Bates v. Simpson

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

JAMES A. BATES PLAINTIFF

Ve. CASE NO. 5:19-CV-5014

BENTONVILLE POLICE CHIEF JON SIMPSON;

DETECTIVES JERROD WISEMAN, ANDY

OLIVER, THOMAS BOYLE, KRIS MOFFIT, and

JOSHUA WOODHAMS; CAPTAIN JUSTIN

THOMPSON; THE CITY OF BENTONVILLE,

ARKANSAS; DR. CHARLES P. KOKES; and

KRISTINE COLLINS HOMAN DEFENDANTS

MEMORANDUM OPINION AND ORDER

Currently before the Court are:

e Defendant Kristine Collins Homan’s Motion to Dismiss (Doc. 12) and Brief in

Support (Doc. 13), and Plaintiff James A. Bates’s Response in Opposition (Doc.

17);

e Defendant Dr. Charles P. Kokes’s Motion to Dismiss (Doc. 19) and Brief in Support

(Doc. 20), Mr. Bates's Response in Opposition (Doc. 33), and Dr. Kokes’s Reply

(Doc. 37); and

* The Motion to Dismiss (Doc. 25) and Brief in Support (Doc. 26) filed by Defendants

Bentonville Police Chief Jon Simpson, Detective Jerrod Wiseman, Detective Andy

Oliver, Detective Thomas Boyle, Detective Kris Moffit, Detective Joshua

Woodhams, Captain Justin Thompson, and the City of Bentonville (collectively,

“the Bentonville Defendants”), Mr. Bates’s Response in Opposition (Doc. 34), the

Bentonville Defendants’ Reply (Doc. 41), Mr. Bates’s Sur-Reply (Doc. 42), and the

Bentonville Defendants’ Supplement (Doc. 45).

The Motions filed by Ms. Homan and Dr. Kokes are both DENIED. The Bentonville

Defendants’ Motion is GRANTED as to the only claim brought against the City of

Bentonville in this case (Count X of Mr. Bates’s Complaint), but that Motion is otherwise

DENIED. The reasons for these rulings are given below.

|. BACKGROUND

On November 21, 2015, Mr. Bates invited three friends named Sean Henry, Owen

McDonald, and Victor Collins over to his house to drink alcohol, watch football, and use

his hot tub. Eventually that evening Mr. Henry and then Mr. McDonald left and went

home. Mr. Collins remained at Mr. Bates’s house, and at some point that night, Mr. Collins

died.

At 9:35 a.m. the next day, Mr. Bates called 911 to report that he had just found Mr.

Collins dead in his hot tub. Police arrived at Mr. Bates’s house soon after he placed the

911 call, and an investigation into the cause of Mr. Collins’s death began. Three months

later, Mr. Bates was arrested and charged in Benton County Circuit Court with murdering

Mr. Collins. Circuit Judge Brad Karren presided over that criminal case, which ended .

roughly two years after Mr. Collins's death, when the prosecuting attorney moved on

November 29, 2017 to dismiss the charges against Mr. Bates.

Nearly a year after the criminal charges against Mr. Bates were dismissed, Mr.

Collins's widow, Kristine Collins Homan, filed a wrongful-death civil lawsuit against Mr.

Bates in Benton County Circuit Court, on behalf of Mr. Collins’s estate. That civil case

was also assigned to Judge Karren. Mr. Bates was personally served with the complaint

in that case on November 6, 2018. Apparently Mr. Bates immediately reached out to the

same Illinois lawyer who represented him in the criminal case, Kathleen Zellner, who sent

Ms. Homan’s attorney a four-page letter the very next day, on November 7, 2018. In that

letter, Ms. Zellner stated that she represented Mr. Bates in the wrongful-death lawsuit,

and that the complaint in that case was “frivolous and completely without merit.” See

Kristine Collins Homan v. James Bates, Benton County Circuit Court Case No. 04CV-18-

3180 (hereinafter “Wrongful Death Lawsuit”), Exhibit A to Defendant’s Reply filed on

December 27, 2018 at 16:21:28, p. 1. Ms. Zellner threatened to file a counterclaim for

malicious prosecution and a motion for sanctions under Ark. R. Civ. P. 11 if Ms. Homan

would not dismiss the lawsuit with prejudice. See id.

Notwithstanding these threats, as of December 6, 2018, no responsive pleading

had yet been filed on Mr. Bates’s behalf in that case. Mr. Bates inquired of Ms. Zellner

via text message on December 6, asking whether they needed to file a response that day.

See Wrongful Death Lawsuit, Exhibit C to Defendant’s Reply filed on December 27, 2018

at 16:21:28, p. 1. Ms. Zellner sent a reply text to Mr. Bates, saying “We are going to get

an extension.” See id. Three days earlier, Ms. Zellner had emailed Ms. Homan’s attorney

asking whether he would object to an anticipated motion for additional time to answer or

otherwise plead. See Wrongful Death Lawsuit, Exhibit B to Defendant's Reply filed on

December 27, 2018 at 16:21:28, p. 1. But apparently Ms. Collin’s attorney was not

agreeable to any such extension, and on December 10, there still being no responsive

pleading or motion for extension on the docket, Ms. Homan moved for default judgment.

Thirty-three minutes after that motion was filed, Judge Karren signed and filed an order

granting it and entering default judgment. See Wrongful Death Lawsuit, Motion for Default

Judgment filed on December 10, 2018 at 15:29:30, and Default Judgment filed on

December 10, 2018 at 16:02:41.

