Christiansen et al v. West Valley City et al
Filing
41
MEMORANDUM DECISION and ORDER granting 19 Motion for Judgment on the Pleadings. Signed by Judge Ted Stewart on 6/22/2015. (blh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
BRANDY CHRISTIANSEN, et al.,
MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANTS’
MOTION FOR JUDGMENT ON THE
PLEADINGS
Plaintiffs,
v.
WEST VALLEY CITY, et al.,
Case No. 2:14-CV-25 TS
Defendants.
District Judge Ted Stewart
This matter is before the Court on Defendants’ Rule 12(c) Motion for Judgment on the
Pleadings. For the reasons discussed more fully below, the Court will grant Defendants’ Motion
as set forth herein.
I. BACKGROUND
Plaintiffs’ Complaint alleges that on October 26, 2012, West Valley Police Department
(“WVPD”) Officers entered a residence where Plaintiffs Terry Christiansen and Brandy
Christiansen were residing. 1 Plaintiffs claim the police officers used excessive force against
Terry Christiansen. 2 Plaintiffs also claim that Plaintiff Brandy Christiansen was illegally seized
and searched. 3
The Complaint alleges that the WVPD engaged in a pattern and practice of illegal
conduct and widespread and systemic corruption, which has been sanctioned by West Valley
1
Docket No. 1, at 1–2.
2
Id. at 2.
3
Id.
1
City. 4 Plaintiffs claim that Defendant former Lieutenant John Coyle (“Lt. Coyle”) participated
in and tolerated the wrongdoings within his unit and that former police chief Thayle “Buzz”
Nielsen (“Chief Nielsen”) failed to properly oversee and supervise his officers. 5
Plaintiffs bring two claims for violations of civil rights under 42 U.S.C. § 1983. The first
cause of action alleges WVPD Officers violated Plaintiffs’ Fourth and Fourteenth Amendment
rights. 6 The second cause of action alleges Lt. Coyle, Chief Nielsen, West Valley City, and
Does 7 through 10 knowingly and with gross negligence, maintained, permitted, and ratified
policies and customs that allowed the violation of the Fourth and Fourteenth Amendment. 7
Plaintiffs’ third cause of action is a state-law battery claim against Defendant Sean
McCarthy and West Valley City. 8
Defendants’ Motion claims Plaintiffs’ second cause of action is inadequately pleaded and
Plaintiffs’ battery claim should be dismissed for failure to file an undertaking. 9
II. LEGAL STANDARD
“A motion for judgment on the pleadings under Rule 12(c) is treated as a motion to
dismiss under Rule 12(b)(6).” 10 The same standard is used when evaluating 12(b)(6) and 12(c)
motions. 11
4
Id.
5
Id. at 3.
6
Id. at 5–6.
7
Id. at 7.
8
Id. at 8–9.
9
Docket No. 19, at 7.
10
Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th Cir.
2000).
2
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 Plaintiffs as
the nonmoving party. 12 Plaintiffs 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 shown—that the pleader is entitled to
relief. 17
11
Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 n.2 (10th Cir. 2002).
12
GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.
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 (citations and internal quotation marks omitted).
1997).
3
In considering a motion to dismiss, a district court not only considers the complaint, “but
also the attached exhibits,” 18 and “documents incorporated into the complaint by reference, and
matters of which a court may take judicial notice.” 19 The Court “may consider documents
referred to in the complaint if the documents are central to the plaintiff’s claim and the parties do
not dispute the documents’ authenticity.” 20
III. DISCUSSION
The Court’s consideration of Defendants’ Rule 12(c) Motion will not delay trial and will
not render discovery that has taken place unnecessary. Rule 12(c) states, “After the pleadings
are closed—but early enough not to delay trial—a party may move for judgment on the
pleadings.” Trial is scheduled for April 18, 2016, and the Court’s consideration of Defendants’
Motion will not delay trial. Plaintiffs argue that the Court should deny Defendants’ Motion
because considering the Motion ignores the factual record that has been developed in order to
make a threshold inquiry. 21 In this case, Plaintiffs’ first cause of action will not be dismissed and
Plaintiffs’ third cause of action will be dismissed without prejudice. The discovery that has
taken place will not be rendered unnecessary and will not be ignored because Plaintiffs will still
be able to pursue two of its claims. Therefore, the Court will consider Defendants’ Motion.
