Riverbend Ranch Equestrian Center et al v. Duvall et al
MEMORANDUM DECISION AND ORDER: Wild Horses' 41 motion to dismiss the counterclaim is GRANTED, and the counterclaim is DISMISSED WITH PREJUDICE. Because the Court dismisses the counterclaim, Wild Horses' pending motion for leave to amend is DENIED AS MOOT. The parties will bear their own costs and fees as to the counterclaim. Signed by Judge Jill N. Parrish on 9/27/17. (dla)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
RIVERBEND RANCH EQUESTRIAN
CENTER LLC, a Utah Limited Liability
Company; and TAMARA RAE LARSEN, an
MEMORANDUM DECISION AND
ROBERT DUVALL, an individual; ROBERT
CARLINER, an individual; WILD HORSES
PRODUCTIONS ENTERTAINMENT LLC, a
Canceled California Limited Liability
Company; and JOHN DOE DEFENDANTS
I – XX;
Case No. 2:15-cv-751
District Judge Jill N. Parrish
Before the Court is Defendant Wild Horses Productions Entertainment LLC’s (“Wild
Horses”) motion to dismiss its remaining counterclaim with prejudice (ECF No. 41). Plaintiffs
oppose the motion (ECF No. 49). Also pending before the Court is White Horses’ motion for
leave to amend the same counterclaim (ECF No. 26). The Court has reviewed the filings, and
oral argument would not significantly assist the Court in its determination. For the reasons
below, the Court grants White Horses’ motion to dismiss and denies as moot its motion for leave
This is a contract case. In 2014, White Horses contracted with Plaintiffs Riverbend Ranch
Equestrian Center LLC (“Riverbend Ranch”) and Tamara Rae Larsen to use the Riverbend
Ranch in its production of the motion picture “Wild Horses.” ECF No. 10-1. On September 11,
2015, Plaintiffs filed a Complaint in the Utah Third District Court against Robert Duvall, Robert
Carliner, Wild Horses, and John Doe Defendants I–XX. Plaintiffs alleged that Defendants
breached the Location Agreement by failing to include Plaintiffs’ names in the movie’s screen
credits. Plaintiffs also alleged breach of the implied covenant of good faith and fair dealing. On
October 30, 2015, Defendants removed the case to this Court based on diversity jurisdiction.
Once the case was in this Court, Wild Horses filed an Answer to the Complaint alleging
two counterclaims: (1) breach of the Location Agreement by Larsen for posting advertisements
to sell a prop used in the movie without Wild Horses’ consent; and (2) breach of the Location
Agreement against both plaintiffs for interference with Wild Horses’ filming and full use of the
On May 4, 2017, Wild Horses filed a motion for leave to amend its first counterclaim to
include Riverbend Ranch and to dismiss its second counterclaim (ECF No. 14). The Court
granted Wild Horses’ request to dismiss the second counterclaim but denied without prejudice
the request to add Riverbend Ranch as a counter-defendant to the first. Wild Horses renewed its
motion to add Riverbend Ranch as a counter-defendant on March 13, 2017. That motion is still
On May 18, 2017, Plaintiffs accepted an offer of judgment as to claims asserted in the
Complaint under Federal Rule of Civil Procedure 68. Under the terms of that offer, the
Complaint proceeding has been resolved, except for a determination of attorneys’ fees to be
awarded to Plaintiffs. After Plaintiffs accepted the offer of judgment, the parties attempted to
negotiate a global resolution of the attorneys’ fees and Defendants’ remaining counterclaim.
Those negotiations failed, and the parties disagree on the appropriate resolution. In essence,
Defendants want the Court to dismiss their remaining counterclaim, leaving the parties to split
attorneys’ fees. Plaintiffs object, seeing Defendants’ motion to dismiss the counterclaim as an
attempt to “ride off into the sunset after saddling [Plaintiffs] with thousands of dollars” in
attorneys’ fees. ECF No. 49 at ii.