The next day, Mr. Bates filed a motion to set aside the default judgment, and a

separate motion to extend time to respond to the complaint. This was but the first of

several attempts Mr. Bates has made in that case to obtain such relief, and all of them

have been denied. He has also filed a motion in that case asking Judge Karren to recuse,

which likewise was recently denied. He is no longer being represented by Ms. Zellner in

that case, but he has been represented by counsel throughout its pendency. As the

default judgment was to liability only, the matter has been set for a jury trial on the issue

of damages, currently scheduled to be held on November 6, 2019. See Wrongful Death

Lawsuit, Scheduling Order filed on January 10, 2019 at 14:59:50.

On January 23, 2019, Mr. Bates initiated the instant lawsuit in this Court, filing a

59-page Complaint against Ms. Homan, the Bentonville Defendants, and Dr. Kokes (an

employee of the Arkansas State Crime Laboratory who performed an autopsy on Mr.

Collins). The Complaint alleges that the Defendants conspired to frame Mr. Bates for Mr.

Collins's murder in order to help Ms. Homan obtain life insurance proceeds that would not

be available to her if Mr. Collins were responsible for his own death. It alleges that the

Bentonville Defendants were motivated to help Ms. Homan because Mr. Collins was a

former police officer who worked with current Bentonville police officers in his job

providing security for Walmart’s corporate headquarters, he and Ms. Homan were

neighbors to a Bentonville police officer, and he and Ms. Homan had several friends in

the Bentonville police department.

According to the Complaint, Mr. Collins was 6’5” tall, weighed 315 pounds, had

been in 103-degree water in the hot tub, and had a blood alcohol level of .318 along with

Prozac and methylphenidate in his system at the time of his death. And although

Kokes opined in his autopsy report that the cause of Mr. Collins's death was strangulation,

Mr. Bates alleges that the autopsy was actually inconsistent with such a finding because, □

among other reasons, Mr. Collins’s hyoid bone was not fractured, there were no ligature

marks, scratches, or finger bruising on his neck, and there was no evidence of damage

to his thyroid cartilage. He also alleges, among many other things, that Bentonville police

officers concealed relevant audio recordings, destroyed his phone to prevent him from

obtaining information from it, and falsified water meter readings, and that Ms. Homan

wrote a letter to prosecutors falsely claiming that Mr. Bates was stalking her and her

children in a vehicle that Mr. Bates was subsequently able to prove he no longer owned

during the time period of the alleged stalking.

Mr. Bates’s Complaint brings ten counts against these Defendants. Six counts are

brought against the individual Bentonville Defendants and Dr. Kokes under 42 U.S.C.

§ 1983 for various constitutional violations, including false arrest, fabrication of evidence,

reckless investigation, conspiracy to deprive constitutional rights, failure to intervene, and

supervisory liability. The Complaint also brings three counts under Arkansas law against

all individual Defendants (including Ms. Homan), for malicious prosecution, civil

conspiracy, and outrage. The tenth count, for indemnification, is brought only against the

City of Bentonville, alleging that an Arkansas statute requires the City to pay all judgments

and settlements entered against the individual Bentonville Defendants for the other nine

claims.

All of the Defendants have filed motions to dismiss the claims against them. For

the most part, those motions are premised on either preclusionary or jurisdictional

arguments in the vein that the ongoing Wrongful Death Lawsuit in Benton County Circuit

Court is a bar either to Mr. Bates’s claims in this case or to this Court's jurisdiction over

them. Some of the Defendants also argue that the Complaint substantively fails to plead

sufficient facts to support the claims brought against them under Arkansas law. All of

these motions to dismiss are ripe for decision, as they have been fully briefed and the

Court received oral argument on them at an April 9, 2019 case management hearing.

The Court will discuss its rulings below, after reciting the legal standards governing

motions to dismiss under Fed. R. Civ. P. 12(b)(1) and (6).

il. LEGAL STANDARDS

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a

complaint must provide “a short and plain statement of the claim that [the plaintiff] is

entitled to relief.” Fed. R. Civ. P. 8(a)(2). The purpose of this requirement is to “give the

defendant fair notice of what the _.. claim is and the grounds upon which it rests.”

Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Ati. Corp. v. Twombly, 550 U.S.

544, 555 (2007)). The Court must accept all of a complaint’s factual allegations as true,

and construe them in the light most favorable to the plaintiff, drawing all reasonable

inferences in the plaintiff's favor. See Ashley Cnty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665

(8th Cir. 2009).

However, the complaint “must contain sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Twombly, 550 U.S. at 570). “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.” /d. “A pleading that offers ‘labels and

conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’

Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual

enhancement.” /d. In other words, while “the pleading standard that Rule 8 announces

does not require ‘detailed factual allegations,’ . . . it demands more than an unadorned,

the defendant-unlawfully-harmed-me accusation.” /d.

As for Rule 12(b}(1) motions to dismiss for lack of subject-matter jurisdiction, they

“may be resolved either on the face of the pleadings or upon factual determinations made

in consideration of matters outside of the pleadings.” Bhd. of Maint. of Way Emps. Div.

of Intern. Bhd. of Teamsters v. Union Pac. R.R. Co., 475 F. Supp. 2d 819, 834-35 (N.D.

lowa 2007) (citing Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993); Osborn v. United

States, 918 F.2d 724, 729 & n.6 (8th Cir. 1990)). Here, the Court will consider the same

universe of materials for Rule 12(b)(1) purposes as for Rule 12(b)(6) purposes, which

includes “matters incorporated by reference or integral to the claim, items subject to

judicial notice, matters of public record, orders, items appearing in the record of the case,

and exhibits attached to the complaint whose authenticity is unquestioned.” Miller v.

Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 (8th Cir. 2012) (quoting 5B Charles

Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2004)).

