Trepanier v. USA
MEMORANDUM DECISION & ORDER GRANTING MOTION TO DISMISS AND ORDER OF DISMISSAL WITH PREJUDICE. Granting 13 Motion to Dismiss for Failure to State a Claim. Signed by Judge Bruce S. Jenkins on 06/03/2021. (kpf)
2021 JUN 3 AM 9:38
U.S. DISTRICT COURT
ANDREA T. MARTINEZ, Acting U.S. Attorney (9313)
JOHN K. MANGUM, Assistant U.S. Attorney (2072)
TODD C. HILBIG, Assistant U.S. Attorney (8643)
Attorneys for the United States of America
111 S, Main Street, Suite 1800
Salt Lake City, Utah 84111
IN THE UNITED STATES DISTRJCT COURT
DISTRICT OF UTAH
LIONEL P. TREPANIER,
MEMORANDUM DECISION AND
ORDER GRANTING THE UNITED
STATES' MOTION TO DISMISS AND
ORDER OF DISMISSAL WITH
Case No. 2:20-cv-00615-BSJ
Judge Bruce S. Jenkins
On February 26, 2021, the United States filed a Motion to Dismiss. The motion was fully
briefed (see ECF Nos. 13, 17, 18, and 19). A hearing was held before the Court, via Zoom, on
April 23, 2021 (see ECF No. 20). Lionel P. Trepanier appeared prose, and the United States was
represented by Todd C. Hilbig. Based on the parties' written and oral arguments, the pleadings,
and the relevant law, the Court enters the following Memorandum Decision and Order.
In the complaint, Lionel P. Trepanier ("Plaintiff') claimed an intentional tort ofthirdparty spoliation of evidence that allegedly resulted in a lower-than-desired settlement in a
resolved and dismissed civil case in state court. Pursuant to FED. R. Crv. P. 12(b)(6) and FED. R.
CIV. P. 4(m), the United States moved for an order dismissing Plaintiffs Federal Tort Claims Act
(FTCA) action against the United States.
The Court denies the United States' procedural argument that based on FED. R. CIV. P.
4(m) the Plaintiff failed to timely serve the complaint on the United States and that Plaintiff
lacked good cause for the failure. The Court finds, however, pursuant to FED. R. C1v. P. 12(b)(6),
that Plaintiff failed to state a claim upon which relief can be granted because causation between
the alleged tort and any damages is highly speculative and thus not recoverable under state law
and because Utah does not recognize the tort of third-party spoliation of evidence. Plaintiffs
complaint contains no cognizable cause of action under Utah law. Consequently, and for the
additional reasons set forth below, the United States' Motion to Dismiss is granted and this
lawsuit is dismissed with prejudice.
Plaintiff filed his complaint on September 2, 2020. [ECF 1]. His claim relates to an
occurrence on January 31, 2014, in Salt Lake City, Utah, at the Bennett Federal Office Building
(federal building). [ECF 1,, 19]. According to his complaint, Plaintiff was on the plaza of the
federal building engaged in what he claims was lawful protest. Id Plaintiff asserts that he was
approached by private security guards who told him that he could not protest on the plaza of the
federal building. [ECF 1,, 20]. Plaintiff claims that he was attacked by one of the guards and
suffered physical injury. [ECF 1,, 21].
As a result of the incident, a Federal Protective Service (FPS) 1 officer, Devin Cummins,
responded to the scene and issued Plaintiff a criminal citation. [ECF 1, ,r 23]. On February 3,
2014, Plaintiff e-mailed the federal building manager, Andrew Lenz of the General Services
Administration (GSA), and asked that all reports and recordings related to the incident be
preserved for litigation. [ECF 1, ,r 29]. The same day, Mr. Lenz responded to Plaintiff, stating
that the request for preservation was forwarded to DHS. [ECF 1, ,r 30].
