Freiner v. Judy
| Docket Number | 4:23-CV-982 HEA |
| Decision Date | 18 September 2023 |
| Parties | ANGELA FREINER, Plaintiff, v. JAMES JUDY, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
Before the Court is plaintiff Angela Freiner's post-dismissal motion to vacate the dismissal and reopen this matter. [ECF No. 7]. Plaintiff has also filed a motion for leave to file a postdismissal motion to amend the complaint. [ECF No. 9]. Last, plaintiff filed a motion seeking to be appointed as next friend for her daughter, D.L.[1][ECF No. 8]. After reviewing plaintiff's motions in their entirety, the Court finds that it would be futile to reopen this case because the Court lacks jurisdiction over this matter. Plaintiff's motion to vacate the dismissal and reopen this matter, as well as her motion for leave to file an amended complaint, will therefore be denied. [ECF Nos. 7 and 9]. Plaintiff's motion to proceed as next friend for her daughter, D.L., will also be denied. [ECF No. 8].
Plaintiff Angela Freiner, a self-represented litigant, filed the instant action pro se and in forma pauperis on August 7 2023, by filing a typed complaint titled, “Complaint for Emotional Distress Tort Claim,” naming James Judy the co-parent of her minor child, as a defendant in this action. [ECF No. 1]. Plaintiff alleged that Judy, an alleged resident of Bozeman, Montana, engaged in a pattern of behavior “aimed at undermining the plaintiff's relationship with [her] offspring and causing emotional harm to the plaintiff.” She asserted that he “interfered with visitation rights, manipulated the offspring's perception of plaintiff, and intentionally undermined the plaintiff's role as a mother.”
Plaintiff, purportedly a resident of St. Louis, Missouri, sued Judy under 28 U.S.C. § 1332, federal diversity jurisdiction. She claimed violations of Missouri State law, including intentional infliction of emotional distress; alienation of her child's affections; and violation of her parental rights. Plaintiff also appeared to allege that defendant Judy made false claims during child custody hearings, forged legal documents relating to those hearings and as such, led to a temporary restraining order being instituted against plaintiff by a family court judge in Missouri State Court and plaintiff's eventual incarceration. For relief, plaintiff sought monetary damages over $75,000, including claims for lost wages, emotional distress damages, damages for building the parent-child relationship, amounts for attorneys' fees and punitive damages.
Because plaintiff was proceeding in forma pauperis, the Court reviewed her complaint pursuant to 28 U.S.C. § 1915 on August 10, 2023. The Court issued an Order to Show Cause on that date as to why the matter should not be dismissed for lack of subject matter jurisdiction. [ECF No. 4]. The Court specifically noted that because this action dealt with state court child custody matters between plaintiff and Judy, see Freiner v. Judy, No. 14SL-DR2617-02 (21st Jud. Cir. St. Louis County), the Court had to abstain from jurisdiction over the case under the domestic relations exception. See Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992). Additionally, even if the case did not deal with domestic relations issues, plaintiff's claims against Judy failed to establish either diversity jurisdiction under 28 U.S.C. § 1332 or federal question jurisdiction under 28 U.S.C. § 1331.
For example, plaintiff had failed to state the citizenship of the parties,[2] and she had not properly alleged that the amount in controversy exceeded $75,000.[3]Furthermore, plaintiff had failed to establish subject matter jurisdiction because on the face of her complaint it was evident she was only contesting child custody matters. Plaintiff was given until August 31, 2023, to respond to the Order to Show Cause to establish why this matter should not be dismissed for lack of jurisdiction.
On September 5, 2023, the Court dismissed this matter pursuant to Federal Rule of Civil Procedure 41 due to plaintiff's failure to timely respond to the Order to Show Cause. However, on September 12, 2023, plaintiff filed a motion to vacate the Order of Dismissal and reopen this matter, in which she acknowledges that she failed to file her response in a timely manner. [ECF No. 7]. She claims that her delay in responding to the Order to Show Cause was because she did not receive the Court's Order until August 17, 2023. Thus, she was unaware of when her response was due to the Court. However, a litigant's pro se status, confusion about time periods or lack of legal resources is inadequate to warrant equitable tolling of the relevant time period. See, e.g., Shoemate v. Norris, 390 F.3d 595, 598 (8th Cir. 2004) (); Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000) (same). Regardless, plaintiff argues that the “circumstances surrounding this case justify reevaluation of the dismissal.”