Ill. DISCUSSION

The Defendants’ arguments in favor of dismissal can be grouped into four

categories. The first category concerns whether Mr. Bates’s claims are barred under the

doctrine of res judicata. The second category concerns whether this Court should refrain

from exercising jurisdiction over Mr. Bates’s claims in order to avoid interfering with or

"undermining the Wrongful Death Lawsuit. The third category concerns the doctrine of

qualified immunity as applied to the individual Bentonville Defendants. And the fourth

category concerns whether Mr. Bates’s Complaint alleges sufficient facts to state a claim,

independently of any jurisdictional concerns. This Opinion discusses each of these

categories, in the aforementioned sequence,' below.

A. Res Judicata

When the affirmative defense of res judicata is raised in a motion to dismiss under

Rule 12(b)(6), the Court may dismiss a case on that basis if the doctrine’s applicability “is

apparent on the face of the complaint,” including “public records and materials embraced

by the complaint, and materials attached to the complaint.” See C.H. Robinson

Worldwide, Inc. v. Lobrano, 695 F.3d 758, 763-64 (8th Cir. 2012) (internal citations,

quotation marks, and alterations omitted). “The law of the forum that rendered the first

judgment controls the res judicata analysis.” See id. at 764 (quoting Laase v. Cnty. of

Isanti, 638 F.3d 853, 856 (8th Cir. 2011)). Thus, this Court must apply the res.judicata

laws of Arkansas, which is the governing law in the Benton County Circuit Court, where

the Wrongful Death Lawsuit is being adjudicated.

1 Ordinarily, federal courts should resolve challenges to their subject-matter jurisdiction

before reaching non-jurisdictional questions, so as to avoid opining on matters not

properly before them. See /n re Athens/Alpha Gas Corp., 715 F.3d 230, 235 (8th Cir.

2013). However, when—as here—the jurisdictional challenge is based on the principle

that a federal district court lacks authority to overturn a state court judgment, then it may

be acceptable to engage in preclusionary analysis before engaging in jurisdictional

analysis, because the two inquiries have a significant amount of overlap. See id. This

Court believes that approach is appropriate here, for the sake of clarity and analytical

ease.

Under Arkansas law, res judicata “consists of two facets, one being issue

preclusion and the other claim preclusion.” Baptist Health v. Murphy, 2010 Ark. 358, at

*7_ The first subsection below will take up the matter of claim preclusion. Then the next

subsection will discuss issue preclusion.

1. Claim Preclusion

Claim preclusion “bars relitigation of a subsequent suit” when the following five

elements are met:

(1) the first suit resulted in a final judgment on the merits; (2) the first suit

was based on proper jurisdiction; (3) the first suit was fully contested in good

faith; (4) both suits involve the same claim or cause of action; and (5) both

suits involve the same parties or their privies.

See id. at *8. “Res judicata bars not only the relitigation of claims that were actually

litigated in the first suit, but also those that could have been litigated.” /d. Thus, under

Arkansas law “the failure to plead a compulsory counterclaim is res judicata as to that □

claim in a subsequent action between the parties.” See Harrison v. Springdale Water &

Sewer Comm'n, 780 F.2d 1422, 1431 (8th Cir. 1986) (citing May v. Exxon, 256 Ark. 865,

867-68 (1974)).

Here, the first element of claim preclusion is not satisfied. As has already been

described in Section | above, the Wrongful Death Lawsuit is still very much ongoing.

There is still a jury trial yet to be held on the issue of damages, and Mr. Bates’s lawyers

have stated that they intend to appeal the default judgment as to liability once the matter

is ripe for appeal: “[W]hat constitutes a final judgment for res judicata purposes is not

necessarily the same as what constitutes a final judgment for other purposes.” Griffin v.

First Nat'l Bank of Crossett, 318 Ark. 848, 853-54 (1994). But “[flinality for purposes of

appeal is closely related to finality for purposes of res judicata.” Crockett & Brown, P.A.

v. Wilson, 314 Ark. 578, 582 (1993). And indeed, in the aforementioned case of Griffin,

the Arkansas Supreme Court explained the existence of a final judgment on a

counterclaim for res judicata purposes as follows: “The court entered judgment in favor

of the Bank without making any reference to the counterclaim. This was tantamount to

denial of the counterclaim, and, when no cross-appeal was taken in regard to the

counterclaim, this had the effect of a final judgment denying it.” See 318 Ark. at 853

(emphasis added). The obvious implication from the Griffin court’s reasoning is that, at

least in some cases, a judgment on the merits is not final for purposes of res judicata until

the adversely affected party has had a full opportunity to appeal it.2

This is not to say that a party could wait until after a judgment on the merits has

been appealed, but before the appeal has been resolved, to file a separate lawsuit

bringing claims that were the subject of the first judgment on appeal. The Arkansas

Supreme Court has held that res judicata bars such procedural maneuvers, because

otherwise “a plaintiff could clog the courts and harass an adversary with suits on a claim

already decided.” See Crockett & Brown, 314 Ark. at 582. But that is not the situation

2 The Defendants also argue that this Court should treat the default judgment in the

Wrongful Death Lawsuit as if it were subject to interlocutory appeal, even though under

well-settled Arkansas law, it plainly is not. See Sevenprop Assocs. v. Harrison, 295 Ark.

35, 36 (1988) (“We dismiss the appeal because the refusal to set aside a default judgment

as to liability is not a final judgment as required for appeal. The issue of damages remains

to be tried before there can be a final order.” (internal citation omitted)). They point to

Ark. R. App. P. Civ. 2(a)(4), which permits a direct appeal from “[a]n order which strikes

out an answer, or any part of an answer, or any pleading in an action,” and they argue

that a trial court’s refusal to set aside a default judgment or extend time to answer

“effectively” strikes a belated answer, see Doc. 13, p. 6. But Judge Karren explicitly

denied Ms. Homan’s motion to strike Mr. Bates’s untimely answer in the Wrongful Death

Lawsuit, see Wrongful Death Lawsuit, Order Denying Motion to Strike filed on January

25, 2019 at 15:14:07, and the Arkansas Court of Appeals has squarely rejected the notion

that a default judgment can “implicitly” strike an answer for purposes of Ark. R. App. P.

