Roberts v. City of Fairbanks et al

WO IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
MARVIN ROBERTS, )
)
Plaintiff, )
)
vs. )
)
CITY OF FAIRBANKS, JAMES GEIER, )
CLIFFORD AARON RING, CHRIS NOLAN, )
DAVE KENDRICK, DOE OFFICERS 1-10, )
and DOE SUPERVISORS 1-10, )
) No. 4:17-cv-0034-HRH
Defendants. ) [Consolidated with
_______________________________________) No. 4:17-cv-0035-HRH]
)
EUGENE VENT, KEVIN PEASE, and )
GEORGE FRESE, )
)
Plaintiffs, )
) O R D E R
vs. )
) Motion to Dismiss
CITY OF FAIRBANKS, JAMES GEIER, )
CLIFFORD AARON RING, CHRIS NOLAN, )
DAVE KENDRICK, DOE OFFICERS 1-10, )
and DOE SUPERVISORS 1-10, )
)
Defendants. )
_______________________________________)
Now before the court, following remand from the Ninth Circuit Court of Appeals, is
defendants’ motion to dismiss1 plaintiffs’ second amended and consolidated complaint. This
motion is opposed.2 Oral argument was requested and has been heard.
1Docket No. 41.
2Docket No. 46.
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Background
Plaintiffs are Marvin Roberts, George Frese, Kevin Pease, and Eugene Vent.
Defendants are the City of Fairbanks, James Geier, Clifford Aaron Ring, Chris Nolan, and
Dave Kendrick.
Plaintiffs were convicted of the October 11, 1997 murder of John Hartman3 and then
sentenced to prison sentences ranging from 30 years to 77 years.4 Plaintiffs allege that their
convictions were the result of manufactured evidence and false statements.5
In September 2013, plaintiffs filed petitions for post-conviction relief (“PCR”) in the
Alaska Superior Court, “arguing that newfound testimonial and physical evidence could
prove their factual innocence.”6 A five-week evidentiary hearing on plaintiffs’ PCR petitions
was held in the fall of 2015.7 Plaintiffs allege that “[t]his evidentiary hearing established that
[they] were actually innocent of Hartman’s murder” and that they “squarely placed their
factual innocence at issue during the PCR hearing.”8 Plaintiffs allege that the evidence
presented at the hearing included testimony from William Holmes “that he and his friends
3Second Amended and Consolidated Complaint at 2, ¶ 1; 22, ¶ 92, Docket No. 40.
4Id. at 22, ¶ 92.
5Id. at 3, ¶ 7; 22, ¶ 92.
6Id. at 25, ¶ 106.
7Id. at 26, ¶ 109.
8Id. at 27, ¶¶ 110-11.
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were Hartman’s true killers,” testimony from “at least eleven witnesses who corroborated his
account[,]” and testimony that “the Alaska State Troopers had been able to corroborate key
aspects of Holmes’s confession and had been unable to locate any evidence placing
[p]laintiffs at the scene of the Hartman homicide. . . .”9
Plaintiffs allege that “[a]t the conclusion of the PCR hearing in November 2015, the
presiding judge told the parties multiple times that it would take him six to eight months to
reach a decision.”10 They also allege that “[m]embers of the prosecution . . . stated publically
that if the trial court concluded [that] the convictions should be vacated and ordered a new
trial, the State would appeal that decision through to the Alaska Supreme Court.”11 Plaintiffs
allege that “[t]his signaled an official willingness to delay further resolution of the case and
release of all the [p]laintiffs, other than Roberts who had by this time served his sentence and
had been released on probation.”12
Plaintiffs allege that “[j]ust before Christmas, the prosecutors offered [them] a devil’s
bargain: the prosecution would consent to vacating the convictions and dismissing the
charges but only if [they] would agree not to sue to vindicate their civil rights.”13 Plaintiffs
9Id. at 26-27, ¶¶ 109a, 109f (emphasis omitted).
10Id. at 28, ¶ 116.
11Id. at 29, ¶ 121.
12Id.
13Id. at 28-29, ¶ 117 (emphasis omitted).
