Freddys Tow Auto Service v. State of Utah Department of Transportation et al

Filing 57

MEMORANDUM DECISION AND ORDER granting in part and denying in part 31 Motion for Summary Judgment. Unabandoned state-law claims are REMANDED to the state court from which this case was removed. Signed by Magistrate Judge Jared C. Bennett on 3/7/2025. (alf)

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THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
FREDDYS TOW AUTO SERVICE LLC, a
Utah limited liability company,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.
STATE OF UTAH DEPARTMENT OF
TRANSPORTATION, a Utah
governmental agency; COURTNEY
MINCHEY, an individual; and DOES 1-5,
Defendants.

Case No. 2:23-cv-00296-JCB

Magistrate Judge Jared C. Bennett

Under 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, all parties have consented to Judge
Jared C. Bennett conducting all proceedings in this case, including entry of final judgment. 1
Before the court is Defendants Utah Department of Transportation (“UDOT”) and Courtney
Minchey’s (now known as “Courtney Graham”) (“Ms. Graham”) (collectively, “Defendants”)
motion for summary judgment. 2 The court held oral argument on the motion on January 13,
2025. 3 At the conclusion of the hearing, the court took the motion under advisement. The court
has carefully considered the parties’ written submissions and counsel’s oral arguments. Based
upon the analysis set forth below, the court grants Defendants’ motion as to the federal claims

1

ECF No. 16.

2

ECF No. 31.

3

ECF No. 54.

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in this action and dismisses those claims with prejudice. The court also dismisses with
prejudice the claims that Plaintiff Freddys Tow Auto Service LLC (“Freddys”) abandoned at
oral argument. However, the court denies Defendants’ motion as to Freddys’s remaining
state-law claims because under 28 U.S.C. § 1367(c), and as the United States Court of Appeals
for the Tenth Circuit strongly encourages, the court remands those claims to the state court
from which this action was originally removed.
UNDISPUTED FACTS
I.

Background
Federico Cuello (“Mr. Cuello”) owns Freddys and other tow truck companies. 4 UDOT

certified Freddys as a tow truck motor carrier business, which authorized Freddys to provide
public towing services, in 2018. 5 Under Utah law, a tow truck operator must recertify every
two years with UDOT if the operator wants to continue its tow truck services. 6 During the
recertification process, UDOT audits the tow truck operator to ensure compliance with state
and federal law. 7
Prior to Freddys seeking its tow truck operator recertification, UDOT received
complaints about how much Mr. Cuello’s tow truck entities, including Freddys, were charging

4

ECF No. 31-8; ECF No. 31-2 at 12:7-8, 13:22-14:11.

5

ECF No. 31-2 at 7:17-8:8.

6

Utah Code Ann. § 72-9-602(1)(b).

7

Id. § 72-9-602(1)(a); ECF No. 31-9 at 25:19-26:10.
2

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for tow services. 8 UDOT assigned Ms. Graham to investigate these complaints. 9 Ms. Graham
met with Mr. Cuello and discussed with him issues regarding his fuel surcharges and that many
of the tows were taking more than one hour, among other things. 10 Tows taking over one hour
was a data point that UDOT considered to evaluate whether tow truck companies were
overcharging the public in addition to ensuring that accidents were quickly cleared for safety
reasons. 11
In November 2022, Freddys sought recertification from UDOT. 12 On November 16,
2022, Ms. Graham informed Mr. Cuello about her uncertainty as to whether UDOT would
approve Freddys’s recertification because her supervisors were reviewing Freddys’s tow
tickets. 13 In response, Mr. Cuello said that he would take legal action against UDOT. 14 Ms.
Graham replied that she was only explaining why the recertification process was taking longer
than usual and requested that Mr. Cuello provide additional tow tickets that he had previously
8

ECF No. 31-5 at 76:14-21, 78:19-23, 82:2-5, 83:24-85:2, 110:22, 130:14-132:9; ECF No.
31-7 at 2-8 of 111; ECF No. 31-9 at 37:21-22, 39:20-21; ECF No. 31-11 at 35:24-25. Freddys’s
hearsay objection is overruled because the complaints UDOT received are not being submitted
for the truth of the matter asserted under Fed. R. Evid. 801(c). At issue here is not whether
Freddys actually overcharged for its tow services but rather the basis UDOT had to look into
whether Freddys had overcharged. In any event, a law-enforcement officer’s “out of court
statements are not hearsay when offered for the limited purpose of explaining why a
Government investigation was undertaken.” United States v. Freeman, 816 F.2d 558, 563 (10th
Cir. 1987).
9

ECF No. 31-5 at 50:11-15.

