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Kozel v. Kozel

United States District Court, D. South Carolina, Spartanburg Division

March 8, 2018

David F. Kozel, Plaintiff,
v.
Deborah L. Kozel, Michael E. Spears, Esq., Dallas C. Kozel, and India L. Kozel, Defendants.

          ORDER AND OPINION

         Plaintiff David Kozel asserts claims of civil conspiracy, common law malicious prosecution, abuse of process, defamation per se, intentional infliction of emotional distress, and malicious prosecution arising under 42 U.S.C. § 1983 against Defendant Michael E. Spears, Esq. (“Defendant Spears”) (ECF No. 90 at 42-43 ¶¶ 220-26, 46-51 ¶¶ 241-72, 54-55 ¶¶ 298-308.) This matter is before the court on Defendant Spears' Second Motion for Judgment on the Pleadings. (ECF No. 270.) Defendant Spears brings this Motion under Fed.R.Civ.P. 12(c) on the grounds that he is immune from liability because his alleged conduct in providing counsel to Defendants Dallas Kozel, India Kozel, and Deborah Kozel (collectively the “Kozel Defendants”) was within his professional capacity as an attorney on their behalf. (See ECF No. 270 at 3 ¶ 15.) For the reasons stated herein, the court GRANTS IN PART and DENIES IN PART Defendant Spears' Motion for Judgment on the Pleadings.

         I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff initially filed his Complaint in this case on August 8, 2014, in the United States District Court for the Western District of Pennsylvania against Defendants Dallas Kozel (“Dallas”), Deborah Kozel (“Deborah”), India L. Kozel (“India”), Detective Scott J. Rick (“Detective Rick”), and Defendant Spears (collectively “Defendants”). (ECF No. 1-1.) Plaintiff's claims against Defendants arise from criminal charges brought against him for the alleged sexual abuse of his daughters, Dallas and India. (ECF No. 90 at 3 ¶ 14.)

         Plaintiff and Deborah were married in 1994, but they separated in 1998, and were divorced in 2002. (Id. at 6 ¶¶ 28, 31, 7 ¶ 35.) In June 2004, both Deborah and Plaintiff were given shared custody of Dallas and India. (Id. at 7 ¶ 36.) In February 2007, the Superior Court of Pennsylvania affirmed an order requiring Plaintiff to pay $6, 344 per month in child support until each child reached the age of eighteen (18). (Id. at 8 ¶ 43; ECF No. 90-1 at 18.) In March 2008, Deborah initiated a Petition for modification of child support in the Family Division of the Court of Common Pleas of Allegheny County, Pennsylvania. (Id. at 8 ¶ 46; ECF No. 90-2.) This Petition was dismissed without a hearing and affirmed by the Pennsylvania Superior Court, but Deborah filed another Support Complaint in May 2012 in the Family Court of the Seventh Judicial Circuit in South Carolina. (ECF No. 90 at 12 ¶ 71; ECF No. 90-3.) In addition to filing this Support Complaint, Plaintiff alleges that because Dallas was about to turn eighteen, “Deborah [ ] was concerned [that] the child support payments she received from Plaintiff would be reduced, ” and therefore wrote a letter to Plaintiff demanding that Plaintiff quadruple his monthly child support until each daughter turned twenty-one (21).” (ECF No. 90 at 12-13 ¶¶ 72-73; ECF No. 90-4.) In August 2012, the Family Court of the Seventh Judicial Circuit in South Carolina dismissed the Support Complaint for lack of personal jurisdiction. (ECF No. 90 at 13 ¶ 74; ECF No. 90-5.)

         Plaintiff alleges that the Kozel Defendants created a scheme to have Plaintiff “investigated and arrested, ” and that it may be tied to Deborah's requests for increased child support. (Id. at 5 ¶ 26, 9 at ¶ 51.) In November 2012, Deborah filed a Petition to modify the existing child support order between Plaintiff and her in the Family Division of the Allegheny Court of Common Pleas, seeking an increase in child support. (ECF No. 90 at 13 ¶ 77.) Deborah and Plaintiff consented to the dismissal of this Petition, and Deborah refiled her Petition in Texas, which is where Plaintiff resided.[1] (Id. at ¶ 78.)