18
Commonwealth Prop. Advocates, LLC v. Mortg. Elec. Registration Sys., Inc., 680 F.3d
1194, 1201 (10th Cir. 2011).
19
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (citing 5B
WRIGHT & MILLER § 1357 (3d ed. 2004 & Supp. 2007)).
20
Jacobsen, 287 F.3d at 941.
21
Docket No. 25, at 5–6 (citing Grajales v. Puerto Rice Ports Auth., 682 F.3d 40, 46 (1st
Cir. 2012) (“[O]nce the parties have invested substantial resources in discovery, a district court
should hesitate to entertain a Rule 12(c) motion.”)).
4
A. OFFICIAL CAPACITY CLAIMS
Plaintiffs’ second cause of action under § 1983 is for Monell liability against Lt. Coyle,
Chief Nielsen, West Valley City, and Does 7 through 10. Defendant argues that Plaintiffs’
Monell claim is inadequately pleaded.
The claims against Lt. Coyle and Chief Nielsen are claims against government employees
in their official capacities. 22 “[O]fficial-capacity suits generally represent only another way of
pleading an action against an entity of which an officer is an agent.” 23 “[A]n official-capacity
suit is, in all respects other than name, to be treated as a suit against the entity . . . . [A] plaintiff
seeking to recover on a damages judgment in an official-capacity suit must look to the
government entity itself.” 24 “When a plaintiff names a municipality and a municipal employee
in his official capacity, the claim against the employee in the official capacity should be
dismissed.” 25
Therefore, the Court will dismiss with prejudice the claims against Lt. Coyle and Chief
Nielsen contained within Plaintiffs’ second cause of action.
B. § 1983 CLAIM AGAINST WEST VALLEY CITY
The § 1983 claim against West Valley City is brought under a theory of Monell liability.
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the
22
Docket No. 1, 31–40; Docket No. 25, at 7–8.
23
Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 690 n.55 (1978).
24
Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (internal citation omitted).
25
Swasey v. West Valley City, No. 2:13-CV-00768-DN, 2015 WL 500870, at *1 (D. Utah
Feb. 5, 2015) (citing Kontgis v. Salt Lake City Corp., No. 2:11-CV-1078-DAK, 2012 WL
434866, at *6 (D. Utah Sept. 21, 2012)).
5
Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” 26 Where a plaintiff seeks to impose
§ 1983 liability on a municipality, it is not enough for plaintiff to show that an employee of the
municipality was a wrongdoer. 27 Rather, plaintiff must show that the “execution of a
government’s policy or custom” caused plaintiff’s injury. 28
A Monell claim requires three elements: (1) an official policy or custom, (2) causation,
and (3) a showing “that the policy was enacted or maintained with deliberate indifference to an
almost inevitable constitutional injury.” 29
“The official policy requirement was intended to distinguish acts of the municipality from
acts of employees of the municipality, and thereby make clear that municipal liability is limited
to action for which the municipality is actually responsible.” 30 The Tenth Circuit defines an
official policy or custom as either
(1) a formal regulation or policy statement; (2) an informal custom amounting to a
widespread practice that, although not authorized by written law or express
municipal policy, is so permanent and well settled as to constitute a custom or
usage with the force of law; (3) the decisions of employees with final
policymaking authority; (4) the ratification by such final policymakers of the
decisions—and the basis for them—of subordinates to whom authority was
delegated subject to these policymakers’ review and approval; or (5) the failure to
26
West v. Atkins, 487 U.S. 42, 48 (1988) (quoting United States v. Classic, 313 U.S. 299,
326 (1941)).
27
Monell, 436 U.S. at 691 (“[W]e conclude that a municipality cannot be held liable
solely because it employs a tortfeasor.”).
28
Id. at 713.
29
Schneider v. Grand Junction Police Dept., 717 F.3d 760, 769 (10th Cir. 2013).