Plainti±Ts federal complaint states that on February 2, 2016 [sic]2, Plaintiff filed a civil
lawsuit, while acting prose, in the Third District Court of Salt Lake County, State of Utah, under
case number 150900748. [ECF 1, ,r 3 and 38]. Alleging assault and batte1y among other things,
as well as compensatory and punitive damages, Plaintiff named the private security company,
American Eagle Protective Services (American Eagle), its guard employee, Andrew D. Little,
and John Does A-C as the defendants. Plaintiff did not name the United States in the state court
case. [ECF 1, ,r 3, 38].
During the state court case, Plaintiff sent on December 9, 2015, a state comt subpoena to
GSA seeking a copy of any video of the incident. [ECF 1, ,r 31 and Plaintiffs complaint Exhibit
7]. On February 18, 2016, GSA responded to Plaintiffs subpoena. As part of the response, GSA
shared a copy of a February 3, 2014 e-mail exchange between Mr. Lenz and FPS Utah Area
Commander Ronald Osborne's assistant, Eva Ruiz. Ms. Ruiz explained in the 2014 email that
FPS is the law enforcement agency within the U.S. Department of Homeland Security (DHS)
responsible for security and law enforcement at federal buildings in accordance with 40 U.S.C. §
Plaintiff filed his state court case on February 2, 2015, not February 2, 2016.
Commander Osborne was the only one in the office who could handle anything related to the
incident. [ECF 1, ,r 32-33 and Plaintiffs complaint Exhibit 9].
On June 3, 2016, Plaintiff sent another state court subpoena, this time to DHS/FPS,
requesting a copy of any video of the incident. [ECF 1, ,r 3 5 and Plaintiffs complaint Exhibit
10]. On July 19, 2016, DHS/FPS responded to the subpoena. As part of the response, DHS/FPS
provided Plaintiff with copies of the citation that was issued to him, the FPS Incident Report, and
redacted witness statements. DHS also informed Plaintiff that a search was conducted for any
responsive video, but none was discovered. [ECF 1, ,r 36 and Plaintiffs complaint Exhibit I; see
also Defense Exhibit A, attached to Defendant's motion to dismiss 3].
On or about August 1, 2018, with the advice of counsel at that point, Plaintiff accepted a
settlement offer in the state case in the amount of $75,000. [ECF I, ,r 45-46].
Plaintiff now alleges in the federal complaint before this Court that surveillance video
was deliberately destroyed by Ron Osborne and that, thus, Plaintiff was forced to settle the state
comi claim against American Eagle for ten times less than he could have. [ECF 1, ,r 47-48].
Plaintiff alleges there was a significant possibility that he would have been able to obtain a full
and complete recovery in the lawsuit against the security guard and American Eagle if the video
would have been available to him. [ECF 1, ,r 54].
Defense Exhibit A contains Plaintiffs complaint Exhibit 1, but Defense Exhibit A also includes
the four listed attachments which Plaintiff did not include. [See ECF No. 1 and Plaintiffs
complaint Exhibit 1]. Because Plaintiff did not provide the four listed attachments to his
complaint Exhibit 1, the United States provided those four documents in Defense Exhibit A so
the full and accurate documents could be viewed by the Court.
According to Plaintiffs complaint, he filed an FTCA administrative claim with DHS on
July 18, 2018. [ECF 1, ,r 13]. After review, the Office of the General Counsel for DHS denied
the claim on March 3, 2020. 4 [ECF 1, ,r 14; see also Defense Exhibit B, attached to Defendant's
Motion to Dismiss]. Plaintiff filed suit on September 2, 2020. [ECF 1].
Plaintiff served the United States on January 4, 2021. [See Declaration of John K.
Mangum, civil division chief, U.S. Attorney's Office for the District of Utah (USAO), attached
to Defendant's Motion to Dismiss as Defense Exhibit C; see copy of summons in civil action
showing the receipt date stamp ofUSAO depicting receipt at 8:25 a.m. on January 4, 2021
("RECEIVED 2021 JAN -4, AM 8:25"), attached as Attachment 1 to Exhibit C; and see copy of
USPS Priority Mail envelope, which contained the summons in civil action and the complaint,
showing the postage stamp of 12/28/20, and showing the receipt date stamp ofUSAO depicting
receipt at 8:17 a.m. on January 4, 2021 ("RECEIVED 2021 JAN - 4, AM 8: 17"), attached as
Attachment 2 to Defense Exhibit CJ.