Civ. 2(a)(4), see JPMorgan Chase Bank, N.A. v. Scott, 2017 Ark. App. 358, at *2.

here. The Wrongful Death Lawsuit was barely out of the starting gate when the instant

lawsuit was filed, and it is still nowhere near the date of its jury trial, much less ripe for

appeal. ‘It is well settled that federal district courts and state courts are separate

jurisdictions, and identical cases between the same parties can proceed simultaneously.

In such a situation, [the Arkansas Supreme Court] has held that the first forum to dispose

of the case enters a judgment that is binding on the parties.” Baptist Health, 2010 Ark. at

*8 (emphasis added).

To be clear, this Court is not saying that a default judgment can never be final for

res judicata purposes. Arkansas law is crystal-clear that it can be. See Williams v. Conn.

Gen. Life Ins. Co., 26 Ark. App. 59, 61 (1988). The problem here for purposes of finality

is not the means by which this default judgment was obtained, but rather the fact that its

status is not yet finished being litigated in the first place. At some point in time much later

from now, either the Wrongful Death Lawsuit or the instant lawsuit will arrive at a final

judgment on the merits for purposes of claim preclusion before the other does. That event

may well have a significant impact on the other lawsuit. But that day has not yet arrived.

2. Issue Preclusion

As noted above, claim preclusion is not the only facet of res judicata in Arkansas;

there is also the doctrine of issue preclusion, also known as “collateral estoppel.” See

Hardy v. Hardy, 2011 Ark. 82, at *5—*6. Issue preclusion has four elements under

Arkansas law:

(1) the issue sought to be precluded must be the same as that involved in

the prior litigation; (2) the issue must have been actually litigated; (3) the

issue must have been determined by a valid and final judgment; and (4) the

determination must have been essential to the judgment.

44

See id. at *6. Here, the Defendants contend that Mr. Bates must be collaterally estopped

“from challenging the factual issue that he intentionally killed Victor Collins,” because the

complaint on which Mr. Bates defaulted in the Wrongful Death Lawsuit alleges, inter alia,

that Mr. Bates and Mr. Collins “began to fight, which ultimately ended with Victor's death,”

and that Mr. Bates “willfully inflict[ed] enough physical force upon Victor to cause his

death.” See Doc. 13, p. 8; Wrongful Death Lawsuit, Complaint filed on November 2, 2018

at 14:40:21, J] 11, 14. Mr. Bates vehemently denies that there was any altercation

between him and Mr. Collins.

The Defendants point to the Restatement (Second) of Judgments, § 13, as well as

the cases of John Morrell & Company v. Local Union 304A of United Food and

Commercial Workers, AFL-CIO, 913 F.2d 544, 563 (8th Cir. 1990), and Zdanok v. Glidden

Company, Durkee Famous Foods Division, 327 F.2d 944, 955 (2d Cir. 1964), for the

proposition that less “finality” is required for purposes of issue preclusion than for claim

preclusion—and more specifically, that an initial determination of liability in bifurcated

proceedings can be “final” for purposes of issue preclusion even when it is not yet an

appealable order because damages have yet to be adjudicated. This Court does not

entirely disagree with this characterization of those authorities, but it does ultimately

disagree with how far the Defendants carry them.

The first, and perhaps most important, observation to make here is that none of

these authorities is interpreting Arkansas law on issue preclusion—which, as noted

above, is what this Court must apply. Neither the Defendants, nor Mr. Bates, nor this

Court has found any Arkansas cases holding that less “finality” is required for issue

preclusion than for claim preclusion.

A second important observation is that none of the authorities cited by the

Defendants for this proposition articulates a bright line or straightforward rule of decision.

Rather, the general principle is that a ruling prior to final judgment may be final for

purposes of issue preclusion, but that in any given case this will depend on the fuzzy

question of whether “the litigation of a particular issue has reached such a stage that a

court sees no really good reason for permitting it to be litigated again,” see John Morrell

& Co., 913 F.2d at 563 (quoting Lummus Co. v. Commonwealth Oil Ref. Co., 297 F.2d

80, 89 (2d Cir. 1961 )); Zdanok, 327 F.2d at 955 (same), or on whether the ruling prior to

final judgment was “necessarily based upon a determination that constitutes an

insuperable obstacle to the plaintiff's success on the merits,” see John Morrell & Co., 913

F.2d at 563-64 (quoting Miller Brewing Co. v. Jos. Schlitz Co., 605 F.2d 990, 995 (7th

Cir. 1979)). The comment to the Restatement provides a hypothetical illustration of a jury

making a determination of liability at trial in a jurisdiction with bifurcated proceedings for

damages, and observes that “prior to the second phase, the jury's verdict as to liability

may be held conclusive as to the issues of . . . negligence in any other action . . . in which

the same issues appear.” See Restatement (Second) of Judgments, § 13, cmt. g, ill. 3

(emphasis added). But this illustration occurs after an extended discussion, in the same

comment, of how relaxing the requirement of “finality” for purposes of issue preclusion

can be appropriate if applying the ordinary, more demanding, requirement of finality would

“involve hardship” such as “needless duplication of effort and expense in the second

action to decide the same issue.” See id. Where a preliminary judgment of liability is

obtained by default, rather than by jury trial, concerns about “needless duplication of effort

and expense in the second action to decide the same issue” are virtually nonexistent.

