United States District Court, D. Montana, Missoula Division
L. Christensen, Chief Judge
Judge Timothy J. Cavan entered a Findings and Recommendation
in this matter on August 10, 2019, recommending that the
Court deny the motion to dismiss of Defendant Jenny L. Nelson
and grant in part and deny in part the motion to dismiss of
Defendant Olivia Rieger. (Doc. 74.) Nelson timely filed
objections, as did Plaintiffs Patsy and Allen Fercho. (Docs.
77 & 78.) Consequently, the parties are entitled to de
novo review of those findings and recommendations to which
they have specifically objected. 28 U.S.C. § 636(b)(1).
Absent objection, this Court reviews findings and
recommendations for clear error. See United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc); Thomas v. Arn, 474 U.S. 140, 149 (1985).
Clear error exists if the Court is left with a "definite
and firm conviction that a mistake has been committed."
Easley v. Cromartie, 532 U.S. 234, 242 (2001)
Cavan recommended that the Court deny Nelson's motion to
dismiss for lack of personal jurisdiction and improper venue.
He found the constitutional and statutory requirements for
jurisdiction were met when Nelson worked to effectuate Patsy
Fercho's arrest within Montana, even though Nelson did
not physically leave Minnesota. He also found that venue is
proper because the Ferchos' claims arise from that
arrest. Nelson objects broadly to Judge Cavan's
recitation of the facts and to his recommendation to deny her
motion, and so the Court reviews de novo. It agrees with and
adopts Judge Cavan's recommendation.
Cavan also recommended that the Court grant in part and deny
in part Rieger's motion to dismiss for failure to state a
claim. He determined that Rieger was entitled to dismissal
of: (a) Count III (conspiracy to commit abuse of process),
but only to the degree that it is premised in Rieger's
performance of prosecutorial functions; (b) Count IV (seizure
in violation of the U.S. Constitution); and (c) Count V
(seizure in violation of the Montana Constitution). Judge
Cavan recommended the Court deny the motion to dismiss as to:
(a) Count III, to the degree that it is based on Rieger's
actions unrelated to her performance of prosecutorial
functions; (b) Count VI (intentional infliction of emotional
distress); and Count VII (loss of consortium).
did not object to the Findings and Recommendation, but the
Ferchos did, objecting only to Judge Cavan's
recommendation to dismiss Count V. Additionally, Nelson
objects to Judge Cavan's determination that Count III
(conspiracy to commit abuse of process) survives, except to
the degree it arises from Rieger's performance of
professional prosecutorial duties. Because Nelson did not
address Count III in her motion to dismiss (and Rieger's
legal arguments are distinguishable, given that she relied in
large part on prosecutorial immunity), the Court does not
address Nelson's objection to the Findings and
Recommendation regarding Rieger's motion to
dismiss. Thus, the Court reviews the sufficiency of
the Complaint as to Count V de novo and otherwise reviews for
clear error. Applying these standards, it adopts the Findings
and Recommendation in full.
Findings and Recommendation, Judge Cavan set forth a thorough
factual background, accepting as true the allegations of the
Complaint. (Doc. 74 at 2-14.) Nelson objects to Judge
Cavan's recitation of the facts, arguing that because she
filed a motion to dismiss for lack of personal jurisdiction
"only 'incontroverted facts must be taken as
true.'" (Doc. 77 at 2 (quoting Schwarzenegger v.
Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir.
2004)).) She further argues that the Court erred by failing
to accept as true the factual findings made by the Montana
Seventh Judicial District Court and the Third Judicial
District Court in Olmsted County, Minnesota, even though
Judge Cavan took judicial notice of the documents setting
forth those findings. (Doc. 77 at 2.)
misunderstands the role of the Court in this early stage of
litigation. Even under Rule 12(b)(2), "[c]onflicts
between parties ... must be resolved in the plaintiffs
favor." Schwarzenegger, 374 F.3d at 800.
Moreover, the facts challenged by Nelson are not
jurisdictional but instead go to the heart of the merits, and
the Court must accept as true the plaintiffs allegations in
its analysis of whether a plaintiff has stated a claim for
relief. Wyler Summit P 'ship v. Turner
BroadcastingSys., Inc., 135 F.3d 658, 661 (9th Cir.
1998). Nelson has not directly challenged the allegations
relevant to jurisdiction.
Nelson's argument-that the Court must adopt as true the
factual findings made by state courts in Montana and
Minnesota because it has taken judicial notice of the
existence of state court orders-cannot succeed. "On a
Rule 12(b)(6) motion to dismiss, when a court takes judicial
notice of another court's opinion, it may do so 'not
for the truth of the facts recited therein, but for the
existence of the opinion, which is not subject to reasonable
dispute over its authenticity.'" Lee v. City of
Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001) (quoting
S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping
Grp. Ltd. , 181 F.3d 410, 426-27 (3d Cir. 1999)).
