Robison v. Department of Insurance, Finanical Institutions and Professional Registration

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

BRYAN TRAVIS ROBISON, )

)

Plaintiff, )

)

v. ) Case No. 4:18-cv-1527-MTS

)

DEPARTMENT OF INSURANCE, )

FINANCIAL INSTITUTION AND )

PROFESSIONAL REGISTRATION, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court on Defendants John Huff, Carrie Couch, Mary Johnson,

Kevin Davidson, and Karen Crutchfield’s (collectively, “Defendants”) Motion for Summary

Judgment, Doc. [158], on the sole remaining claim in Plaintiff’s Amended Complaint, Doc. [129],

asserted under 42 U.S.C § 1983, and Defendants’ defenses of qualified immunity, res judicata,

and in pari delicto. For the reasons set forth below, the Court denies in part and grants in part

Defendants’ Motion.

I. BACKGROUND

This case is based on Plaintiff Bryan Robison’s allegations that Defendants, while working

at the Department of Insurance, Financial Institutions and Professional Registration (“DIFP”),

revoked Plaintiff’s professional license without due process. Plaintiff was a Missouri licensed

general bail bond agent who employed several bail bond agents in the State. His license was set

to expire on August 8, 2016. Plaintiff sent sworn affidavits to DIFP stating he had two unsatisfied

judgments against him in April, May, June, and July 2016.

In July 2016, Plaintiff submitted his application to renew his general bail bond agent

license, and Defendant Crutchfield, an Investigator with DIFP, was assigned to investigate

Plaintiff’s renewal application. After the investigation, Defendant Crutchfield submitted a report

(the “Report”) on July 28, 2016, recommending refusal of renewal because Plaintiff did not meet

the qualifications for surety on bail bonds since he had outstanding bond forfeiture judgments

against him in Missouri. On July 29, 2016, Defendant Huff, the Director of DIFP at that time,

signed an Order Refusing to Renew General Bail Bond Agent License (the “Order”).

Also, on July 29, 2016, Defendant Davidson, an Investigator with DIFP, sent twenty-three

letters to Plaintiff’s bond agent-employees that stated, “effective immediately,” Plaintiff was no

longer authorized to “conduct general bail bond business in the State of Missouri.” Believing this

letter effectively revoked his license, Plaintiff stopped conducting bail bond business in Missouri

on July 29, 2016—ten days before his license was set to expire. Based on these facts, Plaintiff

asserts that Defendants prematurely revoked his professional license without due process.

Plaintiff unsuccessfully challenged the nonrenewal of his license in Missouri state court,

with the Supreme Court of Missouri rendering final disposition in June 2018 against him. Plaintiff

then filed a four-count action in this Court raising constitutional challenges to both the nonrenewal

and the revocation of his license. Since then, the Court has dismissed three counts and some

defendants. The remaining Defendants now move for summary judgment on Plaintiff’s sole

remaining claim and on their own defenses.

II. LEGAL STANDARD

“A court must grant a motion for summary judgment if the moving party shows that there

are no genuine disputes of material fact and that it is entitled to judgment as a matter of law.”

Bedford v. Doe, 880 F.3d 993, 996 (8th Cir. 2018) (citing Fed. R. Civ. P. 56(a)). “The mere

existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there

must be evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 252 (1986). “Mere allegations, unsupported by specific facts or

evidence beyond the nonmoving party’s own conclusions, are insufficient to withstand a motion

for summary judgment.” Thomas v. Corwin, 483 F.3d 516, 526–27 (8th Cir. 2007).

In this case, one procedural note on summary judgment is in order before the Court begins.

The Local Rules of this District require each party opposing summary judgment to file a Response

to Statement of Material Facts that “must set forth each relevant fact as to which the party contends

a genuine issue exists.” L.R. 4.01(E). And the opposing party must support the dispute “with

specific citation(s) to the record.” Id. For his responses to numerous paragraphs in Defendants’

Statement of Uncontroverted Material Facts, Plaintiff did not indicate that he contended a genuine

issue existed; nor did he cite to the record showing a contradiction. See generally Doc. [168].

