Chevalier v. Animal Rehabilitation Center, Inc.

Decision Date13 December 1993
Docket NumberCiv. A. No. 3:92-CV-489-X.
Citation839 F. Supp. 1224
PartiesCHEVALIER, Plaintiff, v. ANIMAL REHABILITATION CENTER, INC., et al., Defendants.
CourtU.S. District Court — Northern District of Texas


Laurence Wade Watts, Stephen Paul Glover, Watts & Glover, Houston, TX, for plaintiff.

Lea Frances Courington, Gwinn & Roby, Dallas, TX, for Animal Rehabilitation Center, Inc., Karen Wakeland.

Stanley I. Weinberg, Levin, Weinberg & Levin, Dallas, TX, Steven M. Wise, Fraser & Wise P.C., Boston, MA, for Primarily Primates, Inc., Wallace Swett.

Nicholas John Lanza, Oldenettel & Associates, Gregg S. Weinberg, Geissel Stone Barker & Lyman, Houston, TX, for Fund for Animals, Inc.

Gregg S. Weinberg, Houston, TX, for Cleveland Amory, D.J. Schubert.

Walter C. Davis, III, William Ayrl Forteith, Walter Locker & Associates, Dallas, TX, for Zephyr Carlyle.

Walter C. Davis, III, William Ayrl Forteith, Walter Locker & Associates, Dallas, TX, Marc David Isenberg, Martinez & Downs, Houston, TX, for Friends of Animals, Inc.

Melanie Bragg, pro se.


KENDALL, District Judge.

NOW before the Court are Defendants' Joint Motion to Dismiss and in the alternative, for Summary Judgment on All Plaintiff's Claims, filed on June 22, 1993, the response to that motion and the reply to the response. Having considered these filed materials and the applicable law, the Court determines that Defendants' motion, except as to Defendant Zephyr Carlyle, should be, and hereby is, DENIED.

This case arises from Plaintiff's attempts to house animals he had imported from Mexico for use in studies related to acquiring his doctorate from the University of California, Irvine. Plaintiff, a zoologist currently employed by the Arizona Game and Fish Department, obtained permits from the Mexican government to import up to eight nocturnal, arboreal animals called "kinkajous" in 1987. The animals resided at Cal-Irvine while Plaintiff completed his work, and when he moved to Arizona after finishing his degree, Plaintiff applied to the State of Arizona for the necessary permits to relocate the animals there. While awaiting those permits, Plaintiff arranged in May or so of 1989 for Defendant Animal Rehabilitation Center, Inc. (ARC), in Midlothian, Texas, to keep the animals. Defendant Karen Wakeland, ARC's director, called Plaintiff on October 13, 1989 and told him that the kinkajous had escaped from their cages and had not been recaptured. Plaintiff immediately notified local wildlife officials in hopes of regaining the animals.

It is unclear whether the kinkajous actually escaped. It is clear either that they had not escaped or that they had escaped and all but two had been recaptured. In either event, Wakeland, without Plaintiff's knowledge or consent, gave a number of them to Defendant Primarily Primates, Inc., a permanent sanctuary and rehabilitation center for abused, unwanted or abandoned animals, in San Antonio, Texas. Defendants contend that Wakeland told Primates that the animals' owner had abandoned them and that they were to be permanently housed at Primates. Wakeland gave another of the animals to an individual in DeSoto, Texas, and two others remain unaccounted for.

Plaintiff located the missing animals apparently through help from the Texas Rangers. He recovered the one kept in DeSoto, but it had been mutilated by castration, and although Defendant Wallace Swett, Primates' president, initially agreed to return the animals in Primates' possession, he later refused, representing to Plaintiff that a Texas state court had issued an injunction preventing the animals' return. This representation was, apparently, false.