DECLARATIONS OF JOANN SHIELDS AND TAMARA LARSEN
As a preliminary matter, the Court turns to the Declarations of Joann Shields and Tamara
Larsen that Plaintiffs submitted in support of their memorandum opposing Wild Horses’ motion
(ECF No 49, Exhibits B, C). Wild Horses argues that these declarations are self-serving and
conclusory, that they lack foundation, and that they set forth no facts.
The Court agrees. The nearly identical declarations amount to legal horseplay. They
allege only that the declarants “have personal knowledge of the facts set out in Plaintiffs’
Response Memorandum” and that those facts “set out in the Motion and supported by [their
declarations] are true.” Bare-bone declarations of this nature add nothing of value to Plaintiffs’
motion. They omit even the most basic details necessary to support a finding that either declarant
has personal knowledge of the matters they declare; they are thoroughly self-serving and
conclusory; and they leave entirely to the Court’s imagination to which of the facts in Plaintiffs’
18-page motion they refer. Therefore, the Court excludes both declarations from its
consideration. See Hansen v. Native Am. Oil Refinery Co., No. 2:06-CV-109, 2012 WL 567191,
at *7 (D. Utah Feb. 21, 2012) (“Such conclusory statements . . . should be excluded from
consideration unless the declaration lays a foundation of the declarant’s personal knowledge of
the matter.”), aff’d sub nom. Hansen v. PT Bank Negara Indonesia (Persero), 706 F.3d 1244
(10th Cir. 2013); Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991) (“[T]he nonmovant’s
affidavits must be based upon personal knowledge and set forth facts that would be admissible in
evidence; conclusory and self-serving affidavits are not sufficient.”).
CHOICE OF LAW
Underlying the parties’ dispute is the issue of applicable law. Plaintiffs argue that “Utah
law governs attorney fees and costs after voluntary dismissal with prejudice.” ECF No. 49 at 1.
But Defendants jockey for position, contending that “Plaintiffs are bound to the provisions of the
Location Agreement they negotiated and signed, and consequently, California law governs.”
ECF No. 52 at 9.
To evaluate the effect of a contractual choice-of-law clause, courts in the Tenth Circuit
look to the choice-of-law rules in the forum state. Been v. O.K. Indus., Inc., 495 F.3d 1217, 1236
(10th Cir. 2007). In Utah, “courts generally uphold choice-of-law provisions based on the intent
of the contracting parties and a respect of the parties’ right to choose the governing law for a
contract.” GRB Enters. LLC v. JPMorgan Chase Bank, N.A., No. 2:11-cv-833, 2012 WL 845418,
at *3 (D. Utah Mar. 12, 2012) (citing Innerlight, Inc. v. Matrix Group, LLC, 214 P.3d 854, 857–
58 (Utah 2009)). Furthermore,
Utah law provides that “the law of the state chosen by the parties to govern their
contractual rights and duties will be applied unless either (a) the chosen state has
no substantial relationship to the parties or the transaction and there is no other
reasonable basis for the parties’ choice or (b) application of the law of the chosen
state would be contrary to a fundamental policy of a state which has a materially
greater interest than the chosen state in the determination of the particular issue
which would be the state of the applicable law in the absence of an effective
choice of law by the parties.”
Id. (quoting Elec. Distribs., Inc. v. SFR, Inc., 166 F.3d 1074, 1084 (10th Cir. 1999)) (internal
The Location Agreement provides that, in the event of litigation, the agreement “shall be
governed and construed according to the laws of the State of California in all respects.” ECF No.
13-1 at 7. Consequently, under the rule of Electrical Distributors, California law applies to the
Location Agreement unless one of two exceptions applies: (1) California has no substantial
relationship to the parties or the transaction; or (2) application of California law would be
contrary to a fundamental policy of Utah. Plaintiffs have not argued that applying California law
would be contrary to a fundamental Utah policy, so the Court considers only the first exception.
Plaintiffs are convinced the first exception applies. With unbridled zeal, they
misrepresent the holding in Electrical Distributors, painting the Tenth Circuit’s analysis as
comparing the relative interests of states and holding that “Utah had ‘a greater interest in the
resolution of the issue.’” Id. (quoting Electrical Distributors, 166 F.3d at 1083-1084). In fact,
that court held that “Colorado [had] a substantial connection to the contract,” and that “under
Utah’s choice of law principles, applying the law of the state chosen by the parties in their
contract is permissible.” Electrical Distributors, 166 F.3d at 1084–1086. The court concluded
that the contract was “enforceable under Colorado law, as adopted by the parties.” Id. at 1086.