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allege that State prosecutors were attempting “to avert probable judicial findings that
[p]laintiffs were innocent and/or that the convictions were marred by official misconduct.”14
Plaintiffs further allege that State prosecutors were attempting to “forestall [p]laintiffs’ civil
action, through the waiver of claims, that likely would expose FPD [Fairbanks Police
Department] officers and their colleagues in the Fairbank District Attorney Office to
unfavorable litigation and public scrutiny into police and prosecutorial misconduct. . . .”15
Plaintiffs took the deal that was offered and entered into settlement agreements with
the State of Alaska and the City of Fairbanks.16 The settlement agreements provided that
plaintiffs would stipulate to the withdrawal of their PCR petitions and that the parties would
stipulate to a court order vacating the judgments of conviction.17 The State agreed to file
dismissals of the indictments and “not to seek a retrial” but reserved the right to seek a retrial
if “substantial new evidence of guilt is discovered[.]”18
14Id. at 37, ¶ 167.
15Id. at 37, ¶ 168.
16Exhibits 1-4, Defendants’ Request for Judicial Notice, Docket No. 43. The court has
taken judicial notice of these exhibits and thus may consider them without converting the
instant Rule12(b)(6) motion into a motion for summary judgment. Intri-Plex Technologies,
Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007).
17Settlement Agreement and Mutual Release of All Claims at 2, § IA-B, Exhibits 1-4,
Defendants’ Request for Judicial Notice, Docket No. 43.
18Id. at 2-3, § 1B, § II.
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The settlement agreements further provided that “[t]he parties have not reached agreement
as to [plaintiffs’] actual guilt or innocence.”19
In the settlement agreements, plaintiffs
release[d] and forever discharge[d] . . . the City of Fairbanks and
its departments, divisions, agencies, agents, representatives,
directors, past and current employees, attorneys, contractors,
retained or non-retained experts, witnesses, predecessors or
successors in interest, and assigns . . . of and from any and all
past, present, or future actions, causes of action, controversies,
suits, claims, demands, liabilities, complaints or grievances of
every kind and nature, whether mature or to mature in the future,
and whether known or unknown, for or by reason of any matter,
thing, claim, or allegation arising out of or in any way related to
the arrest, investigation, prosecution, appeal, legal representa-
tion, or incarceration associated with, connected to, or related in
any way to any legal matters or actions referenced above, or any
other matters arising prior to the date of this Settlement Agree-
ment and Mutual Release of All Claims.[20]
More specifically, plaintiffs released
any and all claims . . . arising out of the investigation into the
death of Jonathan Hartman and the subsequent prosecution and
incarceration of [plaintiffs], . . . including but not limited to
claims for malicious prosecution, wrongful imprisonment,
prosecutorial misconduct, legal malpractice, [and] violation or
deprivation of rights civil or constitutional[.21]
19Id. at 6, § V.
20Id. at 3-4, § III.
21Id. at 4, § III.
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Plaintiffs also “release[d] any right [they] may now or hereafter have to reform, rescind,
modify or set aside th[e] Settlement Agreement[s] and Mutual Release[s] of All Claims
through mutual or unilateral mistake or otherwise.”22
Plaintiffs
declare[d] that the terms of th[e] Settlement Agreement[s] and
Mutual Release[s] of All Claims have been carefully read and
are fully understood and are voluntarily accepted [f]or the
purpose of making a full and final compromise of any and all
claims, disputed or otherwise, for and on account of the matters
described above.[23]
The settlement agreements also provided that “[i]t is mutually understood by the [p]arties that
the purpose of th[ese] Agreement[s] is that there be no further litigation by [plaintiffs] or
others on [their] behalf related to this matter.”24 The settlement agreements also noted that
the agreements had “been drafted by the [p]arties through the efforts of their respective legal
counsel” and that “[t]he [p]arties warrant that the terms of th[e] Agreement[s] have been
carefully reviewed and that each [p]arty understands [their] contents and has been advised
as to the legal effect of th[e] Agreement[s] by legal counsel obtained by that [p]arty.”25 Each
of plaintiffs’ lawyers represented that they had “carefully and fully explained the terms,
22Id. at 5, § III.
23Id. at 6, § III.
24Id.
25Id. at 6, § IV.
