Purvis v. Hamwi

• Decision Date: 09 August 1993
• Docket Number: Civ. A. No. 93-F-701.
• Citation: 828 F. Supp. 1479
• Parties: John G. PURVIS and Emma Jo Bartlett, Plaintiffs, v. Paul R. HAMWI, Robert W. Beckett, Sr., and Paul M. Serio, Defendants.
• Court: U.S. District Court — District of Colorado

828 F. Supp. 1479

John G. PURVIS and Emma Jo Bartlett, Plaintiffs, v. Paul R. HAMWI, Robert W. Beckett, Sr., and Paul M. Serio, Defendants.

Civ. A. No. 93-F-701.

United States District Court, D. Colorado.

August 9, 1993.

John G. Salmon, Salmon, Godsman & Nicholson, P.C., Englewood, CO, Charles F. McCloskey, Jr., Denver, CO, for plaintiffs.

Christopher C. Cross, Cross, Schlie & Heckenbach, P.C., Englewood, CO, for defendant Hamwi.

ORDER REGARDING MOTION FOR SUMMARY JUDGMENT

SHERMAN G. FINESILVER, Chief Judge.

This is a case involving allegations of malicious prosecution. This matter comes before the Court on Defendant Paul R. Hamwi's ("Hamwi") motion to dismiss. The motion contained matters outside the pleadings; pursuant to Fed.R.Civ.P. 12(c), the motion was converted to one for summary judgment. Jurisdiction is based on 28 U.S.C. § 1332 (West Supp.1992). The parties have fully briefed the issues. For the reasons stated below, the motion is granted in part.

I. Background

The Plaintiffs, John Purvis and Emma Jo Bartlett, claim that in 1983, Defendant Hamwi arranged for Defendants Robert W. Beckett Sr. and Paul M. Serio to murder Hamwi's ex-wife, Susan Hamwi.¹ Plaintiffs claim Defendants' purpose was to enable Hamwi to avoid paying a divorce judgment for alimony and child support for their one-and-a-half-year-old daughter, Shane. Conferences among the defendants to plan the murder allegedly took place in Pitkin County, Colorado and by telephone between Colorado and California. Hamwi paid Beckett and Serio $14,000 to go to Fort Lauderdale, Florida, where Susan Hamwi lived with Shane, and to murder Susan Hamwi. Hamwi told Beckett and Serio to make sure the murder did not look like a "professional hit."

In October 1983 Beckett and Serio flew to Fort Lauderdale, Florida. On November 1, 1983, Beckett and Serio went to Susan Hamwi's home and murdered her. In the course of the murder, Beckett and Serio sexually assaulted, strangled, and stabbed Susan Hamwi. Prior to the murder, Hamwi had told Beckett to call him after killing Susan Hamwi so that Hamwi could phone Susan Hamwi's home and, when no one answered, contact someone to go to Susan Hamwi's house, discover the body, and tend to Shane. After the murder, Beckett did call Hamwi, but Hamwi did nothing. As a result, Susan Hamwi's body was not discovered for several days and Shane died of dehydration.

At the time Susan Hamwi was murdered, Plaintiff John G. Purvis lived with his mother, Plaintiff Emma Jo Bartlett, in the same Fort Lauderdale neighborhood as Susan Hamwi. Purvis was arrested for, tried, and convicted for the murder and sexual assault of Susan Hamwi and the murder of Shane Hamwi. Hamwi cooperated with the Florida police in its investigation of Purvis, made several trips to Florida to participate in the criminal proceedings, and ultimately testified at Purvis' trial as a witness for the state of Florida. During his deposition, Hamwi responded to questioning about his financial motivation to see Susan Hamwi dead by stating to the defense counsel, "I had been making payments both to Susan and to Shane up until the time your client killed them." Plaintiffs also state Hamwi repeatedly referred to Purvis as "the guilty party."² According to Plaintiffs, John Purvis spent nine years in prison for the crimes of the defendants.

On December 14, 1992, Beckett confessed that he and Serio had murdered Susan Hamwi at the direction of Paul Hamwi. In January 1993, Hamwi and Serio were arrested for the murders and Purvis was released from prison. The State of Florida gave Beckett immunity from prosecution on criminal charges in exchange for his cooperation in the prosecution of Hamwi and Serio, who are both in jail in Broward County, Florida, awaiting trial for the murders of Susan and Shane Hamwi. On March 30, 1993, Purvis and Bartlett filed this civil action for damages suffered due to the acts of the defendants, including claims for (1) negligence, (2) negligent infliction of emotional distress, (3) intentional infliction of emotional distress, (4) malicious prosecution, (5) exemplary damages, (6) racketeering under the Racketeer Influenced and Corrupt Organizations Act ("RICO"); and (7) racketeering under the Colorado Organized Crime Control Act ("COCCA").

