Hunter v. Michelle G. Ferebauer, Robert Ferebauer, Husband & Wife & Their Marital Cmty., Patrick T. Roach, Dba Roach Law Offices, LLP
| Decision Date | 31 July 2013 |
| Docket Number | No. CV–13–5020–EFS.,CV–13–5020–EFS. |
| Citation | 980 F.Supp.2d 1251 |
| Court | U.S. District Court — District of Washington |
| Parties | Michael Duane HUNTER, Plaintiff, v. Michelle G. FEREBAUER, Robert Ferebauer, Husband and Wife and Their Marital Community, Patrick T. Roach, DBA Roach Law Offices, LLP, and/or Roach and Bishop, LLP, Lawrence Lincoln and Patricia McKay, Husband and Wife and Their Marital Community, Gregory P. Hawkins, Both Individually and DBA, Hawkins & Sorenson, LC, and/or Gregory P. Hawkins, P.C., Defendants. |
OPINION TEXT STARTS HERE
Michael J. Davidson, Scott M. Kinshella, Davidson Law Center Inc., Pasco, WA, for Plaintiff.
John Graham Schultz, Leavy Schultz Davis & Fearing PS, Kennewick, WA, John Charles Riseborough, Paine Hamblen
Coffin Brooke & Miller, Kathleen Heather Paukert, Paukert & Troppmann PLLC, Spokane, WA, Stanley Allen Bastian, Jeffers Danielson Sonn & Aylward PS, Wenatchee, WA, Joel E. Wright, Marc Rosenberg, Lee Smart Cook Martin & Patterson PS, Seattle, WA, for Defendants.
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS
Before the Court, without oral argument, are Defendant Gregory P. Hawkins' 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction, ECF No. 12, and Defendants Michelle and Robert Ferebauer, Patrick T. Roach, Lawrence Lincoln and Patricia McKay, and Hawkins' 12(b)(6) Motions to Dismiss, ECF Nos 10, 48, 50, & 52. In addition to Hawkins' personal jurisdiction argument, Defendants claim that Plaintiff's claims must be dismissed because previous litigation decided these issues, and because Plaintiff's Amended Complaint is not sufficiently pled. Plaintiff Michael Duane Hunter opposes the motions, contending personal jurisdictions exists and that the Amended Complaint sufficiently asserts eight claims against each of the Defendants: 1) common law conspiracy; 2) conspiracy against civil rights under 42 U.S.C. § 1985(3); 3) tortious interference with parental rights; 4) claims under 42 U.S.C. § 1983; 5) fraud; 6) constructive fraud; 7) outrage; and 8) negligent infliction of emotional damage. ECF No. 31. For the reasons set forth below, Defendants' motions to dismiss are granted.
A. Factual History
Plaintiff is a Washington resident who claims to be the biological father of a female minor (hereinafter, “Baby”) born in Utah on March 2, 2010. The biological mother of Baby is Defendant Michelle Ferebauer “). M. Ferebauer is married to Defendant Robert Ferebauer “), but it is undisputed that R. Ferebauer is not the biological father of Baby. Although the Ferebauers have been married at all times material to this case, they were estranged for an unidentified period of time.
In the summer of 2009, Plaintiff and M. Ferebauer, who were both employed as engineers at Energy Northwest in Richland, Washington, began a personal relationship that led to the conception of Baby in the State of Washington. Plaintiff learned of M. Ferebauer's pregnancy in July 2009, and at that time, both parties showed interest in attempting to have a family. At some point between July 2009 and January 2010, however, M. Ferebauer informed Plaintiff that she was talking to R. Ferebauer about getting back together, and she did not want Plaintiff to be involved with the pregnancy.
On January 13, 2010, Plaintiff contacted M. Ferebauer about Baby, and M. Ferebauer informed Plaintiff that she had begun the process to have another couple adopt Baby. Two days later, Plaintiff met with M. Ferebauer and Defendant Patrick Roach, M. Ferebauer's attorney. During this meeting, Plaintiff signed a consent to adoption form, which Plaintiff later revokedon February 18, 2010. Notice of this revocation was sent to Roach's office on that day, and Roach was made aware that Plaintiff wanted to raise Baby. In response, M. Ferebauer contacted Plaintiff in order to obtain consent to the adoption, but Plaintiff refused these requests.
On February 24, 2010, Plaintiff received an e-mail message from M. Ferebauer which stated:
Hunter,
You have made my life very difficult here and I need some space. I have decided to go to Utah to have the baby. I have good friends there that I'd like to have with me. I'll contact you when I get back.
Michelle.
Am. Compl. ¶ 20, ECF No. 31, at 25. Plaintiff responded to this email, and did not hear from M. Ferebauer again for several months. Prior to this e-mail, Plaintiff was not aware that M. Ferebauer was considering delivering Baby in Utah.
Baby was due on March 10, 2012, but was born March 2, 2010; the parental rights of M. Ferebauer and Plaintiff were terminated on March 4, 2010 by order of a Utah State Court. With the help of Defendant Gregory Hawkins, a Utah attorney, Defendants Lawrence Lincoln and Patricia McKay, both Washington residents, adopted Baby shortly after her birth. Defendants Lincoln and McKay had been interested in adopting Baby since January 2010, and had been involved with M. Ferebauer throughout the later stages of her pregnancy. Outside of the February 24th e-mail, Plaintiff was not aware that any of this occurred.
