial Complaint on
September 6, 2013. Plaintiff then filed an Amended Complaint and Second Amended
Complaint. Plaintiff alleges that in 1992 he was the victim of an assault that resulted in severe
brain damage. Plaintiff alleges that his interests were not properly represented by West Valley
City in the criminal case against his assailant. Plaintiff further alleges that he hired the
individual Defendants , all of whom are attorneys, to represent him in filing an action in order to
receive restitution. Plaintiff asserts claims under 42 U.S.C. § 1983.

1

II. MOTION FOR SERVICE OF PROCESS
Plaintiff seeks official service of process pursuant to 28 U.S.C. § 1915. Section 1915
permits the Court to issue and serve all process.1 However, with the exception of Defendant
Ausenbaugh, Defendant has already served Defendants, at least with one version of his
Complaint. Therefore, the Court will deny Plaintiff’s motion as moot. As for Defendant
Ausenbaugh, Plaintiff only mentions his name in the caption and brings no claims against him.
As a result, the Court will dismiss Plaintiff’s claims, to the extent he brings any, against this
Defendant.2
III. MOTION TO APPOINT COUNSEL
Plaintiff has also filed two motions for the appointment of counsel. Plaintiff has no
constitutional right to counsel.3 However, the Court may in its discretion appoint counsel.4 “The
burden is upon the applicant to convince the court that there is sufficient merit to his claim to
warrant the appointment of counsel.”5 When deciding whether to appoint counsel, the Court
considers a variety of factors, “including ‘the merits of the litigant’s claims, the nature of the
factual issues raised in the claims, the litigant’s ability to present his claims, and the complexity
of the legal issues raised by the claims.’”6
1

28 U.S.C. § 1915(d).

2

Id. § 1915(e)(2)(B)(ii).

3

See Carper v. Deland, 54 F.3d 613, 616 (10th Cir. 1995); Bee v. Utah State Prison, 823 F.2d
397, 399 (10th Cir. 1987).
4

28 U.S.C. § 1915(e)(1).

5

McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985).

6

Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (quoting Williams v. Meese, 926 F.2d
994, 996 (10th Cir. 1991)).

2

Considering the above factors, the Court concludes appointment of counsel is not
warranted. The Court finds that Plaintiff’s claims may not be meritorious, the factual issues are
relatively straightforward, Plaintiff has the ability to present his claims, and the legal issues are
not complex. Thus, the Court will deny Plaintiff’s motion for appointed counsel.
IV. MOTIONS FOR DEFAULT JUDGMENT AND SUMMARY JUDGMENT
Plaintiff has filed motions, entitled motion for summary judgment or motion for default
judgment, seeking default judgment against Defendants. Defendants Bolton, Wendt, Wilson,
and Wall all filed timely responsive pleadings. Defendant Wilson filed an Answer,7 while
Defendants Bolton, Wendt, and Wall all filed motions to dismiss.8 Therefore, judgment against
these Defendants is not appropriate.
Plaintiff served Defendant West Valley City with his Amended Complaint. Defendant
West Valley City did not timely respond to the Amended Complaint. However, West Valley
City has filed a motion seeking to extend the time it has to respond to Plaintiff’s Complaints. In
addition, West Valley City has filed a motion to dismiss.
Federal Rule of Civil of Civil Procedure 6(b)(1)(B) provides that the Court may extend
time after the time has expired upon a showing of good cause and excusable neglect. The Court
considers the following factors in determining the existence of excusable neglect: “[1] the danger
of prejudice to the [nonmoving party], [2] the length of the delay and its potential impact on

7

Docket No. 27. In his Answer, Defendant Wilson denies any knowledge of Plaintiff or the
events leading to this suit.
8

Docket Nos. 23, 24, 26.

3

judicial proceedings, [3] the reason for the delay, including whether it was within the reasonable
control of the movant, and [4] whether the movant acted in good faith.”9
Defendant West Valley City argues that good cause and excusable neglect exists because
Plaintiff filed multiple complaints in this action, yet only served his Amended Complaint on the
city. The record does not reflect that Plaintiff served either the original Complaint or the Second
Amended Complaint on Defendant West Valley City.10 Nor does it appear that Plaintiff ever
served his motion for default judgment on the city.
Considering the above-listed factors, the Court finds that Defendant has shown good
cause and excusable neglect. First, there is no danger of prejudice to Plaintiff because this case
is still in its early stages. Second, the delay in responding was short and had no appreciable
impact on these proceedings. Third, the reason for the delay results from the confusion
surrounding Plaintiff’s pleadings and his prior case, as well as Plaintiff’s failure to effectuate
proper service of his Second Amended Complaint. Thus, this delay cannot be attributed to
Defendant. Finally, Defendant has acted in good faith. Based upon these considerations, the
Court will permit Defendant West Valley City to file its motion to dismiss out of time.11
Therefore, default judgment will not be entered against Defendant West Valley City.

9

Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 395 (1993).

10

The filing of his Second Amended Complaint supersedes Plaintiff’s original Complaint and his
Amended Complaint. Franklin v. Kan. Dep’t of Corr., 160 F. App’x 730, 734 (10th Cir. 2005).

11

Even if default had been entered against West Valley City, the Court may set aside the entry of
default for good cause and it may set aside a default judgment under Rule 60(b). Fed. R. Civ. P.
55(c). Defendant’s proffered reasons for the delay in responding provide good cause.

