Hopper v. Drysdale, CV-80-144-GF.

• Decision Date: 08 October 1981
• Docket Number: No. CV-80-144-GF.,CV-80-144-GF.
• Citation: 524 F. Supp. 1039
• Court: U.S. District Court — District of Montana
• Parties: Edwin S. HOPPER, Plaintiff, v. Douglas R. DRYSDALE, James J. Screnar and Michael D. Cok, Defendants.

524 F. Supp. 1039

Edwin S. HOPPER, Plaintiff, v. Douglas R. DRYSDALE, James J. Screnar and Michael D. Cok, Defendants.

No. CV-80-144-GF.

United States District Court, D. Montana, Great Falls Division.

October 8, 1981.

John C. Hoyt, Hoyt & Trieweiler, Great Falls, Mont., for plaintiff.

Robert J. Emmons, Great Falls, Mont., for defendants.

MEMORANDUM

HATFIELD, District Judge.

Plaintiff, Edwin S. Hopper, filed the present action seeking damages for what this court perceives as a tort for malicious abuse of process founded on the actions of the defendant attorneys. The actions complained of consist of the filing of notice and taking of the deposition of the plaintiff in a civil suit for the ulterior motive of having the plaintiff arrested for an outstanding contempt violation issued in an unrelated proceeding.

The defendants have countered by filing a motion for summary judgment contending, in essence, that the arrest complained of was the result of lawful actions done by the state district court judge who issued the contempt citation which served as the basis of plaintiff's arrest.

The matter, having been fully briefed by both parties, is ripe for disposition.

Jurisdiction vests in this court pursuant to 28 U.S.C. § 1332(a).

FACTUAL BACKGROUND

Clarification of events which culminated in the plaintiff's arrest for contempt is necessary to the disposition of the motion at issue.

On April 9, 1976, Voga Hopper (wife of the plaintiff) filed a petition for dissolution from the plaintiff, Edwin Hopper, in State District Court, Gallatin County, Montana (hereinafter the "dissolution"). Voga Hopper and Edwin Hopper executed a property settlement and support agreement which was incorporated into the decree of dissolution entered July 19, 1976 by the state district court judge.

Edwin Hopper subsequently filed an action to have the property agreement so executed set aside as unconscionable. The district court failed to set aside the agreement and that decision was upheld on appeal to the Montana Supreme Court. Hopper v. Hopper, Mont., 601 P.2d 29, 36 St. Rep. 1695 (1979).

On December 6, 1979, Edwin Hopper filed suit (hereinafter the "fraud action") in State District Court, Flathead County, Montana, naming Lyman H. Bennett (attorney for Voga Hopper in the dissolution) and Voga Hopper as defendants, alleging fraud on the part of the defendants in conjunction with the dissolution. The fraud action was subsequently removed to Gallatin County.

In light of the fact that Edwin Hopper failed to comply with the dissolution decree, Voga Hopper petitioned the court to hold Edwin Hopper in contempt. By order dated March 29, 1980, the state district judge required Edwin Hopper to comply with the terms of the dissolution decree within twenty (20) days.

On April 16, 1980, Voga Hopper filed an affidavit with the state district court alleging that Edwin Hopper was in violation of the court's order of March 29, 1980, petitioning the court to find Edwin Hopper in contempt.

The state court district judge ordered Edwin Hopper to appear before the court on July 9, 1980, and show cause why he should not be held in contempt. Edwin Hopper was personally served in the State of Idaho, but failed to appear at the show cause hearing. Following the hearing, the state district judge found Edwin Hopper in contempt and ordered him arrested and jailed for a period of five (5) days if he failed to purge himself within ten (10) days by furnishing security for the money found to be owing under the dissolution decree.

As noted, at this time Edwin Hopper was residing in the State of Idaho and hence was not within the jurisdiction of the state district court.

In October of 1980, the defendants, as counsel for Voga Hopper in the fraud action filed by Edwin Hopper, gave notice of the taking of Edwin Hopper's deposition. The deposition was set for December 12, 1980 in Bozeman, Montana.

Subsequent to the noticing of this deposition, defendants herein notified the state district judge that Edwin Hopper would be in Bozeman, Montana on December 12, 1980. On December 9, 1980 the state district judge issued a bench warrant for the arrest of Edwin Hopper arising out of the contempt order of July 9, 1980, which was delivered to the Gallatin County, Montana, sheriff by defendant herein, Michael Cok, on December 12, 1980. Mr. Cok instructed the sheriff not to deliver the warrant until he received a phone call from the defendants' office.

Edwin Hopper appeared for the deposition as scheduled and was deposed by defendant herein, Douglas Drysdale. After Douglas Drysdale completed his deposition of Edwin Hopper, a recess was had, during which time Douglas Drysdale phoned defendant Michael Cok, who in turn notified the sheriff's office to proceed with service of the aforementioned arrest warrant.

Edwin Hopper was arrested and incarcerated in the Gallatin County Jail.

DISCUSSION

Plaintiff Edwin Hopper filed the present action alleging that the actions of the defendant attorneys constituted abuse of process and as such he maintains he is entitled to damages.

Defendants contend that they may not be subjected to suit for the issuance of a warrant of arrest ordered to be prepared and signed by a state district court judge. Therefore defendants move this court to grant their motion for summary judgment.

Review of the events which transpired leads this court to...