In the instant case, Utah does have substantial connections with the parties and the
contract. But that is a horse of a different color. The proper inquiry is “whether [the parties’
chosen forum] has a substantial relationship, not a greater relationship than Utah.” GRB Enters.,
2012 WL 845418 at *4. It is undisputed that Wild Horses is an LLC with two members, one of
whom is a resident of California. That connection is sufficient. See Restatement (Second) of
Conflicts of Laws § 187 (1971) (noting that a substantial relationship exists “where one of the
parties is domiciled or has his principle place of business” in the state). Therefore, Plaintiffs are
bound by the terms of the contract they negotiated and signed. California law governs.
VOLUNTARY DISMISSAL OF THE REMAINING COUNTERCLAIM
A. AN OPERATIVE COUNTERCLAIM
Plaintiffs argue that “[i]n point of fact, there is no operative counterclaim voluntarily to
dismiss with prejudice.” ECF No. 49 at ii. And Plaintiffs do not make this assertion as an
alternative. Instead, they go tilting at windmills, maintaining that there is no counterclaim even
as they argue it should not be dismissed. Their bizarre, contradictory assertion rides roughshod
over the Court’s July 18 order that the parties “clarify their intention regarding the remaining
counterclaim in writing.” ECF No. 40. It also flies in the face of Plaintiffs’ previous conduct in
this case. On December 14, 2015, Plaintiffs filed an answer to Wild Horses’ counterclaims,
devoting a full page of text to answering the counterclaim in question. ECF No. 11 at 4–5. And
in two separate motions, Plaintiffs have opposed Defendants’ motions to amend that
counterclaim. ECF Nos. 19 and 30. Now, Plaintiffs attempt to switch horses in midstream and
deny the existence of the same counterclaim they have thrice recognized and whose dismissal
they now oppose. See ECF No. 49.
Plaintiffs’ cavalier position perhaps stems from a misunderstanding of Wild Horses’ most
recent motion to file an amended counterclaim. In short, that motion seeks leave to amend Wild
Horses’ first counterclaim from “Breach of Contract against Plaintiff Larsen” to “Breach of
Contract against Plaintiffs.” ECF No. 26-1 at 4. Wild Horses’ motion to amend did not eliminate
the counterclaim against Larsen.
B. LEGAL PREJUDICE
Now that Plaintiffs have accepted the Rule 68 offer of judgment, Wild Horses asks the
Court to dismiss its remaining counterclaim pursuant to Federal Rule of Civil Procedure
41(a)(2). Rule 41(a)(2) permits a party to dismiss an action voluntarily “only by court order, on
terms that the court considers proper.” See also Brown v. Baeke, 413 F.3d 1121, 1123 (10th Cir.
2005) (internal citation omitted). But “[a]bsent legal prejudice to the defendant, the district court
normally should grant such a dismissal.” Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir.
1997) (internal quotation marks omitted). What, exactly, constitutes “legal prejudice” is not
entirely clear, but the Tenth Circuit has identified four factors courts should consider: “ the
opposing party’s effort and expense in preparing for trial;  excessive delay and lack of
diligence on the part of the movant;  insufficient explanation of the need for a dismissal; and
 the present stage of the litigation.” Id. The Court has broad discretion in determining whether
to dismiss, and its exercise of discretion will be upheld unless it was “arbitrary, capricious,
whimsical, or manifestly unreasonable.” Brown, 413 F.3d at 1124. Considering Defendants’
motion under the factors identified in Ohlander, the Court concludes that each factor favors
1. Plaintiffs’ Effort and Expense in Preparing for Trial
Plaintiffs’ mule-headed insistence that there is no operative counterclaim makes it easy
for the Court to resolve the first factor. If Plaintiffs indeed believe there is no counterclaim, then
certainly they have not spent significant effort or expense preparing to defend against it at trial.
