Free Motion for Summary Judgment - District Court of Arizona - Arizona

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Brian Holohan (009124) [email protected] Darrell S. Dudzik (016465) [email protected] Attorneys for Defendants UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Ronald Craig Fish, a law corporation, a California corporation, Plaintiff, vs. Thomas G. Watkins, III, an individual, et al. Defendants. Pursuant to Rule 56, ) ) ) No. CIV-03-67-PHX-SMM ) ) ) MOTION FOR SUMMARY JUDGMENT ) ) (Oral Argument Requested) ) ) ) ) ) Defendants move for summary

judgment. This motion is supported by the following memorandum of points and authorities and the separate statement of facts filed herewith. DATED this 31st day of March, 2006. HINSHAW & CULBERTSON LLP

By /s/Darrell S. Dudzik Brian Holohan Darrell S. Dudzik Attorneys for Defendants

Case 2:03-cv-00067-SMM

Document 122

Filed 03/31/2006

Page 1 of 10

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MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff s claim for malicious prosecution arises out of lawsuit styled Skyline Manufacturing, Inc. v. So-Lite

(Inc.)/So-Lite Innovative Roofing Products, No CIV 01-0940 PHX MHM (D.Ariz.)1 For purposes of this motion, the Court may Lee v. City of

take judicial notice of the Skyline record.

Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001); Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). In alleged Skyline, on behalf Defendant of his Watkins, client a Phoenix that attorney, and

Skyline

So-Lite

Plaintiff Fish engaged in a wrongful conduct by publishing certain letters to Skyline customers. by Jason Reeves, President of One letter was authored and the second,

So-Lite,

authored by Plaintiff Fish. These letters were sent together and received by Skyline customers. Skyline s The letters immediately and adversely impacted business. The damage sustained by Skyline was

readily evident as was its cause. In response to the complaint, Fish filed several motions including: (1) a motion to dismiss for lack of personal

jurisdiction pursuant to FRCP 12(b) (2); (2) an alternative motion for more definite statement pursuant to FRCP 12(e); (3) a motion for judgment on the pleadings pursuant to FRCP 12(c) and (4) a motion for sanctions under Rule 11.2
The Skyline complaint is already in the record as exhibit 1 to the motion to dismiss filed on June 13, 2002.
2 1

The Motion to Dismiss is attached as Exhibit 1 to Defendant s

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After

the

motions

were

fully

briefed,

Judge

Murguia In that

issued a Memorandum Order filed March 25, 20023.

order Judge Murguia granted Plaintiff Fish s motion to dismiss for lack of personal jurisdiction. Judge Murguia further

denied Fish s motion for Rule 11 sanctions. denied as moot

The Court then

Fish s remaining motions to dismiss.

Therefore, the only favorable result Fish received from the Court was the dismissal for lack of personal jurisdiction. Eighteen days after the order of dismissal for lack of personal jurisdiction was entered, Plaintiff Fish filed this action in California. Defendants moved to dismiss Plaintiff Fish s amended

complaint, both substantively under Rule 12(b)(6) and for a lack of personal to jurisdiction. pursuant Defendants to 28 also moved for

transfer

Arizona

U.S.C.

§1404(a).

Eventually, the California District Court Judge granted the motion to transfer by Order filed November 12, 2002. A motion to dismiss was filed by the Defendants resulting this on court the dismissing pleadings, claim to the this Count Court for Abuse of Process. Malicious addresses

Based

allowed

the

Prosecution

proceed.

This

Motion

Plaintiff s remaining claim for Malicious Prosecution.

April 30, 2003 Motion to Dismiss; genuine copies of the remaining motions are attached as Exhibits 2 and 3 to the Statement of Facts. The Memorandum Order is attached as Exhibit 3 to Defendant s June 13, 2003 Motion to Dismiss.
3

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 the I. LEGAL ARGUMENT Wrongful Institution of Civil Proceedings The only remaining count of Plaintiff s complaint alleges tort of malicious prosecution. to a Strictly claim that speaking, criminal

malicious

prosecution

refers

proceedings were improperly instituted.

