TERRY MITCHELL v. RICHARD WARREN ROBERTS
No. 21-4055
United States Court of Appeals for the Tenth Circuit
August 9, 2022
PUBLISH. Christopher M. Wolpert, Clerk of Court.
Walter M. Mason of Dewsnup King Olsen Worel Havas Mortensen, Salt Lake City, Utah for
Before CARSON, BRISCOE, and ROSSMAN, Circuit Judges.
ROSSMAN, Circuit Judge.
In 1981, appellee Richard Warren Roberts was a federal prosecutor preparing for a murder trial in Salt Lake City, Utah. Appellant Terry Mitchell, then a teenager, was a key trial witness for the prosecution. Thirty-five years later, in 2016, Ms. Mitchell sued Mr. Roberts in federal district court in Utah alleging he sexually assaulted her throughout the criminal trial proceedings.
Mr. Roberts moved to dismiss the complaint with prejudice under
At Ms. Mitchell‘s request, the magistrate judge1 certified questions to the Utah Supreme Court concerning the validity of the Revival Statute. The Utah Supreme Court accepted the certification request and, after briefing and oral argument, issued a detailed opinion concluding the Utah legislature was prohibited from retroactively reviving time-barred claims in a manner that deprived defendants like Mr. Roberts of a vested statute of limitations defense. Based on the Utah Supreme Court‘s conclusion that the Revival Statute was unconstitutional, Mr. Roberts again moved to
dismiss with prejudice under
Exercising jurisdiction under
I. Background
A. Ms. Mitchell sues Mr. Roberts in federal district court in Utah.
In 2016, the Utah legislature passed House Bill 279—amending the statute of limitations at
On March 16, 2016, before the Revival Statute was enacted, Ms. Mitchell filed a diversity action against Mr. Roberts in federal district court in Utah claiming he sexually assaulted her in 1981.2 Mr. Roberts moved to dismiss with prejudice under
On July 29, 2016, the day after she voluntarily dismissed her first lawsuit, Ms. Mitchell initiated a new federal case in Utah, filing a substantially similar complaint against Mr. Roberts.3 While she conceded her claims against Mr. Roberts were time barred “as of July 1, 2016,”
of limitations periods “while active,” Mr. Roberts contended, but prohibited “revival once [the statute of limitations had] expired.” Id. at 39. According to Mr. Roberts, Ms. Mitchell‘s case fell into the latter category, so her claims against him were time barred and “subsequent legislation [did] not alter that inescapable fact.” Id. at 41.
Ms. Mitchell opposed Mr. Roberts‘s motion and, in the alternative, asked the magistrate judge to certify the case to the Utah Supreme Court. In support of certification, Ms. Mitchell observed the Utah Supreme Court had not yet “resolved the precise question of whether the courts must give effect to [the Revival Statute‘s] clearly stated legislative intent” to revive previously time-barred child sexual abuse claims. Id. at 76 (capitalization omitted). She also argued that “[d]ecisions by the Utah Supreme Court are inconsistent—or at least some are incomplete—regarding the duty of the courts to give effect” to such legislative intent. Id. (capitalization omitted). Mr. Roberts opposed Ms. Mitchell‘s certification request, contending “state law on the dispositive issue is settled.” Supp. App. vol. 1 at 50 (emphasis omitted).
The magistrate judge granted Ms. Mitchell‘s request and certified two questions
barred by the previously applicable statute of limitations as of July 1, 2016, make unnecessary the analysis of whether the change enlarges or eliminates vested rights?”5 Aplt. App. at 106-07. The Utah Supreme Court accepted the certification request and also ordered the parties to submit supplemental briefing on a related question of state constitutional law—whether the Utah Constitution gives the Utah legislature the power to revive time-barred claims.6
B. The Utah Supreme Court holds the Revival Statute is unconstitutional.
Three years later, on June 11, 2020, the Utah Supreme Court issued a unanimous opinion holding “the Utah Legislature is constitutionally prohibited from retroactively reviving a time-barred claim in a manner depriving a defendant of a vested statute of limitations defense.” Mitchell v. Roberts, 2020 UT 34, 5, reh‘g denied (July 13, 2020). Because the Utah Supreme Court‘s holding that the Revival Statute was unconstitutional informed the district court‘s decision to dismiss Ms. Mitchell‘s case with prejudice, we describe the opinion in detail.