Instead of properly admitting or denying Defendants’ properly cited facts, Plaintiff repeatedly

asserted that he “can neither admit nor deny the truth” of the statements. One of the most

remarkable examples being that Plaintiff actually refused to admit (or deny) that Plaintiff had and

attested to having “outstanding judgments” against him. Doc. [168] ¶¶ 48, 49, 66, 69. This refusal

is especially remarkable given that Plaintiff’s own Amended Complaint alleges that “Plaintiff sent

sworn affidavits to Defendant DIFP stating that he had unsatisfied judgments and provided to

Defendant DIFP copies of the two judgments.” Doc. [129] ¶ 23 (emphasis added). Most

remarkable, though, is that Plaintiff’s own exhibits to his “Statement of Uncontroverted and

Material Facts” show that judgments were entered on both cases. See Doc. 156-20 (“Judgment

and Order For Forfeiture of Surety Bond” entered on March 24, 2016); Doc. 156-21 (“Judgment

of Bond Forfeiture” entered April 1, 2016).

In sum, Plaintiff did not dispute most of Defendants’ facts nor provide the Court any

citations in the record to suggest he disputes them, and, in its review of the record, the Court has

not seen any contradictory evidence on the points discussed in this Memorandum and Order.

Accordingly, as the Local Rules provide, the Court deems those facts discussed herein that Plaintiff

did not specifically controvert as admitted. L.R. 4.01(E); see also, e.g., DaPron v. Spire, Inc. Ret.

Plans Comm., 377 F. Supp. 3d 946, 950 (E.D. Mo. 2019) (finding objections plaintiff raised “that

d[id] not cite to the record” were “ineffective for purposes of establishing a genuine factual

dispute”), aff’d, 963 F.3d 836 (8th Cir. 2020); Benford v. Schneider Nat’l Carriers, Inc., No. 4:19-

cv-00550-MTS, 2021 WL 3033346, at *2 (E.D. Mo. July 19, 2021) (deeming “several” of

opposing-party’s factual submissions as uncontroverted where party “failed to respond” to the

particular “factual assertions,” in violation of Local Rule 4.01(E)), aff’d, --- F. App’x ---, No. 21-

2717, 2022 WL 97108 (8th Cir. Jan. 10, 2022).

III. DISCUSSION

A. Qualified Immunity

1. License Renewal

Although license renewal, as opposed to revocation, is no longer an issue in this case,

Plaintiff’s counsel nonetheless continues to argue the issue of renewal—an issue that has since

been dismissed by the Court and similarly found without merit by the Supreme Court of Missouri

and the Missouri Court of Appeals.1 See Robison v. Dep’t of Ins., Fin. Institutions & Pro.

Registration, 437 F. Supp. 3d 725, 734 (E.D. Mo. 2020) (dismissing Plaintiff’s license renewal

issue); State ex rel. Robison v. Lindley-Myers, 551 S.W.3d 468, 474 (Mo. banc 2018) (holding

Plaintiff “has not established a clear and unequivocal right to license renewal”); State ex rel.

1 To put this issue again to rest, Defendants’ request summary judgment on the issue of renewal in the context of

qualified immunity.

Robison v. Lindley-Myers, No. WD 80793, 2017 WL 3707114, at *6 (Mo. Ct. App. Aug. 29, 2017)

(same). Further, and most recently, the Court reminded Plaintiff’s counsel of this when the Court

denied Defendant’s Motion to Dismiss, Doc. [155], and stated if Plaintiff improperly attempted to

again assert liability against Defendants for failure to renew—which Plaintiff is currently doing—

the claim is barred by qualified immunity. Doc. [155] at 2–3 n.2. Thus, the Court reiterates that

summary judgment has already been granted on any and all issues relating to the issue of license

renewal, which includes but is not limited to, the Report and the Order. See Robison, 437 F. Supp.

3d at 732–34 (“The individual defendants are therefore protected by qualified immunity to the

extent Robison claims that the manner by which they failed to renew his license denied him his

right to due process.”).

2. The Letter

Despite Plaintiff’s attempt to bring up old issues, the only remaining issue in this case is

whether Defendant Davidson’s July 29, 2016 letter (the “Letter”) prematurely revoked Plaintiff’s

license. In a claim brought under 42 U.S.C. § 1983, qualified immunity protects a government

official from liability unless his conduct violated a clearly established constitutional or statutory

right of which a reasonable person would have known. Pearson v. Callahan, 555 U.S. 223, 231

(2009); Smith v. City of Minneapolis, 754 F.3d 541, 544 (8th Cir. 2014). As applied here, each

Defendant will be entitled to qualified immunity unless that specific Defendant’s conduct violated

Plaintiff’s right to due process via the Letter.2 See Whitson v. Stone Cty. Jail, 602 F.3d 920, 928