The correct name for

the tort arising out of an allegedly wrongful civil action is wrongful institution of civil proceedings. Bradshaw v. State

Farm Mutual Auto. Ins. Co., 157 Ariz. 411, 414, 758 P.2d 1313, 136, n. 1. (1988). To establish such a claim under Arizona

law, Plaintiff must prove that the Defendants (1) instituted a civil action which was (2) motivated by malice, (3) begun without probable cause, (4) terminated in Plaintiff s favor and (5) damaged Plaintiff. Bradshaw, 157 Ariz. at 417, 758

P.2d at 1319; Carroll v. Kalar, 112 Ariz. 595, 596, 545 P.2d 411, 412 (1976). A. No Favorable Termination A judgment on the

As noted, Plaintiff Fish must prove that the underlying Skyline matter terminated in his favor.

merits after a trial is a favorable termination, id. at 417, 1319, but under Arizona law, something less can be sufficient. To be a favorable termination, though, the termination must indicate in some fashion that the accused is innocent of wrongdoing[.] Frey v. Stoneman, 150 Ariz. 106, 110, 722 P.2d

278 (1986); Lane v. Terry H. Pillinger, P.C. 189 Ariz. 152, 4
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154, 939 P.2d 430, 432 (App. 1997).

Thus, a merely procedural

dismissal does not satisfy the favorable termination element. Id., (citing Prosser & Keeton §119). As with probable cause,

whether a termination is favorable is a question of law for the court. Frey, 150 Ariz. at 111, 722 P.2d at 279.

As a matter of law, the Skyline matter did not terminate in Plaintiff s favor. diction is a A dismissal for lack of personal jurisdismissal that fails to reflect

procedural

Plaintiff s actual innocence.

Palmer Development Corp. v.

Gordon, 723 A.2d 881, 883 (Maine 1999) (statute of limitations dismissal is, to like personal jurisdiction, of procedural and

insufficient

support

finding

favorable

termination);

Lackner v. LaCroix, 159 Cal.Rptr. 693, 695, 602 P.2d 393, 395 (1979) See also Savoie v. Rubin, 820 So.2d 486, 489 (LA 2002) (dismissal for improper venue insufficient to support

favorable termination). Dismissal for lack of personal jurisdiction, as a matter of law fails to constitute the required element of Plaintiff s cause of favorable result Courts have

actions.

consistently ruled that a procedural defense, such as lack of personal jurisdiction does not constitute a favorable

termination.

As stated by the California Supreme Court:

A dismissal for lack of jurisdiction [citation omitted] not only is not on the merits, it is unreflective of the merits; neither the judgment of the court nor that of the prosecuting party on the merits is implicated in the dismissal. Lackner v LaCroix, 25 Cal 3d 747, 750, 602 P.2d 393, 159 5
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Cal Rptr 693 (1979), quoting Minasian v. Sapse, 80 Cal.App.3d 823, 827 (1978). See also, Jacks Service v Sav-A-Stop, Inc, 98 BR 83

(1989)(citing Florida law); Hatch v Davis, 102 P.3d 774, 2004 UT App 378 (2004)(citing Lackner). Plaintiff s cause of action fails in that he has not and cannot establish a favorable result based upon a procedural dismissal. B. In Plaintiff Cannot Rely on So-Lite s Motion his Response to the Defendants earlier Motion to

Dismiss, Plaintiff argued that there was, in fact, a favorable termination in the underlying case. The argument goes

something like this: Judge Murguia dismissed, on a motion by So-Lite, the count alleging unfair competition in the

underlying case.

Although not a party to that motion, Fish However, upon cursory

presumes that the ruling includes him.

review, there is no reasonable factual or legal basis for such a conclusion. In fact, such a conclusion is violative of

fundamental constitutional law. A review of the facts notes that the motion to dismiss was presented and by So-Lite. The Court s Memorandum So-Lite Opinion The

discusses

addresses

only

the

arguments.

Court s ruling grants only So-Lite s motion.