         Plaintiff alleges that, despite his daughters engaging in several counseling and therapeutic sessions over a period of several years, they alleged for the first time between December 2012 and January 2013 that he sexually abused them. (ECF No. 90 at 4 ¶¶ 16-19, 6-7 ¶¶ 33-34, 7 ¶¶ 39-40, 45, 9 ¶¶ 48-52.) These allegations were revealed when Plaintiff's daughters began treatment with Defendants Juliana Hamilton, LPC (“Hamilton”) and Kimberly Rosborough, LISW-CP (“Rosborough”) who are employed by Defendants Spring Ridge Academy in Arizona and Turning Leaves for Children, LLC in South Carolina, respectively.[2] (Id. at 5 ¶¶ 24-25, 7 ¶¶ 39-40.) More specifically, Plaintiff alleges that Hamilton and Rosborough treated his daughters with Eye Movement Desensitization and Reprocessing Therapy (“EMDR”) resulting in the implantation of their alleged false memories of sexual abuse (Id. at 5 ¶¶ 24-25.) Plaintiff alleges that “[o]n December 21, 2012, Rosborough, counselor for both [Dallas and India] and a friend of Deborah [ ], wrote in her clinical notes [that Mom said it was okay for Kimberly to talk with India about Plaintiff touching Dallas and India in the bathtub].” (Id. at 14 ¶ 82; ECF No. 90-6.) Plaintiff alleges that this note “evidences coordination amongst defendants, twenty (20) days prior to the ‘alleged' first revelation [of sexual abuse].” (ECF No. 90 at 14 ¶ 83.)

         Plaintiff alleges that “[o]n January 7, 2013, approximately one month prior to her eighteenth birthday and immediately before child support was to terminate, Dallas, [ ] for the first time, accused [Plaintiff] of sexually assaulting and physically abusing her as a child.” (ECF No. 90 at 20 ¶ 112.) Plaintiff further alleges that Dallas' oral allegations regarding the nature of Plaintiff's sexual abuse were in contradiction with her written statement given to the Yavapai County, Arizona Sherriff's Department. (See Id. 22 at ¶ 129, 23-24 ¶¶ 131, 133; ECF Nos. 90-9, 90-10.) In February 2013, Dallas and India also met with Detective Rick and detailed the nature of Plaintiff's sexual abuse. (ECF Nos. 90 at 26 ¶ 146, 27 ¶ 153; 90-11 at 7-11.) India and Dallas both met with Detective Rick again in June and July 2013 respectively, and Plaintiff alleges that their allegations were “materially different, contained numerous discrepancies and were largely inconsistent [with their statements during their first interview with Detective Rick].” (ECF No. 90 at 29 ¶¶ 161-62, 165-66; ECF No. 90-11 at 7-11.) Dallas provided a handwritten narrative after her July 2013 meeting with Detective Rick, which detailed how Plaintiff physically abused her. (ECF No. 90 at 31 ¶ 171, 173-74; ECF Nos. 90-17; 90-18.)[3]

         In March 2013, “six days after Dallas and India made allegations of sexual abuse against [Plaintiff] to Detective Rick, ” Deborah filed another Petition to modify child support in the District Court of the 303rd Judicial District in Dallas County, Texas seeking to “indefinitely extend child support into the girls' adult life.” (ECF No. 90 at 28 ¶ 156; ECF No. 90-12.) In July 2013, the District Court reduced Plaintiff's child support payment obligations to $1, 239.92, and limited it to only India (a departure from the original obligation of $6, 344 for both daughters). (ECF No. 90 at 32 ¶ 177; ECF No. 90-14.)

