Hyland v. Dixie State University et al
MEMORANDUM DECISION AND ORDER granting 64 Defendants' Partial Motion to Dismiss for Lack of Jurisdiction. Plaintiff's Fourth Cause of Action is dismissed with prejudice. Signed by Judge Ted Stewart on 5/16/2017. (eat)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANTS’
PARTIAL MOTION TO DISMISS
DIXIE STATE UNIVERSITY, a public
university in the State of Utah; DELL
BEATTY, in his personal and official
capacities; DON REID, in his personal and
official capacities, FRANK LOJKO, in his
personal and official capacities,
RHIANNON BENT, in her personal and
official capacities; BRENT YERGENSEN,
in his personal and official capacities; and
JOHN DOES I-V,
Case No. 2:15-CV-36 TS
District Judge Ted Stewart
This matter is before the Court on State Defendants Del Beatty, Don Reid, Frank Lojko,
Rhiannon Bent, and Brent Yergensen’s (“Defendants”) Partial Motion to Dismiss for Lack of
Jurisdiction. For the reasons discussed below, the Court will grant the motion.
This case arises from Hyland’s disciplinary suspension as a student at Dixie State
University. In Hyland’s fourth cause of action, Hyland alleges that Defendants defamed him by
publishing a false statement that Hyland had sexually harassed another student. On November
20, 2013, Hyland served a “Notice of Claim & Intent to Commence Legal Action” on
Defendants, who made no decision to accept or deny Hyland’s claim. On January 20, 2015,
Hyland filed his Complaint. However, Hyland has never filed an undertaking. The parties
disagree (1) whether an undertaking was required; and if it was, (2) whether the Court should
dismiss Hyland’s fourth cause of action with or without prejudice.
An argument regarding subject-matter jurisdiction “may be raised by a party, or by a
court on its own initiative, at any stage in the litigation.” 1 “If the court determines at any time
that it lacks subject-matter jurisdiction, the court must dismiss the action.” 2
The Utah Governmental Immunity Act (“UGIA”) “establishes the parameters under
which parties may bring suit against governmental entities for injuries.” 3 The Act requires
plaintiffs to file an undertaking in the amount of at least $300 at the time the action is filed. 4
“Compliance with the Immunity Act is necessary to confer subject matter jurisdiction upon a
trial court to hear claims against governmental entities.” 5 “[F]ailure to comply with the
Immunity Act requires a trial court to dismiss a complaint.” 6
A. THE UNDERTAKING REQUIREMENT
It is undisputed that Hyland failed to file an undertaking. Hyland argues, without
citation, that the undertaking requirement does not apply to actions brought in federal court.
Hyland’s argument is based on language in Utah Code Section 63G-7-601 that “[a]n action
Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006) (citing Fed. R. Civ. P. 12(b)(1)).
Fed. R. Civ. P. 12(h)(3).
Greene v. Utah Transit Auth., 2001 UT 109, ¶ 11, 37 P.3d 1156, 1158.
Utah Code Ann. § 63G-7-601 (West 2017).
Greene, 2001 UT 109, ¶ 16, 37 P.3d at 1159.
brought under this chapter shall be governed by the Utah Rules of Civil Procedure to the extent
that they are consistent with this chapter.” 7 The next subsection directs that “the plaintiff shall
file an undertaking.” 8 Hyland interprets these two subsections to mean that an undertaking is not
necessary when a case is filed in federal court because the Federal Rules of Civil Procedure are
The subsections cited by Hyland do not support his interpretation. Nothing in the
language of Section 63G-7-601 suggests that the undertaking requirement is conditional on the
rules of civil procedure applied by a court. In addition, both this Court and the Tenth Circuit
have consistently applied the undertaking requirement to suits filed in federal court. 10 Therefore,
the Court finds that the undertaking requirement applies in this case and that Hyland’s failure to
comply with the UGIA requires the dismissal of his fourth cause of action. Whether the cause of
action must be dismissed with prejudice depends on whether a recent amendment to the UGIA
B. RETROACTIVITY OF THE UGIA AMENDMENT
In Craig v. Provo City, the Utah Supreme Court held that a savings statute in Utah Code
Section 78A-2-111 was foreclosed by the UGIA, and that a failure to pay an undertaking was
therefore grounds for dismissal with prejudice after the one-year limitations period had
Utah Code Ann. § 63G-7-601(1).