If, on the other hand, they do believe that there is a counterclaim yet to be dismissed and have
spent significant effort or expense preparing to defend against it, then their argument that there is
no counterclaim constitutes a fraud on the Court. The Court assumes the former, and this factor
2. Delay or Lack of Diligence by Wild Horses
Wild Horses has not stalled in prosecuting the counterclaim. Seven days after this case
was removed to this Court, Wild Horses filed an Answer, which included the counterclaim at
issue. When the Court denied Wild Horses’ motion for leave to amend the counterclaim and
granted it 14 days to file a renewed motion, Wild Horses filed a renewed motion 14 days later.
That motion remains pending. There is no evidence that Wild Horses reigned in its prosecution
of the counterclaim, and so this factor also favors dismissal.
3. Explanation of the Need for Dismissal
Wild Horses’ explanation of the need for dismissal is sufficient. Wild Horses has
explained that, once the Complaint was resolved by the Rule 68 offer, “the monetary damages
associated with [the counterclaim’s alleged] breach are ultimately not worth pursuing.” ECF No.
41 at 5. Plaintiffs argue this factor at great length, painting Wild Horses’ motion as a dog-andpony show designed to avoid resolution on the merits and thereby avoid paying for Plaintiffs’
attorneys’ fees. However, “the movant is only required to give more than a ‘perfunctory excuse
about extraneous matters.’” Global Fitness Holdings, LLC v. Federal Recover Acceptance, Inc.,
No. 2:13-cv-00204, 2015 WL 1467352 at *3 (D. Utah Mar. 30, 2015) (quoting Brown, 413 F.3d
at 1126). Avoiding cost and delay is more than a perfunctory excuse, and the third factor favors
4. Present Stage of the Litigation
This case is still in its early stages. Very little discovery has taken place, and the
Scheduling Conference to set a trial date will not occur for another eight months. Therefore, the
fourth factor favors dismissal.
C. ATTORNEY FEES
The Court is surprised to learn that Plaintiffs have incurred expenses—let alone in the
thousands of dollars—defending against a counterclaim they insist does not exist. Yet Plaintiffs
contend that they are “entitled to attorney fees after dismissal of a voluntary operative
counterclaim with prejudice.” ECF No. 49 at 1.
The Location Agreement contains a provision indicating that “[i]f litigation is instituted
to enforce any term of this settlement agreement, the prevailing party shall be entitled to
recovery of its reasonable actual attorneys’ fees and costs incurred in such action." ECF No. 10-1
at 7. The question is whether Plaintiffs are the prevailing party if the Court dismisses Wild
Horses’ counterclaim with prejudice.
Under Utah law, “the defendant is the prevailing party where plaintiff’s complaint is
dismissed with prejudice.” Cobabe v. Crawford, 780 P.2d 834, 837 (Utah App. 1989). However,
as the Court has already explained, the Location Agreement should be interpreted using
California law. Under California Civil Code § 1717(b)(2), “[w]here an action has been
voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no
prevailing party for purposes of this section.” See also Glencoe v. Neue Sentimental Film AG,
168 Cal. App. 4th 874, 876 (2008) (“[W]hen a contract provides that the prevailing party is
entitled to attorney fees and the plaintiff dismisses the action with prejudice after the start of
trial, the defendant is not entitled to attorney fees as the prevailing party.”); Widman v. Keene,
No. 2:10-cv-459, 2017 WL 650063 (D. Utah Feb. 16, 2017) (applying § 1717 in a diversity
action with a California choice-of-law provision). Because California law applies, a voluntary
dismissal with prejudice does not result in a “prevailing party” for purposes of the Location
Agreement. Plaintiffs have to pony up and pay their own fees.
For the reasons above, Wild Horses’ motion to dismiss the counterclaim is GRANTED,
and the counterclaim is DISMISSED WITH PREJUDICE. Because the Court dismisses the
counterclaim, Wild Horses’ pending motion for leave to amend is DENIED AS MOOT. The
parties will bear their own costs and fees as to the counterclaim.
Signed September 27, 2017.
BY THE COURT
Jill N. Parrish
United States District Court Judge
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