10

ECF No. 31-2 at 64:13-18; ECF No. 31-5 at 76:10-78:2, 78:8-11, 138:24-139:12; ECF No.
31-9 at 54:12-21.

11

ECF No. 31-5 at 154:16-155:15.

12

ECF No. 31-6 at 2-54 of 107.

13

ECF No. 31-5 at 80:13-81:5; ECF No. 31-6 at 55 of 107.

14

ECF No. 31-2 at 139:6-14; ECF No. 31-6 at 55 of 107.
3

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mentioned in an email. 15 Mr. Cuello refused to produce the additional tow tickets and, instead,
rejoined that he would “save [his] evidence for court.” 16
While UDOT was adjudicating Freddys’s recertification, Freddys’s certification lapsed
for approximately 96 hours. 17 After concluding that the applicable rules and regulations
precluded denial of recertification based on tows taking longer than one hour, 18 UDOT
approved Freddys’s recertification on November 22, 2022. 19 Although approved, UDOT failed
to send Freddys’s actual certification to Mr. Cuello. 20 Sadly, Mr. Cuello did not follow up with
UDOT about not receiving his recertification, 21 and UDOT did not follow up with Mr. Cuello
to notify him the recertification had been approved, but the physical UDOT recertification for
Freddys was later provided to Mr. Cuello.
II.

Procedural Background
Freddys filed this action originally in Utah Fourth District Court against Defendants. 22

Freddys’s complaint alleged 10 causes of action: (1) 42 U.S.C. § 1983 for allegedly violating
Freddys’s constitutional right to equal protection under the Fourteenth Amendment; (2) Article
I § 24 of the Utah Constitution for purportedly failing to abide by the Uniform Operations

15

ECF No. 31-6 at 55 of 107.

16

Id.

17

ECF No. 31-11 at 38:1-8.

18

ECF No. 31-9 at 20:1-7; ECF No. 31-11 at 32:24-33:6.

19

ECF No. 31-5 at 121:15-17; ECF No. 31-6 at 105-06 of 107; ECF No. 31-11 at 12:25-14:1;
ECF No. 31-14 at 3-4, 6 of 6.
20

ECF No. 31-5 at 124:10-15.

21

ECF No. 31-2 at 145:22-147:4.

22

ECF No. 3-3.
4

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Clause; (3) breach of an implied-in-fact contract; (4) declaratory judgment that UDOT had
violated a contract with Freddys; (5) breach of contract against UDOT regarding Freddys’s
recertification and lost opportunities by not having the recertification; (6) breach of the implied
covenant of good faith and fair dealing; (7) promissory estoppel; (8) intentional interference
with economic relations; (9) attorney fees for Freddys’s section 1983 claims and for bad faith
action under state law; and (10) civil conspiracy to commit the intentional tort of interfering
with economic relations. 23 Defendants removed the action to this court. 24
Eventually, Defendants moved for summary judgment on all 10 of Freddys’s causes of
action. 25 As to Freddys’s federal claims (i.e., the first cause of action under section 1983 and
request for attorney fees under 42 U.S.C. § 1988), UDOT argued that neither a state agency nor
its employees sued in their official capacity qualify as a “person” under section 1983. 26 Ms.
Graham then argued that to the extent that Freddys was suing her in her official capacity, she
was entitled to qualified immunity.27 UDOT further argued that: (1) it did not violate the Utah
Constitution; (2) no contract (implied or actual) existed between UDOT and Freddys, which
precludes any of the contract-based causes of action; (3) the Utah Governmental Immunity Act
bars intentional torts such as those alleged in causes of action 8 and 10; and (4) declaratory
judgment is a remedy, not a cause of action; (5) and promissory estoppel is not cognizable
against the government.
23

Id.

24

ECF No. 3.

25

ECF No. 31.

26

Id. at 24.