(8th Cir. 2010) (explaining that for § 1983 purposes an official “is only liable for his own

misconduct”); see also Pitts v. City of Cuba, 913 F. Supp. 2d 688, 708 (E.D. Mo. 2012) (noting

2 “Professional licenses are ‘property’ for the purposes of the Fourteenth Amendment to the United States Constitution;

consequently, procedural due process is required before the government may deprive anyone of his or her professional

license.” Robison v. Dep’t of Ins., Fin. Institutions & Pro. Registration, 437 F. Supp. 3d 725, 733 (E.D. Mo. 2020)

(quoting Garozzo v. Missouri Dep’t of Ins., Fin. Insts. & Prof’l Registration, Div. of Fin., 389 S.W.3d 660, 667 (Mo.

banc 2013)).

specific facts must “show[ ] what each named defendant allegedly did, or failed to do, that

allegedly violated the plaintiff's federal constitutional rights”). In other words, if a Defendant was

not involved in the Letter—which allegedly violated Plaintiff’s right—he or she is entitled to

qualified immunity. For reasons discussed below, the Court finds that Defendants Couch, Johnson,

Huff, and Crutchfield are entitled to qualified immunity.

Plaintiff provides no evidence showing Defendant Johnson or Couch were directly

involved in the Letter. Rather, evidence pertaining to the conduct of Defendant Couch and Johnson

related to renewal, which is not at issue in this case. Plaintiff also provides no evidence to dispute

the fact that neither Defendant Crutchfield or Huff was directly3 involved in the Letter.4 Defendant

Crutchfield stated in her affidavit, “I had nothing to do with Kevin Davidson’s July 29, 2016

letter.”5 Doc. [160-20] ¶ 19. Similarly, Defendant Davidson stated in his affidavit, “Huff never

directed me to write or send the [Letter].”6 Doc. [160-10] ¶ 18.

Defendant Davidson, however, is not shielded by qualified immunity. It is undisputed that

Defendant Davidson wrote the Letter. And despite his affidavit stating that he did not have the

authority to revoke Plaintiff’s license and that the Letter did not revoke Plaintiff’s license—which

the Court deems as admitted—the Court finds the issue still disputed.7 As the Court previously

explained when it denied Plaintiff’s Motion for Partial Summary Judgment, Doc. [174], whether

3 As to any indirect role, as the Court previously stated “any such evidence of indirect liability . . . will not be relevant

or admissible in trial.” Doc. [155] at n.5, 3-4.

4 Also, as the Court discussed supra, because Plaintiff failed to properly controvert these facts, they are deemed

admitted. L.R. 4.01(E).

5 Also notably, Defendant Crutchfield’s role at DIFP is to review and investigate license applications—activity that

pertains solely to renewal and is not an issue here.

6 In his Amended Complaint, Plaintiff alleged Defendant Huff “directed Defendant Davidson to draft and send the

[Letter] to all of Plaintiff’s agents.” Doc. [129] ¶ 84.

7 For similar reasons, the Court does not find Defendants’ fourth argument—that no genuine issues of fact remain—

warrants summary judgment.

the Letter did “revoke” Plaintiff’s general bail bond license is disputed because the language of

the Letter could lead a reasonable person to believe that Plaintiff could not conduct any business

under his license as of July 29, 2016, ten days before his license was set to expire.8

3. The List

Defendants are also entitled to summary judgment based on any allegations that

Defendants prematurely revoked Plaintiff’s license when his name was removed from the

Qualified General Bail Bond Agents list (“the List”) for several weeks in 2016. As the Court

previously determined, Doc. [174], Plaintiff has not shown he has a “clearly established”

constitutional or statutory right to be on the List.9 Pearson, 555 U.S. at 231 (explaining qualified

immunity protects a government official from liability unless his conduct violated a “clearly

established” constitutional or statutory right). Thus, Defendants are entitled to qualified immunity

as to any allegations involving the List.

B. In Pari Delicto

Defendants argue that Plaintiff’s claims or at least any relief for monetary damages are

barred by the doctrine of in pari delicto, as Plaintiff seeks relief for bonds that would be illegal to

write. Defendants, however, have not pointed the Court to any case showing this “equitable

defense” would be applicable here. See Grassmueck v. Am. Shorthorn Ass’n, 402 F.3d 833, 836

(8th Cir. 2005). Nonetheless, the Court finds that Defendants’ general argument has merit and

concludes some damages are precluded as a matter of law.

