Brittingham v. Gove-Ortmeyer
| Decision Date | 30 March 2016 |
| Docket Number | No. 2:13CV00089 ERW,2:13CV00089 ERW |
| Citation | 174 F.Supp.3d 1043 |
| Parties | James Brittingham, Plaintiff, v. Stacie Gove-Ortmeyer, Defendant. |
| Court | U.S. District Court — Eastern District of Missouri |
Roger G. Brown, Roger G. Brown and Associates, Jefferson City, MO, for Plaintiff.
Katherine S. Walsh, Attorney General of Missouri, St. Louis, MO, for Defendant.
E. RICHARD WEBBER
This matter comes before the Court on Defendant Stacie Gove-Ortmeyer's Motion for Summary Judgment [ECF No. 80].
Plaintiff James Brittingham (“Plaintiff”) filed his Third Amended Complaint (“Complaint”) against Defendant Stacie Gove-Ortmeyer (“Defendant”) on December 2, 2014. [ECF No. 42]. In this Complaint, Plaintiff asserts eleven counts against Defendant Gove-Ortmeyer, in her individual capacity. Id . Among the counts alleged are seven arising under 42 U.S.C. § 1983
, as well as an additional four counts asserted for violations of Missouri state law. Id. These eleven counts are based on actions taken or omitted by Defendant in relation to her investigation and submission of two probable cause statements to prosecute Plaintiff for 1) failure to pay sales tax, with intent to defraud, in violation of Missouri Revised Statute § 144.080, and punishable under Missouri Revised Statute § 144.480, and 2) failure to pay withholding tax in violation of Missouri Revised Statute § 143.221, and punishable under Missouri Revised Statute § 144.480.
Defendant filed the instant summary judgment motion on December 11, 2015. [ECF No. 80]. Defendant seeks summary judgment on all eleven counts of Plaintiff's Complaint on the basis she acted properly in conducting her investigation and in certifying a probable cause statement to prosecute Plaintiff, and no constitutional right was violated in so doing. Alternatively, Defendant asserts qualified immunity prohibits the suit.
A. Uncontroverted Facts
Both Plaintiff and Defendant are Missouri residents. Defendant was employed as an investigator in the Criminal Tax Investigation Bureau of the Missouri Department of Revenue (“DOR”) at the time of the events alleged in Plaintiff's Complaint. In this capacity, Defendant conducted an investigation in regards to the non-payment of sales and withholding taxes by Bentz Bickhaus Motors, d/b/a Bentz Motors (“Bentz Motors”). During the course of Defendant's investigation, Plaintiff was the majority owner of Bentz Motors, with an 85% ownership stake. Roger Bickhaus, who was fired by Plaintiff in 2008, held a 15% ownership stake. Mr. Bickhaus's involvement with the payment of taxes is disputed, but otherwise not relevant to the criminal prosecution of Plaintiff at issue in his Complaint.
While the details of the interview are disputed, the parties agree Plaintiff was interviewed on behalf of DOR on April 17, 2009.1 At this interview, Plaintiff stated the corporate comptroller, Sherry Frazier, was responsible for preparing, filing, and paying taxes, he was aware Bentz Motors was behind on paying taxes, and he was aware Ms. Frazier had stopped sending tax payments because there was no money in the account to do so. Defendant was unable to reach witness Sherry Frazier prior to the filing of her prosecution report.2 As part of her investigation, Defendant obtained documents regarding Bentz Motors including the monthly sales tax and wage withholding returns. Likewise, she interviewed both Roger Bickhaus, the minority owner, and Plaintiff, both of whom provided substantially the same information about Ms. Frazier's role in handling taxes. Mr. Bickhaus denied he had any role in tax preparation.
Sherry Frazier was not an owner or director of Bentz Motors; she served in the capacity of corporate comptroller and handled tax payment and filing of taxes. Sales tax was not paid by Bentz Motors for the period March 2008, to November 2008. Likewise, withholding tax was not paid by Bentz Motors for the period March 2008, to December 2008. However, Ms. Frazier continued to submit returns for each monthly period on behalf of Bentz Motors, despite Bentz Motors' failure to remit payment. Before submitting a probable cause statement, along with her investigator's report to the prosecutor, Defendant consulted with her supervisor, James Mead, to ensure she had sufficient information for a finding of probable cause.3 On June 23, 2010, Defendant's prosecution report, which included a statement of probable cause, a summary of interviews, and other evidence collected during her investigation, was sent to the prosecutor of Macon County, Timothy Bickhaus, recommending Plaintiff be prosecuted for failure to pay sales and withholding taxes. A felony complaint and request for warrant was filed on August 13, 2010, and Plaintiff paid $1,000 (10% of the $10,000 bond) on August 23, 2010, for his release. While Plaintiff was taken into custody, he never spent any time in jail.
