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Fercho v. United States

United States District Court, D. Montana, Missoula Division

January 9, 2020



          Dana L. Christensen, Chief Judge

         Magistrate 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) (citations omitted).

         Judge 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.

         Judge 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).

         Rieger 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.[1] 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.


         In his 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.)

         Nelson 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.

         Moreover, 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.

         Thus, 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.

         Plaintiffs 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.

         Meanwhile, 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.

         Custody 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 Wind[2] 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.


         Both 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 12(b)(6) motion.

         I. Nelson's Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue

         Nelson 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.

         "Personal 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).

         Provided 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 ...

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