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Clark v. Minore

United States District Court, D. Arizona

November 27, 2017

Corey Clark, Plaintiff,
John Minore, et al., Defendants.


          David G. Campbell United States District Judge.

         Pro se Plaintiff Corey Clark filed a complaint in April 2016 against Defendant John Minore alleging various defamation-related claims. Doc. 1. Defendant moves for summary judgment, arguing that Plaintiff's discovery disclosures have failed to provide any evidence or witnesses to prove his allegations. Doc. 35. The Court ordered supplemental briefing and evidence regarding the applicability of Arizona's absolute privilege for attorney statements in court proceedings. Docs. 44, 50. The briefing is now complete and oral argument will not aid the Court's decision. See Fed. R. Civ. P. 78(b); LRCiv 7.2(f). For reasons stated below, the Court will enter summary judgment for Defendant.

         I. Introduction.

         Plaintiff has sued Defendant, an attorney for Plaintiff's wife in their divorce case, for Defendant's speech during a court hearing on April 21, 2015, and a police report Defendant filed that made the same assertions. Doc. 1 at 2; Doc. 40 at 2-3, ¶¶ 3, 5-6. Plaintiff alleges that Defendant made various false statements and threats in the hearing and police report, and bases his claims in this case on those statements. He sues Defendant for various torts and one federal crime, including (1) defamation and libel, (2) commercial disparagement and trade libel, (3) misappropriation of image or likeness, (4) trade malpractice, (5) false light invasion of privacy, (6) injurious falsehood, (7) fraud upon the court, and (8) false statements. Doc. 1 at 4-11. Plaintiff seeks $22.5 million in damages, an injunction barring further defamatory statements, and an order vacating the state-court divorce judgment. Id. at 11-14.

         Defendant's motion is not carefully focused on relevant legal issues, and Plaintiff's response wanders through wrongdoing of his wife, his wife's step-father, and the judge, various violations of his parental rights, and finally to the court proceeding where the allegedly tortious speech occurred.

         Throughout their briefing, the parties did not address the most glaring deficiency in this case - the absolute privileges that apply to statements made by lawyers in court and in complaints to police. The Court ordered supplemental briefing and evidence on Defendant's role in the April 2015 hearing as permitted by Rule 56(f)(2). Docs. 44, 50. Having received the supplemental filings, the Court now enters summary judgment for Defendant.[1]

         II. Discussion.

         Summary judgment is appropriate if the evidence, viewed in the light most favorable to the non-moving party, shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).

         A. Absolute Immunity - Participants in Court Proceedings.

         “In the area of absolute privileges, one of the most common is that involving the participant in judicial proceedings.” Green Acres Tr. v. London, 688 P.2d 617, 621 (Ariz. 1984). “The privilege protects judges, parties, lawyers, witnesses and jurors. The defense is absolute in that the speaker's motive, purpose or reasonableness in uttering a false statement [does] not affect the defense.” Id.

         The Arizona Supreme Court derives “[a]n attorney's absolute privilege to defame in connection with a judicial proceeding” from the Restatement (Second) of Torts. Id. The relevant section provides:

An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.

Restatement (Second) of Torts § 586. The immunity “focuses on the status of the actor” as a lawyer and “immunizes an attorney for statements made ‘while performing his function as such.'” Green Acres, 688 P.2d at 621 (quoting § 586 cmt. c). The immunized statements “need not be ‘strictly relevant, ' but need only have ‘some reference to the subject matter of the proposed or pending litigation.'” Id.

         The parties dispute whether Defendant was a participant in the April 2015 hearing. Doc. 45 at 2-3; Doc. 46 at 7-8. Yuma County Superior Court records resolve this issue. Defendant was not present to represent his client - Plaintiff's former wife - when the hearing began. Doc. 51-1 at 2. For this reason, the minute entry suggests that Mrs. Clark appeared in propria persona. Id. But Defendant arrived later, and both the minute entry and the transcript reflect his appearance as counsel for Mrs. Clark. Id. at 2, 52. ...

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