30
Id. (internal citation and quotation marks omitted).
6
adequately train or supervise employees, so long as that failure results from
deliberate indifference to the injuries that may be caused. 31
Plaintiffs base their Monell claim on three policies or customs. Plaintiffs allege West
Valley City had informal customs amounting to a widespread practice with the force of law,
ratified the decisions of subordinate personnel, and failed to adequately train or supervise
employees based on a deliberate indifference to the injuries that may be caused. The Court will
address each theory for Monell liability in turn.
1. Informal Custom
To establish municipal liability under the theory of an informal custom or practice, a
plaintiff must allege:
(1) The existence of a continuing, persistent and widespread practice of
unconstitutional misconduct by . . . employees;
(2) Deliberate indifference to or tacit approval of such misconduct by the . . .
policymaking officials . . . after notice to the officials of that particular
misconduct; and
(3) That the plaintiff was injured by virtue of the unconstitutional acts pursuant to
. . . custom and that the custom was the moving force behind the unconstitutional
acts. 32
Plaintiffs argue that they have “specifically alleged that countless similarly situated
citizens have been mistreated in the exact same fashion as they have.” 33 Plaintiffs’ Complaint
states,
31
Bryson v. Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (internal citations and
quotation marks omitted).
32
Gates v. Unified Sch. Dist. No. 449 of Leavenworth Cnty., Kan., 996 F.2d 1035, 1041
(10th Cir. 1993).
33
Docket No. 25, at 10.
7
[I]t has been uncovered that the Narcotics Unit of the West Valley Police
Department . . . engaged in a pattern and practice of illegal conduct and
widespread and systemic corruption, sanctioned by the West Valley Police
Department. 34
West Valley City admits to rampant corruption and systemic constitutional
violations by its officers, including mishandling of evidence, confiscation of drugs
for personal benefit, theft of seized property, illegal use of GPS tracking systems,
improper use of confidential drug informants, and commission of perjury. 35
In the past two years, Salt Lake County District Attorney Sim Gill has sought the
dismissal of more than 100 criminal cases and the United States Attorney’s Office
has dismissed more than ten criminal cases as a result of the illegal conduct of the
defendant officers and others within the Department. The FBI has also
investigated the former Narcotics Unit. 36
The pervasive and rampant misconduct engaged in by West Valley police
officers, and particularly the Narcotics Unit, are evidence of the City’s deliberate
indifference to the constitutional rights of the citizens of West Valley, as well as
evidence of policies and practices that allow for the violations of the Fourth and
Fourteenth Amendments, as alleged herein. 37
Plaintiffs’ § 1983 claim against West Valley City alleges violations of the Fourth
Amendment “by subjecting Plaintiffs to unlawful search, seizure with excessive force, arrest,
[and] imprisonment.” 38 Plaintiffs also allege Terry Christiansen was subjected “to an unjustified
criminal prosecution in violation of his Fourth and Fourteenth Amendment rights.” 39
34
Docket 1, at 2–3.
35
Id. at 3.
36
Id.
37
Docket No. 1, at 7–8.
38
Id. at 6.
39
Id.
8
To support a claim for Monell liability, Plaintiffs must allege that West Valley City
engaged in “continuing, persistent, and widespread” unconstitutional practices. To do so,
Plaintiffs must allege that similarly situated individuals were mistreated in a similar way. 40
In this case, Plaintiffs allege the systemic violation of the Fourth and Fourteenth
Amendments through various types of police misconduct. 41 The listed misconduct, however,
does not relate to the type of unlawful search, seizure with excessive force, unlawful arrest,
unlawful imprisonment, or unjustified criminal prosecution that Plaintiffs allegedly experienced.
For example, the Complaint alleges the systemic “illegal use of GPS tracking systems,” which
would be a violation of the Fourth Amendment, 42 but is not a Fourth Amendment violation
similar to that which Plaintiffs allege to have been victims. Plaintiffs’ Complaint fails to
adequately allege that similarly situated individuals were mistreated in a similar way because it
does not allege West Valley City systemically violated the constitutional rights in the same way
Plaintiffs’ rights were allegedly violated.