It makes no

mention of Fish in any regard, nor should it in that to do so would be violative of the United States Constitution. A court s statutory or 6
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constitutional

power

to

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adjudicate the case merits. 2005). not

[ ] must generally be decided before the

Wilbur v. Locke, 423 F.3d 1101, 1106 (9th Cir. Therefore, once Judge Murguia ruled that the Court did jurisdiction over Fish it was powerless to rule

have

either for or against him on the merits. The United States Supreme Court has clearly expounded

that absent personal jurisdiction the courts have no authority to proceed. In Ruhrgas AG v Marathon Oil Company, 526 U.S.

574, 119 S.Ct 1563, 143 L.Ed. 2d 760 (1999) the Court noted the fundamental principals of jurisdiction stating: Jurisdiction to resolve cases on the merits requires both authority over the category of claim of the suit (subject matter jurisdiction)and authority over the parties (personal jurisdiction), so that the court s decision will bind them. 526 U.S. at 577, 119 S.Ct at 1566. The Court further stated: The requirement that jurisdiction be established as a threshold matter is inflexible and without exception (citation) for [j]urisdiction is power to declare law, and [w]ithout jurisdiction the court cannot proceed at all in any cause. (citation) 526 U.S. at 577, 119 S.Ct. at 1567. Given Judge Murguia s plain language in her ruling that the Court had no personal jurisdiction over Fish, the ruling on the So-Lite motion did not, therefore, indicate in some Frey,

fashion that the accused is innocent of wrongdoing[.]

150 Ariz. at 110, 722 P.2d at 278; Lane, 189 Ariz. at 154, 939 P.2d at 432. It should be noted that Judge Murguia stated nothing that 7
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suggested Fish was a party to the Court s ruling; the court s order refers solely to the C. So-Lite s motion.

Court Must Rule On Jurisdiction First That ruling ends

With respect to Defendant Fish, the Court ruled that it did not have personal jurisdiction over him. all authority of the Court over Fish.

However, Fish has on the merits Such

argued that the Court ruled in favor of Fish

before entertaining the issue of personal jurisdiction.

an argument has been rejected by the United States Supreme Court. In the United States Supreme Court case of Steel Company v Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), the Court held that practice finding hypothetical jurisdiction for the purpose of

deciding a case on the merits before deciding whether proper jurisdiction existed was prohibited by the Constitution and a practice long opposed by the Supreme Court. The Court stated

that to rule on the merits before deciding jurisdiction would result in a hypothetical judgment which would be identical

to an advisory opinion and prohibited. The Supreme Court further held that: For a court to pronounce the meaning or the constitutionality of a state or federal law when it has no jurisdiction to do so is, by very definition, for the court to act ultra vires. 523 U.S. at 101-102, 118 S.Ct. at 1016. After successfully contesting personal jurisdiction, Fish 8
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now seeks to bootstap himself to a co-defendant s substantive motion so he may claim that the Court ruled in his favor. Put simply, there was no favorable termination on the merits for Fish in the underlying case under any torturing of the facts or law. Once the Court ruled that no personal If the

jurisdiction existed, a procedural dismissal occurred.

Plaintiff argues that the granting of So-Lite s motion is his favorable result, such an argument is violative of the

Constitution and an ultra vires act by the court.

In truth,

the court s order is plain; the only favorable ruling for Fish was dismissal for lack of jurisdiction. Thus, Plaintiff s mis-named claim for malicious

prosecution fails as a matter of law.

This Court should

therefore grant Summary Judgment in favor of the Defendants and against the Plaintiff, awarding the appropriate fees and costs associated with litigating this matter. DATED this 31st day of March, 2006. HINSHAW & CULBERTSON LLP

By /s/Darrell S Dudzik Brian Holohan Darrell S. Dudzik Attorneys for Defendants . . . . . . . . . . . . 9
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. . . CERTIFICATE OF SERVICE I certify that on the 31st day of March, 2006, I electronically transmitted the attached document to the Clerk s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Robert Hardy Falk, Esq. [email protected] Attorney for Plaintiff Michael G. Ackerman, Esq. [email protected] Co-counsel for Plaintiff By /s/Darrell S. Dudzik

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