Standards for motion to dismiss.
FED. R. CIV. P. 12(b)(6) states, in part, as follows:
Every defense to a claim for relief in any pleading must be asserted in the
responsive pleading if one is required. But a party may assert the following
defenses by motion: * * * (6) failure to state a claim upon which relief can be
The date of the DHS denial letter was March 2, 2020. [See Defense Exhibit B, attached to
Defendant's Motion to Dismiss.]
Historically, rule 12(b)(6) motions faced a higher hurdle. To prevail, a defendant had to
establish "beyond any doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
This changed with two Supreme Court decisions, Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). No longer must a defendant meet
the Conley standard. Now, a plaintiffs complaint "must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is plausible on its face."' Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570); accord Little v. KPMG LLP, 575 F.3d 533,541 (5th Cir.
A claim is plausible on its face "when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Id. at 678 (citing Twombly, 550 U.S. at 556); Gonzales v. Kay, 577 F.3d 600,603 (5th Cir.
2009); Fields v. Dep 't of Pub. Safety, 911 F. Supp. 2d 373,383 (M.D. La. 2012) (Jackson, J.).
The complaint must contain "allegations plausibly suggesting (not merely consistent with)" an
entitlement to relief. Twombly, 550 U.S. at 557.
The facts in the complaint must "raise a right to relief above the speculative level," and
into the "realm of plausible liability." Id. at 555. In other words, the complaint must allege
enough facts to move past possibility and on to plausibility of"entitlement to relief." Id. at 558.
Determining whether a complaint states a plausible claim for relief [is] ... 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 not "show[n]"-"that the pleader is entitled to relief." Iqbal, 556
U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2))(intemal citation omitted); see also Gonzales, 577
F.3d at 603 (same).
PlaintifPs complaint fails to state a claim upon which relief can be granted
because his alleged damages are purely speculative and therefore not
actionable under Utah law.
Plaintiff failed to provide any articulable causal connection to support his position that
the lack of video resulted in a reduced settlement. In Utah, in order to be recoverable, the alleged
damages must be the proximate result of the defendant's tortious conduct. Stevens en 3rd East, LC
v. Watts, 210 P.3d 977, 987 (Utah Ct. App. 2009). Moreover, the alleged damages must be more
than merely speculative. Id
Plaintiffs sole cause of action is based on the alleged purported deliberate and intentional
erasure by FPS law enforcement officer, Ronald Osborne, of surveillance video of the incident
that occurred between Plaintiff and a private security guard at a federal facility. [ECF No. 1, ,r 2].
Plaintiff specifically claims that what he supposes to be Osborne's "deliberate and unlawful third
party evidence destruction" caused his loss of value and loss of recovery in his state comt lawsuit
against the security guards and their employer. [ECF No. 1, ,r 4]. Yet Plaintiff admitted at the
hearing held on April 23, 2021, that he never deposed Mr. Osborne in the state court action.
Here, Plaintiff is speculating that had he been able to obtain video of the incident, he
would have been able to use it to secure more money, perhaps an additional $675,000 in his
settlement with American Eagle. [ECF No. 1, ,r 58 and 59]. Settlements in civil actions are the
result of countless factors, and Plaintiff has not demonstrated that it is plausible that having any
video would have changed the settlement amount. Plaintiffs medical records were the best
evidence of his alleged damages, and there is no evidence such records were not fully available
to Plaintiff and his adverse parties in the previously settled, civil state court lawsuit.
Moreover, Plaintiff is operating on the assumption that even ifhe had been provided
video he requested, that such video would have captured the altercation between him and the
security guards and that the images would have helped him prove his case. Indeed, the FPS
officer who responded to the incident, Devin Cummins, attempted to view video footage from
the cameras in the Federal Reserve Building, which is across the street from the Bennett Federal
Building, within merely minutes or hours after the subject incident. Mr. Cummins stated that no
video from the Federal Reserve Building existed that captured the incident in his written report
dated the same day as the incident. Mr. Cummins typed this at the conclusion of his report:
"Video footage was attempted to be obtained from the Federal Reserve across State Street.
