Timm v. Delong, No. 8:98CV43.

CourtU.S. District Court — District of Nebraska
Writing for the CourtShanahan
Citation59 F.Supp.2d 944
PartiesPamela J. TIMM, Plaintiff, v. Russell L. DELONG, Defendant.
Decision Date22 June 1998
Docket NumberNo. 8:98CV43.
59 F.Supp.2d 944
Pamela J. TIMM, Plaintiff,
v.
Russell L. DELONG, Defendant.
No. 8:98CV43.
United States District Court, D. Nebraska.
June 22, 1998.

Page 945

John D. Feller, San Houston, Beemer, NE, for plaintiff.

James A. Davis, Davis & Associates, Fremont, NE, for defendant.

MEMORANDUM and ORDER

SHANAHAN, District Judge.


Before the court are (1) filing no. 7, the "Rule 12 Motion," filed by the defendant, Russell L. DeLong; and (2) filing no. 10, the "Motion to File Reply Brief in Support of Rule 12 Motion," filed by the defendant, Russell L. DeLong. The parties have submitted briefs for consideration.

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STANDARD OF REVIEW

Generally, when considering a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the court must construe the complaint liberally and assume all factual allegations to be true. Whisman Through Whisman v. Rinehart, 119 F.3d 1303, 1308 (8th Cir. 1997); Goss v. City of Little Rock, 90 F.3d 306, 308 (8th Cir.1996); Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir.1996). However, the parties have submitted material outside the pleadings for consideration. Fed. R.Civ.P. 12(c) dictates that "[i]f, on motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in [Fed. R.Civ.P.] 56." See generally Chantal v. United States, 104 F.3d 207, 209 (8th Cir. 1997) (concluding that the court properly treated a motion to dismiss as a motion for summary judgment where the movant submitted several exhibits in support of the motion). In accordance with Fed.R.Civ.P. 12(b)(6), the court shall treat filing no. 7, the "Rule 12 Motion," filed by the defendant, Russell L. DeLong, as a motion for summary judgment. See Madewell v. Downs, 68 F.3d 1030, 1048 (8th Cir.1995).

Summary judgment, pursuant to Fed. R.Civ.P. 56, is appropriate when, viewing the facts and inferences in the light most favorable to the nonmoving party, "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c); see Morgan v. Rabun, 128 F.3d 694, 696 (8th Cir.1997); Roberts v. Francis, 128 F.3d 647, 650 (8th Cir.1997). A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. Tenbarge v. Ames Taping Tool Sys., Inc., 128 F.3d 656, 657-58 (8th Cir.1997) (quoting Fed.R.Civ.P. 56(c)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

In the face of a properly supported motion, "[t]he burden then shifts to the nonmoving party to `set forth specific facts showing that there is a genuine issue for trial.'" Prudential Ins. Co. v. Hinkel, 121 F.3d 364, 366 (8th Cir.1997) (quoting Fed. R.Civ.P. 56(e)). A nonmoving party may not rest upon the mere allegations or denials of its pleadings, but rather, must set forth specific facts, supported by affidavits or other proper evidence, showing that there is a genuine issue for trial. Fed. R.Civ.P. 56(e); see Thomas v. Runyon, 108 F.3d 957, 959 (8th Cir.1997); Ruby v. Springfield R-12 Pub. Sch. Dist., 76 F.3d 909, 911 (8th Cir.1996); Bell Lumber and Pole Co. v. U.S. Fire Ins. Co., 60 F.3d 437, 445 (8th Cir.1995). Thus, a nonmoving party may not rest on a complaint alone, but must introduce affidavits or other evidence to avoid summary judgment. Jetton v. McDonnell Douglas Corp., 121 F.3d 423, 427 (8th Cir.1997). In determining whether the nonmoving party has sufficiently articulated a genuine issue of material fact, the court acknowledges that its task "is not ... to weigh the evidence and determine the truth of the matter but [merely] to determine whether there is a genuine issue for trial." Kneibert v. Thomson Newspapers, 129 F.3d 444, 456 (8th Cir. 1997) (quotations omitted); O'Bryan v. KTIV Television, 64 F.3d 1188, 1194 (8th Cir.1995).