27

Id. at 34-39.
5

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Freddys opposed Defendants’ motion. 28 As to the federal claims, however, Freddys’s
brief fails to discuss whether UDOT or Ms. Graham in her official capacity could each be a
“person” under section 1983. Additionally, as to Ms. Graham in her individual capacity,
Freddys entirely failed to mention the phrase “qualified immunity” much less present any
argument about it. Instead, Freddys contends that Defendants violated the Equal Protection
Clause of the Fourteenth Amendment by favoring other tow truck companies over Freddys by
applying the “one-hour rule” to Freddys and to no one else. 29 Defendants replied in support of
their original motion for summary judgment. 30
On January 13, 2025, the court convened oral argument on Defendants’ motion for
summary judgment. 31 There, Freddys’s counsel conceded that neither UDOT nor Ms. Graham
in her official capacity qualifies as a “person” under section 1983, 32 thereby abandoning any
official capacity claims under section 1983. Freddys’s counsel also abandoned the seventh and
eighth causes of action. 33 The remainder of this opinion will not discuss further these
abandoned claims and arguments. As to the remaining causes of action, however, the court and
the parties had a lengthy discussion, after which the court took the matter under advisement.
After due consideration of the briefs, the authorities cited therein, and oral argument,
the court grants summary judgment as to the federal claims (i.e., Freddys’s section 1983 claim

28

ECF No. 48.

29

Id. at 34.

30

ECF No. 52.

31

ECF No. 54.

32

ECF No. 55 at 12:1-9.

33

Id. 90:23-91:6; 92:22-24; 95:23-96:3.
6

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against Ms. Graham in her individual capacity and request for attorney fees) because Freddys
cannot overcome Ms. Graham’s qualified immunity defense. Accordingly, the court dismisses
that section 1983 claim with prejudice and, a fortiori, the concomitant claim for attorney fees.
At the same time, the court denies Defendants’ motion for summary judgment on Freddys’s
unabandoned state-law claims and remands those claims to the state court from which this case
was removed. After setting forth the applicable legal standards for deciding Defendants’
motion for summary judgment, the court explains why: (I) Ms. Graham is entitled to qualified
immunity (and, therefore, summary judgment); and (II) this court remands the remaining
state-law claims that Freddys did not abandon at oral argument to the state court from which
this case was removed.
LEGAL STANDARDS
Summary judgment should be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 34
“Judgment as a matter of law is appropriate when the nonmoving party has failed to make a
sufficient showing on an essential element of his or her case with respect to which he or she
has the burden of proof.” 35 “When applying this standard, [the court] view[s] the evidence and
draw[s] reasonable inferences therefrom in the light most favorable to the nonmoving party.” 36

34

Fed. R. Civ. P. 56(a).

35

Shero v. City of Grove, 510 F.3d 1196, 1200 (10th Cir. 2007).

36

Fowler v. United States, 647 F.3d 1232, 1237 (10th Cir. 2011) (quotations and citation
omitted).
7

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However, where, as here, a defendant asserts a qualified immunity defense, the court’s
review changes slightly. 37 “When a defendant asserts qualified immunity at summary
judgment, the burden shifts to the plaintiff to show that: (1) the defendant violated a
constitutional right and (2) the constitutional right was clearly established.” 38 “If, and only if,
the plaintiff meets this two-part test does a defendant then bear the traditional burden of the
movant for summary judgment—showing that there are no genuine issues of material fact and
that he or she is entitled to judgment as a matter of law.” 39
ANALYSIS
I.

Freddys Cannot Overcome Ms. Graham’s Assertion of Qualified Immunity.
Freddys fails to carry its heavy burden to overcome Ms. Graham’s qualified immunity

defense. “Once a defendant raises the defense of qualified immunity, the burden shifts to the
plaintiff . . . [to] satisf[y] a heavy two-part burden.” 40 First, Freddys “must demonstrate that
[Ms. Graham] violated a [federal] constitutional or statutory right.” 41 Second, Freddys must
show “that the right at issue was clearly established at the time of [Ms. Graham’s] unlawful
conduct.” 42 If Freddys cannot make both showings, then Ms. Graham is entitled to qualified
immunity and, consequently, summary judgment.43 However, if Freddys carries this heavy

37

Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009).

38

Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009).

39

Clark v. Edmunds, 513 F.3d 1219, 1222 (10th Cir.2008) (quotations and citation omitted).