Therefore, under Rule 12(b)(6), the Court finds Plaintiffs’ Complaint does not
sufficiently allege the “continuing, persistent and widespread practice” element of a Monell
claim based on informal custom.
Plaintiffs must also sufficiently allege West Valley City policymaking officials acted
with deliberate indifference to the alleged constitutional violations after being on notice of the
particular misconduct.
40
Carney v. City of Denver, 534 F.3d 1269, 1274 (10th Cir. 2008).
41
See Docket No. 1, at 3, 7.
42
See United States v. Jones, 132 S.Ct. 945, 949 (2012).
9
Plaintiffs’ Complaint states, “West Valley City admits to rampant corruption and
systemic constitutional violations by its officers, including mishandling of evidence, confiscation
of drugs for personal benefit, theft of seized property, illegal use of GPS tracking systems,
improper use of confidential drug informants, and commission of perjury.” 43
Plaintiffs have not identified a policymaker who had notice of the alleged misconduct and
then subsequently acted with indifference to the violations. Plaintiffs’ Complaint states
The pervasive and rampant misconduct engaged in by West Valley police
officers, and particularly the Narcotics Unit, are evidence of the City’s deliberate
indifference to the constitutional rights of the citizens of West Valley, as well as
evidence of policies and practices that allow for the violations of the Fourth and
Fourteenth Amendments, as alleged herein. 44
This allegation is the type of formulaic recitation of the elements that fails to meet the
Rule 12(b)(6) standards. The allegation does not provide factual support, but proffers the legal
conclusion that West Valley City acted with deliberate indifference to constitutional rights
violations.
Therefore, under Rule 12(b)(6), the Court finds Plaintiffs’ Complaint does not
sufficiently allege the deliberate indifference element of a Monell claim based on informal
custom.
Plaintiffs must also allege that there is a direct causal link between the challenged custom
or practice and the constitutional violation.45 Thus, Plaintiffs must demonstrate that the
challenged custom was the moving force behind the alleged misconduct Plaintiffs experienced.
43
Docket No. 1, at 3.
44
Id. at 7–8.
45
Schneider, 717 F.3d at 769 (citation and internal quotation marks omitted).
10
In this case, Plaintiffs’ Complaint fails to allege a widespread policy or custom of
unconstitutional conduct. Consequently, Plaintiffs’ Complaint does not sufficiently allege that
the challenged custom was the moving force behind their rights being violated. Plaintiffs’
Complaint states,
Plaintiffs are informed and believe, and thereon allege, that the customs and
policies of the West Valley City Police Department were the moving force behind
the violations of Plaintiffs’ rights. Based upon the principles set forth in Monell v.
New York City Dept. of Social Services, the City of West Valley is liable for all of
the injuries sustained by Plaintiffs as set forth above. 46
This allegation is nothing more than a recitation of the Monell causation requirement.
Plaintiffs do not allege any facts to inform the causation element or any facts from which, if true,
the Court could infer causation.
Thus, under Rule 12(b)(6), the Court finds Plaintiffs’ Complaint does not sufficiently
allege the causation element of a Monell claim based on informal custom. Therefore, Plaintiffs’
claim for Monell liability under the theory of informal custom is inadequately pleaded.
2. Ratification
Under Monell, a municipality may be held liable if a final municipal policymaker ratifies
the unlawful conduct or decision of a subordinate and the basis for the conduct or decision. 47 To
demonstrate liability under a § 1983 theory of ratification, “[t]he final policymaker must not only
approve the decision, but also adopt the basis for the decision, and the ratification must be the
moving force, or cause, of the alleged constitutional violation.” 48
Plaintiffs’ Complaint alleges,
46
Docket No. 1, at 8.
47
Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1186 (10th Cir. 2010).
48
Dempsey v. City of Baldwin, 143 F. App’x 976, 986 (10th Cir. 2005).