BACKGROUND

The plaintiff, Pamela J. Timm (Timm), seeks to invoke the protections of the Violence Against Women Act (VAWA) in response to the conduct of the defendant, Russell L. DeLong (DeLong). Prior to the initiation of this action, Timm and DeLong were married. On June 6, 1997, Timm and DeLong obtained a divorce decree in the District Court for Saunders County, Nebraska. DeLong subsequently

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initiated a defamation suit against Timm in the District Court for Douglas County, Nebraska. DeLong now seeks the dismissal of this action for the following reasons: (1) the doctrine of res judicata bars the action; (2) Timm has failed to state a claim under the Violence Against Women Act in that no "crime of violence" has been committed; (3) Timm is equitably estopped from competently testifying at trial; and (4) the Violence Against Women Act is unconstitutional.

RES JUDICATA

The court initially acknowledges that the law of Nebraska determines whether and how the res judicata doctrine applies. See generally Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984) ("Congress has specifically required all federal courts to give preclusive effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so....") (quoting Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980)). Nebraska recognizes that res judicata bars relitigation of any right, fact, or matter directly addressed or necessarily included in a former adjudication if (1) the former judgment was rendered by a court of competent jurisdiction, (2) the former judgment was a final judgment, (3) the former judgment was on the merits, and (4) the same parties or their privies were involved in both actions. State on Behalf of Hopkins v. Batt, 253 Neb. 852, 859, 573 N.W.2d 425, 431-32 (Neb.1998); DeVaux v. DeVaux, 245 Neb. 611, 514 N.W.2d 640 (Neb.1994); see also Antelope County Farmers Coop. v. Citizens State Bank, 240 Neb. 760, 484 N.W.2d 822 (Neb.1992); Kerndt v. Ronan, 236 Neb. 26, 458 N.W.2d 466 (Neb.1990); State v. Gerdes, 233 Neb. 528, 446 N.W.2d 224 (Neb.1989); NC + Hybrids v. Growers Seed Ass'n, 228 Neb. 306, 422 N.W.2d 542 (1988). The doctrine of res judicata rests both on the public policy decision and necessity to terminate litigation and on the belief that a person should not be vexed twice for the same cause. Dakota Title & Escrow Co. v. World-Wide Steel Sys., Inc., 238 Neb. 519, 526, 471 N.W.2d 430, 435 (Neb.1991); Farmers State Bank v. Germer, 231 Neb. 572, 577, 437 N.W.2d 463, 467 (Neb.1989). Within these confines, the court must, as a threshold matter, consider whether Timm's federal claims based upon VAWA were directly addressed or necessarily included in the parties' state marital dissolution proceeding.

The state marital dissolution proceeding was an action to dissolve the marriage, establish alimony and divide ownership of marital assets. In contrast, the federal claim seeks "to protect the civil rights of victims of gender-motivated violence and to promote public safety, health, and activities affecting interstate commerce." 42 U.S.C. § 13981(a). The significance of VAWA is its recognition of a federal civil right, with attendant remedies, which is distinct in remedy and purpose from state marital dissolution proceedings.

In rendering this conclusion, the court acknowledges that a plaintiff who obtains relief in a civil rights lawsuit "does so not for [herself] alone but also as a `private attorney general,' vindicating a policy that Congress considered of the highest importance." City of Riverside v. Rivera, 477 U.S. 561, 575, 106 S.Ct. 2686, 2694, 91 L.Ed.2d 466 (1986) (citations omitted). The distinct societal function Congress sought to confer by enacting the VAWA civil remedy was to provide by a plaintiff's verdict "a special societal judgment that crimes motivated by gender bias are unacceptable because they violate the victims' civil rights." S.REP. No. 103- 138, at 50 (1993). Given the distinct function of VAWA's civil remedy, there is no impermissible duplication of or encroachment upon the judgment rendered in the state marital dissolution proceeding. While violence among family members often serves as a conduit through which discriminatory animus is expressed, the federal claim specifically

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focuses on gender animus, and not the general domestic relation.