Setting aside that Nelson's objections focus on the
merits of the case rather than the initial jurisdictional
inquiry, Nelson does not argue-and the Court finds no reason
to conclude-that the rule discussed in Lee does not
apply similarly in the context of a 12(b)(2) motion.
for purposes of this Order, the Court incorporates the
factual background set forth in the Findings and
Recommendation, overruling Nelson's objection. Rather
than recite the same facts here, the Court will provide only
a truncated overview as context for this Order, with the
caveat that the facts outlined here, taken from the Second
Amended Complaint, are not binding on the parties and have no
bearing on future disputes within this proceeding.
Patsy and Allen Fercho are grandparents to two children, E.L.
and L.L., and this action arises from a custody dispute
between the Ferchos and Dereck Lorenz, the birth father of
the children, fueled in part by inconsistent custody orders
issued by the Northern Cheyenne Tribal Court and state courts
in Montana and Minnesota. A state court in Dawson County,
Montana awarded custody to Lorenz in 2014. In the summer of
2015, Patsy Fercho petitioned for custody in Olmstead County,
Minnesota (where Lorenz and the children were living) and,
three days later, in the Tribal Court. In the fall of 2015,
the Tribal Court awarded first emergency guardianship and
later full custody to Fercho. Fercho gained physical custody
of the children on September 16, 2015, with the aid of
sheriff s deputies in Minnesota. Shortly after, Lorenz filed
a new proceeding in Dawson County, Montana, which resulted in
an award of temporary custody to Lorenz on October 5, 2015.
Fercho did not comply with the Dawson County order and
instead took the children to a church within the boundaries
of the Northern Cheyenne Reservation, where Fercho and the
children lived in a trailer.
in Minnesota, Defendant Nelson, an attorney, was representing
Lorenz in the Olmstead County proceeding, which remained open
throughout this period. Nelson worked tirelessly at returning
the children to their father's care by, among other
things, contacting various prosecutors in an attempt to have
Fercho arrested. Due to the Tribal Court order and
jurisdictional complications, most were not willing to help.
But Nelson eventually found an ally in Defendant Rieger,
Dawson County Attorney, who filed charges against and
obtained an arrest warrant for Patsy Fercho on October 7,
2015. Those charges were later dismissed, and the warrant was
quashed, but Rieger and Nelson continued to email each other
and various other lawyers and law enforcement officers about
how to arrest Fercho and get the children back to Lorenz.
hearings were held over the next few days in the Montana and
Minnesota state courts, and the outcomes of those proceedings
were favorable to Lorenz. (Patsy Fercho remained firmly
within the Reservation and did not attend these proceedings
either personally or through counsel.) Through Nelson, Lorenz
filed a motion for contempt on October 20, 2015. When Fercho
failed to appear at the ensuing show cause hearing on
November 20, 2015, the Minnesota state court issued a bench
warrant for Patsy Fercho's arrest, which also provided
that the children must be returned to Lorenz. On November 21,
2015, following considerable urging from Rieger and Nelson,
Bureau of Indian Affairs agents Molanna Clifford and Donovan
arrested Fercho at the church and separated her from the
children, who are now in Lorenz's care. Fercho was in
Wind's vehicle for approximately an hour, but she was
returned to the church when Wind learned that the Minnesota
court would not seek extradition.
Nelson and the Ferchos object to the Findings and
Recommendation. The Court overrules all objections, adopting
the recommendations to deny Nelson's 12(b)(2) and (3)
motion and to grant in part and deny in part Rieger's
Nelson's Motion to Dismiss for Lack of Personal
Jurisdiction and Improper Venue
moved to dismiss on the grounds of lack of jurisdiction and
improper venue. The due process considerations of "fair
play and substantial justice" require a defendant to
"have certain minimum contacts" with a forum state
before a court seated in that state may exercise jurisdiction
over the defendant. Int'l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945).
"International Shoe's conception of fair
play and substantial justice' presaged the development of
two categories of personal jurisdiction"-general and
specific. Daimler AG v. Bauman, 571 U.S. 117, 126
(2014). Judge Cavan found that Nelson is not subject to
general jurisdiction in Montana. (Doc. 74 at 18.) There is no
objection to this determination, and it is not clearly
erroneous. Accordingly, the issue is whether Nelson's
conduct relevant to this proceeding gives rise to specific
jurisdiction over a nonresident defendant is proper if
permitted by [the forum] state's long-arm statute and if
the exercise of that jurisdiction does not violate federal
due process." In re W. States Wholesale Natural Gas
Antitrust Litig., 715 F.3d 716, 741 (9th Cir. 2013).
Montana's long-arm statute authorizes jurisdiction over a
person who "commi[ts] ... any act resulting in accrual
within Montana of a tort action" as to that tort action.
Mont. R. Civ. P. 4(b)(1)(B).
that the forum state's long-arm statute is satisfied, the
Ninth Circuit has developed a three-part test to determine
whether the exercise of jurisdiction comports with the
requirements of the U.S. Constitution:
(1) The non-resident defendant must purposefully direct his
activities or consummate some transaction with the forum or
resident thereof; or perform some act by which he
purposefully avails himself of the privilege of conducting
activities in the ...