However, they only had footage after the incident occurred." [See FPS Incident report, final
paragraph of third page of three-page report, case number D14001113, Type of Offense or
Incident: Demonstrations and Disturbances - disorderly conduct, 1-31-2014; contained in
Defense Exhibit A, see p. 19 of 27.]
Given that Plaintiffs entire complaint is premised on both speculated facts and a
speculative claim for damages, the Court dismisses the case for failure to state a claim.
Plaintifrs complaint fails to state a claim because it is premised on an
intentional tort not recognized by the State of Utah.
Plaintiff seeks to hold the United States liable nnder the Federal Tort Claims Act
(FTCA), 28 U.S.C §§ 1346(b), 2671-80. [ECF 1, 1 l]. The FTCA, however, does not permit
Plaintiffs cause of action.
Generally, the FICA is a plaintiffs exclusive remedy for claimed injuries and damages
sought against the United States. 28 U.S.C. § 2679(b). The FICA waives the United States'
sovereign immunity for certain tort claims. The FICA waives sovereign immunity only for
injuries caused by a "negligent or wrongful act or omission" performed by a federal employee.
28 U.S.C. § 2679(b)(l). Sovereign immunity is only waived when the alleged negligent act or
omission was committed by an "employee of the Government while acting within the scope of
his office or employment." 28 U.S.C. § 1346(b)(l).
But most important to this particular case, the FICA waives sovereign immunity with
respect to tort liability "under circumstances where the United States, if a private person, would
be liable to the claimant in accordance with the law of the place where the act or omission
occurred." 28 U.S.C. § 1346(b)(emphasis added). The FICA does not waive the sovereign
immunity of the United States in all respects. For example, the United States is not liable to a
claimant where a private person would not be liable to the claimant because the law of the place
where the act or omissions occu1Ted does not recognize a particular cause of action. Here, in
Utah, there is no cause of action in tort for spoliation of evidence.
Plaintiff cites Hills v. United Parcel Service, Inc. 232 P.3d 1049 (Utah 20 I 0), as standing
for the proposition that the state of Utah recognizes the tort of spoliation of evidence. [ECF No.
I, 149-52]. Plaintiffs reading of the case is inco1Tect.
In Hills, the Utah Supreme Court specifically declined to recognize the independent tort
of spoliation of evidence. Id. at 1057-58. There, the decedent died after being electrocuted. His
employer investigated the incident and attributed it to faulty electrical work. In investigating the
cause of the accident, the employer instructed its electrical contractor to disassemble an electrical
box that appeared to be the source of the problem, and during that process, a plastic wall anchor
disappeared. The decedent's parents filed a wrongful death action against the contractor but then
they also later sued the employer and contractor for destroying evidence. The contractor admitted
it was liable for the decedent's accidental death, and spoliation was a derivative claim. The
employer filed a motion to dismiss under Rule 12(b)( 6) of the Utah Rules of Civil Procedure.
The district court dismissed the spoliation complaint, concluding that Utah did not recognize a
cause of action for third-party spoliation. Id. 1050-59.
On review of the judgment of dismissal, the Utah Supreme Court affirmed. Because the
contractor conceded liability in the primary wrongful death action, the damages awarded in that
action would subsume any spoliation damages. Therefore, adopting a spoliation claim under the
facts of the case would be a wholly academic exercise that would not affect the rights of the
parties. While one justice raised concerns, in dicta, related to hypothetical intentional spoliation
of evidence by a third-party, and went to great lengths to discuss the pros and cons of adopting
such a tort, the Court ultimately decided not to do so and affirmed the trial court's decision to
grant the defendant's motion to dismiss. Id.