40

Neal v. Lewis, 414 F.3d 1244, 1247 (10th Cir. 2005) (alterations in original) (quotations and
citation omitted).
41

Id. (quotations and citation omitted).

42

Id. at 1248 (quotations and citation omitted).

43

Id.
8

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burden, then “the burden shifts to [Ms. Graham] to prove that there are no genuine issues of
material fact and that . . . she is entitled to judgment as a matter of law.” 44
Surprisingly, Freddys’s memorandum in opposition to Defendants’ motion for summary
judgment does not even mention qualified immunity much less address each of the required
elements to overcome Ms. Graham’s qualified immunity defense. 45 This failure to even brief
its burden, by itself, suffices to entitle Ms. Graham to qualified immunity and judgment as a
matter of law. However, even if the court liberally reads Freddys’s opposition memorandum as
somehow addressing qualified immunity, Freddys cannot meet its burden on either element.
Therefore, Ms. Graham is entitled to judgment as a matter of law.
A. Freddys Cannot Show That Ms. Graham Violated the Equal Protection Clause.
Freddys falls well short of establishing that Ms. Graham violated the Equal Protection
Clause because delaying issuance of Freddys’s tow certification survives rational-basis
scrutiny. A rational-basis standard of review of government action applies when a plaintiff
claims to be arbitrarily treated differently than others who are similarly situated to the plaintiff
based on reasons other than discrimination for being part of a suspect or quasi-suspect class or
engaging in protected activity.46 Here, Freddys is not claiming that Ms. Graham discriminated
against it based on it being part of a suspect or quasi-suspect class or for engaging in protected
activity. Instead, Freddys claims that Ms. Graham favored other companies over Freddys by

44

Id. (quotations and citation omitted).

45

ECF No. 48 (failing to even mention the phrase “qualified immunity” much less providing
any analysis as to each required element that Freddys is required to establish).
46

Wasatch Equality v. Alta Ski Lifts Co., 55 F. Supp. 3d 1351, 1360 (D. Utah 2014), aff’d 820
F.3d 381 (10th Cir. 2016).
9

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applying the “one-hour rule” to Freddys and no other tow company. 47 Therefore, the court
applies rational-basis scrutiny to Ms. Graham’s actions.
When applying rational-basis scrutiny to government action “neither involving
fundamental rights nor proceeding along suspect lines[, the government action] is accorded a
strong presumption of validity.”48 This strong presumption of validity recognizes that the Equal
Protection Clause cannot turn federal courts into “second-guessers of all executive branch
decisions.” 49 Indeed, as the Tenth Circuit observed,
[T]he concept of a class-of-one equal protection claim could
effectively provide a federal cause of action for review of almost
every executive and administrative decision made by state actors. It
is always possible for persons aggrieved by government action to
allege, and almost always possible to produce evidence, that they
were treated differently from others, with regard to everything from
zoning to licensing to speeding to tax evaluation. It would become
the task of the federal courts and juries, then, to inquire into the
grounds for differential treatment and to decide whether those
grounds were sufficiently reasonable to satisfy equal protection
review. This would constitute the federal courts as general-purpose
second-guessers of the reasonableness of broad areas of state and
local decision making: a role that is both ill-suited to the federal
courts and offensive to state and local autonomy in our federal
system. 50
The Tenth Circuit further observed that the improper “second-guesser” role of federal courts
becomes “magnified” in Equal Protection Clause actions dealing “with challenges to low-level

47

ECF No. 48 at 34; see also ECF No. 3-3 at ¶¶ 119-20 (stating that Ms. Graham deprived
Freddys of equal protection by not issuing certifications based on the “one-hour rule” even
though Ms. Graham allegedly did not hold other companies to the same standard).
48

Heller v. Doe, 509 U.S. 312, 319 (1993).

49

Wasatch Equality, 55 F. Supp. 3d at 1366 (citing Jennings v. City of Stillwater, 383 F.3d
1199, 1210-11 (10th Cir. 2004)).