Here, it is undisputed that during the time in question Plaintiff had unsatisfied forfeiture

8 Under Missouri law, a bail bond agent can perform other duties than surety, such as recovering a fugitive. See Mo.

Rev. Stat. § 374.783

9 Nor did removal from the List “impair” Plaintiff’s license. Robison v. Dep’t of Ins., Fin. Institutions & Pro.

Registration, No. 4:18-cv-1527-MTS, 2022 WL 539096, at *7 (E.D. Mo. Feb. 23, 2022); Doc. [174] at 12.

judgments. Missouri law prohibits an individual from writing bonds or being a surety on one if he

has any outstanding forfeitures or unsatisfied judgments. See Mo. Sup. Ct. r. 33.17–18. Thus, as

previously determined by the Court, Doc. [174], Plaintiff was statutorily incapable of writing or

authorizing bonds during the time in question because he did not meet the requirements set by

Missouri law. See id. Thus, because Missouri law disqualified Plaintiff from acting as a surety

on any bail bonds during the ten day period in question, he simply could not have made money

writing or authorizing bonds as a matter of law. This forecloses any claim to actual damages on

this basis. Thus, the Court grants partial summary judgment on damages: Plaintiff is barred from

any actual damages relating to his inability to write or authorize bonds during the ten-day period,

even if the Letter operated as a revocation of his license.

C. Res Judicata

Defendant argues that Plaintiff’s claims are barred by the doctrine of res judicata based on

prior litigation in Missouri state courts. See Robison, 551 S.W.3d 468; see also Robison, 2017

WL 3707114. The Court disagrees. Res judicata is grounded in equity and serves to protect parties

from the expense and vexation of multiple lawsuits, conserve judicial resources, and, by preventing

inconsistent decisions, encourage reliance on adjudication. Allen v. McCurry, 449 U.S. 90, 94

(1980); Poe v. John Deere Co., 695 F.2d 1103, 1107–08 (8th Cir. 1982); Roach v. Teamsters Loc.

Union No. 688, 595 F.2d 446, 449 (8th Cir. 1979) (explaining res judicata favors “finality of

judgments and the avoidance of piecemeal litigation”). Here, at one point, res judicata may have

prevented litigation based on the equitable principals of conserving resources of the courts and

parties, but Defendants now seek to assert this defense after four years of litigation in federal court.

Allowing Defendants to invoke this defense now—also, notably after several summary judgments

and motions to dismiss have already been adjudicated—seems contrary to the doctrine as it would

wrongly incentivize the invoking party to assert this defense after years of expending resources

and only after a party’s other tactics to dismiss the case failed. Similarly, the Court does not find

that ending litigation now—after four long years—would be a good use of judicial resources based

on the amount of time the Court has already invested in resolving this case. Further, finishing

litigation of this case will prevent Plaintiff from asserting any other lawsuits with respect to the

end of his tenure as a Missouri bondsman, especially after the Court’s decision today.10 Dicken v.

Ashcroft, 972 F.2d 231, 233 n.5 (8th Cir. 1992) (explaining it is “well established that summary

judgment is a final judgment on the merits for purposes of res judicata”). Finally, finishing the

litigation of this case will not result in inconsistent judgments because the Missouri state courts

did not consider whether the Letter “revoked” Plaintiff’s license such that Plaintiff is entitled to

damages—the only remaining issue here. Rather, litigation in the Missouri courts dealt with

renewal and not revocation. Therefore, the Court does not find that “equity” is served by

precluding further litigation of this case.

CONCLUSION

Because the Court grants partial summary judgment on the issue of qualified immunity for

Defendants Couch, Johnson, Huff, and Crutchfield, only one defendant remains—Defendant

Davidson. Further, the Court does not find summary judgment appropriate on the issue of whether

the Letter prematurely revoked Plaintiff’s license because genuine disputes of material fact remain.

But, to avoid any further confusion, the Court notes that the only issue remaining in this case is

whether Defendant Davidson’s July 29, 2016 letter (the “Letter) “revoked” Plaintiff’s license such

that Plaintiff is entitled to damages, other than actual damages stemming from his inability to write

or authorize bonds.

10 Missouri law also recognizes that “[s]ummary judgment is always a judgment on the merits.” State ex rel. City of

Blue Springs, Mo. v. Schieber, 343 S.W.3d 686, 690 (Mo. Ct. App. 2011).

Accordingly,

IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment, Doc.

[158], is DENIED in part and GRANTED in part. }

Dated this 1st day of March 2022. Cy] / | Ko _

MATTHEW T. SCHELP

UNITED STATES DISTRICT JUDGE

10