Nielson v. Soltis
| Decision Date | 29 November 1993 |
| Citation | 41 F.3d 1516 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before SEYMOUR and LOGAN, Circuit Judges, and DAUGHERTY, District Judge. *
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.
This is an appeal from the United States District Court for the District of Utah granting summary judgment in favor of the Defendants and dismissing the Plaintiff's Complaint which alleged violations of federal civil rights laws, 42 U.S.C. Secs. 1983, 1985 and 1986, and related causes of action under Utah state law. The district court also denied the Defendants' Petition for Attorney's Fees 1 under 42 U.S.C. Sec. 1988. Plaintiff Nielson and Defendants Soltis, Stringham, Provan, Van Dam, Division of Wildlife Resources and the Attorney General, State of Utah, filed Cross-Appeals in this Court. For the reasons stated below, we affirm.
Plaintiff-Appellant Parker Nielson trains hunting dogs as a hobby. On the opening day of Utah bird hunting season in 1990, September 9th, the Plaintiff was training his dogs with a type of game bird called a chukar. At that time, Appellee Dale Gurley, a Conservation Officer with the Division of Wildlife Resources of the State of Utah, was patrolling the Vernon-Bennion area of Tooele County, Utah, to check on hunters during the opening weekend. While Gurley was patrolling the area, he was informed by two hunters of a trap containing four game birds located nearby. Gurley proceeded to the trap following the hunters' directions and discovered the Appellant's bird trap containing one chukar, a game bird which the Appellant used in his dog training activities. Gurley determined that the trap was an illegal bird trap and seized the trap, releasing the chukar. At the time the trap was seized, Gurley did not know of the identity of the owner but was told later that day that the bird trap belonged to Appellant Parker Nielson.
On September 13, 1990, Appellant Nielson filed suit against Appellee Dale Gurley in the Third Judicial District Court for the County of Tooele, Utah. The Complaint in that case alleged that Gurley converted certain property of Nielson, tortiously interfered with contract rights between Nielson and the State of Utah and defamed Nielson. In that case, Appellant Nielson demanded $1,000 for damage to his property, $10,000 for interference with contract rights, and $50,000 for damages to his reputation.
On April 9, 1991, Appellant Nielson filed a Motion for Partial Summary Judgment in that state case. On or about April 18, 1991, Appellee/Cross Appellant Reed M. Stringham, III, an Assistant Attorney General who was representing Gurley in the state court action, met with Gurley to discuss Nielson's Motion for Partial Summary Judgment and to prepare an affidavit in opposition thereto. Appellee Gurley asserts that the affidavit was prepared by Stringham and others in the Attorney General's office and was thereafter signed by him. The affidavit stated in part that Gurley "issued a citation to Plaintiff on or about September 13, 1990, by mailing it to him." This portion of the affidavit is inaccurate because, while a citation had been filled out, it had not been filed or mailed to Nielson. The state court ultimately granted the Plaintiff's Motion for Partial Summary Judgment on June 24, 1991, holding that it is lawful under Utah law to own, possess and operate a bird pen for domestic game birds and that it is lawful under Utah law to recapture one's own domestic game birds.
On November 14, 1991, after partial summary judgment had been entered, Nielson filed a Motion to Strike the Affidavit of Dale Gurley or Require Compliance with Rules 7 and 11 (of the Utah Laws of Civil Procedure). On February 21, 1992, the Third Judicial District Court entered its Order striking the affidavit of Dale Gurley and awarding Rule 11 sanctions in favor of Nielson and against Gurley in the amount of $3,289, such award to compensate Nielson for the "fair and reasonable value of Plaintiff's professional time ..." On December 18, 1992, the Third Judicial District Court for Tooele County issued its memorandum decision in the state court action, resolving the damages aspect of that case. Nielson was awarded damages of $2,300 for destruction of his bird pen and attorney's fees of $15,000 in addition to the amount previously awarded as sanctions.
