United States District Court, D. Montana, Missoula Division
EUGEN DESHANE MITCHELL, SHAYLEEN MEUCHELL, on their own behalf and as next friend of B.M., Plaintiffs,
FIRST CALL BAIL AND SURETY, INC., ALLEGHENY CASUALTY COMPANY, INTERNATIONAL FIDELITY INSURANCE COMPANY, THE MONTANA CIVIL ASSISTANCE GROUP, MICHAEL RATZBURG, VAN NESS BAKER, and JASON HAACK, Defendants.
L. Christensen, Chief Judge
the Court is Defendants First Call Bail and Surety, Inc.
("First Call"), Allegheny Casualty Company
("Allegheny"), International Fidelity Insurance
Company ("Fidelity"), and Michael Ratzburg's
(collectively "Surety Defendants") Motion to
Dismiss Plaintiffs' Complaint (Doc. 20), and
Defendants' Motion to Strike Plaintiffs' second
Motion for Partial Summary Judgment (Doc. 47). For the
reasons explained, Defendants' Motion to Dismiss is
granted in part and denied in part and its Motion to Strike
is denied. All of the claims at issue in the Motion to
Dismiss will go forward, except Plaintiffs' strict
liability claim which will be dismissed.
the majority of defendants charged with a felony use a
commercial surety to post bail. (Doc. 1 at 21.) The
commercial bail bond functions as a contract between the
state, the defendant who promises to appear at a future court
date, and the bond agent who acts as a surety of that
promise. 8 C.J.S. Bail § 160. If the defendant does not
appear, a court will forfeit the bond, giving the bond
company the right to redeem its value against the defendant.
Although, most courts permit a grace period by which the bond
company can produce the defendant in order to avoid
forfeiture. E.g., Mont. Code Ann. § 46-9-503.
between the defendant and the local bond company, the
defendant pays a nonrefundable premium, typically ten percent
of the bond, in exchange for the bond agent's services.
(Id. at 37.) Behind the scenes, large insurance
companies underwrite these bonds. (Id. at 27.) The
bond premium paid by the defendant is shared between the bond
agent and the insurance company. (Id. at 29.) In
exchange for support and services the insurance company
offers the local bondsman, the insurance company typically
requires the bond agent to pay into a "build-up
fund" to cover the cost of forfeiture. (Id. at
32, 34.) For the insurance company, the bail bond is a low
risk investment. (See Id. at 30.) But the
bondsman plays a high-risk game. At most, he stands to gain
his portion of the premium. In the event of forfeiture, he
stands to lose ten times as much. (Id. at 37.) To
minimize this risk, the bondsman works with a bond recovery
agent, colloquially known as a bounty hunter. The bounty
hunter makes its money by retaining approximately ten percent
of the total bond if he successfully captures the defendant.
(Id. at 38.)
early January 2017, Eugene Mitchell was arrested for driving
with a suspended license and without proof of insurance. The
court set bail at $1, 670. Unable to pay, Mitchell's wife
(Sheyleen Meuchell) entered into a private bail bond
agreement with First Call (a local bond agency) to secure
Mitchell's release. Allegheny and Fidelity were sureties
on the bond. In exchange, Meuchell paid a $228 nonrefundable
premium which Ratzburg (the owner of First Call) agreed to
take in two installments. Meuchell paid $115 at the time of
signing and paid the second installment approximately one
week later. (Id. at 2-3.)
agreement signed by Meuchell and Mitchell (the
"Agreement"), First Call reserved certain rights
including the right to change the terms of the agreement and
to use physical force to apprehend and arrest Mitchell in the
event he did not appear in court. (Doc 1-1.) Meuchell was
hurried as she signed the contract and Mitchell had no
opportunity to review its terms. (Doc. 1 at 4.)
April 19, 2017 Mitchell failed to appear for court.
(Id.) Two days later, Ratzburg hired Van Ness Baker,
Jr., who is the Vice President of an organization called the
Montana Civil Assistance Group ("MCAG") to arrest
Mitchell. (Id. at 10-11.) Ratzburg issued a document
entitled "Arrest of Defendant on Bail Bond" which
"authoriz[ed] and empower[ed] Van Ness Baker it's
[sic] representative and its stead, to arrest and
detain" Mitchell. (Id. at 11.) Ratzburg also
incorrectly informed MCAG that Mitchell still owed the second
premium payment. (Id.) Montana law allows commercial
bond sureties to arrest and surrender those who have failed
to appear in court. Mont. Code Ann. § 46-9-510. Montana
otherwise does not impose a license requirement or regulate
the practice of bounty hunting. (Id. at 26.)
a paramilitary group. It recommends its members carry
semiautomatic rifles to be the "last line of defense
against any threat" to our nation. MCAG performs
for-hire bounty hunting services, typically retaining about
ten percent of the total bail bond amount. (Id. at
hire, members of MCAG were deployed to search for Mitchell.