Here it should be emphasized, as in the preceding subsection of the instant

Opinion, that this is not to say that a default judgment can never be final for purposes of

preclusion. Again, such a holding would be flatly inconsistent with Arkansas law. See

Williams, 26 Ark. App. at 61. In any case involving default judgment, if that default

judgment is permitted to stand then there must, at some point, come a time when the

default judgment acquires issue-preclusive effect; it is just a question of when.

This Court believes that, if squarely confronted with the question, the Arkansas

Supreme Court would hold that on the facts of the instant case, the default judgment will

not acquire issue-preclusive effect until the party against whom it was entered □□□

received the benefit of a full and fair opportunity to appeal it. The aforementioned

concerns about duplicative efforts are not present here; indeed, unless the default

judgment is set aside, Mr. Bates presumably will be prohibited from putting on evidence

to contradict it at the trial on damages in the Wrongful Death Lawsuit. See, e.g., B & F

Engg, Inc. v. Cotroneo, 309 Ark. 175, 181 (1992). Mr. Bates has already promptly and

. vigorously contested the default judgment in the same lawsuit where it was entered, and

has given every indication that he intends to appeal the matter once it is ripe for appeal.

Given the near-inevitability that the propriety and validity of the default judgment will

eventually be the subject of a fiercely-fought appeal, this Court does not believe it can be

said at this time that “the litigation of’ whether Mr. Bates intentionally killed Mr. Collins—

or for that matter even killed him at all—“has reached such a stage that” there is “no really

good reason for permitting it to be litigated again.” See John Morrell & Co., 913 F.2d at

563. Indeed, the issue has hardly been litigated at all. This seems especially appropriate

in light of the Arkansas Supreme Court’s general observation that “res judicata bars a

subsequent lawsuit that raises issues resolved in a final judgment from which an appeal

was not taken in a previous lawsuit.” Hardy, 2011 Ark. 82, at *7 (emphasis added).

Accordingly, this Court concludes that Mr. Bates’s claims in the instant lawsuit are not

presently barred by the doctrine of res judicata.*

B. Jurisdiction

In addition to their arguments about res judicata, the Defendants contend that this

Court either lacks subject-matter jurisdiction over this lawsuit, or that it should abstain

from exercising its subject-matter jurisdiction here. The former argument concerns a

doctrine known as “the Rooker-Feldman doctrine.” The latter argument concerns a type

of abstention known as “Younger abstention.” Both of these arguments are premised, in

different ways, on the notion that permitting the instant lawsuit to proceed would

impermissibly conflict or interfere with the Wrongful Death Lawsuit in the Benton County

Circuit Court. Below, the Court will first address the Rooker-Feldman doctrine’s

applicability. Then it will take up the matter of Younger abstention.

1. The Rooker-Feldman Doctrine

_ The Rooker-Feldman doctrine takes its name from a couple of seminal United

States Supreme Court cases: Rooker v. Fidelity Trust Company, 263 U.S. 413 (1923),

and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). “The Rooker-

3 Unfortunately this quote, while persuasive, does not definitively resolve the matter,

because it is unclear from the context surrounding it whether the Arkansas Supreme

Court is referring only to the claim-preclusion aspect of res judicata, or to both the claim-

preclusion and issue-preclusion aspects of res judicata. .

4 Because the Court finds that the default judgment in the Wrongful Death Lawsuit is not

presently final for purposes of res judicata, it does not reach the issue of whether any

other elements of claim preclusion or issue preclusion are satisfied here.

ac

Feldman doctrine recognizes that, with the exception of habeas corpus petitions, lower

federal courts lack subject matter jurisdiction over challenges to state court judgments.

The doctrine precludes district courts from obtaining jurisdiction both over the rare case

styled as a direct appeal, as well as more common claims which are ‘inextricably

intertwined’ with state court decisions.” King v. City of Crestwood, Mo., 899 F.3d 643,

647 (8th Cir. 2018) (quoting Simes v. Huckabee, 354 F.3d 823, 827 (8th Cir. 2004))

(internal citations and quotation marks omitted). It “is confined to cases of the kind from

which the doctrine acquired its name: cases brought by state-court losers complaining of

injuries caused by state-court judgments rendered before the district court proceedings

commenced and inviting district court review and rejection of those judgments.” Exxon

Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).

Importantly, “[w]hen there is parallel state and federal litigation, Rooker-Feldman

is not triggered simply by the entry of judgment in state court,” because the United States

Supreme Court “has repeatedly held that the pendency of an action in the state court is

no bar to proceedings concerning the same matter in the Federal court having

jurisdiction.” See id. at 292 (internal quotation marks omitted). “Nor does [the Rooker-

Feldman doctrine] stop a district court from exercising subject-matter jurisdiction simply

because a party attempts to litigate in federal court a matter previously litigated in state

court.” /d. at 293. Rather, as has already been discussed in the previous subsections of

this Opinion, “[i]f a federal plaintiff presents some independent claim, albeit one that

denies a legal conclusion that a state court has reached in a case to which he was a

party, then there is jurisdiction and state law determines whether the defendant prevails

under principles of preclusion.” /d. (internal quotation marks and alterations omitted). □

In some of Mr. Bates’s briefing on the matter of preclusion, he has occasionally

invited this Court to make rulings that might be inconsistent with the principles underlying

the Rooker-Feldman doctrine—for example, by arguing that the default judgment entered

in the Wrongful Death Lawsuit is “void” for various reasons. See Doc. 17, pp. 6-15. But

the Court has not accepted those invitations, and does not intend to do so in this lawsuit.

if Judge Karren continues to let the default judgment stand in the Wrongful Death Lawsuit,

then it will eventually be the task of the Arkansas Court of Appeals, the Arkansas Supreme

Court, or perhaps ultimately even the United States Supreme Court, to determine whether

the default judgment is void, or should be set aside, vacated, or reversed for any reason.