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provisions and effects of” the agreements and that their clients represented that they
understood the terms of the agreements and the significance of the terms.26
The terms of the stipulation that was contemplated in the settlement agreements were
presented to the Superior Court on December 11, 2015. Plaintiffs “stipulate[d] and agree[d]
that the original jury verdicts and judgments of conviction were properly and validly entered
based on proof beyond a reasonable doubt[,]” and the parties “stipulate[d] and agree[d] that
th[e Superior c]ourt need not make findings of innocence under AS 12.72.020.”27 In
paragraph 5 of the stipulation, “[t]he parties stipulate[d] and agree[d] that [the Superior
c]ourt may immediately enter Orders vacating the Judgments of Conviction, Restitution
Orders, and Rule 39 judgments for attorney fees in each” underlying criminal case “and
award[] each Petitioner the relief of a new trial for each of the charges for which Petitioners
were convicted.”28 The stipulation provided that “[u]pon entry of the Orders in paragraph
5, Petitioners withdraw their claims of prosecutorial misconduct asserted” in their PCR
petitions.29 The stipulation also provided that “[u]pon entry of the Orders in Paragraph 5, . . .
26Id. at 9.
27Exhibit 5 at 2, ¶¶ 2, 4, Defendants’ Request for Judicial Notice, Docket No. 43. The
court has taken judicial notice of this exhibit and thus may consider it without converting the
instant Rule12(b)(6) motion into a motion for summary judgment. Intri-Plex Technologies,
499 F.3d at 1052.
28Stipulation at 2, ¶ 5, Exhibit 5, Defendants’ Request for Judicial Notice, Docket No.
43.
29Id. at 2, ¶ 6.
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the State will not seek retrial in any of the underlying criminal cases and will file dismissals
pursuant to Criminal Rule 43(a) of the indictments. . . .”30 Finally, “the parties stipulate[d]
and agree[d] that upon the filing of the . . . dismissals, [the Superior c]ourt shall order the
immediate and unconditional release of Petitioners from custody and supervision. . . .”31
On December 17, 2015, the Superior Court held a hearing to address the stipulation.
At the hearing, the Superior Court judge read the stipulation into the record and declared that
“[t]he orders vacating the judgment of conviction and commitment and probation and
restitution will enter” and that he would “sign them off the record.”32
The State dismissed the charges against plaintiffs on December 17, 2015.33 The
orders vacating plaintiffs’ convictions and sentences were also signed on December 17, 2015
2015.34 And, Vent, Pease, and Frese were released from prison on December 17, 2015.
30Id. at 3, ¶ 7.
31Id. at 3, ¶ 8.
32Transcript of Settlement on the Record at 4:7-6:10, 12:25-13:4, Exhibit 10,
Defendants’ Request for Judicial Notice, Docket No. 43. The court has taken judicial notice
of this exhibit and thus may consider it without converting the instant Rule12(b)(6) motion
into a motion for summary judgment. Intri-Plex Technologies, 499 F.3d at 1052.
33Exhibits 1-4, Plaintiffs’ Request for Judicial Notice, Docket No. 47. The court has
taken judicial notice of this exhibit and thus may consider it without converting the instant
Rule12(b)(6) motion into a motion for summary judgment. Intri-Plex Technologies, 499 F.3d
at 1052.
34Exhibits 11-14, Declaration of Peter A. Scully, which is appended to Response to
Court’s Order re: Requests for Judicial Notice, Docket No. 58. The court takes judicial
notice of these exhibits and thus may consider them without converting the instant
(continued...)
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On May 14, 2018, plaintiffs filed their second amended and consolidated complaint
in this matter. In this complaint, they assert twelve causes of action. In the first cause of
action, plaintiffs assert § 1983 deprivation of liberty claims. In the second cause of action,
plaintiffs assert § 1983 claims for malicious prosecution. In the third cause of action,
plaintiffs assert § 1983 Brady claims. In the fourth cause of action, plaintiffs assert § 1983
supervisor liability claims. In the fifth cause of action, plaintiffs assert § 1983 civil rights
conspiracy claims. In the sixth cause of action, plaintiffs assert § 1985(3) conspiracy claims.