B. Procedural History1. The Present Suit
Plaintiff filed his original Complaint in this case on February 21, 2013, in which he named M. Ferebauer, R. Ferebauer, Roach and Roach Law Offices, Lincoln, McKay, Hawkins, and Hawkins & Sorenson, LC, as Defendants. ECF No. 1. That Complaint was amended on April 25, 2013.2 ECF No. 31. In his Amended Complaint, Plaintiff brought the following claims against Defendants: 1) common law conspiracy; 2) conspiracy against civil rights under 42 U.S.C. § 1985(3); 3) tortious interference with parental rights; 4) claims under 42 U.S.C. § 1983; 5) fraud; 6) constructive fraud; 7) outrage; and 8) negligent infliction of emotional damage. Id. Generally, each of these claims is based on the theory that each of the named Defendants—individually and/or through conspiracy—intentionally and/or negligently acted to interfere with Plaintiff's fundamental rights in regard to Baby. Plaintiff asks the Court for the following relief: 1) $10,000,000 in compensatory damages for himself; 2) $10,000,000 for Baby and for Plaintiff's two other children (the step-siblings of Baby); and 3) attorney's fees and costs. Id.
In response to these claims, each of the Defendants has moved to dismiss. Defendant Hawkins claims that he is a Utah attorney who has no contacts or connections with Washington, so Plaintiff's claims against him should be dismissed for lack of personal jurisdiction under Rule 12(b)(2). ECF No. 12. Even if this motion is unsuccessful, however, Defendant Hawkins argues the claims against him should also be dismissed under Rule 12(b)(6) because Plaintiff's claims are insufficiently pled and have been dealt with in other jurisdictions. ECF No. 10. Defendants Ferebauer, Roach, and Lincoln and McKay also made similar Rule 12(b)(6) motions based on the lack of a cognizable claim. ECF No. 52 (Ferebauer); ECF No. 50 (Lincoln and McKay); ECF No. 48 (Roach). Each of these motions will be considered below.
2. Utah State Court Litigation
Defendant Hawkins—acting on behalf of Defendants Lincoln and McKay—filed an ex parte Verified Petition to Determine Parental Rights of Baby in the Third District Court in Salt Lake City on March 3, 2010. ECF No. 1, Ex. 1. This petition proposed termination of the parental rights of Defendants Ferebauer and Plaintiff. Id. at 66–67. The Utah court entered an order terminating those parental rights and granting temporary custody of Baby—pending finalization of the adoption—to Defendants Lincoln and McKay on March 4, 2010. Order, ECF No. 11–1, Ex. 1.
Plaintiff did not seek to establish paternity in Utah prior to the Utah court's order terminating parental rights, but he did move to intervene in the adoption process after it had begun. Order Den. Mot. to Intervene, ECF No. 11–1, Ex. 2. On March 23, 2010, the Utah state court denied Plaintiff's motion to intervene, determining that he lacked standing to do so. Id. The Utah state court also determined that Plaintiff had unlawfully obtained documents from Defendants Lincoln and McKay's ICPC (Interstate Compact on the Placement of Children) filing. Id. The Utah State court order barred Plaintiff from using this information. Plaintiff appealed, but voluntarily dropped his appeal before a decision was handed down.
3. Washington State Court Litigation
On March 3, 2010, Plaintiff moved to establish paternity in Franklin County Superior Court. Am. Compl. ¶ 26, ECF No. 31. The court determined that Utah state courts—not Washington courts—had jurisdiction over this issue. Order Re Jurisdiction, ECF No. 11–1, Ex. 3. As such, this motion was denied on June 24, 2010. Id. On September 23, 2011, Plaintiff appealed this decision in the Washington State Court of Appeals, Division III, where the case is currently pending. Am. Compl. ¶ 26, ECF No. 31.
4. Utah Federal Court Claim
On August 17, 2010, Plaintiff filed a lawsuit in the Utah Federal District Court. ECF No. 11–1, Ex. 4. In that lawsuit, Plaintiff alleged many of the same causes of action that he filed in this suit. Id. Plaintiff voluntarily dismissed the lawsuit on October 28, 2011. Order of Dis. ECF No. 11–1, Ex. 6.
The Fourteenth Amendment's Due Process Clause guarantees that a court lawfully exercise personal jurisdiction over a civil defendant. Shute v. Carnival Cruise Lines, 897 F.2d 377, 379 (9th Cir.1990), rev'd on other grounds,499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). The plaintiff bears the burden of demonstrating the existence of personal jurisdiction. Id. At the pre-discovery stage of litigation, the court accepts as true the jurisdiction-related facts in the complaint. Pac. Atl. Trading Co., Inc. v. M/V Main Exp., 758 F.2d 1325, 1327 (9th Cir.1985); see also4 Wright & Miller, Federal Practice & Procedure § 1067.6 (3d ed.).
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