The Utah Supreme Court answered the certified questions by looking first to its precedent, which “foreclosed” Ms. Mitchell‘s position that the legislature had the “power to vitiate a vested right in a ripened limitations defense.” Id. ¶ 10. “Beginning in 1897 and continuing for over a century, [the Utah Supreme Court] has repeatedly stated that the legislature lacks the power to revive a plaintiff‘s claim in a manner that vitiates a ‘vested’ right of a defendant.” Id. ¶ 11. This “vested rights” limitation on the Utah legislative power “is firmly rooted in [Utah] case law” and “has long been extended to the specific vested right asserted by [Mr.] Roberts—the right to retain a statute of limitations defense after a plaintiff‘s claim has expired under existing law.” Id. From In re Handley‘s Estate, 49 P. 829, 832 (Utah 1897), where the Utah Supreme Court first articulated the “vested rights” limitation on legislative power, to Ireland v. Mackintosh, 61 P. 901, 902 (Utah 1900), which extended that limitation to the specific right asserted here by Mr. Roberts, the Utah Supreme Court concluded its long-standing precedent “merits respect as
The Utah Supreme Court further explained the “vested rights” limitation is “consistent with the original understanding of the Utah Constitution.” Id. ¶ 30. Early Utahns “viewed such legislative encroachment into the domain of the judiciary as unconstitutional both as a matter of the principle of separation of powers itself and under the due process clause.” Id. ¶ 34. The Utah Supreme Court engaged in a historical analysis detailing how original understandings in the era of the framing of the Utah Constitution wove together due process, legislative power, and vested rights:
In the era of the framing of the Utah Constitution, the public understood the principle of “due process,” at least in part, as a matter relegating certain functions to the courts and not the legislature. The legislature was viewed as prohibited from exercising judicial functions—in interpreting and applying the law to the disposition of a case in which a party‘s rights or property were in dispute. “This meant the legislature could not retrospectively divest a person of vested rights that had been lawfully acquired under the rules in place at the time.” The legislature “could enact general laws for the future, including the rules for acquisition and use of property, but [it] could not assume the ‘judicial’ power of deciding individual cases.” Retroactive divestment statutes were viewed as judicial in nature (in the nature of “deciding individual cases“) because these laws were backward looking and operated to deprive individuals of rights and property “acquired under the rules in place at the time” of acquisition. Thus, valid legislative acts, in contrast to retroactive divestment statutes, stated the law going forward rather than “determin[ing] specific applications of law or . . . punish[ing] past acts“—functions relegated to the judiciary.
Id. ¶ 34 (alterations in original) (footnotes and citations omitted).
This historical analysis confirmed “[t]he key question that arose at the [state constitutional] convention was not whether the legislature lacked the power to divest vested rights“—it did—“but which rights qualified as vested.” Id. ¶ 42 (emphases added). “A ripened limitations defense,” the Utah Supreme Court determined, “was a vested right that could not be retroactively divested by the legislature.” Id. ¶ 46 (supreme court‘s emphasis); see also id. ¶¶ 48-49.
Finally, the Utah Supreme Court recognized the public policy objectives animating the Revival Statute but ultimately determined “the limits on the legislature remain despite the reasonable basis for its policy judgments in this field.” Id. ¶ 10; see also id. ¶¶ 6-7, 50-52.
C. Ms. Mitchell seeks voluntary dismissal without prejudice under Federal Rule of Civil Procedure 41(a)(2).
After the Utah Supreme Court decided the certified questions, the underlying federal proceedings picked up where the parties left off. Mr. Roberts moved to reopen his previously filed motion to dismiss, contending “the Utah Supreme Court‘s holding confirms that each of [Ms.] Mitchell‘s claims is time-barred and compels dismissal of [Ms.] Mitchell‘s Complaint with prejudice.”
Ms. Mitchell believed this approach—voluntary dismissal without prejudice subject to a curative condition—would mitigate any potential prejudice to Mr. Roberts because he would immediately “enjoy the full benefit of his defense” to her claims and would face no future litigation unless the Utah Constitution were amended. Id. at 144; see also id. at 197, 207. She emphasized the equities favored her proposed without-prejudice disposition: “Unless this matter is dismissed without prejudice,” Ms. Mitchell contended, “a highly unjust and perverse outcome will result” because, “[a]fter fighting for the validity of the Revival Statute, [she] would be the only one among all the victims of child sex abuse in Utah whose cases were previously time-barred by a prior statute of limitations who cannot benefit from an amendment to the Utah Constitution, which the Utah Supreme Court suggested in its Opinion.” Id. at 205.