In the seventh cause of action, plaintiffs assert Monell claims under § 1983 against the City
of Fairbanks. In the eighth cause of action, plaintiffs assert § 1983 First Amendment right
of access claims. In the ninth cause of action, Vent and Frese assert Fifth Amendment
violation claims.35 In the tenth cause of action, plaintiffs assert intentional spoliation of
evidence claims. In the eleventh cause of action, plaintiffs assert negligence claims. In the
twelfth cause of action, plaintiffs assert intentional infliction of emotional distress claims.
Defendants filed the instant motion to dismiss on June 4, 2018. Pursuant to Rule
12(b)(6), Federal Rules of Civil Procedure, defendants move to dismiss plaintiffs’ claims,
arguing that plaintiffs’ claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994), and by
34(...continued)
Rule12(b)(6) motion into a motion for summary judgment. Intri-Plex Technologies, 499 F.3d
at 1052.
35Although these claims are not expressly pled as § 1983 claims, the Ninth Circuit
“has held that a litigant complaining of a violation of a constitutional right does not have a
direct cause of action under the United States Constitution but must utilize 42 U.S.C. §
1983.” Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001).
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the settlement agreements. Defendants also argue that plaintiffs’ state law claims are barred
by the statute of limitations or otherwise implausible. In the alternative, pursuant to Rule
12(b)(7), defendants move to dismiss plaintiffs’ claims for failure to join the State of Alaska
as an indispensable party. The Ninth Circuit has disposed of defendants’ first argument,
holding that “Heck does not bar plaintiffs from seeking relief under § 1983.”36 Roberts v.
City of Fairbanks, 947 F.3d 1191, 1193 (9th Cir. 2020). The Ninth Circuit has also disposed
of defendants’ indispensable party argument, holding that “the State is not an indispensable
party under Rule 19. . . .” Id. at 1204–05. The court now takes up the issues of whether
plaintiffs’ claims are barred by the settlement agreements and whether plaintiffs’ state law
claims are barred by the statute of limitations or otherwise implausible.
Discussion
“‘To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.’”
Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)). “A claim is facially plausible ‘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. (quoting Iqbal, 556 U.S. at 678). “The plausibility standard
requires more than the sheer possibility or conceivability that a defendant has acted
36This holding would apply equally to plaintiffs’ § 1985 claims. McQuillion v.
Schwarzenegger, 369 F.3d 1091, 1097 n.4 (9th Cir. 2004).
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unlawfully.” Id. “‘Where a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and plausibility of
entitlement to relief.’” Id. (quoting Iqbal, 556 U.S. at 678). “[T]he complaint must provide
‘more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.’” In re Rigel Pharmaceuticals, Inc. Securities Litig., 697 F.3d 869, 875
(9th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “In
evaluating a Rule 12(b)(6) motion, the court accepts the complaint’s well-pleaded factual
allegations as true and draws all reasonable inferences in the light most favorable to the
plaintiff.” Adams v. U.S. Forest Srvc., 671 F.3d 1138, 1142-43 (9th Cir. 2012). “However,
the trial court does not have to accept as true conclusory allegations in a complaint or legal
claims asserted in the form of factual allegations.” In re Tracht Gut, LLC, 836 F.3d 1146,
1150 (9th Cir. 2016).
As an initial matter, plaintiffs “do not oppose” the dismissal of their negligence and
intentional infliction of emotional distress claims.37 Defendants’ motion to dismiss these two
claims is granted. Plaintiffs’ negligence and intentional infliction of emotional distress
claims are dismissed with prejudice.
As to plaintiffs’ other ten claims, defendants argue that these claims should be
dismissed because they are barred by the settlement agreements. In the settlement
37Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion to Dismiss
at 25, n.11, Docket No. 46.
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agreements, plaintiffs released any claims they might have against defendants.38 Specifically,
plaintiffs released
any and all claims . . . arising out of the investigation into the
death of Jonathan Hartman and the subsequent prosecution and
incarceration of [plaintiffs], . . . including but not limited to
claims for malicious prosecution, wrongful imprisonment,
prosecutorial misconduct, legal malpractice, [and] violation or
deprivation of rights civil or constitutional[.39]
Plaintiffs also “release[d] any right [they] may now or hereafter have to reform, rescind,
modify or set aside th[e] Settlement Agreement[s] and Mutual Release[s] of All Claims
through mutual or unilateral mistake or otherwise.”40
Plaintiffs allege, however, that the settlement agreements are not enforceable. To
determine whether a settlement agreement is enforceable, the court applies the two-pronged
Rumery test. Lynch v. City of Alhambra, 880 F.2d 1122, 1126 (9th Cir. 1989). The first
prong requires the court to consider “whether the agreement was entered into voluntarily[.]”