Id. § 63G-7-601(2).
Docket No. 70, at 4.
See Rippstein v. City of Provo, 929 F.2d 576, 578 (10th Cir. 1991); George v. Beaver
Cty., No. 2:16-CV-1076 TS, 2017 WL 782287, at *6 (D. Utah Feb. 28, 2017) (unpublished).
expired. 11 In response to Craig, the Utah Legislature amended the UGIA in March, 2017 to
provide: “A claimant may commence an action after the time limit . . . if: (i) the claimant had
commenced a previous action within the time limit . . . ; (ii) the previous action failed or was
dismissed for a reason other than on the merits; and (iii) the claimant commences the new action
within one year after the previous action failed or was dismissed.” 12
Utah law codifies the presumption that “[a] provision of the Utah Code is not retroactive,
unless the provision is expressly declared to be retroactive.” 13 However, there is a “longstanding exception to the general rule of nonretroactivity[:] Remedial and procedural
amendments apply to accrued, pending, and future actions.” 14
Here, there is no expression of retroactivity in the amendment, so retroactivity depends
on whether the amended portions are procedural or substantive, and whether they enlarge or
eliminate vested rights. 15 It is a “general and well-established principle of law  that statutes
prescribing limitations relate to remedies.” 16 The Utah Supreme Court has applied retroactively
2016 UT 40, ¶ 41, 389 P.3d 423, 432.
H.B. 399 Government Immunity Amendments, at ¶¶ 145–182,
https://le.utah.gov/~2017/bills/static/HB0399.html (last visited May 15, 2017).
Utah Code Ann. § 68-3-3.
State v. Daniels, 2002 UT 2, ¶ 40, 40 P.3d 611, 623 (quoting State v. Norton, 675 P.2d
577, 585 (Utah 1983)); see also State v. Clark, 2011 UT 23, ¶ 12, 251 P.3d 829, 833.
See Gressman v. State, 2013 UT 63, ¶ 14, 323 P.3d 998, 1002.
Del Monte Corp. v. Moore, 580 P.2d 224, 225 (Utah 1978).
“the extension of a limitations period where the original cause of action is still alive when the
statute of limitations was amended.” 17
The amendment here has the effect of extending the UGIA’s statute of limitations in
limited situations, and is therefore procedural. 18 However, Defendants correctly point out that
Hyland would not have the right to refile his defective claim absent the amendment. The
amendment therefore deprives Defendants of a right to a statute of limitations defense. “[T]he
defense of an expired statute of limitations” is a vested right that cannot be taken away by
legislation, and “subsequent passage of an act increasing the period of limitation [cannot] operate
to affect or renew a cause of action already barred.” 19
The one year statute of limitation in this case expired in January, 2015. Hyland timely
filed his Complaint, but his failure to file an undertaking deprived the Court of subject-matter
jurisdiction. Hyland could not have remedied the defect because the claim was time-barred.
Defendants properly pleaded the statute of limitations defense in their response to Hyland’s
Complaint and have not waived it. Therefore, a limitations defense vested in January, 2015, and
the UGIA amendment cannot divest Defendants of this defense or revive Plaintiff’s cause of
In sum, the Court cannot apply the amendment to the UGIA retroactively to Hyland’s
claim because it would destroy Defendants’ vested statute of limitations defense and revive
Dep’t of Human Servs. v. Jacoby, 1999 UT App 52, ¶ 13, 975 P.2d 939, 943; see also
Del Monte Corp, 580 P.2d at 225 (“[I]f the cause of action is still alive, the new enactment can
extend the time in which it may be brought.”).
Del Monte Corp., 580 P.2d at 225.
Roark v. Crabtree, 893 P.2d 1058, 1062 (Utah 1995).
Hyland’s time-barred claim. Therefore, the Court will apply the law in place at the time Hyland
filed suit. Accordingly, Hyland’s fourth cause of action must be dismissed with prejudice. 20
It is therefore ORDERED that Defendants’ Motion to Dismiss for Lack of Jurisdiction
(Docket No. 64) is GRANTED. Plaintiff’s Fourth Cause of Action is dismissed with prejudice.
DATED this 16th day of May, 2017.
BY THE COURT:
United States District Judge
See Craig, 2016 UT 40, ¶ 41, 389 P.3d at 432 (dismissing claims as time-barred after
plaintiff failed to follow the UGIA’s procedural requirements).
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