Hamwi filed a motion to dismiss the complaint, arguing that Plaintiffs' negligence claim must fail because Hamwi had no duty to come forward and admit his guilt. Hamwi concludes that the first five claims must also be dismissed for this reason, that the RICO and COCCA claims lack criteria necessary to establishing a "pattern of racketeering activity," and indispensable parties have not been joined.

II. Summary Judgment Standard

Granting summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Ash Creek Mining Co. v. Lujan, 934 F.2d 240, 242 (10th Cir.1991); Metz v. United States, 933 F.2d 802, 804 (10th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 416, 116 L.Ed.2d 436 (1991); Continental Casualty Co. v. P.D.C., Inc., 931 F.2d 1429, 1430 (10th Cir.1991). A genuine issue of material fact exists only where "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Merrick v. Northern Natural Gas Co., 911 F.2d 426, 429 (10th Cir.1990). Only disputes over facts that might affect the outcome of the case will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Allen v. Dayco Prods., Inc., 758 F.Supp. 630, 631 (D.Colo.1990).

In reviewing a motion for summary judgment, the court must view the evidence in the light most favorable to the party opposing the motion. Newport Steel Corp. v. Thompson, 757 F.Supp. 1152, 1155 (D.Colo.1990). All doubts must be resolved in favor of the existence of triable issues of fact. Boren v. Southwestern Bell Tel. Co., 933 F.2d 891, 892 (10th Cir.1991); Mountain Fuel Supply v. Reliance Ins. Co., 933 F.2d 882, 889 (10th Cir.1991).

In a motion for summary judgment, the moving party's initial burden is slight. In Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986), the Supreme Court held that the language of rule 56(c) does not require the moving party to show an absence of issues of material fact in order to be awarded summary judgment. Rule 56 does not require the movant to negate the opponent's claim. Id. at 323, 106 S.Ct. at 2552. The moving party must allege an absence of evidence to support the opposing party's case and identify supporting portions of the record. Id.

Once the movant has made an initial showing, the burden of going forward shifts to the opposing party. The nonmovant must establish that there are issues of material fact to be determined. Id. at 322-23, 106 S.Ct. at 2551-52. The nonmovant must go beyond the pleadings and designate specific facts showing genuine issues for trial on every element challenged by the motion. Tillett v. Lujan, 931 F.2d 636, 639 (10th Cir.1991). Conclusory allegations will not establish issues of fact sufficient to defeat summary judgment. McVay v. Western Plains Serv. Corp., 823 F.2d 1395, 1398 (10th Cir.1987).

In reviewing the evidence submitted, the court should grant summary judgment only when there is clearly no issue of material fact remaining. In Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11, the Court held that summary judgment should be granted if the pretrial evidence is merely colorable or is not significantly probative. In Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), the Court held that summary judgment is appropriate when the trial judge can conclude that no reasonable trier of fact could find for the nonmovant on the basis of evidence presented in the motion and the response. Id. at 587, 106 S.Ct. at 1356.

III. Analysis

A. Malicious Prosecution Generally

In order to establish a claim for malicious prosecution, a plaintiff must prove by a preponderance of the evidence that (1) the defendant was a party to or assisted in a criminal or civil proceeding against the plaintiff, (2) the proceeding was resolved in favor of the plaintiff, (3) there was no probable cause for the proceeding, (4) the defendant was motivated by malice in instituting the proceedings, and (5) the plaintiff was damaged as a result. See Walford v. Blinder, Robinson & Co., Inc., 793 P.2d 620, 623 (Colo.App.1990); see also RESTATEMENT, SECOND, TORTS, § 653 (elements of malicious prosecution include initiation or procurement of proceedings without probable cause for a purpose other than that of bringing alleged offender to justice, and termination of proceedings in favor of accused). Actions for malicious prosecution are generally not favored in the law; this is so because public policy encourages that criminals be brought to justice and citizens be allowed to aid the prosecution without fear of civil suits for damages. Whittaker v. Duke, 473 F.Supp. 908, 912 (S.D.N.Y.1979), citing Seidel v. Greenberg, 108 N.J.Super. 248, 260 A.2d 863, 868 (Law Div.1969); Devlin v. Greiner, 147 N.J.Super. 446, 371 A.2d 380, 394 (Law Div. 1977).

Some clarification of the standard may be helpful. First, the level of the defendant's involvement in the alleged malicious prosecution may be analyzed by asking whether the wrongful and intentional acts of the defendants were a proximate and efficient cause of the prosecution of the plaintiff. See Seidel v. Greenberg, 108 N.J.Super. 248, 260 A.2d 863, 868 (1969) (noting that "the fundamental and underlying basis for liability for malicious prosecution is stated in many cases and in secondary authorities in the language of proximate causation"); 52 AM.JUR.2d, Malicious Prosecution, § 25. In other words, the plaintiff must show that the defendant was "affirmatively active in instigating or...