Roberts, 947 F.3d at 1205. The second prong requires the court to consider “whether
enforcement is in the public interest.” Id.
38Settlement Agreement and Mutual Release of All Claims at 3-4, § III, Exhibits 1-4,
Defendants’ Request for Judicial Notice, Docket No. 43.
39Id. at 4, § III.
40Id. at 5, § III.
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As to the first prong of the Rumery test, plaintiffs allege that the agreements were not
entered into voluntarily because they were coerced into signing them.41 Roberts alleges that
he felt that he “had no choice but to sign” the settlement agreement because “[t]he State held
the other three [p]laintiffs’ freedom hostage in order to pressure [him] into signing” the
settlement agreement.42 Vent alleges that he signed the settlement agreement because he
“could not bear the idea of missing another family gathering while incarcerated” and that
“[h]e desperately wanted to get out of prison to spend Christmas with his aging grand-
mother.”43 Vent also alleges that the bargaining position of the parties to the settlement
agreement was “exceedingly unbalanced” because “[a]lthough the prosecutors knew that they
would not prevail in the PCR or on retrial[,] they threatened to prolong the dismissal of his
indictment as a ploy to force him to sign the” settlement agreement.44 He alleges that his
“alternative was stark: waive his right to sue the people who caused his wrongful conviction
or remain needlessly in prison while the prosecutors fruitlessly pursued every legal
mechanism to delay his release.”45 Frese and Pease also allege that the bargaining position
of the parties to the settlement agreement was “exceedingly unbalanced” because “although
41Second Amended and Consolidated Complaint at 31-37, ¶¶ 135-166, Docket No. 40.
42Id. at 32, ¶¶ 137, 140.
43Id. at 33, ¶ 148.
44Id. at 34, ¶ 152.
45Id. at 34, ¶ 152.
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the prosecutors knew that they would not prevail in the PCR or on retrial[,] prosecutors
threatened to prolong the dismissal of the indictment as a ploy to force them to sign the”
settlement agreements.46 Frese and Pease allege that they were “placed . . . under yet further
duress” because state prosecutors “forc[ed] an all-or-nothing deal on” them in that “[i]f any
one [p]laintiff insisted on his innocence and right to compensation for 18 years of wrongful
incarceration, that hold-out would have to shoulder the unbearable burden of being
responsible for the ongoing deprivation of liberty for the other two [p]laintiffs who might be
prepared to sign the release.”47 Frese and Pease allege that the “all-or-nothing deal”
prevented each plaintiff from making “an individual choice” as to whether to sign the
settlement agreement.48 Plaintiffs also allege that they were not “sophisticated” parties at the
time they signed the settlement agreements “because [they] had spent nearly [their] entire
adult li[ves] incarcerated, which deprived [them] of educational opportunities, work
experience, and general life experience.”49
Defendants argue that it is implausible that plaintiffs were coerced into signing the
settlement agreements. A “decision to waive the right to pursue legal remedies is involuntary
if it results from duress, including conditions of confinement.” Comer v. Stewart, 215 F.3d
46Id. at 36, ¶ 161.
47Id. at 36, ¶ 162.
48Id.
49Id. at 32, ¶ 143; 35, ¶ 156; 37, ¶ 166.
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910, 917 (9th Cir. 2000). “‘A waiver is voluntary if, under the totality of the circumstances,
[it] was the product of a free and deliberate choice rather than coercion or improper
inducement.’” Id. (quoting United States v. Doe, 155 F.3d 1070, 1074 (9th Cir. 1998)).
“Whether a waiver was ‘coerced’ is a factual issue. . . .” Avalos v. Baca, 596 F.3d 583, 591
(9th Cir. 2010).