Primates, represented by Defendant Zephyr Carlyle, an animal-rights attorney from San Diego, sued Plaintiff for possession of the kinkajous in a state district court in Bexar County, Texas. Plaintiff alleges that two animal-rights groups, Defendants Fund for Animals, Inc. and Friends of Animals, Inc. financed the lawsuit. During that suit, these animal-rights groups enlisted their members in a letter-writing campaign to the Arizona Game and Fish Department and to Arizona's governor against Plaintiff's work with the kinkajous. The enlistment occurred through press releases and other publications that contained allegedly defamatory statements about Plaintiff and his work and contained pertinent names and addresses to which people could direct their protests. Although investigations resulted from the campaign, the State of Arizona declined to revoke Plaintiff's permits. Cal-Irvine also investigated Plaintiff apparently because of the publicity that Defendants stirred up, but took no adverse action against Plaintiff.

Plaintiff's attorneys obtained a TRO from the state court awarding possession of the animals to Plaintiff, who removed them to California. After obtaining his import permit, Plaintiff relocated the animals to Arizona. Evidently, Plaintiff obtained the TRO improperly, because the state district court sanctioned his attorneys $350 and found that he had "secured the Temporary Mandatory Restraining Order in violation of the Rules of Practice, Procedure and Administration in the District and statutory County Courts At Law, of Bexar County, Texas." The court's order, however, allowed the animals to remain in the possession of Cal-Irvine, to which they had been taken after Plaintiff regained them pursuant to the TRO. After regaining possession of the kinkajous, Plaintiff filed a counterclaim against Primates and also sued ARC and Wakeland in the Bexar County suit. The entire lawsuit was ultimately dismissed for want of prosecution.

After the lawsuit, Defendant D.J. Schubert, allegedly calling himself "Dr. Kyle Owens," wrote a letter to the Mexican authorities on behalf of the Fund and induced a Dr. Garcia, who had issued the original permits to Plaintiff, to grant permits for possession of the animals to the Fund. Upon learning of this information, Plaintiff and other scientists contacted Dr. Garcia, who canceled permits to the Fund and reconfirmed Plaintiff's permits.

Plaintiff then filed this suit and alleges the following as causes of action:

Defendants ... acted in civil conspiracy to intentionally inflict Plaintiff with severe emotional distress, by various acts of outrageous conduct, including, but not limited to:
Wrongfully removing Chevalier's kinkajous from his control and wrongfully retaining control of the animals.
Disseminating falsehoods by mail and open publications for the purpose of enriching Defendants' various coffers and increasing the membership of Fund and Friends of Animals.
Defendants have acted jointly and severally, whether by civil conspiracy or on behalf of the others, to perpetuate a sham and a fraud to deprive Plaintiff of his kinkajous, professional reputation, and employment.

Upon reading Plaintiff's complaint, one may not be left with a crystal-clear picture of what causes of action he alleges. Consequently, Defendants devote much of their motion to claims for conversion, malicious prosecution and abuse of process. However, Plaintiff states in his response that he asserts none of these. Instead, his response addresses claims for defamation and intentional infliction of emotional distress. Defendants rejoin that Plaintiff's only pleaded causes of action are for civil conspiracy, assert that Arizona law applies and maintain that Plaintiff fails to state a claim on which relief might be granted because Arizona law does not recognize civil conspiracy. Consequently, the Court faces a choice of law question.

The Supreme Court of the United States held in Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), that a federal court sitting in diversity jurisdiction must follow the conflicts of law rules prevailing in the state in which the court sits. As a result, this Court applies Texas choice of law principles. Plaintiff's causes of action sound in tort, and therefore the Supreme Court of Texas decision in Gutierrez v. Collins, 583 S.W.2d 312 (Tex.1979), pertains here. In that case, the court stated the following:

Having considered all of the theories, it is the holding of this court that in the future all conflicts cases sounding in tort will be governed by the "most significant relationship" test as enunciated in Sections 6 and 145 of the Restatement (Second) of Conflicts.

Id. at 318. Restatement Section 6 provides as follows:

(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.

Restatement Section 145 provides as follows:

(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
These contacts are to be evaluated according to

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