The magistrate judge ruled against Ms. Mitchell, dismissing the case with prejudice.
This timely appeal followed.
II. Discussion
The issue before us is narrow. There is no dispute that Utah law grants Mr. Roberts a vested statute of limitations defense; Ms. Mitchell concedes her claims are time barred under Utah law; and Ms. Mitchell cannot rely on the Revival Statute because it is unconstitutional. Ms. Mitchell‘s appellate challenge centers on the district court‘s decision to dismiss her lawsuit against Mr. Roberts with prejudice, rather than to grant voluntary dismissal without prejudice on the condition she proposed.
that the court considers proper.”
We review for an abuse of discretion the district court‘s decision denying voluntary dismissal without prejudice under
Ms. Mitchell contends the district court abused its discretion by denying her motion under
A. The district court‘s decision to deny Ms. Mitchell‘s request for voluntary dismissal without prejudice was not an abuse of discretion.
In Ohlander v. Larson, 114 F.3d 1531 (10th Cir. 1997), we articulated the analytical framework district courts in this circuit should follow when considering a motion for voluntary dismissal under
question to be answered, on a case-by-case basis, when deciding whether to grant voluntary dismissal without prejudice. Baeke, 413 F.3d at 1124.
The traditional factors are “by no means exclusive” and “[a]ny other relevant factors should come into the district court‘s equation” when deciding a motion under
Ohlander also teaches district courts “should endeavor to insure substantial justice is accorded to both parties” under
1. The district court resolved Ms. Mitchell‘s motion under the correct legal standard.
Ms. Mitchell contends the magistrate judge applied the wrong legal standard under
As a threshold matter, the parties debate how the loss of a vested statute of limitations defense factors into the analysis under
First, the magistrate judge did not impose a bright-line rule that dismissal with prejudice under
Beginning with the traditional factors from Ohlander, the magistrate judge first considered Mr. Roberts‘s minimal effort and expense in preparing for trial, the early stage of the litigation, Ms. Mitchell‘s diligence, and her adequate explanation of the need for dismissal without prejudice. These factors, the court determined, supported Ms. Mitchell or were neutral. The magistrate judge then took account of “the equities facing both the plaintiff and the defendant,” id. at 222, and, on balance, found they favored Mr. Roberts. The magistrate judge also identified a “unique” consideration in this case—Mr. Roberts‘s right to retain a statute of limitations defense under Utah law.
Recall, Ohlander instructed district courts evaluating a request for voluntary dismissal without prejudice to consider the traditional factors, the equities facing both the plaintiff and the defendant, and “any additional factors unique to the context of th[e] case.” 114 F.3d at 1537; see also Baeke, 413 F.3d at 1124. Nowhere did the magistrate judge say her ruling was animated by a per se rule nor does the court‘s analysis reflect she relied on any single factor. Ohlander provides a useful counterpoint. There, we found the district court had abused its discretion by denying a without-prejudice dismissal “solely on the grounds of [] contempt and without considering any additional circumstances.” 114 F.3d at 1537 (emphases added). Here, by contrast, the magistrate judge viewed the loss of a vested statute of limitations defense as an “additional factor[] unique to the context of this case,” 114 F.3d at 1537, which she weighed together with the traditional factors and the parties’ equities. This was proper under our precedents.