(Id. at 13.) They staked out his home over the
weekend and surveilled his neighborhood. (Id.)
Meuchell was aware she was being watched but did not know
why. (Id. at 13-14.) At one point, when a guest
arrived at the couple's house, MCAG members surrounded
the visitor's car with their guns drawn for approximately
twenty minutes while they questioned the driver and her
teenage daughter. (Id. at 14.)
approximately 9:20 p.m. on April 23, 2017, members of MCAG
forcefully kicked in the door and entered the couple's
home with their weapons drawn. (Id.) They entered
the bedroom where Mitchell and Meuchell were lying in bed
with their four-year old daughter. (Id. at 14-15.)
With guns pointed at the family, someone gave the order not
to move. (Id. at 5.) Mitchell was escorted from the
room where he was handcuffed, arrested, and taken to the
Ravalli County Detention Center, approximately an hour away.
(Id.) MCAG filled out a field report and someone
called Ratzburg during the arrest to notify him that the
"team was securing Mitchell." (Id. at 15.)
MCAG arrived at the jail, they produced Ratzburg's
petition. (Id. at 16.) However, the officers
initially refused to accept Mitchell because MCAG did not
have an arrest warrant signed by a judge. (Id.)
Officers then began to work up an unlawful detainment charge
against MCAG for their unlawful arrest of
Mitchell. (Id. at 17.) The five bounty
hunters present for the break-in have since been charged with
assault with a weapon, aggravated burglary, unlawful
restraint, accountability for aggravated burglary, and
criminal mischief as a result of the incident. (Id.
12(b)(6) motions test the legal sufficiency of a pleading.
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
pleading must contain "a short and plain statement of
the claim showing that the pleader is entitled to
relief." Rule 8 "does not require detailed factual
allegations, but it demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal citations and quotations omitted). "To survive
a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face.'" Id.
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). A claim has facial plausibility when the court
can draw a "reasonable inference" from the facts
that the defendant is liable for the misconduct alleged.
Id. On a Rule 12(b)(6) motion to dismiss, the court
must accept all factual allegations in the complaint as true
and construe the pleadings in the light most favorable to the
nonmoving party. Kneivel v. ESPN, 393 F.3d 1068,
1072 (9th Cir. 2005).
conclusions, on the other hand, are not entitled to the same
presumption of truth. Dismissal is proper where there is
either a "lack of a cognizable legal theory" or
"the absence of sufficient facts alleged under a
cognizable legal theory." Balistreri v. Pacifica
Police Dept., 901 F.2d 696, 699 (9th Cir. 1990);
Graehling v. Village of Lombard, Ill. 58 F.3d 295,
297 (7th Cir. 1995).
ruling on a motion to dismiss, a court generally cannot
consider material outside the complaint. Branch v.
Tunnell, 14 F.3d 449, 453 (9th Cir. 1994), overruled
on other grounds by Galbraith v. County of Santa Clara,
307 F.3d 1119 (9th Cir. 2002). Nevertheless, a court may
consider exhibits submitted along with the complaint where
the exhibits are: (1) specifically referred to in the
complaint; (2) central to the plaintiffs claim; and (3) no
party questions the authenticity of the attached documents.
Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006).
This rule is designed to prevent plaintiffs from
"deliberately omitting reference to documents upon which
their claims are based." Parrino v. FHP, Inc.,
146 F.3d 699, 706 (9th Cir. 1998).
Defendants move to dismiss the following: Claims 1 and 2
alleging RICO violations; Claim 4 arising under the Montana
Consumer Protection Act; Claims 5, 6, 7 and 10 alleging
violations of state law for trespass, false imprisonment,
assault, and strict liability. The Court will address the
claims arising under state law first.
State law claims
Trespass, False Imprisonment & Assault
Defendants argue that the claims for trespass, false
imprisonment, and assault fail because Montana law expressly
allows sureties to recover, arrest, and surrender a defendant
for whom a bail bond has been posted. (Doc. 21 at 33-34.) The
first issue is whether Montana law recognizes either a common
law or statutory right for a bail bondsman to arrest a
defendant. The related question is whether the Agreement
provided First Call with a privilege to detain Mitchell in
Whether Montana law recognizes a bondsman's
importance of maintaining liberty while a person is accused
and awaiting trial dates back to the Magna Carta and early
forms of habeas corpus. See Caleb Foote, The
Coming Constitutional Crisis in Bail: I and II, 113
Univ. Pa. L. Rev. 959, 965-67 (1965). Traditionally, the
American bail system permitted a surety to guarantee the
future appearance of the defendant and payment of any penalty
if convicted. Timothy R. Schnacke et. al., The History of
Bail and Pretrial Release, Pretrial Justice Inst, 1-2
(Sept. 23, 2010). Historically, the surety was someone who
shared a close relationship with the defendant, such as a
friend, neighbor, or family member. Id. at 6.
