Tasby v. Peek

• Decision Date: 20 June 1975
• Docket Number: Civ. A. No. T-74-36-C.
• Citation: 396 F. Supp. 952
• Parties: Johnnie TASBY, Plaintiff, v. William L. PEEK, Defendant.
• Court: U.S. District Court — Western District of Arkansas

396 F. Supp. 952

Johnnie TASBY, Plaintiff, v. William L. PEEK, Defendant.

Civ. A. No. T-74-36-C.

United States District Court, W. D. Arkansas, Texarkana Division.

June 20, 1975.

Johnnie Tasby, pro se.

Wright, Lindsey & Jennings, Little Rock, Ark., for defendant.

MEMORANDAM OPINION

WILLIAMS, Chief Judge.

On June 3, 1974, the plaintiff, Johnnie Tasby, filed suit against the defendant, William L. Peek, seeking $100,000 actual damages, $300,000 punitive damages and for reasonable attorneys fees and costs.

The Complaint was filed by Johnnie Tasby personally. He paid the $15.00 filing fee. He listed no licensed, enrolled or qualified attorney as being of counsel and no one has signed the pleading as an attorney representing Johnnie Tasby. Simultaneous with filing the complaint, the plaintiff filed a written demand for jury trial and a typewritten, signed "Certificate of Service" as follows:

"One copy of the demand for jury trial was placed in the United States mail at the United States Penitentiary, Terry Haut, Indiana, on the 29th of April for delivery to William L. Peek, Attorney at Law, 700 Texas National Bank, Texarkana, Texas, 75501."

On August 6, 1974, the defendant, William Peek by his attorneys, Wright, Lindsey & Jennings filed a motion to dismiss the complaint:

FIRST—because any cause of action that could possibly have accrued was prior to March 27, 1970 when the jury returned its guilty verdicts against Tasby and would be barred by Ark.Stats. 37-206 (3 year statute of limitation); and

NEXT—because the complaint does not state facts sufficient to state a cause of action against William Peek.

The motion was supported by written briefs in compliance with the rules of this court.

On August 15, 1974 Johnnie Tasby filed an instrument styled "Response to Defendant's Motion to Dismiss."

No brief was filed in support of this "Response."

No positive action was taken on the matter in dispute because Tasby was before the court on several occasions after the complaint in this case was filed and had, by oral statements, led the court to believe he intended to withdraw his complaint.

Finally, on May 13, 1975 the Judge of this Court wrote a letter to Mr. Tasby as follows:

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS Post Office Box 1623 Paul X Williams Fort Smith, Arkansas 72901 Chief Judge May 13, 1975 Mr. Johnnie Tasby, No. 27876-138 P. O. Box 33 United States Penitentiary Terry Haute, Indiana 47808 Re: Johnnie Tasby v. Bill Peek U. S. District Court Texarkana Division No. T-74-C-36 Dear Sir When I talked to you at Texarkana sometime ago I understood you to say that it was your desire to dismiss the case you have pending against Bill Peek. If you desire to dismiss the case please notify me to that effect in writing so that there will be a record. If you still desire to maintain the suit against Mr. Peek, please advise me so that the matter may be set for trial. A self addressed envelope is enclosed for your convenience and prompt reply. Very truly yours /s/ Paul X Williams cc: U. S. Clerk ---------------- To which letter the Court received the following reply ---------------- Re: Tasby vs. Bill Peek T-74-36-C 6-23-75 Dear Judge Williams You may redocket the matter for trial. I notice on the docket sheet in which you withdrew this case. You had us listed under non-jury trial status. A motion for trial by jury has been submitted by me I'm sure, so I'm hoping that the court has not over-looked the motion. Very truly yours /s/ Johnnie Tasby Under the circumstances, it has become necessary for the Court to rule on the defendant's motion to dismiss.

The first thing that addresses itself to the Court's attention is that under Federal Rules Civil Procedure 8(c), a party is directed to set forth affirmatively the defense of limitations. Here, the motion to dismiss is pursuant to Rule 12. The Court finds that although the statute of limitations is designated in Rule 8(c) as an affirmative defense the current trend is to allow it to be raised by a motion to dismiss when the defect appears on the face of the complaint.

Wilburn v. Pepsi (8th Cir. 1974) 492 F.2d 1288 at page 1289 uses the following language in a per curiam order:

"Although the inclusion of dates in the complaint showing the action to be untimely rendered the complaint subject to dismissal upon motion, see Kincholoe v. Farmer, 214 F.2d 604 (7th Cir. 1954) cert. denied, 348 U.S. 920, 75 S.Ct. 306, 99 L.Ed. 721 . . .."