Next, to the extent Ms. Mitchell contends the magistrate judge‘s fidelity to the Utah Supreme Court opinion amounted to application of a per se rule, in contravention of Ohlander, we reject the argument. The magistrate judge acted properly, as Mr. Roberts points out, in relying on the Utah Supreme Court‘s opinion in the
A district court sitting in diversity must apply the law of the state as it has been determined by the highest court of that state. Erie R.R. v. Tompkins, 304 U.S. 64 (1938); Armijo v. Ex Cam, Inc., 843 F.2d 406, 407 (10th Cir. 1988). Certification is an “important tool for federal courts sitting in diversity[] since it frees them from having to speculate how state courts will decide important questions of state law.” Grover v. Eli Lilly & Co., 33 F.3d 716, 719 (6th Cir. 1994);
Moreover, the magistrate judge‘s decision to honor the Utah Supreme Court‘s opinion in adjudicating the federal case aligns with the interests in comity directly implicated in the certification context. See Richardson ex rel. Richardson v. Navistar Int‘l Transp. Corp., 231 F.3d 740, 743 (10th Cir. 2000) (“‘Ordinarily, a state court‘s answer to a certified question is final,’ binding the parties and therefore becoming the law of the case.” (citation omitted)). Indeed, Ohlander identified “interests in comity” as a “factor[] unique to the context of [a] case” that district courts should “carefully apprais[e]” in the
The magistrate judge also correctly understood the holding of the Utah Supreme Court‘s opinion and the import of that decision in the federal case. The Utah Supreme Court explained that “for well over a century we have specifically held that a defendant acquires a ‘vested right’ in a statute of limitations defense once the limitations period has run.” Mitchell, ¶ 25. Under Utah law, vested rights are a “well-established class of property,” id. ¶ 43, “beyond the reach of legislative authority” and “protected from retroactive legislative interference,” id. ¶¶ 48-49. Accordingly, the Utah Supreme Court held that, under Utah law, Mr. Roberts acquired a vested right in his statute of limitations defense.
Under these circumstances, the district court concluded dismissal without prejudice would deprive Mr. Roberts of a vested right under Utah law, resulting in legal prejudice to him that outweighed other relevant considerations in the Ohlander analysis. The magistrate judge‘s decision does not demonstrate an erroneous application of a per se legal rule, as Ms. Mitchell contends, but rather, the correct application of Utah law. We discern no abuse of discretion.
2. The district court did not give insufficient weight to Ms. Mitchell‘s equities.
In Ohlander, we explained that, in adjudicating a motion under
On appeal, Ms. Mitchell contends hers is precisely the sort of complex, emotional case contemplated by Ohlander yet her equities were not given the attention deserved. There can be no serious question the magistrate judge confronted a “complex, emotional case” when adjudicating Ms. Mitchell‘s motion under
As alleged in Ms. Mitchell‘s complaint, she was sixteen years old when she met Mr. Roberts during a criminal prosecution in which he was a prosecutor and she was a government witness. She alleged Mr. Roberts repeatedly sexually assaulted her and coerced her to keep silent. According to Ms. Mitchell, the abuse—which Mr. Roberts denies10—caused her years of significant physical and emotional pain.
Under the circumstances, Ms. Mitchell contends the magistrate judge should have given more weight under Ohlander to the unique nature of child sexual abuse claims, which animated the Revival Statute.11 Ms. Mitchell points to legislative history explaining that “research over the last 30 years has shown that it takes decades for children and adults to pull their lives back together and find the strength to face what happened to them.”
national problem’ whose devasting effects . . . often span a lifetime,” the supreme court “appreciate[d] the moral impulse and substantial policy justifications” animating the Revival Statute).
Though the equitable balance did not tilt in Ms. Mitchell‘s favor, the dismissal order reflects the magistrate judge considered the arguments made by Ms. Mitchell about her equities, including: (1) dismissal without prejudice would result in a “highly unjust and perverse outcome” because, according to Ms. Mitchell, after advocating for the validity of the Revival Statute, she alone would be unable to pursue her claims if there were a constitutional amendment permitting legislative revival of time-barred claims; (2) if Ms. Mitchell had not dismissed her prior action, she could have dismissed this case without the court‘s permission; and (3) any legal prejudice to Mr. Roberts could be mitigated by Ms. Mitchell‘s proposed curative condition. Aplt. App. at 222. Given the record as a whole, we cannot agree with Ms. Mitchell that the magistrate judge was unaware of the policy
Thus, the magistrate judge properly exercised her discretion by considering the equities facing both parties before concluding Ms. Mitchell‘s equities “d[id] not outweigh the plain legal prejudice to Mr. Roberts.” Aplt. App. at 222. As the magistrate judge observed, Ms. Mitchell may understandably consider this result “harsh and distressing.” Id. But, applying abuse of discretion review, we discern no error, on balance, in the attention paid to Ms. Mitchell‘s equities.