"Under the early common law, the bondsman not only
undertook the risk of loss of his own property if his
principal did not appear, but in some instances, the bondsman
was made to suffer the punishment which would have been
inflicted upon the prisoner." Ouzts v. Maryland Nat.
Ins. Co., 505 F.2d 547, 551 (9th Cir. 1974). As a result
of this responsibility, the early common law recognized a
bondsman's privilege to arrest and surrender the
defendant without resort to the legal process. Id.
In 1872, the United States Supreme Court recognized this
privilege in dicta. Taylor v. Taintor, 83 U.S. (16
Wall.) 366, 371-72 (1872). In an oft quoted passage, the
When bail is given, the principal is regarded as delivered to
the custody of his sureties. Their dominion is a continuance
of the original imprisonment. Whenever they choose to do so,
they may seize him and deliver him up in their discharge; and
if that cannot be done at once, they may imprison him until
it can be done. They may exercise their rights in person or
by agent. They may pursue him into another State; may arrest
him on the Sabbath; and, if necessary, may break and enter
his house for that purpose. The seizure is not made by virtue
of new process. None is needed. It is likened to the rearrest
by the sheriff of an escaping prisoner.
bondsman's privilege is a private privilege that arises
from the contractual relationship between the parties; it is
not governed by criminal procedure. Ouzts, 505 F.2d
at 551; Fitpatrick v. Williams, 46 F.2d 40, 40-41
(5th Cir. 1931).
parties initially dispute whether Montana law recognizes any
common law bondsman's privilege. Plaintiffs argue that
the privilege recognized in Taylor v. Taintor does
not apply because Taylor was decided in a
pre-Erie era "in which courts conceived of the
common law as a 'brooding omnipresence in the
sky'." (Doc. 29 at 17 (quoting Rodriguez-Tirado
v. Speedy Bail Bonds, 891 F.3d 38, 41 (1st Cir. 2018)).)
Plaintiffs argue that this view has been
'"dramatically discarded' [since] Erie,
and it is now well understood that each state declares its
own common law rules." (Id.) Be that as it may,
it appears Montana has adopted a common law bondman's
privilege. In 1892, Chief Justice Blake address the existence
of such a privilege, writing:
It is the theory of the law that the defendant in criminal
proceedings is under the control of the court, and in actual
or constructive custody. Biesman was in the custody of his
sureties. In the last case Mr. Justice FIELD for the court
said: "By the recognizance the principal is, in the
theory of the law, committed to the custody of the sureties
as to jailers of his own choosing, not that he is, in point
of fact in this country, at least, subjected, or can be
subjected, by them to constant imprisonment; but he is so far
placed in their power that they may at any time arrest him
upon the recognizance, and surrender him to the court, and,
to the extent necessary to accomplish this, may restrain him
of his liberty [.]
State v. Biesman, 29 P. 534, 536 (1892) (internal
next argue that, to the extent any privilege exists, it has
been abrogated by statute, citing section
46-9-510(b). Plaintiffs contend that the
legislature's specific use of the phrase "surety
company" authorizes the "surety company'
itself-and not any other agent-to "arrest and
surrender" the defendant under the specified
circumstances. (Id. at 16.)
Plaintiffs note, Montana's statute vests the authority
for the arrest and surrender with the "surety
company." Mont. Code Ann. § 46-9-510(b). As
recognized above, the existence of a bondsman's privilege
derives from the contractual relationship between the
parties. As it is the "surety company, "-the
entity-that entered into a bail bond agreement with the
defendant, it is the surety company who holds the privilege.
However, quite literally, an entity cannot arrest, nor can it
surrender, anyone. Entities act through agents. Commodity
Futures Trading Comm 'n v. Weintraub, 471 U.S. 343,
348 (1985). There is nothing in the plain language of section
46-9-510(d) that limits a "surety company" to send
only its employees to "arrest and surrender" a
defendant rather than an independent contractor, i.e. a
bounty hunter. Furthermore, any common law privilege is only
abrogated to the extent it is inconsistent with a statute.
See Sunburst School Dist. No. 2 v. Texaco, Inc., 165
P.3d 1079, 1091 (Mont. 2007). The absence of any limiting
language in section 46-9-510(d) (for example, "only a
surety company") is fatal to Plaintiffs' argument.
If anything, section 46-9-510(d) is consistent with State
v. Biesman. The Court construes it to recognize, not
limit, a bondsman's privilege.
Whether Surety Defendants are immune from liability because
of the privilege?
the existence of a privilege is not the same thing as
determining whether the conduct in a particular circumstance
conformed with the privilege. Privileges are not unlimited.
E.g., Mont. Code Ann. § 45-6-201(1) (privilege
to enter the residence of another "may be revoked at any
time by personal communication of notice by the landowner or
other authorized person ... "); United States v.
McWeeney,454 F.3d 1030, 1034 (9th Cir. 2006) ("It
is a violation ...