But as should be obvious by now from the analysis in the preceding subsections of this

Opinion, it is not necessary for this Court to permit any collateral attack on the default

judgment in order to engage in legitimate preclusion analysis.

Mr. Bates’s claims in this case are not “inextricably intertwined” with Ms. Homan’s

claims against him in the Wrongful Death Lawsuit. Even if a final judgment is ultimately

entered against Mr. Bates in the Wrongful Death Lawsuit, it would be an adjudication of

what Mr. Bates knew and did on November 21, 2015—not of what Ms. Homan, Dr. Kokes,

and the Bentonville Defendants knew and did for the next two years following that night

during the criminal investigation and prosecution regarding those events. It is

conceivable, for example, that Mr. Bates was in fact responsible for Mr. Collins’s death in

a manner satisfying the conditions for civil liability but not satisfying the elements of

murder, that the information available to these Defendants during the investigation and

prosecution of this matter was insufficient to support probable cause that Mr. Bates

murdered Mr. Collins—and that accordingly they fabricated inculpatory evidence and

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destroyed or concealed mitigating or exculpatory evidence in order to bolster their

chances of obtaining their desired outcomes. And of course, as has already been

discussed above in the subsection on res judicata, if the default judgment ultimately

obtains preclusive effect before the resolution of the instant case, then that preclusive

effect will be applied in this case to whatever extent it exists.®

2. Younger Abstention

For similar reasons, Younger abstention is not appropriate here. Younger

abstention takes its name from the United States Supreme Court case of Younger v.

Harris, 401 U.S. 37 (1971). The Younger doctrine exists to prevent improper federal

judicial interference with certain types of state proceedings. The Younger cases

recognize three—and only three—“exceptional circumstances” in which a federal court

with proper jurisdiction over a lawsuit should nevertheless abstain from exercising that

jurisdiction: (1) when the exercise of its jurisdiction would constitute “federal intrusion into

ongoing state criminal prosecutions”; (2) when the exercise of its jurisdiction would intrude

into a “civil enforcement proceeding” that is “akin to a criminal prosecution,” typically one

initiated by a state actor; or (3) when the exercise of its jurisdiction would interfere with

pending “civil proceedings involving certain orders . . . uniquely in furtherance of the state

courts’ ability to perform their judicial functions.” See Sprint Comme'ns, Inc. v. Jacobs,

571 U.S. 69, 78-80 (2013).

5 As previously noted, the Court did not need to reach the question in this Opinion of

whether any other elements of res judicata. were unmet. If a final judgment for purposes

of preclusion is obtained in the Wrongful Death Lawsuit before the instant case is

resolved, then it will be necessary to consider, for example, whether any issues or claims

in the instant case are the same as those involved in the Wrongful Death Lawsuit. See

Section Ill.A, supra.

Importantly, and in keeping with a theme that should be very familiar to the reader

by now, Younger abstention is not triggered merely by the existence of parallel state-court

proceedings. See id. As the Supreme Court observed in Sprint Communications:

Federal courts, it was early and famously said, have “no more right to

decline the exercise of jurisdiction which is given, than to usurp that which

is not given.” Cohens v. Virginia, 6 Wheat. 264, 404 (1821). Jurisdiction

existing, this Court has cautioned, a federal court's “obligation” to hear and

decide a case is “virtually unflagging.” Colorado River Water Conservation

Dist. v. United States, 424 U.S. 800, 817 (1976). Parallel state-court

proceedings do not detract from that obligation.

Id.

The Wrongful Death Lawsuit obviously is not a criminal prosecution or a civil

proceeding initiated by a state actor that is akin to a criminal prosecution. ‘The Defendants

do not appear to contend otherwise. Instead, they argue that the Wrongful Death Lawsuit

is a “civil proceeding[] involving certain orders . . . uniquely in furtherance of the state

courts’ ability to perform their judicial functions.” The only authority they cite in support of

this argument is the 1997 Eleventh Circuit case of Old Republic Union Insurance

Company v. Tillis Trucking Company, Incorporated, 124 F.3d 1258. That case also

involved a state-court wrongful death action, but that is about where the similarities

. between it and the instant matter end.

In Old Republic, the relevant state court proceeding was one in which an Alabama

jury returned a multi-million dollar verdict against a trucking company for a wrongful death

arising from a traffic accident. See 124 F.3d at 1259-60. Three days after the jury

returned that verdict, the trucking company’s insurer filed a lawsuit in federal court,

seeking a declaratory judgment that Alabama’s wrongful death statute was

unconstitutional, that it could not be constitutionally enforced against the insurer, and that

40

the insurer's liability to the trucking company could not exceed its $1,000,000 policy limit.

See id. at 1260. The Eleventh Circuit affirmed the district court’s dismissal of the federal

lawsuit under Younger abstention on the grounds that “a declaration that the Alabama

Wrongful Death Statute is unconstitutional would have the effect of enjoining the state

court from enforcing the $7,000,000 wrongful death judgment entered against” the

trucking company. See jd. at 1261.

Here, as already explained above, there need not be any inconsistency between

the eventual judgment in this case and the eventual judgment in the Wrongful Death

Lawsuit. This Court certainly is not being asked to declare Arkansas’s wrongful death

statute unconstitutional. And, again, to the extent that this Court might be asked along

the way to invalidate, overturn, limit, or otherwise collaterally attack the default judgment

in the Wrongful Death Lawsuit, it will simply refuse to deviate from the principles of res

judicata established under Arkansas law. Although there is subject-matter overlap

between the instant lawsuit and the Wrongful Death Lawsuit, this Court does not see any

“exceptional circumstances,” Colo. River Water Conservation Dist., 424 U.S. at 813,

much less “the clearest of justifications,” see id., that would “justify the surrender of

jurisdiction,” Fru-Con Const. Corp. v. Controlled Air, Inc., 574 F.3d 527, 540 (8th Cir.