50

Jennings, 383 F.3d at 1210-11.
10

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government decision-making, which often involves a great deal of discretion,” because “[i]f
even innocuous inconsistencies gave rise to equal protection litigation, government action
would be paralyzed.” 51
Given the strong presumption of validity that attaches to government action under
rational-basis review, “a classification must be upheld against equal protection challenge if
there is any reasonably conceivable state of facts that could provide a rational basis for the
classification.” 52 In terms of burden allocation, Ms. Graham “has no obligation to produce
evidence to sustain the rationality of” government action. 53 Instead, Freddys bears the burden
“to negative every conceivable basis which might support it,” regardless of whether that basis
“has a foundation in the record.” 54 Freddys’s opposition to Ms. Graham’s motion for summary
judgment comes nowhere close to meeting this burden because it entirely fails to mention the
rational-basis standard and, consequently, fails to address—much less negate—every
conceivable basis for Ms. Graham delaying the issuance of Freddys’s tow certification.
Nevertheless, as shown below, even if the court liberally reads Freddys’s opposition
memorandum, a rational basis exists for delaying issuance of Freddys’s certificate even though
the so-called “one-hour rule” lacks the force and effect of law.
Because Freddys’s attack for the delayed issuance of its tow certifications is based on
the so-called “one-hour rule” allegedly being outside of Ms. Graham’s and her department’s

51

Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1216-17 (10th Cir. 2011).

52

Heller, 509 U.S. at 320 (emphasis added) (quotations and citations omitted).

53

Id.

54

Id. at 320-21 (emphasis added).
11

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authority, the court begins by discussing the investigatory powers that the Utah Legislature
provided to UDOT. The Utah Legislature empowered UDOT to “inspect, investigate, and
certify tow truck motor carriers, tow trucks, and tow truck operators to ensure compliance with
this chapter and compliance with Sections 41-6a-1406 and 41-6a-1407.” 55 These statutes
referenced in the prior sentence empower UDOT to investigate for purposes of ensuring
compliance with, among other things, the statutes governing fees charged for tows that a tow
truck operator performs. The statute providing investigatory powers to UDOT omits any
limitations as to how investigations should be conducted or what criteria UDOT should or
should not consider to determine whether additional scrutiny of a tow truck operator is
warranted during the certification or recertification process. And where, as here, the legislative
branch bestows upon an executive branch agency broad investigative authority, courts
uniformly recognize the executive agency’s ability to “investigate merely on suspicion that the
law is being violated, or even just because it wants assurance that it is not.” 56
By illustration, in Foxman v. Renison, 57 the plaintiff alleged that the Internal Revenue
Service (“IRS”) had violated the Equal Protection Clause by singling him out for a tax audit
because the IRS agent had a “dislike for dentists, especially those who, like [the plaintiff], deal
exclusively with Medicaid patients.” 58 The Second Circuit affirmed the district court’s

55

Utah Code Ann. § 72-9-602(1)(a).

56

United States v. Powell, 379 U.S. 48, 57 (1964) (quoting United States v. Morton Salt Co.,
338 U.S. 632, 642-43 (1950)); see also United States v. Chemical Bank, 593 F.2d 451, 456
(2nd Cir. 1979).
57

625 F.2d 429 (2d Cir. 1980).

58

Id. at 431.
12

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dismissal of the plaintiff’s Equal Protection Clause claim precisely because the IRS was
empowered to investigate not only on the suspicion of wrongdoing but also “just because it
want[ed] the assurance that” the law was not being violated. 59 Moreover, the IRS had concerns
about the plaintiff understating his tax burden. 60 Thus, conducting an audit of a taxpayer did
not violate the Equal Protection Clause. 61
Consistent with Foxman, UDOT has broad discretion from the Utah Legislature to
investigate not only potential wrongdoing but also merely because it wants the assurance that
Freddys is not violating the law. The record shows that Freddys had been the subject of
complaints regarding how much it was charging for its tow services. In addition to the fuel
surcharge, the amount of time Freddys was spending to complete a tow is a concern for
evaluating the propriety of its towing costs. This, by itself, provides a rational basis for further
investigating Freddys and delaying the issuance of its certification.
Nevertheless, Freddys contends that Ms. Graham lacked a rational basis because she
inappropriately applied the “one-hour rule” against Freddys. As a threshold matter, Freddys’s
use of the term “one-hour rule” is a misnomer because it is not a “rule” (i.e., having the force
and effect of law). Instead, the so-called “one-hour rule” was a criterion that Ms. Graham used

59

Id. (quotations and citations omitted).