Even though this court has not addressed the issue of third-party spoliation under the
FTCA, it has recognized that the tort of third-party spoliation does not exist in the state ofUtah. 5
The Tenth Circuit Court of Appeals has addressed the third~party spoliation issue under the
FTCA in Estate ofTrentadue ex rel Auguilar v. United States, 397 F.3d 840 (10th Cir. 2005).
There, the Circuit Court upheld the District Court for the Western District of Oklahoma's
dismissal of the spoliation tort claim against the United States because "spoliation is not a
recognized tort in Oklahoma." Id. at 862.
See, Cook Associates, Inc. v. PCS Sales (USA) Inc., 271 F. Supp. 2d 1343, 1357 (D. Utah 2003),
citing, Burns v. Cannondale Bicycle Co., 876 P.2d 415,419 (Utah Ct. App. 1994).
The Cook decision was prior to Hills. But the Utah Supreme Court has not revisited the
issue in over ten years, and several Utah trial-level courts have cited the Hills case to reiterate
that Utah does not recognize spoliation as an independent tort. In re Weston, 2014 WL 4774368
*3 (State District Court of Utah, No. 033100174, Aug. 18, 2014) (unpublished); Harris v. Mutti,
2016 WL 11575162 *2 (State District Court of Utah, No. 150904953, July 22, 2016)
Moreover, it is highly unlikely that the Utah Supreme Court would view the suit by Mr.
Trepanier as appropriate to consider adopting the tort of third-party spoliation. In Hills, the
Supreme Court was motivated in its decision, at least in part, by the fact that the contractor
defendant in the case had already admitted liability in the underlying wrongful-death action.
Hills, 232 P. 3d at 1057-58. Similarly, in this case, Plaintiffhas already settled with the
contractor security company and security guard who allegedly assaulted and battered him. While
the settlement may have been made without a specific admission of liability on the part of the
company or its guard, the fact of settlement renders the issue of fault moot, much like the
situation in the Hills case.
Lastly, Plaintiff was fully aware, as a result ofDHS/FPS' response to his state court
subpoena, that video of the occurrence did not exist. And yet he went forward with settling his
state court case anyway. That was, of course, Plaintiffs choice. He never added or named the
United States or Utah Area Commander, Ronald Osborne, to his state court case. Had Plaintiff
wanted to bring the United States or Commander Osborne as parties into his ongoing litigation
with American Eagle, he could have done so prior to settling his state court case. He chose not to
add the United States or other parties to his state court case. This Court will not permit Plaintiff
another bite at the apple seven years after the fact.
Given that Plaintiffs entire complaint contains one cause of action that is premised on a
tort not recognized by Utah, the Court is left with no choice but to dismiss the case for failure to
state a claim.
Conclusion and ruling.
Having reviewed all the relevant materials, and as stated at the end of the hearing on
April 23, 2021 (see ECF No. 20), the Court denies the United States' procedural argument that
based on FED. R. CIV. P. 4(m) the Plaintiff failed to timely serve the complaint on the United
States and that Plaintiff lacked good cause for the failure. However, the Court finds that
Plaintiffs complaint failed to state a claim upon which relief can be granted because causation
between the alleged tort and any damages is highly speculative and thus not recoverable under
state law and because Utah does not recognize the tort of third-party spoliation of evidence.
Accordingly, under FED. R. C1v. P. 12(b)(6), Plaintiffs complaint is dismissed.
IT IS HEREBY ORDERED that the United States' Motion to Dismiss is GRANTED,
and Plaintiffs complaint is DISMISSED with prejudice.
~~ay of J11"' <,, 2021.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I am an employee of the United States Attorney's Office, and
that a copy of the foregoing proposed Memorandum Decision and Order Granting the United
States' Motion to Dismiss and Order of Dismissal With Prejudice was delivered via E-mail,
and US. Mail, to the party named below on this 30 th day of April, 2021.
Lionel P. Trepanier (LionelTrepanier@gmail.com)
1263 E. South Temple #14
Salt Lake City, Utah 84102
Isl Todd Hilbig
Office of the United States Attorney
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