In late June 2011, Defendant took the written and oral statements of Sherry Frazier, and forwarded these statements to the newest prosecuting attorney for the case, Josh Meisner. Mr. Meisner took Ms. Frazier's deposition on October 14, 2011. Ms. Frazier testified creditor GMAC had frozen funds in Bentz Motor's account, greatly inhibiting Bentz Motors' ability to pay its sales and withholding taxes. Ms. Frazier stated Plaintiff made personal injections of his own money towards the payment of bills. Additionally, Plaintiff made the final decisions on who received payment with Bentz Motors' limited funds. Other creditors were paid before taxes were paid. Nevertheless, at all times, Ms. Frazier filed timely tax returns for the sales and withholding taxes owed, regardless of the failure of Bentz Motors to remit the payments.
On January 24, 2012, Mr. Meisner filed a motion to nolle prosequi the criminal case against Plaintiff.
A court shall grant a motion for summary judgment only if the moving party shows “there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a)
; see
Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). By definition, material facts “might affect the outcome of the suit under the governing law,” and a genuine dispute of material fact is one “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the non-moving party has failed to “make a showing sufficient to establish the existence of an element essential to that party's case,...there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.” Celotex , 477 U.S. at 322–23, 106 S.Ct. 2548.
The moving party bears the initial burden of proof in establishing “the non-existence of any genuine issue of fact that is material to a judgment in his favor.” City of Mt. Pleasant, Iowa v. Associated Elec. Co-op., Inc. , 838 F.2d 268, 273 (8th Cir.1988)
. The moving party must show that “there is an absence of evidence to support the nonmoving party's case.” Celotex , 477 U.S. at 325, 106 S.Ct. 2548. If the moving party meets this initial burden, the non-moving party must then set forth affirmative evidence and specific facts that demonstrate a genuine dispute on that issue. Anderson , 477 U.S. at 250, 106 S.Ct. 2505. When the burden shifts, the non-moving party may not rest on the allegations in its pleadings, but, by affidavit and other evidence, must set forth specific facts showing that a genuine dispute of material fact exists. Fed. R. Civ. P. 56(c)(1) ; Stone Motor Co. v. Gen. Motors Corp. , 293 F.3d 456, 465 (8th Cir.2002). To meet its burden and survive summary judgment, the non-moving party must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Instead, the non-moving party must demonstrate sufficient favorable evidence that could enable a jury to return a verdict for it. Anderson , 477 U.S. at 249, 106 S.Ct. 2505. “If the non-moving party fails to produce such evidence, summary judgment is proper.” Olson v. Pennzoil Co. , 943 F.2d 881, 883 (8th Cir.1991).
In ruling on a motion for summary judgment, the Court may not “weigh the evidence in the summary judgment record, decide credibility questions, or determine the truth of any factual issue.” Kampouris v. St. Louis Symphony Soc. , 210 F.3d 845, 847 (8th Cir.2000)
. The Court instead “perform[s] only a gatekeeper function of determining whether there is evidence in the summary judgment record generating a genuine issue of material fact for trial on each essential element of a claim.” Id. The Court must view the facts and all reasonable inferences in the light most favorable to the nonmoving party. Reed v. City of St. Charles , 561 F.3d 788, 790 (8th Cir.2009).
The first seven counts alleged by Plaintiff are based on perceived constitutional violations committed by Defendant Gove-Ortmeyer against Plaintiff in violation of 42 U.S.C. § 1983
. The remaining four counts are alleged violations of Missouri state law. The Court will first address the claims regarding 42 U.S.C. § 1983.
provides a federal cause of action for plaintiffs to sue officials acting under color of state law for alleged deprivations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Alsbrook v. City of Maumelle , 184 F.3d 999, 1010–11 (8th Cir.1999). A § 1983 action requires (1) the defendant acted under color of state law, and (2) the alleged wrongful conduct deprived the plaintiff of a constitutionally protected federal right. Schmidt v. City of Bella Villa , 557 F.3d 564, 571 (8th Cir.2009). There is no...
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