60

Id.

61

Id.; see also Raheja v. Comm’r of Internal Revenue, 725 F.2d 64, 67 (7th Cir. 1984)
(rejecting Equal Protection Clause claim for alleged arbitrary and selective audit of taxpayer
because IRS has the ability to investigate for wrongdoing or to satisfy itself that no wrongdoing
occurred); Small Bus. Admin. v. Barron, 240 F. Supp. 434, 445 (W.D.S.C. 1965) (recognizing
that Small Business Administration had authority to investigate violations of law for which the
agency was responsible and because it merely wanted assurances that the law was not being
violated).
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to determine whether further investigation was warranted, and if Ms. Graham’s use of the
inaptly named “one-hour rule” creates an equal protection problem, law enforcement efforts
are doomed because law enforcement of both a criminal and an administrative nature develop
criteria based on training and experience to determine whether to further investigate a subject.
For example, suppose that a law enforcement officer observes that a home in a quiet
neighborhood experiences a steady stream of visitors who pull up to the house, exit their
vehicle, go into the house, remain inside for between one and two minutes, and come out with
a small bundle of something in their hands. Based on that officer’s training and experience,
such a pattern may cause the officer to further investigate whether the home is being used to
sell illicit narcotics. Notice, however, that the officer decided to investigate further even though
there is may not be any federal, state, or local law declared by any legislative body, executive
agency, or court that would preclude such a traffic or use pattern at the home. That this pattern
at the home raises suspicion and causes a law enforcement officer to investigate further does
not mean that the officer has either created the “residential foot traffic pattern rule” or
improperly imbued it with the force and effect of law. To the contrary, a duly authorized
investigator using her/his training and experience to decide when circumstances warrant further
investigation does not, without more, create a cause of action under the Equal Protection
Clause.
Using the so-called “one-hour rule” as a reason to further investigate Freddys’s towing
practices is all Ms. Graham did here. UDOT was aware of complaints concerning Freddys’s
towing practices and observed that most of those tows were taking longer than one hour to
perform. But instead of treating the inaptly designated “one-hour rule” as a mandate with the
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force and effect of law that could deprive Freddys of a certification, Ms. Graham merely used
the one-hour mark as part of the criteria to determine whether further investigation into
Freddys’s towing practices was warranted. The “one-hour rule” did not result in UDOT
denying Freddys’s certification because UDOT ultimately certified Freddys’s towing
operations. And, even though there was a delay in Freddys receiving its certification from
UDOT, nothing in the law requires UDOT’s investigation to be concluded by the time a tow
truck operator’s prior certification expires. Indeed, second guessing the timing and intensity of
UDOT’s investigation into towing practices is precisely the function that federal courts are not
allowed to perform under the auspices of rational-basis scrutiny under the Equal Protection
Clause. Accordingly, Freddys cannot show that Ms. Graham lacked a rational basis to further
investigate its towing practices especially given the breadth of UDOT’s investigative authority
and because Ms. Graham can permissibly rely on her training and experience to decide whether
to investigate further. Therefore, Freddys has failed to establish that Ms. Graham violated the
Constitution, which entitled her to both qualified immunity and summary judgment.
B. Even if Freddys Could Prove a Constitutional Violation, It Cannot Show That the
Violation Was Clearly Established.
Even if Freddys could show that using the “one-hour rule” to further investigate
Freddys and delay issuance of its certification was a constitutional violation, it cannot show
that said violation was clearly established.
A clearly established right is one that is sufficiently clear that every
reasonable official would have understood that what he is doing
violates that right. We do not require a case directly on point, but
existing precedent must have placed the statutory or constitutional
question beyond debate. Put simply, qualified immunity protects all

15

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but the plainly incompetent or those who knowingly violate the
law. 62
Even assuming, arguendo, that Ms. Graham violated the Constitution, Freddys has failed to
provide, and this court cannot find, any authority that is remotely close to the facts and
circumstances of this action that would have put Ms. Graham on notice that her conduct
violated the Equal Protection Clause. In fact, Freddys’s opposition to Ms. Graham’s motion
fails to even mention at all the “clearly established” requirement much less provide any
relevant authority. And Freddys’s counsel at oral argument failed to provide any case remotely
close to the facts of this one in support of Freddys’s after-the-fact attempt to meet its burden. In
any event, the closest case that the court can find to this action is Foxman, which clearly shows
that a decision to perform an audit is well within an executive agency’s ability to not only
investigate possible violations of law but also to investigate solely to assure that the law is not
being violated. 63 Thus, the existing authority strongly suggests that Ms. Graham’s actions were
constitutional. Accordingly, Freddys cannot show that the alleged constitutional violation in
this action is clearly established, which entitles Ms. Graham to qualified immunity and
summary judgment. 64

