United States District Court, E.D. Washington
[Copyrighted Material Omitted]
For Michael Duane Hunter, Plaintiff: Michael J Davidson, LEAD ATTORNEY, Scott M Kinshella, Davidson Law Center Inc, Pasco, WA.
For Michelle G Ferebauer, wife and the marital community, Robert Ferebauer, husband and the marital community, Defendants: John Graham Schultz, LEAD ATTORNEY, Leavy Schultz Davis & Fearing PS, Kennewick, WA.
For Patrick T Roach, doing business as Roach Law Offices LLP doing business as Roach and Bishop LLP, Defendant: John Charles Riseborough, LEAD ATTORNEY, Paine Hamblen Coffin Brooke & Miller - SPO, Spokane, WA.
For Lawrence Lincoln, husband and the marital community, Patricia McKay, wife and the marital community, Defendants: Stanley Allen Bastian, LEAD ATTORNEY, Jeffers Danielson Sonn & Aylward PS - WEN, Wenatchee, WA; Kathleen Heather Paukert, Paukert & Troppmann PLLC, Spokane, WA.
For Gregory P Hawkins, individually and doing business as Hawkins & Sorensen LC doing business as Gregory P Hawkins PC, Defendant: Joel E Wright, Lee Smart Cook Martin & Patterson PS, Seattle, WA; Marc Rosenberg, Lee Smart PS Inc, Seattle, WA.
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS
EDWARD F. SHEA, Senior United States District Judge.
Before the Court, without oral argument, are Defendant Gregory P. Hawkins' 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction, ECF No. 12, and Defendants Michelle and Robert Ferebauer, Patrick T. Roach, Lawrence Lincoln and Patricia McKay, and Hawkins' 12(b)(6) Motions to Dismiss, ECF Nos 10, 48, 50, & 52. In addition to Hawkins' personal jurisdiction argument, Defendants claim that Plaintiff's claims must be dismissed because previous litigation decided these issues, and because Plaintiff's Amended Complaint is not sufficiently pled. Plaintiff Michael Duane Hunter opposes the motions, contending personal jurisdictions exists and that the Amended Complaint sufficiently asserts eight claims against each of the Defendants: 1) common law conspiracy; 2) conspiracy against civil rights under 42 U.S.C. § 1985(3); 3) tortious interference with parental rights; 4) claims under 42 U.S.C. § 1983; 5) fraud; 6) constructive fraud; 7) outrage; and 8) negligent infliction of emotional damage. ECF No. 31. For the reasons set forth below, Defendants' motions to dismiss are granted.
A. Factual History
Plaintiff is a Washington resident who claims to be the biological father of a female minor (hereinafter, " Baby" ) born in Utah on March 2, 2010. The biological mother of Baby is Defendant Michelle Ferebaurer (hereinafter " M. Ferebaurer" ). M. Ferebauer is married to Defendant Robert Ferebaurer (hereinafter, " R. Ferebaurer" ), but it is undisputed that R. Ferebaurer is not the biological father of Baby. Although the Ferebaurers have been married at all times material to this case, they were estranged for an unidentified period of time.
In the summer of 2009, Plaintiff and M. Ferebaurer, who were both employed as engineers at Energy Northwest in Richland, Washington, began a personal relationship that led to the conception of Baby in the State of Washington. Plaintiff learned of M. Ferebaurer's pregnancy in July 2009, and at that time, both parties showed interest in attempting to have a family. At some point between July 2009 and January 2010, however, M. Ferebaurer informed Plaintiff that she was talking to R. Ferebaurer about getting back together, and she did not want Plaintiff to be involved with the pregnancy.
