Webecke v. Salt Lake City et al

Filing 82

MEMORANDUM DECISION AND ORDER-finding as moot and denies as such without prejudice 51 Motion for Judgment on the Pleadings ; granting 74 Motion to Dismiss. See Order for details. Signed by Judge David Sam on 4/22/15. (jmr)

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
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RICHARD GRAHAM WEBECKE,
Plaintiff,
vs.

SALT LAKE CITY, et al.,
Defendants.

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Case No. 2:13CV01132 DS

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MEMORANDUM DECISION
AND ORDER

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Defendants Salt Lake City Corporation and Officer Vu have filed a Motion to Dismiss
Plaintiff’s Seventh, Tenth, Twelfth, Thirteenth and Fourteenth Causes of Action for Failure
to File an Undertaking and Bond (Doc. #74).

The subject claims are against Salt Lake

City and Officer Vu in his individual capacity, for negligence, false arrest, false
imprisonment, intentional infliction of emotional distress and negligent infliction of
emotional distress. For the reasons that follow the Motion is granted.
As Defendants note, Utah law requires a party bringing state law claims against a
government entity to file an undertaking in a sum fixed by the court. Utah Code Ann. §
63G-7-601. A party bringing a claim against a law enforcement officer acting within the
scope of the officer’s official duties also must file a bond that is sufficient to guarantee
payment of all costs. Id. at § 78B-3-104.
Defendants assert, and the Court agrees, that a plaintiff must file the undertaking
referenced in § 63G-7-601, and where applicable, the bond described in § 78B-3-104, at
the time the complaint is filed. See e.g. Mglej v. Garfield County, Civ. No. 2:13-cv-713,

2014 WL 2967608 (D. Utah July 1, 2014)(dismissing state law claims against county,
county jail, and officer for failure to file undertaking and bond when complaint filed);
Rippstein v City of Provo, 929 F.2d 576 (10th Cir. 1991)(affirming district court’s dismissal
of wrongful death claim against city, police department, and officer for failure to file
undertaking and bond at time complaint was filed). Failure to file the undertaking and bond
cannot be remedied after the complaint is filed. Id. at 577.1 Plaintiff has offered no
contrary authority.
Because Plaintiff failed to file the required undertaking and bond at the time the
Complaint was filed, Defendants Motion to Dismiss (Doc. #74) must be granted.2
Accordingly, the Seventh, Tenth, Twelfth, Thirteenth and Fourteenth claims of the
Complaint are dismissed without prejudice.3

Additionally, the Court concludes that

Defendant Salt Lake City’s prior Motion for Judgment on the Pleadings (Doc. #51),
seeking judgment on the Seventh, Tenth, Twelfth, Thirteenth and Fourteenth claims of the
Complaint, which was stayed pending further discovery by Plaintiff, is now moot and

The Court agrees with Defendants that Plaintiff may not avoid the bond
requirement on the grounds he is pursuing alternative theories of recovery against Officer
Vu. See Mot. (Doc. #74) at 5-6.
1

See Swasey v. West Valley City, No. 2:13-cv-00768-DN, 2015 WL 500870, at *2
(D. Utah Feb. 5, 2015)(court found that raising the plaintiff’s failure to file the undertaking
in a Rule 12 motion for judgment on the pleadings was appropriate, and an exception to
the general rule barring affirmative defenses raised in motions, because the court need
look no further than its docket to determine that the undertaking had not been filed).
2

Plaintiff’s motion for leave to amend his Complaint contained in the body of his
opposing memorandum, see Opp’n at 7, is inappropriate under DUCivR 7-1(b)(1) and will
not be considered.
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denied as such without prejudice.4
IT IS SO ORDERED.
DATED this 22nd day of April, 2015.

BY THE COURT:

DAVID SAM
SENIOR JUDGE
UNITED STATES DISTRICT COURT

The remainder of Salt Lake City’s prior Motion for Judgment on the Pleadings (Doc.
#51) as to Plaintiff’s Respondeat Superior, Negligent Hiring, and Negligent Supervision
(claims Sixteen, Nineteen & Twenty) is also moot based on Plaintiff’s clarification that those
claims are not asserted against Salt Lake City, but “are plead against Defendants Little
America, Grand America, Grand America Resorts and/or Sinclair Oil in the event
Defendant Vu was acting as an employee and /or agent of these private entity defendants.”
Mem. Opp’n (Doc. # 57) at 14.
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