4

V. MOTIONS TO DISMISS
In considering a motion to dismiss for failure to state a claim upon which relief can be
granted under Rule 12(b)(6), all well-pleaded factual allegations, as distinguished from
conclusory allegations, are accepted as true and viewed in the light most favorable to Plaintiff as
the nonmoving party.12 Plaintiff must provide “enough facts to state a claim to relief that is
plausible on its face,”13 which requires “more than an unadorned, the-defendant-unlawfully
harmed-me accusation.”14 “A pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it
tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”15
“The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that
the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally
sufficient to state a claim for which relief may be granted.”16 As the Court in Iqbal stated,
only a complaint that states a plausible claim for relief survives a motion to
dismiss. Determining whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense. But where the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not show[n]—that the pleader is entitled to
relief.17

12

GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997).

13

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007).

14

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

15

Id. (quoting Twombly, 550 U.S. at 557) (alteration in original).

16

Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).

17

Iqbal, 556 U.S. at 679 (alteration in original) (internal quotation marks and citations omitted).

5

A.

WILSON
Plaintiff has named Defendant Bruce Wilson in this action. Defendant Wilson timely

filed his Answer on October 21, 2013.18 Plaintiff initially sought judgment against Defendant
Wilson,19 but later sought to strike Wilson from the case.20 The Court construes the Motion to
Strike as a motion to voluntarily dismiss Defendant Wilson, which will be granted.21
B.

INDIVIDUAL DEFENDANTS
Plaintiff brings claims against the individual Defendants under 42 U.S.C. § 1983. “Only

a defendant acting ‘under color of state law’ may violate section 1983.”22 There are no
allegations that any of the individual Defendants were acting under color of state law. Rather, it
appears that all of the individual Defendants were acting as private attorneys who entered into
representation agreements with Plaintiff. Without allegations that Defendants acted under color
of state law, Plaintiff’s claims against the individual Defendants are subject to dismissal.
Plaintiff appears to assert a legal malpractice claim against the individual Defendants. Such a
claim is not cognizable under § 1983.
C.

WEST VALLEY CITY
Plaintiff’s claims against West Valley City stem from the city’s alleged failure to notify

Plaintiff of the potential to receive restitution during the criminal case against Plaintiff’s
assailant. Plaintiff has already brought this claim against the city in this Court. The Honorable

18

Docket No. 27.

19

Docket No. 17.

20

Docket No. 30.

21

See Fed. R. Civ. P. 41(a)(2).

22

Warner v. Grand Cnty., 57 F.3d 962, 964 (10th Cir. 1995).

6

Tena Campbell granted summary judgment in favor of the city, finding that Plaintiff’s claims
were barred by the applicable four year statute of limitations.23 Defendant West Valley City now
asks the Court to dismiss Plaintiff’s claims as barred by claim preclusion, issue preclusion, and
the statute of limitations.
“Claim preclusion bars a party from relitigating a claim or cause of action on which final
judgment has been rendered.”24 “Claim preclusion requires: (1) a judgment on the merits in the
earlier action; (2) identity of the parties or their privies in both suits; and (3) identity of the cause
of action in both suits.”25 “[I]ssue preclusion bars a party from relitigating an issue once it has
suffered an adverse determination on the issue, even if the issue arises when the party is pursuing
or defending against a different claim.”26 Issue preclusion applies when:
(1) the issue previously decided is identical with the one presented in the action in
question, (2) the prior action has been finally adjudicated on the merits, (3) the
party against whom the doctrine is invoked was a party, or in privity with a party,
to the prior adjudication, and (4) the party against whom the doctrine is raised had
a full and fair opportunity to litigate the issue in the prior action.27
Plaintiff previously brought a § 1983 claim against West Valley City arising out of his
complaints concerning the restitution in the criminal case against his assailant. A final judgment
was entered in favor of West Valley City and against Plaintiff on that claim. Therefore,
Plaintiff’s current claim is barred. In addition, Plaintiff’s claim is barred by the four-year statute

23

Kerkhoff v. Third District Court, No. 2:01-CV-912 TC (D. Utah Feb. 19, 2003).

24

Park Lake Res. Ltd. Liab. v. U.S. Dep’t of Agric., 378 F.3d 1132, 1136 (10th Cir. 2004).

25

Yapp v. Excel Corp., 186 F.3d 1222, 1226 (10th Cir. 1999).

26

Park Lake Res. Ltd. Liab., 378 F.3d at 1136.

27

Id.

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of limitations that applies to § 1983 claims,28 as the underlying actions took place more than 20
years ago.
VI. CONCLUSION
It is therefore
ORDERED that Plaintiff’s Motion for Service of Process (Docket No. 5) is DENIED AS
MOOT. It is further
ORDERED that Plaintiff’s Motions to Appoint Counsel (Docket Nos. 6 and 7) are
DENIED. It is further
ORDERED that Plaintiff’s Motions for Default Judgment and Summary Judgment
(Docket Nos. 12, 17, 18, 19, 20, and 29) are DENIED. It is further
ORDERED that Defendants’ Motions to Dismiss (Docket Nos. 23, 24, 26, and 47) are
GRANTED. It is further
ORDERED that Defendant West Valley City’s Motion to Extend (Docket No. 46) is
GRANTED. It is further
ORDERED that Plaintiff’s Motion to Strike (Docket No. 30) is GRANTED. It is further
ORDERED that Plaintiff’s Motion for ADR (Docket No. 40) is DENIED AS MOOT.
The Clerk of the Court is directed to close this case forthwith.

28

Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995) (holding that Utah’s four-year residual
statute of limitations governs suits brought under § 1983).

8

DATED this 20th day of March, 2014.
BY THE COURT:

Ted Stewart
United States District Judge

9