On or about April 29, 1992, while the state court action was still pending, Appellant Nielson filed the Complaint that is the subject of this action in the Third Judicial District Court for Salt Lake County, Utah. The Complaint alleged claims under 42 U.S.C. Secs. 1983, 1985 and 1986, and state common law claims. On June 1, 1992, the Defendants Soltis, Stringham, Van Dam and the Attorney General filed a Notice of Removal to the United States District Court for the District of Utah, Central Division. On June 3, 1992, the Defendants Gurley, Provan and the Division of Wildlife Resources joined in the removal of this case to federal court. 2 Also on June 3, 1992, all Defendants except Gurley filed an Answer to the Plaintiff's Complaint, in which they included the Eleventh Amendment to the United States Constitution and sovereign immunity as defenses on behalf of the State.
On June 5, 1992, Nielson then filed an Alternative Motion (1) For An Order Joining All Defendants In Notice of Removal Or (2) Remanding To The State Court. The Defendants opposed the Plaintiff's Motion asserting that removal was properly effected and opposed remand of the case. The Plaintiff's Alternative Motion was denied by the Court by Order dated July 15, 1992.
On or about July 31, 1992, Plaintiff Nielson filed his Motion for Summary Judgment in which he asserted that the conduct of all Defendants violated the civil rights laws, whether those Defendants were alleged to have engaged in affirmative misconduct or in failure to prevent such misconduct, and that the decision in the state court action granting partial summary judgment in favor of Plaintiff Nielson regarding the illegality of Defendant Gurley's conduct should be found dispositive of that issue in the second lawsuit under the doctrine of collateral estoppel. Defendants Soltis, Stringham, Provan, Van Dam, the Division of Wildlife Resources and the Attorney General filed their own Cross-Motion for Summary Judgment on or about August 31, 1992, asserting that they were entitled to judgment in their favor on the Plaintiff's claims under 42 U.S.C. Secs. 1983, 1985 and 1986, and urging dismissal of the Plaintiff's state claims. Defendant Gurley filed his own Motion for Summary Judgment on or about September 17, 1992. On December 16, 1992, the Court, after hearing oral arguments, denied Nielson's Motion for Summary Judgment, and granted the Motions for Summary Judgment of all Defendants. The Court dismissed the federal claims with prejudice and also dismissed the state claims without prejudice to their refiling in state court.
On December 30, 1992, all Defendants with the exception of Dale Gurley filed a Petition for Attorney's Fees under 42 U.S.C. Sec. 1988. Those Defendants asserted in their Petition that they were entitled to attorney's fees because the Plaintiff's claims were groundless, frivolous and unreasonable. The next day, Nielson filed the Plaintiff's Motion For An Order Vacating Memorandum Decision And Order Dated December 16, 1992, And Remanding To The State Court. That Motion was based primarily on the ground that the assertion of the Eleventh Amendment defense by the Defendants prevented removal of any claims for the reason that the federal court would lack jurisdiction over such claims. By Order dated April 14, 1993, the district court denied both Nielson's Motion to Vacate and Remand and the Defendants' Petition for Attorney's Fees. This appeal by Nielson and Cross-Appeal by the Defendants on the issue of the attorney's fee followed.
On September 13, 1993, the Appellant Parker M. Nielson, filed in this Court a document entitled "Errata." In the Errata, Nielson asserts that the wildlife regulations (Exhibit D) cited by Gurley in his brief are a misrepresentation of the actual regulations. Nielson further contends in his Errata that Appellee Gurley and his counsel improperly omitted the portion of the Utah Administrative Code wildlife regulations regarding "accidental trapping."
On October 4, 1993, counsel for Appellee/Cross-Appellant Dale Gurley, Dennis C. Ferguson, submitted a response to Appellant's Errata. In that response, counsel for Appellee Gurley asserts that his Exhibit D is an exact copy of excerpts from a wildlife proclamation as set out in the minutes of the Utah Wildlife Board. Gurley and his counsel contend that there is no material difference between the provisions of the proclamation referenced in Gurley's brief and the wildlife regulations as published in the Utah Administrative Code. In support of that assertion, Appellee Gurley's counsel submitted a comparison of certain of the applicable...
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