11
Defendant John Coyle was the lieutenant in charge of the Narcotics Unit and the
supervisor of Officers McCarthy, Beardshall, Lund, and Salmon. He not only
tolerated known wrongdoings by officers within his unit, but he also actively
participated in the rampant corruption, as evidenced by his assault on Plaintiff
Terry Christiansen. 49
Plaintiffs are informed and believe that Does 1 through 10 were police officers
with the West Valley City and each of them approved, ratified, condoned,
encouraged, participated in, and/or sought to cover up the continuing pattern and
practice of misconduct, and/or civil rights violations by Defendants. 50
Defendants Coyle, Nielsen, West Valley City and Does 7 through 10, knowingly
and with gross negligence, maintain, permit, and ratify policies and customs
which allow the occurrence of the types of wrongs set forth hereinabove, all in
deliberate indifference to the constitutional rights of citizens. 51
Further, the City’s ratification of police misconduct, along with its failure to
conduct adequate investigations of misconduct, led to the violations of the
Plaintiffs’ constitutional rights. 52
Plaintiffs’ allegations are merely conclusory and a formulaic recitation of the Monell
ratification elements. The allegations do not allege who the authorized policymaker was that
ratified the decisions of subordinates. The Complaint does not allege any facts regarding the
“affirmative approval” required to occur in order to find Monell liability under a theory of
ratification. 53 The Complaint does not state a plausible claim for relief and the allegations do
nothing more than permit the Court to infer the mere possibility of misconduct. 54
49
Docket No. 1, at 3.
50
Id. at 5.
51
Id. at 7.
52
Id. at 8.
53
See Swasey v. West Valley City, No. 2:13-CV-00768-DN, 2015 WL 476114, at *6 (D.
Utah Feb. 5, 2012) (citing Patrick v. City of Overland Park, 937 F.Supp 1491, 1499 (D. Kan.
1996)).
54
See Iqbal, 556 U.S. at 679.
12
Thus, the Complaint, as alleged, fails to meet the pleading standards of Rule 12(b)(6).
Therefore, Plaintiffs’ claim for § 1983 Monell liability under the theory of ratification is
inadequately pleaded.
3. Failure to Train or Supervise
A municipality cannot be held liable under § 1983 “for its failure to train or supervise . . .
unless . . . [its] policymakers ‘can reasonably have been deliberately indifferent to the need’ for
further training or supervision.” 55
The deliberate indifference standard may be satisfied when the municipality has
actual or constructive notice that its action or failure to act is substantially certain
to result in a constitutional violation, and it consciously or deliberately chooses to
disregard the risk of harm. In most instances, notice can be established by
proving the existence of a pattern of tortious conduct. In a narrow range of
circumstances, however, deliberate indifference may be found absent a pattern of
unconstitutional behavior if a violation of federal rights is a highly predictable or
plainly obvious consequence of a municipality’s action or inaction, such as when
a municipality fails to train an employee in specific skills needed to handle
recurring situations, thus presenting an obvious potential for constitutional
violations. 56
Thus, under a theory of failure to train or supervise, “[o]nly where a failure to train
reflects a ‘deliberate’ or ‘conscious’ choice by a municipality—a ‘policy’ as defined by our prior
cases—can a city be liable for such a failure under § 1983.” 57
Plaintiffs’ Complaint states,
[Chief Nielsen] was the former police chief of the West Valley Police Department
and ultimately responsible for the officers within his command. His lack of
oversight and supervision, and his disregard for the constitutional rights of the
55
Bryson, 627 F.3d at 789 (quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)).
56
Id. (quoting Barney v. Pulsipher, 143 F.3d 1299, 1307–08 (10th Cir. 1998)).
57
City of Canton, 489 U.S. at 389.
13
public, resulted in the wrongdoings alleged herein, and constitutional violations in
the seizure and arrest of multiple individuals in West Valley City. 58
West Valley City continued the employment of McCarthy, Beardshall, Lund, and
Salmon, and allowed little to no supervision of these officers in spite of the fact
that several of these officers had prior citizen complaints for misconduct.