         On August 5, 2013, Detective Rick filed a Criminal Complaint and filed for an arrest warrant for Plaintiff. (ECF No. 90 at 32 ¶ 178, 35 ¶ 188; ECF No. 90-15.) Sometime in August 2013, Plaintiff turned himself in. (ECF No. 90 at 35 ¶ 190-91.) A preliminary hearing was held in November 2013, and Plaintiff's criminal trial in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division began in July 2014. (Id. at 40 ¶ 204, 41 ¶ 213.) That court ultimately dismissed the charges against Plaintiff following a non-jury criminal trial. (Id. at 41 ¶¶ 213-14.)

         Plaintiff filed an Amended Complaint on September 22, 2014, and a Second Amended Complaint on January 20, 2015, in the District Court for the Western District of Pennsylvania. (ECF Nos. 39, 90.) Detective Rick, the Kozel Defendants, and Defendant Spears filed respective Motions to Dismiss Plaintiff's Second Amended Complaint for failure to state a claim. (ECF Nos. 93, 96, 99.) On February 16, 2015, the Kozel Defendants filed a Motion to Transfer Venue to this court. (ECF No. 102.) On August 6, 2015, the District Court for the Western District of Pennsylvania granted Detective Rick's Motion to Dismiss (ECF No. 93). (ECF No. 163.) On August 10, 2015, that court denied without prejudice the Kozel Defendants and Defendant Spears' Motions to Dismiss (ECF Nos. 96, 99), stating that the issues raised in the Motions should be raised on summary judgment “at the appropriate time.” (ECF No. 164.) On the same day, that court also denied without prejudice the Kozel Defendants' Motion to Transfer Venue (ECF No. 102). (ECF No. 165.)

         On August 31, 2015, Defendant Spears and the Kozel Defendants answered Plaintiff's Second Amended Complaint. (ECF Nos. 166, 167.) The Kozel Defendants filed an Errata Answer on September 1, 2015. (ECF No. 171.) In addition to filing an Answer, the Kozel Defendants filed a Renewed Motion to Transfer Venue to this court, and Plaintiff responded. (ECF Nos. 168, 198.) Defendant Spears also filed a Motion to Transfer Venue to this court (ECF No. 174), and Plaintiff responded. (ECF No. 199.) On May 23, 2016, Judge David Stewart Cercone, United States District Judge for the Western District of Pennsylvania, granted Defendant Spears and the Kozel Defendants' Motions to Transfer Venue (ECF Nos. 168, 174), and ordered that this case be transferred to this court pursuant to 28 U.S.C. § 1404(a) (ECF No. 208). The case was officially transferred on May 25, 2016. (ECF No. 209.)

         On October 17, 2016, Defendant Spears filed a Motion for Judgment on the Pleadings. (ECF No. 255.) On September 29, 2017, the court denied Defendant Spears' Motion for Judgment on the Pleadings without prejudice and with leave to refile within ten (10) days to allow for the court to give the parties the opportunity to more thoroughly brief the choice of law issues within the case. (ECF No. 266.) Defendant Spears moved the court for an extension of time to respond (ECF No. 268), which the court granted. (ECF No. 269). Defendant Spears timely filed a Second Motion for Judgment on the Pleadings (ECF No. 270) on October 19, 2017. Plaintiff timely responded to Defendant Spears' Motion (ECF No. 278), and Defendant Spears replied (ECF No. 279).

         II. JURISDICTION

         This court has jurisdiction over this case pursuant to 28 U.S.C. §§ 1331, 1332 and 1367. Federal courts are courts of limited jurisdiction. Under Section 1331, district courts have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. Plaintiff has stated a claim for malicious prosecution under 42 U.S.C. § 1983, a federal statute, thus federal question jurisdiction is proper.

