Brown v. Herbert
Decision Date | 27 August 2014 |
Docket Number | Case No. 2:11–CV–0652–CW. |
Citation | 43 F.Supp.3d 1229 |
Court | U.S. District Court — District of Utah |
Parties | Kody BROWN, Meri Brown, Janelle Brown, Christine Brown, Robyn Sullivan, Plaintiffs, v. Gary R. HERBERT, Mark Shurtleff, Jeffrey R. Buhman, Defendants. |
Jonathan Turley, George Washington University Law School, Washington, DC, Adam Alba, Stucki Rencher, Salt Lake City, UT, for Plaintiffs.
Jerrold S. Jensen, Salt Lake City, UT, for Defendants.
MEMORANDUM DECISION
The court granted in part Plaintiffs' Motion for Summary Judgment (Dkt. No. 49), denying Defendant's Cross–Motion for Summary Judgment (Dkt. No. 55), in its Memorandum Decision and Order dated December 13, 2013 (Dkt. No. 78). That Order, however, left unresolved the matter of Plaintiffs' claim under 42 U.S.C. § 1983, and in a status conference held on January 17, 2014, the court requested supplemental briefing on the issue.
Defendant contends that his failure to include an affirmative defense or any answer to Plaintiffs' Section 1983 claim in his Answer (Dkt. No. 33) or in any of his briefs in the summary judgment process does not constitute a waiver of prosecutorial immunity or qualified immunity as defenses because Plaintiffs did not properly seek an award of money damages against him. This line of argument, though creative, is not persuasive. Plaintiffs unambiguously asserted a number of specific injuries in their Complaint that entitle them to monetary damages. (See, e.g., Compl. ¶¶ 172–77 [Dkt. No. 1].) Moreover, in connection with the recitation of these injuries, Plaintiffs explicitly seek to “recover all of their attorneys' fees, costs, and expenses incurred in this action pursuant to 42 U.S.C. § 1988, and any other relief that this Court may order. ” (Id. at ¶ 29 (emphasis added).) In fact, in their Prayer for Relief at the conclusion of their Complaint, they include their claim under Section 1983 with the rest of their Constitutional claims and follow their request pursuant to Section 1988 with a specific request that the court “award such other relief as it may deem just and proper.” (Id. at 39, ¶ 4.) As the Tenth Circuit noted in Frazier v. Simmons, the plaintiff's request for monetary damages and “such other relief as the court deems just and equitable” was sufficient to put the defendant in that case on notice that he also sought injunctive relief, which protected his claim from an Eleventh Amendment immunity defense. 254 F.3d 1247, 1254–55 (10th Cir.2001) ( ). The same logic requires the court to find that Defendant was adequately on notice that Plaintiffs were seeking money damages in addition to the injunctive and constitutional relief sought.
Defendant, therefore, has waived his various immunity defenses by not raising them in his Answer, as was his duty under Rule 8(c)(1) of the Federal Rules of Civil Procedure, or opposing or mentioning Plaintiffs' assertion of their Section 1983 claim in their Complaint, their Motion for Summary Judgment, and their Opposition to Defendant's Cross–Motion. The court must view this as a conscious decision on the part of Defendant, a decision that has consequences under the orderly administration of justice in the federal courts. “Failure to plead an affirmative defense results in a waiver of that defense.” Bentley v. Cleveland Cnty. Bd. of Cnty. Comm'rs, 41 F.3d 600, 604 (10th Cir.1994). This is so well settled a principle under the Federal Rules of Civil Procedure that “the very possibility of waiver makes it important (and certainly prudent) to plead all appropriate affirmative defenses,” specifically to avoid waiver. H.S. Field Servs. v. CEP Mid–Continent, LLC, No. 12–cv–531–JED–PJC, 2013 WL 5407862, at *1, 2013 U.S. Dist. LEXIS 137341, at *3–*4 (N.D.Okla. Sept. 25, 2013).
The court must therefore agree with Plaintiffs that Defendant's approach of neither raising the defenses of qualified immunity or prosecutorial immunity as affirmative defenses, or even mentioning them in the briefing responding to Plaintiffs' Section 1983 claim constitutes a waiver of these defenses. If not, (Pl.'s Resp. to Court Order 14 [Dkt. No. 85].)
The court therefore finds in favor of Plaintiffs on their seventh and final count in the Complaint under 42 U.S.C. § 1983 and GRANTS summary judgment in their favor on this last remaining count. Plaintiffs, however, have chosen to drop their claim for monetary damages aside from attorney's fees: although “reserv[ing] their right to seek attorneys' fees in this case.” (Id. at 2 & n. 1.) In severing the cohabitation prong1 of Utah's Anti– Bigamy Statute, Utah Code Ann. § 76–7–101(1) in its Memorandum Decision and Order Granting in Part Plaintiffs' Motion for Summary Judgment dated December 13, 2013 (Dkt. No. 78), the court has therefore provided the relief sought while leaving the Statute in force as narrowly construed in the absence of the...
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