Defendant Coyle was a lieutenant with the West Valley Police Department and
allowed the rampant corruption, as well as participated in the corruption within
the department, allowing officers in the Narcotics Unit to abuse the suspects and
arrest Brandy Christiansen without probable cause, wherein she spent five days in
custody. 59
The City’s deliberate indifference in the training of its law enforcement officers
related to the use of reasonable force and lawful seizures, as well as the deliberate
indifference by the police department’s hierarchy to the safety of its citizens or
the adherence to the Constitution’s protection of individual rights, are the moving
force behind the misconduct engaged in by the officers as alleged herein. Were it
not for this indifference, Defendants would not have been able to abuse Plaintiffs
so easily. The widespread corruption and misconduct of West Valley City officers
are all factors leading to the violation of Plaintiffs’ constitutional rights. 60
Again, Plaintiffs’ allegations are nothing more than the recitation of the elements of a
Monell claim based on the theory of failure to train or supervise. The allegation that Chief
Nielsen, who presumably had policymaking authority, did not adequately supervise police
officers is insufficient. The Complaint lacks any factual allegations that Chief Nielsen had
notice, actual or constructive, that his alleged failure to train or supervise would be substantially
certain to result in constitutional violations. Additionally, the Complaint lacks any factual
allegation that Chief Nielsen deliberately chose to disregard the risk of such harm.
As to the general allegations that West Valley City failed to adequately train or supervise
its employees, these allegations fail because they do not identify a policymaker whose deliberate
58
Docket No. 1, at 3
59
Id. at 7.
60
Id. at 8.
14
or conscious choice not to train or supervise led to constitutional violations. The allegations
against Chief Nielsen and West Valley City for Monell liability under the theory that it failed to
train of supervise are nothing more than bare accusations that recite the elements of the claim.
Therefore, Plaintiffs’ claim for § 1983 Monell liability under the theory of ratification is
inadequately pleaded.
Thus, the Court will dismiss the Monell claim against West Valley City contained within
Plaintiffs’ second cause of action with prejudice. If, after discovery, Plaintiffs believe that they
can sufficiently amend their Complaint with respect to the § 1983 Monell claim to comply with
the Rule 12(b)(6) standards, the Court will entertain a motion to do so at such time.
C. STATE-LAW CLAIM
Defendants argue that Plaintiffs’ state-law claim should be dismissed because Plaintiffs
have failed to file the required $300.00 undertaking at the time Plaintiffs filed the Complaint. 61
Plaintiffs contend that their failure to file an undertaking is an affirmative defense that cannot be
asserted in a Rule 12(c) motion.
Generally, affirmative defenses may not be raised in motions to dismiss, however “an
affirmative defense may be raised in a motion to dismiss . . . ‘if the defense appears plainly on
the face of the complaint itself.’” 62 Determining whether Plaintiffs filed an undertaking does not
require an in-depth factual inquiry. The Court can determine whether Plaintiffs filed the
appropriate undertaking by examining the docket.
61
Docket No. 19, at 7.
62
Lee v. Rocky Mountain UFCW Unions & Emp’rs Trust Pension Plan, 13 F.3d 405,
1993 WL 482951, at *1 (10th Cir.1993) (unpublished) (quoting Miller v. Shell Oil Co., 345 F.2d
891, 893 (10th Cir. 1965)).
15
In Utah, under the Governmental Immunity Act of Utah, a plaintiff making a claim
against an employee of a government entity must file an undertaking of at least $300.00 at the
time of the filing of the claim. 63 The Court cannot allow Plaintiffs to submit the undertaking
after filing their Complaint and the appropriate remedy for failure to file the undertaking at the
appropriate time is dismissal without prejudice. 64
Plaintiffs did not file an undertaking at the time of filing their Complaint. Therefore,
Plaintiffs’ third cause of action is dismissed without prejudice.
IV. CONCLUSION
It is therefore
ORDERED that Defendant’s Rule 12(c) Motion (Docket No. 19) is GRANTED as set
forth above.
DATED this 22nd day of June, 2015.
BY THE COURT:
Ted Stewart
United States District Judge
63
See Utah Code Ann. § 63G-7-601(2).
64
Rippstein v. City of Provo, 929 F.2d 576, 578 (10th Cir. 1991).
16
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