         District courts have “. . . supplemental jurisdiction over all [ ] claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy. . . .” 28 U.S.C. § 1367(a). In addition to Plaintiff's Section 1983 claim, Plaintiff has also stated five state law causes of action against Defendant Spears: (1) common law malicious prosecution, (2) civil conspiracy, (3) abuse of process, (4) intentional infliction of emotional distress, and (5) defamation per se. (ECF No. 90 at 42-43 ¶¶ 220-26, 46-51 ¶¶ 241-72, 54-55 ¶¶ 298-308.) These claims are connected to Plaintiff's Section 1983 cause of action and they are a part of the “same case or controversy.” Therefore, the court also has supplemental jurisdiction.

         Additionally, this court has jurisdiction over this case pursuant to Section 1332 on the basis of diversity of citizenship. In order for jurisdiction to be proper under Section 1332, there must be diversity of citizenship and the amount in controversy must be greater than $75, 000. 28 U.S.C. § 1332(a). Diversity of citizenship must be established at the time of the filing of the action in order for the court to determine if it has jurisdiction over the case pursuant to diversity of citizenship. Freeport-McMoRan, Inc. v. K N Energy, Inc., 498 U.S. 426, 428 (1991). Citizenship depends on domicile, not residency alone. Axel Johnson, Inc. v. Carroll Carolina Oil Co., 145 F.3d 660, 663 (4th Cir. 1998).[4]

         Plaintiff initially filed his Complaint on August 8, 2014 (ECF No. 1-1 at 2.) At the time of filing, Plaintiff was a resident of Dallas County, Texas. (Id. at 1.) At the time of filing, Deborah was a resident of Spartanburg County, South Carolina, and so were Dallas and India. (Id. at 1; see also ECF No. 90 at 1 ¶ 2, 2 ¶¶ 5-6.) Defendant Spears is a licensed personal injury attorney who conducts business in Spartanburg, South Carolina. (Id. at 2 ¶ 3.) Plaintiff pleads that he has spent over $500, 000 in legal fees, costs, and expenses in connection with the false allegations of sexual abuse, and requests judgment in his favor from all Defendants in excess of $75, 000. (Id. at 42 ¶ 219, 44 ¶ 233, 45 ¶ 240, 47 ¶ 248, 49 ¶ 263, 51 ¶ 272, 55 ¶ 308.) Diversity of citizenship is present and the amount in controversy is greater than $75, 000, thus jurisdiction under Section 1332 is proper. (See Id. at 3 ¶ 11.)

         III. LEGAL STANDARD

         A party may move for judgment on the pleadings after the pleadings have closed, but must do so early enough to avoid delaying trial. Fed.R.Civ.P. 12(c). “A motion for judgment on the pleadings is intended to test the legal sufficiency of the complaint and will operate to dispose of claims ‘where the material facts are not in dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings and any judicially noted facts.'” Cont'l Cleaning Serv. v. United Parcel Serv., Inc., No. 1:98CV1056, 1999 WL 1939249, at *1 (M.D. N.C. Apr. 13, 1999) (quoting Herbert Abstract v. Touchstone Properties, Inc., 914 F.2d 74, 76 (5th Cir. 1990)). A motion for judgment on the pleadings is decided under the same standard as a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Deutsche Bank Nat. Tr. Co. v. I.R.S., 361 F. App'x 527, 529 (4th Cir. 2010) (citing Independence News, Inc. v. City of Charlotte, 568 F.3d 148, 154 (4th Cir. 2009)). “[T]he key difference [between a 12(c) motion and a 12(b)(6) motion is that] the court is to consider the answer as well as the complaint.” Fitchett v. Cty. of Horry, S.C., No. 4:10-CV-1648-TLW-TER, 2011 WL 4435756, at *3 (D.S.C. Aug. 10, 2011) (citing Cont'l Cleaning Serv., 1999 WL 1939249, at *1).

