Ankers v. Rodman

• Decision Date: 28 February 1997
• Docket Number: No. 2:96-CV-0705-S.,2:96-CV-0705-S.
• Citation: 995 F.Supp. 1329
• Parties: Lavon P. ANKERS, Plaintiff, v. Dennis RODMAN, Defendant.
• Court: U.S. District Court — District of Utah

995 F.Supp. 1329

Lavon P. ANKERS, Plaintiff, v. Dennis RODMAN, Defendant.

No. 2:96-CV-0705-S.

United States District Court, D. Utah, Central Division.

February 28, 1997.

Harry Caston, McKay Burton & Thurman, Salt Lake City, UT, for Plaintiff.

Timothy C. Houpt, Jones Waldo Holbrook & McDonough, Salt Lake City, UT, Richard K. Howell, Rutan & Tucker, Costa Mesa, CA, for Defendant.

MEMORANDUM DECISION

SAM, Chief Judge.

Before the court is a motion to dismiss filed by defendant Dennis Rodman. The court, having reviewed the memoranda submitted by the parties, will rule on the motion without the assistance of oral argument, pursuant to D.Ut. 202(d).

BACKGROUND

According to the complaint, plaintiff Lavon P. Ankers was employed at the Delta Center in Salt Lake City as an usher during basketball games. On May 5, 1994, the Utah Jazz basketball team was hosting the San Antonio Spurs basketball team in a nationally-televised game in the Delta Center. Defendant was employed as a player for the Spurs. Plaintiff was standing in her assigned court-side area.

At the beginning of the fourth quarter of play, defendant attempted to gain possession of a loose ball without going out of bounds. However, he was unable to do so and left the court to retrieve the ball. After regaining his balance, defendant continued to walk away from the court and into plaintiff's seating area. He walked past plaintiff, then turned around and started to walk back to the court. As he passed plaintiff again, he placed his hand on plaintiff's buttocks and pinched her.

Defendant's conduct was witnessed by spectators present at the game as well as a local and national television audience. The television broadcast, although not revealing the actual touching of plaintiff's buttocks, showed defendant coming up behind plaintiff and plaintiff's reaction to defendant's apparent touch.

On August 16, 1996, plaintiff brought suit, alleging claims of battery and intentional infliction of emotional distress. Defendant now moves to dismiss each of plaintiff's claims.

STANDARDS FOR DISMISSAL

The court will dismiss a complaint "`only when it appears that the plaintiff can prove no set of facts in support of the claims that would entitle the plaintiff to relief.'" Mascheroni v. Board of Regents of Univ. of Cal., 28 F.3d 1554, 1560 (10th Cir.1994) (quoting Jacobs Visconsi & Jacobs v. City of Lawrence, 927 F.2d 1111, 1115 (10th Cir.1991)); accord Coosewoon v. Meridian Oil Co., 25 F.3d 920, 924 (10th Cir.1994). In determining the sufficiency of a complaint, the court "`must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff.'" Mascheroni, 28 F.3d at 1560 (quoting Williams v. Meese, 926 F.2d 994, 997 (10th Cir.1991)); accord Coosewoon, 25 F.3d at 924.

ANALYSIS

Defendant argues plaintiff's battery claim is barred by the statute of limitations, and plaintiff's complaint fails to plead facts supporting a claim for intentional infliction of emotional distress. The court will address each of plaintiff's causes of action.

I. Battery

Plaintiff claims defendant's alleged touching "was an unlawful and unauthorized invasion of her person." Complaint, ¶ 12. Therefore, although not so identified, plaintiff is alleging a cause of action for battery.

Battery claims in Utah are subject to a one-year statute of limitations.¹ Defendant's alleged battery occurred May 5, 1994, but plaintiff did not file suit until August 16, 1996. Therefore, unless a tolling provision applies to plaintiff's battery claim, it is time-barred on its face.

Plaintiff invokes Utah Code Ann. § 78-12-35 (1996) ("Section 78-12-35"), contending the limitations period for her battery claim was tolled by defendant's absence from the State of Utah. Section 78-12-35, with the court's emphasis, provides:

Where a cause of action accrues against a person when he is out of the state, the action may be commenced within the term as limited by this chapter after his return to the state. If after a cause of action accrues he departs from the state, the time of his absence is not part of the time limited for the commencement of the action.

Because defendant left Utah after the basketball game in question and has been largely absent from the state ever since, except for other basketball games, plaintiff argues the amount of time of defendant's absence from Utah should not be included in calculating the one-year time deadline.

