Schultz v. Averett et al
ORDER ADOPTING REPORT AND RECOMMENDATION: The Report and Recommendation 29 is ADOPTED IN FULL. Mr. Schultz's Motion to Substitute 20 is GRANTED IN PART AND DENIED IN PART. Mr. Schultz may not amend his claims for tortious in terference, negligent infliction of emotional distress, intentional infliction of emotional distress, or for violations of Utah Code section 17-27a-510 because amendment would be futile. Mr. Schultz may amend all other portions of his complaint to substitute "the Town of Daniel" for "the Township of Daniel." Signed by Judge Jill N. Parrish on 9/20/17. (dla)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
ORDER ADOPTING REPORT AND
MICHAEL AVERETT, HEATHER
BATEMAN, KASEY BATEMAN, JAY
BINKERD, JONATHAN BLOTTER, ERIC
BUNKER, LYNN CRISLER, LAMBERT
DEEGAN, MICHAEL DUGGIN, JOHN
GLODOWSKI, DIANE GROSE, DANIEL
HARVATH, KIM NORRIS, ED
PRESSGROVE, LANCE TURNER, PAM
SKINNER, LYNNE SCHINDURLING,
FRANCIS SMITH, GARY WALTON,
GARY WEIGHT, THE TOWNSHIP OF
DANIEL, and JOHN OR JANE DOES 1
Case No. 2:15-cv-00720-JNP-EJF
Judge Jill N. Parrish
Plaintiff Charles Schultz moved to substitute the Town of Daniel for the Township of
Daniel as a defendant in this case because he mistakenly sued the Town of Daniel under the
wrong name. [Docket 20]. The Town of Daniel opposed the motion, arguing that it should be
denied as futile. It argued that all claims against the Town of Daniel would be barred by either
the Utah Governmental Immunity Act (UGIA) or the relevant statute of limitations. [Docket 21].
Magistrate Judge Furse issued a Report and Recommendation that this court grant in part and
deny in part Mr. Schultz’s motion. [Docket 29]. Judge Furse agreed with the Town of Daniel that
the UGIA bars the tortious interference and infliction of emotional distress claims. Judge Furse
also concluded that Mr. Schultz’s claim under Utah Code section 17-27a-510 failed as a matter of
law because that statute does not apply to the Town of Daniel. But Judge Furse found that
amendment would not be futile because the Town of Daniel had not shown that the statute of
limitations barred the other claims against it as a matter of law.
Mr. Schultz did not file an objection to the Report and Recommendation. He therefore
waived any argument that the Report and Recommendation was in error. See United States v.
One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). The court will decline to apply
the waiver rule only if “the interests of justice so dictate.” Moore v. United States, 950 F.2d 656,
659 (10th Cir. 1991). The court has reviewed the portion of the Report and Recommendation that
concluded that the UGIA bared some of Mr. Schultz’s claims and that the claim under Utah Code
section 17-27a-510 failed as a matter of law. The court concludes that these portions of the
Report and Recommendation are not clearly erroneous, and finds that the interests of justice do
not warrant deviation from the waiver rule. The court, therefore, ADOPTS these portions of the
Report and Recommendation.
The Town of Daniel objected to the portion of the Report and Recommendation in which
Judge Furse concluded that the statute of limitations did not bar Mr. Schultz’s remaining claims.
The Town of Daniel argued that Mr. Schultz can only make a facial challenge to its land
ordinances. From this premise, the Town of Daniel argues that the various claims brought against
it must have accrued when the ordinances were first adopted, which was well beyond any of the
pertinent statutes of limitation. Because the Town of Daniel filed an objection, the court “must
determine de novo” whether its objections have merit. FED. R. CIV. P. 72(b)(3).
Assuming arguendo that the Town of Daniel is correct that Mr. Schultz is confined to a
facial challenge to the land use ordinances, the crux of the town’s objection is that a claim based
upon a facial challenge must accrue when the ordinances were first adopted. The Town of Daniel
relies upon an opinion from the Utah Court of Appeals, which held that a “facial challenge to a
land use regulation becomes ripe upon enactment of the regulation itself.” Tolman v. Logan City,
167 P.3d 489, 492 (Utah Ct. App. 2007). But the Town of Daniel fails to acknowledge that this
holding was limited by the Utah Supreme Court:
Although the facial/as-applied distinction may be procedurally significant in some
contexts, this distinction generally “has nothing to do with the accrual or ripeness
of a cause of action” for statute of limitations purposes. Instead, the accrual date
of a facial or as-applied challenge is identical to the accrual date of other
substantive claims—the date upon which the plaintiff’s injury occurred and the
cause of action became complete.
Gillmor v. Summit County, 246 P.3d 102, 109 (Utah 2010) (footnote omitted); see also id. at 110
(holding that the rule announced in Tolman was incomplete).
Moreover, whether the Town of Daniel could show that Mr. Schultz’s causes of action
accrued when the ordinances were adopted under the correct standard articulated by the Utah
Supreme Court is beside the point. The reasoning of Judge Furse’s Report and Recommendation
was not based upon the date on which Mr. Schultz’s claims accrued, but rather upon the date on
which he knew or should have known the facts underlying his claims under the discovery rule.
See Berenda v. Langford, 914 P.2d 45, 50–51 (Utah 1996) (citations omitted) (“[I]n certain
instances, the discovery rule ‘may operate to toll the period of limitations “until the discovery of
facts forming the basis for the cause of action.” ’ ”); UTAH CODE § 63G-7-401(1)(b) (“The statute
of limitations does not begin to run until a claimant knew, or with the exercise of reasonable
diligence should have known: (i) that the claimant had a claim against the governmental entity or
its employee; and (ii) the identity of the governmental entity or the name of the employee.”). The
Town of Daniel does not argue that Judge Furse’s application of the discovery rule to the
allegations of the complaint was erroneous. Nor does it present authority or argument for the
proposition that the discovery rule may not be applied to a facial challenge to the ordinances at
issue in this case. Because the Town of Daniel failed to object to the operative reasoning of the
Report and Recommendation, this court overrules its objection. See FED. R. CIV. P. 72(b)(3)
(“The district judge must determine de novo any part of the magistrate judge’s disposition that
has been properly objected to.”); One Parcel of Real Prop., 73 F.3d at 1060 (“[W]e hold that a
party’s objections to the magistrate judge’s report and recommendation must be both timely and
specific to preserve an issue for de novo review by the district court or for appellate review.”).
The court, therefore, ADOPTS the portion of the Report and Recommendation that
concludes that, under the allegations of the complaint, the relevant statutes of limitation do not
bar Mr. Schultz’s claims. Accordingly, the court ORDERS as follows:
1. The Report and Recommendation [Docket 29] is ADOPTED IN FULL.
2. Mr. Schultz’s Motion to Substitute [Docket 20] is GRANTED IN PART AND
DENIED IN PART. Mr. Schultz may not amend his claims for tortious interference,
negligent infliction of emotional distress, intentional infliction of emotional distress,
or for violations of Utah Code section 17-27a-510 because amendment would be
futile. Mr. Schultz may amend all other portions of his complaint to substitute “the
Town of Daniel” for “the Township of Daniel.”
SO ORDERED September 20, 2017.
BY THE COURT:
JILL N. PARRISH
United States District Judge
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