         “On a Rule 12(b)(6) motion, a complaint must be dismissed if it does not allege ‘enough facts to state a claim to relief that is plausible on its face.'” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). A complaint requires more than a statement simply alleging the defendants illegally harmed the plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

         Given that a Fed.R.Civ.P. 12(c) motion is decided under the same standard as a 12(b)(6) motion, all facts alleged in the complaint are presumed to be true, and all reasonable inferences must be drawn in Plaintiff's favor. Republican Party of N. Carolina v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). However, the court is not required to accept the legal conclusions Plaintiff sets forth in his Complaint as true. Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).

         IV. ANALYSIS

         a. Defendant Spears' Prior Motion to Dismiss

         Plaintiff asserts that Defendant Spears' Second Motion for Judgment on the Pleadings (ECF No. 270) asserts the same arguments that he made in his Motion to Dismiss Plaintiff's Second Amended Complaint (ECF No. 99), which was filed in the Western District of Pennsylvania and rejected by Judge Cercone. (ECF No. 278 at 5.) Therefore, pursuant to the law of the case doctrine, [5] Plaintiff argues that the court should dismiss Defendant Spears' Motion for Judgment on the Pleadings. (Id.) Plaintiff further asserts that “Defendant Spears is undermining the judicial process to gain a litigation advantage in this case. . . . [attempting to get] this court to ignore the Western [District of] Pennsylvania [District] Court's prior rulings in order to gain perceived benefits of [South Carolina law].” (Id. at 7.)

         Defendant Spears posits that Judge Cercone never examined his attorney immunity argument under South Carolina law, thus the law of the case doctrine is inapplicable. (ECF No. 279 at 7 (citing Sejman v. Warner-Lambert Co., 845 F.2d 66, 69 (4th Cir. 1988) (“. . . [the law of the case doctrine] does not reach ‘questions which might have been decided but were not.'”) (citation omited))). Defendant Spears further posits that “[i]n denying [his] Motion to Dismiss without prejudice, Judge Cercone merely held that the issue of absolute judicial privilege was better suited for a motion for summary judgment.” (ECF No. 279 at 7.) Moreover, Defendant Spears states that “[a]bsolute judicial privilege [ ] does not serve as the basis for [his Motion for Judgment on the Pleadings], which was filed on the basis of a choice-of-law analysis which mandates the application of attorney immunity under South Carolina law.” (Id.) Lastly, Defendant Spears asserts that because “Judge Cercone did not undertake a choice-of-law analysis[, and] did not examine attorney immunity under South Carolina law, [he] did not reject its application[.]” (Id.)

         In Defendant Spears' Motion to Dismiss (ECF No. 99), he maintained that the alleged causes of action against him should be “. . . dismissed based upon absolute judicial privilege and immunity as such claims are based upon communications occurring in the course of judicial proceedings which were material and pertinent to the redress sought.” (ECF No. 99 at 3 ¶ 15.) Defendant Spears now moves the court for judgment on the pleadings, based on the assertion that “. . . [under South Carolina law], he is immune from liability for alleged conduct which took place in his professional capacity as attorney on behalf of his clients.” (ECF No. 270 at 3 ¶ 15.) As will be discussed in a subsequent section, there is a difference between judicial privilege or judicial immunity, and attorney immunity. (See ECF No. 279 at 7.)

         The court notes that the Kozel Defendants were ordered to answer Plaintiff's Second Amended Complaint (ECF No. 164 at 1), and pursuant to Fitchett, in deciding Defendant Spears' Motion for Judgment on the Pleadings, the court can consider the Answers to the Complaint, unlike the standard for a motion to dismiss. 2011 WL 4435756, at *3. Therefore, Defendant Spears' Motion for Judgment on the Pleadings (ECF No. 270) is more expansive than Defendant Spears' previous Motion to Dismiss (ECF No. 99). The court also notes that Judge Cercone denied without prejudice Defendant Spears' Motion to Dismiss, allowing him to refile his Motion even after Judge Cercone ruled on his initial Motion to Dismiss. (ECF No. 164 at 1.)