Defendants argue that plaintiffs’ allegations that they could not bear missing any more
family events and that they felt they would be responsible for the continued incarceration of
the other plaintiffs are not sufficient to suggest that each plaintiff did not make a free and
deliberate choice to sign the settlement agreement. Defendants also argue that plaintiffs’
allegations that the bargaining position of the parties was “exceedingly unbalanced” is
implausible given that they have alleged that they knew that it was only a matter of time until
they would be exonerated.50 Defendants seem to be implying that this gave plaintiffs a
stronger bargaining position than they are alleging. Defendants also point out that plaintiffs
were represented by counsel who participated in the drafting of the settlement agreements
and who certified that they had explained the settlement agreements to their clients.51 In
addition, defendants point out that plaintiffs certified that “the terms of this Settlement
Agreement and Mutual Release of All Claims have been carefully read and are fully
understood and are voluntarily accepted [f]or the purpose of making a full and final
50Id. at 32-33, ¶ 144; 34, ¶ 150; 35, ¶ 159.
51Settlement Agreement and Mutual Release of All Claims at 6, § IV and 9, Exhibits
1-4, Defendants’ Request for Judicial Notice, Docket No. 43.
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compromise of any and all claims, disputed or otherwise, for and on account of the matters
described above.”52 And, defendants point out that the settlements were overseen by the state
court. In light of these facts, defendants argue that plaintiffs’ allegations that they were
coerced into signing the settlement agreements are not plausible.
“Although legal representation is an important factor in assessing the voluntariness
of a release of federal rights, it is not dispositive.” Salmeron v. United States, 724 F.2d 1357,
1362 (9th Cir. 1983). That plaintiffs were represented by counsel does not necessarily mean
that they entered into the settlement agreements voluntarily. Plaintiffs have alleged that they
felt coerced into signing the settlement agreements because they were offered an all-or-
nothing deal, because state prosecutors were threatening to delay the outcome of the PCR
proceedings for as long as possible, and because the parties’ bargaining position was not
equal. These allegations are “sufficient . . . [to] allow[] the court to draw the reasonable
inference’” that plaintiffs did not enter into the settlement agreements voluntarily. Harris v.
County of Orange, 902 F.3d 1061, 1069 (9th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). In
other words, it is plausible that plaintiffs did not enter into the settlement agreements
voluntarily.
As to the second prong of the Rumery test, the Supreme Court has explained that
“[t]he availability of [release-dismissal] agreements may threaten important public interests.
They may tempt prosecutors to bring frivolous charges, or to dismiss meritorious charges,
52Id. at 6, § III.
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to protect the interests of other officials.” Town of Newton v. Rumery, 480 U.S. 386, 395
(1987). Plaintiffs’ second amended and consolidated complaint “raises the issue of whether
the agreement[s are] in the public interest.” Lynch, 880 F.2d at 1128. Plaintiffs have alleged
that the state prosecutors were motivated to enter into the settlement agreements “to avert
probable judicial findings that [p]laintiffs were innocent and/or that the convictions were
marred by official misconduct[,]” to forestall “unfavorable litigation and public scrutiny into
police and prosecutorial misconduct that was the basis of [p]laintiffs’ wrongful convictions
and incarcerations[,]” and “to forestall any inquiry into Adrienne Bachman’s suppression of
exculpatory evidence. . . .”53 These allegations are sufficient to make it plausible that it
would not be in the public interest to enforce the settlement agreements.
In their reply brief, defendants insist that the court can find, on a Rule 12(b)(6)
motion, that the settlement agreements are enforceable and cite to Rumery, 480 U.S. 386, in
support. Defendants argue that “the Supreme Court in Rumery held that the plaintiff’s claims
should have been resolved on defendant’s motion to dismiss based on the release-dismissal
agreement plaintiff entered with the prosecution.”54 But a careful reading of Rumery reveals
that the district court in that case had taken evidence on the enforceability of the release-
dismissal agreement and made findings of fact, neither of which has happened in this case.
53Second Amended Complaint and Consolidated Complaint at 37-38, ¶¶ 167-69,
Docket No. 40. Plaintiffs allege that Bachman withheld an exculpatory memo during the
PCR investigation. Id. at 24, ¶ 101.
54Reply in Support of Defendants’ Motion to Dismiss at 25, Docket No. 48.
