Evens v. Connolly, CV 20-165-M-DLC-KLD

• Court: United States District Courts. 9th Circuit. United States District Court (Montana)
• Writing for the Court: Kathleen L. Desoto United States Magistrate Judge
• Parties: RACHEL EVENS, Plaintiff, v. JEFFREY R. CONNOLLY - DISTRICT JUDGE; DAVID GILBERTSON - CHIEF JUSTICE SOUTH DAKOTA SUPREME COURT; JANINE KERN - JUSTICE SOUTH DAKOTA SUPREME COURT; MARK SALTER - JUSTICE SOUTH DAKOTA SUPREME COURT; STEVEN JENSEN - JUSTICE SOUTH DAKOTA SUPREME COURT; and PATRICIA DEVANEY - JUSTICE SOUTH DAKOTA SUPREME COURT, Defendants.
• Decision Date: 24 February 2021
• Docket Number: CV 20-165-M-DLC-KLD

RACHEL EVENS, Plaintiff,
v.
JEFFREY R. CONNOLLY - DISTRICT JUDGE; DAVID GILBERTSON - CHIEF JUSTICE SOUTH DAKOTA
SUPREME COURT; JANINE KERN - JUSTICE SOUTH DAKOTA SUPREME COURT;
MARK SALTER - JUSTICE SOUTH DAKOTA SUPREME COURT; STEVEN JENSEN - JUSTICE SOUTH DAKOTA
SUPREME COURT; and PATRICIA DEVANEY - JUSTICE SOUTH DAKOTA SUPREME COURT, Defendants.

CV 20-165-M-DLC-KLD

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION

February 24, 2021

FINDINGS & RECOMMENDATION

Plaintiff Rachel Evens, who is proceeding pro se, brings this action against a South Dakota circuit court judge and five South Dakota Supreme Court justices, alleging federal constitutional claims under 42 U.S.C. § 1983 arising out of her

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divorce proceedings in South Dakota state court. Defendants move to dismiss Plaintiff's Complaint under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. (Doc. 4) For the reasons set forth below, Defendants' motion to dismiss should be granted and this case should be dismissed.¹

I. Background

Plaintiff filed her Complaint in this case on November 17, 2020, naming South Dakota Circuit Court Judge Jeffrey R. Connolly and South Dakota Supreme Court Justices David Gilbertson, Janine Kern, Mark Salter, Steven Jensen, and Patricia DeVaney as Defendants. (Doc. 1). Judge Connolly presided over Plaintiff's divorce proceedings in South Dakota state court, and on November 4, 2020, the Supreme Court of South Dakota affirmed the judgment and divorce decree entered by Judge Connolly. See Evens v. Evens, 951 N.W.2d 268 (S.D. 2020).

Plaintiff states that she is suing the Defendants "individually and in their collective official" capacities, and alleges they failed "to uphold the sworn duties of their judicial office in blatantly discriminating against a pro se litigant." (Doc. 1

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at 1). Plaintiff advances claims under 42 U.S.C. § 1983, alleging that Defendants violated her rights under the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution. (Doc. 1 at 1).

Liberally construed, the Complaint alleges Judge Connolly violated her due process and equal protection rights under the Fifth and Fourteenth Amendments by forcing her to proceed pro se when she was unable to afford counsel; making several erroneous credibility determinations and legal rulings during the divorce proceedings; and wrongfully entering a divorce decree on grounds of extreme cruelty. (Doc. 1 at 3, 8-15). Plaintiff further claims Judge Connolly's child custody determination "removing her children" constituted cruel and unusual punishment in violation of the Eighth Amendment. (Doc. 1 at ¶ 28).

With respect to her subsequent appeal, Plaintiff alleges South Dakota's five Supreme Court justices violated her constitutional due process and equal protection rights because they wrongfully refused to address her primary arguments on appeal; were "operating outside their sworn duties to render justice; and erroneously affirmed the judgment and divorce decree entered by Judge Connolly. (Doc. 1 at 10).

In her prayer for relief, Plaintiff requests: (1) injunctive relief overturning and repealing the South Dakota Supreme Court's decision; (2) "sanctions on the

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Defendants appropriate with judges abusing their authority in discriminating against pro se litigants" and violating the United States Constitution; (3) an order requiring Defendants to "ground the Facts and Findings of the divorce trial" on the record; (4) an order requiring the South Dakota Supreme Court to "actually consider" her briefs and address her legal arguments; and (4) any other relief the Court deems appropriate and just. (Doc. 1 at 14).

Defendants move to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure.

II. Legal Standards

Federal Rule of Civil Procedure 12(b)(2) authorizes dismissal when a court lacks personal jurisdiction over the defendant. When a "defendant moves to dismiss a complaint for lack of personal jurisdiction, the plaintiff bears the burden of establishing that jurisdiction is appropriate." Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9^th Cir. 2004) (citation omitted). If the court addresses a motion to dismiss for lack of personal jurisdiction without holding an evidentiary hearing, "the plaintiff need only make a prima facie showing of jurisdiction." Boschetto v. Hansing, 539 F.3d 1011, 1015 (9^th Cir. 2008). While the plaintiff cannot simply rest on the bare allegations of the complaint, the court must take uncontroverted allegations in the complaint as true and resolve any conflicts

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in the affidavits in the plaintiff's favor. Schwarzenegger, 384 F.3d at 800; Boschetto, 539 F.3d at 1015. Where, as here, the plaintiff is appearing pro se, the court liberally construes the allegations in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007).

III. Discussion

The power of the federal court "to exercise personal jurisdiction over a non-resident defendant turns on two independent considerations: whether an applicable state rule or statute potentially confers personal jurisdiction over the defendant, and whether the assertion of such jurisdiction accords with constitutional principles of due process." Data Disk, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1286 (9^th Cir. 1977). When subject matter jurisdiction is based on a federal question, as is the case here, the federal court applies the long-arm statute of the forum state to whether it has personal jurisdiction over a nonresident defendant. Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114, 1123 (9^th Cir. 2002).

Therefore, to establish personal jurisdiction, Plaintiff must make a prima facie showing that: (1) the requirements of Montana's long arm statute are met; and (2) the exercise of that jurisdiction will not violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Gulick v. Lynden,

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Inc., 2016 WL 8674478, at *2 (D. Mont. Oct. 7, 2016). If the requirements of Montana's long-arm statute are not met, the court needs not address due process. Gulick, 2016 WL 8674478 at *2; 1767951, at *2; Poliseno v. Credit Suisse Securities (USA), LLC, 2013 WL 1767951, at *2 (D. Mont. Apr. 24, 2013).

Montana's long arm statute, Montana Rule of Civil Procedure 4(b)(1), "permit[s] the exercise of personal jurisdiction over nonresident defendants to the maximum extent permitted by federal due process." Davis v. Am. Family Mut. Ins. Co., 861 F.2d 1159, 1161 (9^th Cir. 1988). The long-arm statute "embodies principles of both general and specific jurisdiction." Poliseno...