Further, applying the doctrine of res judicata to preclude a civil rights claim premised upon VAWA in response to a state marital dissolution proceeding contravenes the purpose of VAWA. The effect of invoking the doctrine of res judicata would be to preclude a battered individual from seeking redress under VAWA because the individual had participated in a state marital dissolution proceeding. This court is unwilling to endorse such a result. Moreover, to address any fears that VAWA would collaterally encroach upon judgments rendered in state marital dissolution proceedings, legislators recognized the distinct nature of domestic actions and explicitly precluded the possibility that federal causes of action brought under section 13981 of VAWA would trammel state court proceedings in areas such as divorce, alimony, and child custody. See 42 U.S.C. § 13981(e)(4) (1994) ("Neither section 1367 of title 28 nor subsection (c) of this section shall be construed, by reason of a claim arising under such subsection, to confer on the courts of the United States jurisdiction over any State law claim seeking the establishment of a divorce, alimony, equitable distribution of marital property, or child custody decree."). Having determined as a threshold matter that Timm's federal claims based upon VAWA were not directly addressed or necessarily included in the...

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3 practice notes
  • Culberson v. Doan, No. C-1-97-965.
    • United States
    • U.S. District Court — Southern District of Ohio
    • April 8, 1999
    ...the findings by Congress sufficiently support the enactment of the legislation pursuant to the Commerce Clause power); Timm v. Delong, 59 F.Supp.2d 944 (D.Neb.1998) (determining that the VAWA is constitutional under both the Commerce Clause and the Fourteenth Amendment); Mattison v. Click C......
  • Santiago v. Alonso, No. 97-2737 DRD.
    • United States
    • U.S. District Court — District of Puerto Rico
    • March 31, 2000
    ...Hodel v. Virginia Surface Mining and Reclamation Ass'n, 452 U.S. 264, 276, 101 S.Ct. 2352, 2360, 69 L.Ed.2d 1 (1981); Timm v. Delong, 59 F.Supp.2d 944, 951 (D.Neb.1998); Proyect v. U.S., 101 F.3d 11, 12-13 (2nd Cir.1996); U.S. v. McKinney, 98 F.3d 974, 979 (7th Cir.1996). Notwithstanding, w......
  • Hernandez-Montiel v. INS, HERNANDEZ-MONTIE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 8, 1999
    ...for it" excuse for rape is offensive to this court and has been discounted by courts and commentators alike. See e.g., Timm v. Delong, 59 F. Supp. 2d 944, 959-60 (D. Neb. 1998) (stating that Congress found that almost one quarter of state judges erroneously believe that rape victims precipi......
3 cases
  • Culberson v. Doan, No. C-1-97-965.
    • United States
    • U.S. District Court — Southern District of Ohio
    • April 8, 1999
    ...the findings by Congress sufficiently support the enactment of the legislation pursuant to the Commerce Clause power); Timm v. Delong, 59 F.Supp.2d 944 (D.Neb.1998) (determining that the VAWA is constitutional under both the Commerce Clause and the Fourteenth Amendment); Mattison v. Click C......
  • Santiago v. Alonso, No. 97-2737 DRD.
    • United States
    • U.S. District Court — District of Puerto Rico
    • March 31, 2000
    ...Hodel v. Virginia Surface Mining and Reclamation Ass'n, 452 U.S. 264, 276, 101 S.Ct. 2352, 2360, 69 L.Ed.2d 1 (1981); Timm v. Delong, 59 F.Supp.2d 944, 951 (D.Neb.1998); Proyect v. U.S., 101 F.3d 11, 12-13 (2nd Cir.1996); U.S. v. McKinney, 98 F.3d 974, 979 (7th Cir.1996). Notwithstanding, w......
  • Hernandez-Montiel v. INS, HERNANDEZ-MONTIE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 8, 1999
    ...for it" excuse for rape is offensive to this court and has been discounted by courts and commentators alike. See e.g., Timm v. Delong, 59 F. Supp. 2d 944, 959-60 (D. Neb. 1998) (stating that Congress found that almost one quarter of state judges erroneously believe that rape victims precipi......

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