         In his Motion to Dismiss Plaintiff's Second Amended Complaint (ECF No. 99), Defendant Spears did not raise the defense that he may be immune from liability for the alleged actions taken on behalf of his clients pursuant to South Carolina law. Consequently, Judge Cercone did not have the opportunity to rule on this defense. Therefore, the court finds that Defendant Spears is able to bring his Second Motion for Judgment on the Pleadings. See Sejman, 845 F.2d at 69.

         b. Malicious Prosecution Under 42 U.S.C. § 1983

         Plaintiff alleges that Defendants conspired to deprive him of his constitutional rights because they “caused to be filed a criminal complaint [against him] without probable cause.” (ECF No. 90 at 54 ¶ 302); (see also ECF No. 260 at 30.) He further alleges that Defendants “falsely represented probable cause by dubious and inconsistent statements by the accusers” and “Defendants acted maliciously or for a purpose other than bringing [him] to justice.” (ECF No. 90 at 55 ¶¶ 303, 307.) Lastly, Plaintiff alleges that Defendants made “false statements to law enforcement” in order to “harass, embarrass, and to obtain money from Plaintiff, ” and these statements led to criminal proceedings being initiated against Plaintiff. (Id. at 44 at ¶ 230, 45 ¶ 238, 46 ¶¶ 243, 247.)

         Plaintiff alleges that “[t]he severity of the charges placed [his] case with the Sex Offender Court, a specialized docket with a rapidly proceeding court calendar, which gave him little time to cope with the socially stigmatizing charges[.]” (Id. at 41 ¶ 211.) If convicted, Plaintiff's charges subjected him to a “substantial prison sentence likely measured by the duration of his natural life and requiring a mandatory, lifetime registration as a Megan's Law registered sex-offender.”[6] (Id. at 41 ¶ 212.) Moreover, Plaintiff alleges that “[t]he public media reports of the false charges and the ensuing malicious prosecution have devastated [him] and his family.” (Id. at 42 ¶ 217.)

         Defendant Spears asserts he is immune from liability under Section 1983 because he was acting in his professional capacity as an attorney for his clients, the Kozel Defendants. (ECF No. 255-1 at 30; ECF No. 279 at 14.) Defendant Spears further asserts that Plaintiff's Section 1983 claim fails because he is not a state actor. (ECF Nos. 255-1 at 30; 279 at 15.) As will be discussed below, whether Defendant Spears acted in his professional capacity as an attorney for his alleged clients, the Kozel Defendants, is a disputed question of fact; therefore, the court will only address whether Defendant Spears as a private party can be liable for a violation of Section 1983.

         In Adickes v. S.H. Kress & Co., the Supreme Court of the United States distilled the requirements of Section 1983, stating that “(1) the plaintiff must prove that the defendant has deprived him of a right secured by the ‘Constitution and laws' of the United States and (2) the plaintiff must show that the defendant deprived him of this constitutional right ‘under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.'” 398 U.S. 144, 150 (1970). “Private persons, jointly engaged with state officials in [a] prohibited action, are acting ‘under color' of law for purposes of [Section 1983].” United States v. Price, 383 U.S. 787, 794 (1966)).

         More specifically, in order to state a claim for malicious prosecution under Section 1983, Plaintiff must establish that there was not probable cause to bring the criminal proceedings against him. See Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012) (“[a] malicious prosecution claim under § 1983 is properly understood as a Fourth Amendment claim for unreasonable seizure which incorporates certain elements of the common law tort. To state such a claim, a plaintiff must allege that the defendant (1) caused (2) a seizure of the plaintiff pursuant to legal process unsupported by probable cause, and (3) criminal proceedings terminated in plaintiff's favor.”) (internal citations and quotations omitted); Mckenna v. City of Phila., 582 F.3d 447, 461 (3d Cir. 2009) (an element of a malicious prosecution claim under Section 1983 is that it is initiated without probable cause); Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004) ...


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