2009) (quoting Mountain Pure, LLC v. Turner Holdings, LLC, 439 F.3d 920, 926 (8th Cir.

2006)) (internal alterations omitted), under any theory of abstention, whether Younger or

otherwise. In short, this Court has proper jurisdiction of this lawsuit, and it will not shirk

its obligation to exercise that jurisdiction, because allowing this case to proceed will not

impermissibly interfere with the Wrongful Death Lawsuit.

C. Qualified Immunity

Next, the individual Bentonville Defendants assert that if this Court finds “that the

factual issues determined by the default judgment in the Wrongful Death [Lawsuit] are

preclusive in this matter,” then they “are entitled to qualified immunity for all federal

constitutional claims and state law tort claims.” See Doc. 26, p. 11. Given that the Court

has already ruled above that the default judgment does not presently have preclusive

effect, then that could perhaps be the end of the matter so far as this particular argument

goes. But the Court would make several more observations on this topic before moving

on.

The Court is skeptical that the aforementioned argument can accurately be

characterized as one for qualified immunity. Rather, it seems to the Court that this

argument is simply a reassertion of the separate defense of res judicata and calling it by

another name. Under the federal doctrine of qualified immunity, a government official

who is sued in his individual capacity for violating someone’s federal constitutional rights

is immune from claims for damages arising from the alleged violation unless both of the

following prongs are satisfied: (1) “the facts that a plaintiff has alleged . . . make out a

violation of a constitutional right”; and (2) “the right at issue was clearly established at the

time of the defendant's alleged misconduct.” See Pearson v. Callahan, 555 U.S. 223,

232 (2009) (internal quotation marks omitted). But the individual Bentonville Defendants

never contend anywhere in their briefs that, for example, it is not a violation of a clearly

established constitutional right to fabricate and destroy evidence in a criminal

investigation in order to frame someone for murder. Nor, in line with the same example,

do they argue that Mr. Bates’s Complaint fails to allege that they did those things. Instead,

they simply argue that they are entitled to “qualified immunity” because the facts alleged

in the Wrongful Death Lawsuit’s complaint are inconsistent with the claims in Mr. Bates’s

Complaint.

Similarly, the individual Bentonville Defendants cite Ark. Code Ann. § 21-9-301(a)

for the proposition that they are also entitled to statutory and qualified immunity under

-Arkansas law from the state-law claims brought against them. See Doc. 26, p. 12. Itis

very well-settled under Arkansas law that this statute does not provide immunity from

liability for intentional torts. See, e.g., City of Farmington v. Smith, 366 Ark. 473, 478

(2006); Battle v. Harris, 298 Ark. 241, 245 (1989). All three state-law claims brought

against the individual Bentonville Defendants are intentional torts. See Chambers v.

Stern, 347 Ark. 395, 404 (2002) (civil conspiracy); Kellerman v. Zeno, 64 Ark. App. 79, 89

(1998) (malicious prosecution); Deitsch v. Tillery, 309 Ark. 401, 407 (1992) (outrage). But

as with the federal claims, the individual Bentonville Defendants never actually argue that

Mr. Bates’s Complaint fails to allege that they committed intentional torts; rather, they

simply substitute the allegations in the Wrongful Death Lawsuit’s complaint for the

allegations in Mr. Bates’s Complaint, on the grounds that the default judgment has

preclusive effect. Again, it seems to the Court that they are merely re-arguing res judicata

and calling it “qualified immunity.” For all the foregoing reasons, then, the Court rejects

the individual Bentonville Defendants’ contention that they are entitled to qualified

immunity at this time.

D. Factual Sufficiency of the Complaint

The fourth and final category of arguments raised in the Defendants’ motions to

dismiss concerns the sufficiency of the factual basis for Mr. Bates’s claims as pleaded in

his Complaint. In other words, this category concerns the sort of argument that one more

typically sees in a motion to dismiss under Rule 12(b)(6): that the Complaint simply fails

to state a claim upon which relief can be granted. As discussed in Section II above, for

purposes of this analysis the Court must accept all of the Complaint’s allegations as true,

and draw all reasonable inferences therefrom in Mr. Bates’s favor.

The City of Bentonville makes one such argument. Mr. Bates has brought only

one count against the City—Count X—alleging that Ark. Code Ann. § 21-9-304 requires

the City to pay all judgments and settlements entered against the individual Bentonville

Defendants for the other nine claims. The City argues that Mr. Bates has misread this

statute, and that it only requires the State of Arkansas to indemnify a local government

whose employees are under the supervision of the State or of a State employee. See

Doc. 26, p. 12. In his Response to the City’s Motion, after giving the matter further review,

Mr. Bates concedes that Ark. Code Ann. § 21-9-304 does not apply here, and that he

does not oppose dismissal of Count X. See Doc. 34, p. 18. Therefore, Count X will be

dismissed with prejudice.

The remaining traditional Rule 12(b)(6) arguments are all made by Ms. Homan.

She contends that the Complaint fails to allege sufficient facts to support the state-law

claims brought against her. The Complaint brings three such claims: civil conspiracy,

malicious prosecution, and the tort of outrage.

The Arkansas Supreme Court describes the elements of civil conspiracy as

follows:

In order to prove a civil conspiracy, one must show a combination of two or

more persons to accomplish a purpose that is unlawful or oppressive or to

accomplish some purpose, not in itself unlawful, oppressive or immoral, by

unlawful, oppressive or immoral means, to the injury of another. Such a

conspiracy is not actionable in and of itself, but recovery may be had for

damages caused by acts committed pursuant to the conspiracy. Civil

conspiracy is an intentional tort requiring a specific intent to accomplish the

contemplated wrong.

