Mitchell v. Roberts
MEMORANDUM DECISION AND ORDER to Submit Proposed Question for Certification. Signed by Magistrate Judge Evelyn J. Furse on 4/21/2017. (las)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
MEMORANDUM DECISION AND
ORDER TO SUBMIT PROPOSED
QUESTION FOR CERTIFICATION
Case No. 2:16-cv-00843-EJF
RICHARD WARREN ROBERTS,
Magistrate Judge Evelyn J. Furse
Defendant Richard Warren Roberts moves the Court 1 to dismiss Plaintiff Terry
Mitchell’s Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to
state a claim upon which this Court can grant relief. (Def. Richard W. Roberts’ Mot. to Dismiss
the Compl. (“Mot.”), ECF No. 9.) Mr. Roberts argues the statute of limitations bars Ms.
Mitchell’s claims. (Mot. 2, ECF No. 9.) Ms. Mitchell maintains Utah Code section 78B-2-308
as amended on May 10, 2016 revives her time-barred claims. (Pl.’s Mem. in Opp’n to Mot. to
Dismiss (“Opp’n”) 2, ECF No. 12.) Having reviewed the parties’ briefing on Mr. Roberts’s
Motion to Dismiss, the Court concludes Utah law remains unclear as to whether the legislature
may expressly revive time-barred claims. Accordingly, this Court finds certification of the state
law questions presented by this case to the Utah Supreme Court pursuant to Rule 41 of the Utah
Rules of Appellate Procedure appropriate.
The parties have consented to proceed before the undersigned Magistrate Judge in accordance
with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. (ECF No. 22.)
Mr. Roberts cites State v. Apotex Corp., 2012 UT 36, 282 P.3d 66, for the proposition
that the legislature cannot expressly revive time-barred claims. (Mot. 10, ECF No. 9.) However,
in Apotex, the Utah Supreme Court did not address whether the statute in question contained an
express declaration of retroactivity, despite the State’s raising the issue. 2012 UT 36, ¶¶ 63–67.
Historically, Utah courts have considered “[t]wo rules of statutory construction . . .
relevant to” retroactive operation. Evans & Sutherland Computer Corp. v. Utah State Tax
Comm’n, 953 P.2d 435, 437 (Utah 1997). “One is the ‘long-standing rule of statutory
construction that a legislative enactment which alters the substantive law . . . will not be read to
operate retrospectively unless the legislature has clearly expressed that intention.’” Id. (quoting
Madsen v. Borthick, 769 P.2d 245, 253 (Utah 1998)). “The second relevant rule of statutory
construction, which is often referred to as an exception to the first, permits retroactive
application ‘where a statute changes only procedural law by providing a different mode or form
of procedure for enforcing substantive rights’ without enlarging or eliminating vested rights.’”
Id. at 437–38 (quoting Roark v. Crabtree, 893 P.2d 1058, 1062 (Utah 1995)). “Traditionally,
[the Utah Supreme Court has] begun [its] analysis by applying the first rule of statutory
construction: Only when [it] conclude[s] that retroactive application is not permitted under that
rule do[es] [it] consider whether the second rule of construction permits retroactive operation.”
Id. at 438.
Whether the Apotex decision abrogated the two-part test or merely skipped the first part
of the test because the statute in question did not necessarily include a clear statement of
retroactivity remains unclear. Because Utah Code section 78B-2-308(7) expressly authorizes
retroactive application, the first part of the traditional test would apply, and the Court would not
consider whether the retroactive application affects vested rights. Therefore, whether the Utah
Supreme Court intended to abandon the first part of the test becomes central to the determination
of this case.
Further, the Utah Supreme Court reiterated the two-part test one year after Apotex in
Waddoups v. Noorda, 2013 UT 64, 321 P.3d 1108, making the effect of Apotex on the two-part
test even more in doubt. In Waddoups, the court states that “[l]aws that ‘enlarge, eliminate, or
destroy vested or contractual rights’ are substantive and are barred from retroactive application
absent express legislative intent.” 2013 UT 64, ¶ 8, (quoting Brown & Root Indus. Serv. v.
Indus. Comm’n, 947 P.2d 671, 675 (Utah 1997)). However, the Utah Supreme Court did not
apply the first part of the traditional test because the statute at issue did not expressly address
retroactivity. Id. ¶¶ 9–10. Thus, the statement of the first part of the test remains dicta. Further,
the court never mentions Apotex. Accordingly, this Court finds the applicable state of the law
Under Utah Rule of Appellate Procedure 41(a), “[t]he Utah Supreme Court may answer a
question of Utah law certified to it by a court of the United States . . . if the state of the law of
Utah applicable to a proceeding before the certifying court is uncertain.” The Court ORDERS
the parties to file a proposed “question [or questions] of law to be answered” by the Utah
Supreme Court. Utah R. App. P. 41(c)(1)(A). The parties shall submit either a stipulated
question(s) or individual proposed questions within fourteen (14) days from the date of this
Order. Within fourteen (14) days from the date of that filing, counsel should file any opposition
to the framing of the proposed question or questions filed by opposing counsel if the parties
cannot reach a stipulation.
DATED this 21st day of April, 2017.
BY THE COURT:
EVELYN J. FURSE
United States Magistrate Judge
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