62

Mullenix v. Luna, 577 U.S. 7, 11-12 (2015) (quotations and citations omitted).

63

625 F.2d at 431.

64

Because Ms. Graham is entitled to summary judgment on Freddys’s first cause of action
under section 1983, Ms. Graham is also entitled to summary judgment as to the portion of
Freddys’s ninth cause of action seeking attorney fees that are entirely based on the success on
Freddys’s section 1983 claim.
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This Court Remands All State Claims That Freddys Did Not Abandon at Oral
Argument.
Although this court would prefer to address the remaining state-law claims in this

action that Freddys still contests, this court cannot and should not ignore the Tenth Circuit’s
clear admonitions regarding when this court should remand to state court after deciding the
federal claims. In Koch v. City of Del City, the Tenth Circuit affirmed the district court’s
remand of all remaining state-law claims where the only federal claim decided on summary
judgment was, like this case, decided under section 1983. 65 In affirming the post-summaryjudgment remand to state court, the Tenth Circuit quoted its oft-used phrase that “[w]hen all
federal claims have been dismissed, the court may, and usually should, decline to exercise
jurisdiction over any remaining state claims.” 66 The court notes that the Tenth Circuit’s
statement is grounded in, among other things, the United States Supreme Court’s statement that
[n]eedless decisions of state law should be avoided both as a matter
of comity and to promote justice between the parties, by procuring
for them a surer-footed reading of applicable law. Certainly, if the
federal claims are dismissed before trial, even though not
insubstantial in a jurisdictional sense, the state claims should be
dismissed as well. 67
As to the remaining state claims, the court is cautious about deciding them without
knowing how the Utah Supreme Court or Utah Court of Appeals would handle these issues.
For example, the court is unsure how either of the aforementioned appellate courts would
address the three-part test in Spackman ex rel. Spackman v. Board of Education of Box Elder

65

660 F.3d 1228, 1248 (10th Cir. 2011).

66

Id. (emphasis added) (quotations and citation omitted).

67

United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (footnotes omitted).
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County School District, 68 under the facts of this case. Also, the court is cautious about deciding
whether a tow certification creates an implied-in-fact contract between the tow truck operator
and the government based on a question that the Utah Court of Appeals left open in Heideman
v. Washington City. 69 Consequently, as much as the court would like to address all of these
issues, the court will exercise its discretion according to the clear preference of its federal
superior courts. Therefore, the unabandoned state claims (i.e., Freddys’s second, third, fourth,
fifth, sixth, ninth (as to state law claims), and tenth causes of action) are remanded to the state
court from which this action as originally removed.
ORDER
For the reasons stated above, the court HEREBY ORDERS:
1.

Freddys’s abandoned claims (i.e., Freddys’s official capacity claims under
section 1983 and its seventh and eighth state-law causes of action) are
DISMISSED WITH PREJUDICE.

2.

Defendants’ motion for summary judgment 70 is GRANTED as to Freddys’s
federal claims (i.e., Freddys’s section 1983 claim against Ms. Graham in her
individual capacity and concomitant request for attorney fees), and those claims
are DISMISSED WITH PREJUDICE.

68

16 P.3d 533 (Utah 2000).

69

155 P.3d 900, 908 (Utah Ct. App. 2007).

70

ECF No. 31.
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Defendants’ motion for summary judgment 71 is DENIED as to Freddys’s
unabandoned state-law claims (i.e., Freddys’s second, third, fourth, fifth, sixth,
ninth (as to state-law claims), and tenth causes of action), and those claims are
REMANDED to the state court from which this case was removed.

IT IS SO ORDERED.
DATED this 7th day of March 2025.
BY THE COURT:

JARED C. BENNETT
United States Magistrate Judge

71

Id.
19