Chambers, 347 Ark. at 404 (quoting Dodson v. Allstate Ins. Co., 345 Ark. 430, 445 (2001))

(internal citations and alterations omitted).

As for malicious prosecution, the Arkansas Supreme Court has listed the following

five elements:

(1) a proceeding instituted or continued by the defendant against the

plaintiff; (2) termination of the proceeding in favor of the plaintiff; (3) absence

of probable cause for the proceeding; (4) malice on the part of the

defendant; and (5) damages.

McMullen v. McHughes Law Firm, 2015 Ark. 15, at *15. The tort of malicious prosecution

qualifies as an unlawful or oppressive purpose of a civil conspiracy. Cf Ramsey v.

Flowers, 72 Ark. 316 (1904) (evidence of co-conspirators’ actions in furtherance of

conspiracy is admissible in suit for malicious prosecution). And even if one would not

otherwise “be liable as a direct actor” for the tort that serves as the object of a civil

conspiracy, she may incur accomplice liability “as a participant in a conspiracy which

results in one or more overt acts by others constituting” an actionable tort. See Mason v.

Funderburk, 247 Ark. 521, 529 (1969).

Ms. Homan offers two arguments as to why Mr. Bates’s Complaint fails to state a

claim against her for malicious prosecution. The first argument is that the preclusive

effect of the Wrongful Death Lawsuit’s default judgment provides her a defense to this

tort because “[p]roof of the plaintiff's actual guilt of the offense charged is a complete

defense to an action to recover damages for a malicious prosecution for the offense.”

Whipple v. Gorsuch, 82 Ark. 252 (1907). The Court rejects this argument for the same

reasons it has ruled above that the default judgment presently has no preclusive effect.®

The other argument is that the Complaint never alleges that she personally initiated the

criminal proceeding against Mr. Bates by making a false statement to the prosecutors.

But this argument overlooks that, as already noted, if the Complaint pleads sufficient facts

to show that she was a participant in the conspiracy to maliciously prosecute Mr. Bates,

then her coconspirators’ satisfaction of this element would also satisfy it as to her.

The Complaint pleads sufficient facts to show that Ms. Homan participated in a

civil conspiracy to commit malicious prosecution. It alleges that the individual Bentonville

Defendants audio recorded a conversation with Ms. Homan in which she and they agreed

to blame Mr. Bates for causing Mr. Collins's death in order to facilitate her recovery of his

life insurance benefits, and that the individual Bentonville Defendants concealed the audio

recording of this conversation from Mr. Bates. See Doc. 1, J] 117-19, 123. It alleges

that she falsely told prosecutors that Mr. Bates was stalking her. See id. at ]121. It

alleges that she lied to Owen McDonald's wife about whether Mr. Bates was cooperating

with police, and further encouraged Mr. McDonald's wife to lie about what time he arrived

home from Mr. Bates’s house. See jd. at J] 216-17. And of course the Complaint is

replete with many allegations about other actions that the other members of the alleged

conspiracy took in furtherance of its object of malicious prosecution. Thus, the Complaint

alleges sufficient facts to state a claim of malicious prosecution against Ms. Homan, by

virtue of her alleged participation in a conspiracy to that end.

Finally, as for the tort of outrage, it has four elements:

6 This is not to say that Ms. Homan cannot prove this defense at a later stage of this case

with evidence that she acquires through discovery. But at the present stage, this Court

is bound to accept the allegations in Mr. Bates’s Complaint as true.

(1) the actor intended to inflict emotional distress or knew or should have

known that emotional distress was the likely result of his conduct; (2) the

conduct was extreme and outrageous, beyond all possible bounds of

decency, and was utterly intolerable in a civilized community; (3) the actions

of the defendant were the cause of the plaintiff's distress; (4) the emotional

distress sustained by the plaintiff was so severe that no reasonable person

could be expected to endure it.

Rees v. Smith, 2009 Ark. 169, at *5. Ms. Homan argues that Mr. Bates “has not alleged

any kind of emotional distress cognizable under the claim,” and “has failed to allege any

actual outrageous conduct.” See Doc. 13, p. 15. The Court disagrees. This Court is of

course aware that Arkansas law imposes a very demanding standard on claims of

outrage, that this tort “is not easily established,” and that it “does not make actionable

every insult or indignity one must endure in life.” See Family Dollar Trucking, Inc. v. Huff,

2015 Ark. App. 574, at *9. But in the absence of any Arkansas cases holding to the

contrary, this Court believes alleging that someone carried out a conspiracy to frame an

innocent man for murder, leading to actual murder charges being brought against that

person, amply clears the bar for purposes of a Rule 12(b)(6) motion.

IV. CONCLUSION

IT IS THEREFORE ORDERED that Defendant Kristine Collins Homan’s Motion to

Dismiss (Doc. 12) and Defendant Dr. Charles P. Kokes’s Motion to Dismiss (Doc. 19) are’

both DENIED.

IT 1S FURTHER ORDERED that the Bentonville Defendants’ Motion to Dismiss

(Doc. 25) is GRANTED as to Count X of Plaintiff James A. Bates’s Complaint (Doc. 1),

and DENIED in all other respects.

IT IS FURTHER ORDERED that Count X of the Complaint is DISMISSED WITH

PREJUDICE.

IT 1S SO ORDERED on this | ) day of April, 2049.

la 7

[LIX

AIMS@THY L/BROOKS

UNITED 2 ATESJISTRICT JUDGE