Plaintiff Angela Freiner titles her proposed amended complaint, “Order to Show Cause.” [ECF No. 9-1]. It is typed and numbers twenty-nine (29) pages. Submitted with her proposed amended complaint is plaintiff's motion seeking to be appointed as next friend for her daughter, D.L., in this matter. [ECF No. 8]. Plaintiff has not submitted a memorandum in support of her motion seeking to be appointed as next friend for D.L., and there is no indication in the proposed amended complaint that she is seeking to bring claims on D.L.'s behalf.
The proposed amended complaint names James Judy, D.L.'s father, and his wife, Cerissa Judy, as well as John/Jane Does 1-20. Plaintiff brings two counts for civil rights conspiracy under 42 U.S.C. § 1983, as well as Missouri State law claims for abuse of process and intentional infliction of emotional distress. Plaintiff also requests a grand jury investigation into the “actions of Defendants James Scott Judy, Cerissa Patrice Judy and John/Jane Doe 1 through 20.” Plaintiff seeks monetary and punitive damages in excess of two million dollars.
In the opening paragraphs of her proposed amended complaint, plaintiff asserts that she believes that defendants have conspired with “governmental entities and private citizens” to undermine her rights and prevent her from “experiencing the companionship, love, and affection of [her] offspring, [D.L.] while also interfering with [her] fundamental right to familial ties and the experience of [her] offspring's companionship, love and affection.”
Plaintiff acknowledges in her proposed amended complaint that a trial relating to D.L.'s custody took place in St. Louis County Court on or about August 14, 2020. [ECF No. 9, pp. 9-10]. See Freiner v. Judy, No. 14SL-DR2617-02 (21st Jud. Cir. St. Louis County). She states that custody of D.L. was awarded to defendant Judy at that time. However, she complains that she and Judy continued to fight over custodial issues relating to D.L. well into December of 2020. Id. at p. 11.
Plaintiff complains that the family court judge, Nicole Zellweger, denied her motion to amend or modify the custody plan on December 23, 2020. Nonetheless, D.L. refused to return to her father's custody after Christmas break, and she asked to remain in her mother's custody in early January of 2021. [ECF. No. 9, p. 12]. Judy filed a restraining order seeking to have custody of Judy on or about January 11, 2021, and on January 14, 2021, he sought sole legal and physical custody of D.L.
Purportedly, Judy was granted a restraining order on or about January 14, 2021, granting him sole legal and physical custody on a temporary basis, but his attempts at removal were met with difficulty. Thus, Judy was granted sole legal and physical custody by Zellweger on or about January 29, 2021, during a preliminary injunction hearing, and plaintiff was ordered to relinquish custody at the St. Louis County courthouse on February 3, 2021. Plaintiff claims that D.L. “chose not to attend” that day. Id. at 13.
On February 5, 2021, Judge Zellweger issued a show cause as to plaintiff for criminal contempt due to plaintiff's failure to turn over D.L., giving plaintiff until February 10, 2021, to do so. Plaintiff contacted Missouri Department of Children and Family Services “on behalf of D.L.” on February 9, 2021, and on February 10, 2021, an unnamed person placed D.L. in a “mental ward in St. Louis Children's Hospital. Id. at 14.
Plaintiff asserts that she was imprisoned on charges of criminal contempt. Id. And D.L. had two court-appointed Guardian ad litems appointed in her case. On March 3, 2021, after plaintiff went to the news media about the custody case, Judge Zellweger recused herself from the custody matters. And on March 5, 2021, D.L. was transported by her uncle, Judy's brother, to what appears to be her father's custody. [ECF. No. 9, p. 16].
Plaintiff was formally indicted on criminal contempt charges on April 21, 2021. Plaintiff asserts that she lacked any custody over D.L. throughout 2021. However, on May 11, 2022, a new parenting plan was instituted that allowed for some “therapeutic virtual contact” between plaintiff and D.L. Although sole legal and physical custody was assigned to Judy. Id. at 19. Plaintiff's criminal case was eventually dismissed pursuant to “nolle presequi.”
Under the Federal Rules of Civil Procedure, the Court should freely grant leave to amend when justice so requires. Fed.R.Civ.P 15(a)(2). However, following dismissal, the right to amend a complaint under Fed.R.Civ.P. 15(a) terminates. Humphreys v. Roche Biomedical Laboratories, Inc., 990 F.2d 1078, 1082 (8th Cir. 1993) (internal...
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