To the same effect see the case of Baker v. F & F Investment, 420 F.2d 1191 (CA 7th 1970), cert. denied, 400 U.S. 821, 91 S.Ct. 40, 27 L.Ed.2d 49, wherein the Court said:

"Where a complaint reveals that some claims are barred from recovery by limitations, they may be disposed of on a motion to dismiss. Kincheloe v. Farmer, 214 F.2d 604, 605, 75 S.Ct. 306, 99 L.Ed. 721 (7th Cir. 1954) certiorari denied, 348 U.S. 920, 75 S.Ct. 306, 99 L.Ed. 721; Anderson v. Linton, 178 F.2d 304, 309-310 (7th Cir. 1949)".

In the case of Partis v. Miller Equipment Co., D.C., 324 F.Supp. 898, affirmed, 439 F.2d 262 (6th Cir. 1971) the court held that the defense of limitation is properly raised by a motion to dismiss.

In the case at bar the complaint was filed on June 3, 1974. The court takes judicial knowledge of the fact that the verdict of the jury finding Tasby guilty of kidnapping was returned in open court on March 27, 1970, more than 3 years earlier. The court further takes judicial notice of the fact that the defendant's services as attorney for plaintiff terminated on or before October 12, 1970, when Hon. John Hainen was appointed to represent Johnnie Tasby.

While not a part of the record in this case the appointment of Mr. Hainen was by the Court of Appeals for the 8th Circuit, after this Court had requested Mr. Hainen to serve as attorney for Tasby.

In either event a period of more than 3 years passed after the termination of the appointment of defendant, William Peek, and before complaint was filed against him in this case.

Having determined that more than 3 years elapsed, the next matter of concern is what statute of limitations applies to this set of facts.

Here there is neither a written nor an oral contract of employment between plaintiff and defendant. Mr. Peek accepted the task of representing Tasby by appointment of the United States District Court under the Criminal Justice Act. Mr. Peek's professional conduct in representing Tasby is referred to by Judge Bright in the case of Tasby v. United States, 8 Cir., 451 F.2d 394 at page 399, where he used the following language:

". . . and counsel for all of the defendants conducted themselves ably in the trial and appeal of this case."

This Court finds: that an attorney appointed under the Criminal Justice Act owes the same obligations to his client as though he had been orally employed by the client and would be liable for negligence or breach of legal duty as though he were orally employed by the client.

Having so found, the Court further finds that Ark.Stats. 37-206 is the applicable limitations statute and this case falls within the 4th provision which provides that "all actions founded on any contract or liability, expressed or implied" shall be commenced within 3 years of the time when the cause of action occurred.

Therefore, the defendant's motion to dismiss should be granted since Tasby's Complaint was not timely filed.

Although the foregoing finding of untimeliness will dispose of this case, we deem it appropriate to add that the Court also finds that the complaint fails to state a cause of action against defendant within the jurisdiction of this court.

To appreciate the total lack of the statement of a cause of action, one needs only to read the language of the complaint. It alleges that Plaintiff confidentially gave information to Mr. Peek to use in making a defense to the charge of kidnapping—and that Mr. Peek used the information and made inquiry with a view to using the information for defense purposes, and then reaches the frivolous conclusion that such effort by Mr. Peek violated some duty he owed to plaintiff.

The duty of Mr. Peek was to represent Mr. Tasby in a prudent manner, which would require investigation into the truthfulness of information given to him by Tasby for use in making a defense. After inquiry he was obliged to use his best legal judgment concerning trial tactics. In this regard we again refer to the language of Judge Bright quoted above to the effect that "Counsel for all of the defendants conducted themselves ably in the trial and appeal of this case." And find that the Complaint should be dismissed on not only the first, but also the second contention of the defendant.

This case calls for further discussion:

Since jurisdiction of a United States District Court is required to appear and the Defendant has filed a motion to dismiss, we also look at the pleading originally filed by plaintiff to determine whether or not this District United States Court has jurisdiction. Even had the Defendant failed to file its motion to dismiss, Federal Rules Civil Procedure Rule 12(h)(3) provides:

"Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action".

A defect of subject matter jurisdiction never can be cured or waived by the consent of the parties—and the requirement of diversity cannot be waived by stipulation. Mattson v. Cuyuna Ore Co., 180 F.Supp. 743 (D.C.Minn.1960).

Plaintiff's Complaint identifies Plaintiff as an individual, in the custody of the Attorney General of the United States, domiciled in the State of Indiana, at the United States Penitentiary in Terre Haute, Indiana.

The Complaint contains no allegation as to the citizenship of either Plaintiff or Defendant, but alleges that jurisdiction of the Court is founded on 28 U.S. C. § 1332, which is the diversity of citizenship statute.

We can...