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Id. at 390; 398. The Ninth Circuit has instructed that “‘Rumery requires the district court to
hear the evidence and evaluate whether the public interest is served by enforcement of the
release-dismissal agreement.’” Roberts, 947 F.3d at 1205 (quoting Lynch, 880 F.2d at 1128)
(emphasis added). The court will follow this instruction and thus declines to decide, in the
context of the instant Rule 12(b)(6) motion, whether the settlement agreements are
enforceable. At this point, what the court can conclude is that plaintiffs have plausibly
alleged that the settlement agreements are not enforceable, which means that it is plausible
that the settlement agreements do not bar their claims.
Because it is plausible that the settlement agreements are unenforceable, the court
must consider defendants’ argument that plaintiffs’ intentional spoliation claims are untimely
and otherwise not plausible. An intentional spoliation claim “requires a showing of
intentional interference with another party’s civil cause of action[,] a viable underlying cause
of action[,]” and that the “evidence [was] destroyed or concealed until it is naturally
destroyed.” Allstate Ins. Co. v. Dooley, 243 P.3d 197, 200-02 (Alaska 2010). Plaintiffs’
spoliation claims are based on allegations that defendants “manufactur[ed] false testimony
and with[held] exculpatory evidence” during the original investigation; “[hid] the subsequent
admissions in 2008 and 2011; fail[ed] to preserve interviews; destroy[ed] the Sisto-Druck
affidavit; and . . . refus[ed] to comply with the public information requests in 2013.”55
55Second Amended and Consolidated Complaint at 59, ¶ 279, Docket No. 40.
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The statute of limitations for a spoliation claim is, at most, three years. Gefre v. Davis
Wright Tremaine, LLP, 306 P.3d 1264, 1273 (Alaska 2013). Plaintiffs commenced this
action on December 7, 2017. Thus, defendants argue that plaintiffs’ intentional spoliation
claims are largely barred by the statute of limitations. However, it is plausible that plaintiffs’
intentional spoliation claims did not accrue until plaintiffs had viable underlying causes of
action, which they did not have until December 17, 2015, the date on which the charges
against them were dismissed by the State.
But even if plaintiffs’ intentional spoliation claims are not barred by the statute of
limitations, they must still be dismissed. Plaintiffs have adequately alleged that some
evidence was destroyed. Specifically, plaintiffs have alleged that the Sisto-Druck affidavit,56
four audiotapes from the investigation of the Dayton assault,57 and a recording of a portion
of Vent’s confession58 were destroyed. But plaintiffs have only made the conclusory
allegation that this evidence was destroyed for the purpose of interfering with their
prospective civil action.59 Conclusory allegations “‘and a formulaic recitation of the
56Id. at 19, ¶ 79. Plaintiffs allege that Sisto-Druck averred that “she had been with
Frese on the night of Hartman’s murder.” Id.
57Id. at 20, ¶ 81. Plaintiffs allege that the Dayton assault took place on the same night
as the Hartman murder and that police tried to get a witness to that assault “to implicate all
four [p]laintiffs in Dayton’s assault and thus . . . place them together committing a crime
spree on the night of Hartman’s murder.” Id. at 14, ¶¶ 59, 64.
58Id. at 11, ¶ 50.
59Id. at 59, ¶ 278.
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elements of a cause of action will not do.’” In re Rigel Pharmaceuticals, Inc. Securities
Litig., 697 F.3d at 875 (quoting Twombly, 550 U.S. at 555). Plaintiffs’ second amended and
consolidated complaint does not plead any nexus between the evidence that has been
destroyed and any prospective civil action. Thus, plaintiffs have failed to state plausible
intentional spoliation claims and these claims are dismissed. Plaintiffs are given leave to
amend their intentional spoliation claims as it is possible that plaintiffs might be able to plead
plausible intentional spoliation claims.
Conclusion
Defendants’ motion to dismiss60 is granted in part and denied in part. The motion is
granted as to plaintiffs’ negligence, intentional infliction of emotional distress, and
intentional spoliation claims. Plaintiffs’ negligence and intentional infliction of emotional
distress claims are dismissed with prejudice. Plaintiffs’ intentional spoliation claims are
dismissed with leave to amend. The motion is otherwise denied. Should plaintiffs elect to
file a third amended complaint, they must do so by October 15, 2020.
DATED at Anchorage, Alaska, this 1st day of October, 2020.
/s/ H. Russel Holland
United States District Judge
60Docket No. 41.
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