Defendant argues that, during his absence from the State of Utah, he has been subject to plaintiff's service of process by means of Utah's long-arm statute. This statute states, in relevant part:

Any person, notwithstanding Section 1610a-1501 [transacting business], whether or not a citizen or resident of this state, who in person or through an agent does any of the following enumerated acts, submits himself, and if an individual, his personal representative, to the jurisdiction of the courts of this state as to any claim arising from: (3) the causing of any injury within this state whether tortious or by breach of warranty.

Utah Code Ann. § 78-27-24 (1996) (emphasis added). Defendant, thus, claims Section 78-12-35 does not toll the one-year statute of limitations because the section does not apply to nonresidents like him who are subject to service of process by virtue of Utah's long-arm statute.

Utah's appellate courts have not considered the specific issue of whether Section 78-12-35 applies to nonresident defendants who are subject to service of process under the long-arm statute. In diversity cases, like the instant matter, if no state court has addressed the applicable substantive law of the state, "federal courts must predict how the state's highest court would rule." Weiss v. United States, 787 F.2d 518, 525 (10th Cir.1986). To make this prediction, "federal courts must follow intermediate state court decisions, policies underlying the applicable legal principles, and the doctrinal trends indicated by these policies." Id.; accord Taylor v. Phelan, 9 F.3d 882, 887 (10th Cir.1993); see also Jordan v. Shattuck Nat'l Bank, 868 F.2d 383, 386 (10th Cir.1989) ("[i]n the absence of a state supreme court ruling, a federal court must follow an intermediate state court decision unless other authority convinces the federal court that the state supreme court would decide otherwise.") (citation omitted).²

In Snyder v. Clune, 15 Utah 2d 254, 390 P.2d 915 (1964), the Utah Supreme Court addressed the applicability of Section 78-12-35 to nonresident motorists. In Snyder, the plaintiff filed suit against the defendants, resulting from an automobile accident, three days after the applicable four-year statute of limitations expired. To avoid dismissal, the plaintiff invoked Section 78-12-35, claiming the limitations period was tolled because the defendants, California residents, returned to California and remained there after the accident. The trial court ruled in favor of the plaintiff.

On appeal, the Utah Supreme Court first stated:

[S]tatutes of necessity must state their objectives in general language. It is not always possible to foresee and prescribe in precise detail for all situations to which they might apply. Attempts to give them universal and literal application frequently lead to incongruous results which were never intended. When it is obvious that this is so, the statute should not be so applied. In order to give a statute its true meaning and significance it should be considered in the light of its background and the purpose sought to be accomplished, together with other aspects of the law which have a bearing on the problem involved.

Snyder, 390 P.2d at 916. The appellate court then concluded the purpose of Section 78-12-35 was "to prevent a defendant from depriving a plaintiff of the opportunity of suing him by absenting himself from the state during the period of limitation." Id. The court noted that, by virtue of the nonresident motorist act, the Secretary of State could receive service for a nonresident as his or her agent. Therefore, because the plaintiff could have served the nonresident defendants any time through the Secretary of State, the defendants were never "`absent' from the state in the sense contemplated by the statute, that is, unavailable for the service of process." Id. The court further reasoned a literal interpretation of Section 78-12-35 would permit claims against nonresidents to survive indefinitely, in conflict with the objective of a statute of limitations, although nonresidents could be served with process. The court, thus, dismissed the plaintiff's case as untimely.

Defendant, a nonresident, claims his situation is analogous to that of the nonresident defendants in Snyder. The Snyder defendants were deemed not to be "absent" from the state, as contemplated by Section 78-12-35, because they were subject to service of process under the nonresident motorist act. Thus, the limitations period tolled against the plaintiff who could have served the defendants with process any time. Defendant argues he, likewise, has not been "absent" from the state, for purposes of Section 78-12-35, because he has been subject to service of process under Utah's long-arm statute. Therefore, defendant asserts, the limitations period should toll against plaintiff because she could have served defendant any time within a year of the incident at issue, including when defendant was in Utah for basketball games, in the same manner as a Utah resident. See Utah Code Ann. § 78-27-25 (1996).

The Utah Court of Appeals, however, examined this tolling issue years later in Van Tassell v. Shaffer, 742 P.2d 111 (Utah App. 1987). In Van Tassell, the plaintiffs secured judgments against the defendant but waited over eight years before acting to reaffirm those judgments. The defendant, therefore, claimed the plaintiffs' suit was barred by the applicable eight-year statute of limitations. Despite the fact...