B. The district court did not abuse its discretion by rejecting Ms. Mitchell‘s proposed curative condition.
Ms. Mitchell asked the magistrate judge to grant voluntary dismissal without prejudice on the condition that she be “prevent[ed] . . . from refiling her claims unless the Utah Constitution is amended to revive her claims.” Aplt. App. at 207. The magistrate judge rejected this proposal, explaining Ms. Mitchell‘s argument “misse[d] the point” and the dismissal condition “d[id] nothing to prevent legal prejudice to Mr. Roberts.” Id. at 222. On appeal, Ms. Mitchell challenges this ruling, contending “[r]egardless of whether [the] loss of a statute of limitations defense can sometimes constitute legal prejudice, such a loss did not constitute legal prejudice here, especially because of the curative condition” she proposed.12 Opening Br. at 28 (capitalization omitted). We are not persuaded.
defendant might otherwise suffer upon refiling of an action.” Id. (citation omitted). Importantly, “[t]he district court . . . should impose only those conditions which actually will alleviate [such] harm.” Id. (citation omitted).
Typically, curative conditions include payment of a defendant‘s costs and fees, making discovery available in a subsequent proceeding, or refiling certain claims in another jurisdiction within a limited time. See 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2366 (4th ed. 2022 update); McCants, 781 F.2d at 860 (“Where a subsequent similar suit between the parties is contemplated, expenses awarded might be limited to those incurred in discovering information and researching and pressing legal arguments that will not be useful in the later suit.” (citation omitted)).
Here, Ms. Mitchell‘s proposed curative condition rests squarely on a misunderstanding of Utah law. According to Ms. Mitchell, the Utah Supreme Court suggested in its opinion on the certified questions that the Utah Constitution is likely to be amended to permit legislative revival of time-barred child sexual abuse claims. Under
Nothing in the Utah Supreme Court‘s opinion supports Ms. Mitchell‘s contention. Nowhere did the Utah Supreme Court suggest, as Ms. Mitchell claims, that the Utah Constitution is likely to be amended. Ms. Mitchell appears to rest her entire argument on the phrase “unless and until,” which appears twice in the opinion. The supreme court observed:
Our laws are written down for a reason. And a key reason is to establish clear, fixed limits that the public may rely on—unless and until the law is repealed or amended by established procedures for doing so. The people of Utah retain the power to amend the Utah Constitution to alter the legislature‘s authority in this area if they see fit. But the document as it stands (and as originally understood) forecloses the legislature‘s power to enact legislation that retroactively vitiates a ripened statute of limitations defense.
. . . .
The question presented for us, however, is not a matter of policy. We are asked to give voice to the limitations on our government established in the charter—the constitution—ratified by the voice of the people. The terms of that charter merit our respect unless and until they are amended or repealed. And we must enforce the original understanding of those terms whether or not we endorse its dictates as a policy matter.
Mitchell, ¶¶ 9, 51 (emphases added) (footnote omitted).
Ms. Mitchell‘s reliance on the words “unless and until” is wholly misplaced. The Utah Supreme Court used the words “unless and until” not to forecast a constitutional amendment, as Ms. Mitchell insists, but to assert an uncontroversial observation: the Utah Constitution can be amended. We also reject Ms. Mitchell‘s contention that an amendment is likely simply because the Utah Supreme Court endorsed the policy rationales underlying the Revival Statute. The only question resolved by the Utah Supreme Court concerned a matter of law, not policy. Mitchell, ¶ 51. The Utah Supreme Court‘s opinion simply does not stand for the proposition that a constitutional amendment permitting legislative revival of child sexual abuse claims is forthcoming.13
In any event, the sort of open-ended curative condition offered by Ms. Mitchell—which rests on mere speculation about possible changes in Utah law—has
Accordingly, we conclude the magistrate judge properly considered, and rejected, Ms. Mitchell‘s proposed curative condition. See Grover, 33 F.3d at 719 (“At the point when the law clearly dictates a result for the defendant, it is unfair to subject him to continued exposure to potential liability by dismissing the case without prejudice.” (citation omitted)). Mr. Roberts has already twice been sued by Ms. Mitchell and twice asserted a valid statute of limitations defense. The curative condition proposed by Ms. Mitchell is no cure at all—it does not alleviate harm but
only exposes Mr. Roberts to the possibility of a third lawsuit at some unknown time. This disrupts principles of finality and repose and avoids entirely the Utah Supreme Court‘s pronouncement of the property-like vested right in a statute of limitations defense. We discern no error in the magistrate judge‘s decision to reject such a proposal.
III. Conclusion
The magistrate judge did not abuse her discretion by denying Ms. Mitchell‘s motion for voluntary dismissal without prejudice and rejecting her proposed curative condition. Under the deferential standard that governs our review, we affirm the decision to dismiss this action with prejudice.