On January 13, 2010, Plaintiff contacted M. Ferebaurer about Baby, and M. Ferebaurer informed Plaintiff that she had begun the process to have another couple adopt Baby. Two days later, Plaintiff met with M. Ferebaurer and Defendant Patrick Roach, M. Ferebaurer's attorney. During this meeting, Plaintiff signed a consent to adoption form, which Plaintiff later revoked
on February 18, 2010. Notice of this revocation was sent to Roach's office on that day, and Roach was made aware that Plaintiff wanted to raise Baby. In response, M. Ferebaurer contacted Plaintiff in order to obtain consent to the adoption, but Plaintiff refused these requests.
On February 24, 2010, Plaintiff received an e-mail message from M. Ferebaurer which stated:
You have made my life very difficult here and I need some space. I have decided to go to Utah to have the baby. I have good friends there that I'd like to have with me. I'll contact you when I get back.
Am. Compl. ¶ 20, ECF No. 31, at 25. Plaintiff responded to this email, and did not hear from M. Ferebaurer again for several months. Prior to this e-mail, Plaintiff was not aware that M. Ferebaurer was considering delivering Baby in Utah.
Baby was due on March 10, 2012, but was born March 2, 2010; the parental rights of M. Ferebaurer and Plaintiff were terminated on March 4, 2010 by order of a Utah State Court. With the help of Defendant Gregory Hawkins, a Utah attorney, Defendants Lawrence Lincoln and Patricia McKay, both Washington residents, adopted Baby shortly after her birth. Defendants Lincoln and McKay had been interested in adopting Baby since January 2010, and had been involved with M. Ferebaurer throughout the later stages of her pregnancy. Outside of the February 24th e-mail, Plaintiff was not aware that any of this occurred.
B. Procedural History
1. The Present Suit
Plaintiff filed his original Complaint in this case on February 21, 2013, in which he named M. Ferebaurer, R. Ferebaurer, Roach and Roach Law Offices, Lincoln, McKay, Hawkins, and Hawkins & Sorenson, LC, as Defendants. ECF No. 1. That Complaint was amended on April 25, 2013.  ECF No. 31. In his Amended Complaint, Plaintiff brought the following claims against Defendants: 1) common law conspiracy; 2) conspiracy against civil rights under 42 U.S.C. § 1985(3); 3) tortious interference with parental rights; 4) claims under 42 U.S.C. § 1983; 5) fraud; 6) constructive fraud; 7) outrage; and 8) negligent infliction of emotional damage. Id. Generally, each of these claims is based on the theory that each of the named Defendants -- individually and/or through conspiracy -- intentionally and/or negligently acted to interfere with Plaintiff's fundamental rights in regard to Baby. Plaintiff asks the Court for the following relief: 1) $10,000,000 in compensatory damages for himself; 2) $10,000,000 for Baby and for Plaintiff's two other children (the step-siblings of Baby); and 3) attorney's fees and costs. Id.
In response to these claims, each of the Defendants has moved to dismiss. Defendant Hawkins claims that he is a Utah attorney who has no contacts or connections with Washington, so Plaintiff's claims against him should be dismissed for lack of personal jurisdiction under Rule 12(b)(2). ECF No. 12. Even if this motion is unsuccessful, however, Defendant Hawkins argues the claims against him should also be dismissed under Rule 12(b)(6) because Plaintiff's claims are insufficiently pled and
have been dealt with in other jurisdictions. ECF No. 10. Defendants Ferebauer, Roach, and Lincoln and McKay also made similar Rule 12(b)(6) motions based on the lack of a cognizable claim. ECF No. 52 (Ferebauer); ECF No. 50 (Lincoln and McKay); ECF No. 48 (Roach). Each of these motions will be considered below.
2. Utah State Court Litigation
Defendant Hawkins -- acting on behalf of Defendants Lincoln and McKay -- filed an ex parte Verified Petition to Determine Parental Rights of Baby in the Third District Court in Salt Lake City on March 3, 2010. ECF No. 1, Ex. 1. This petition proposed termination of the parental rights of Defendants Ferebaurer and Plaintiff. Id. at 66-67. The Utah court entered an order terminating those parental rights and granting temporary custody of Baby -- pending finalization of the adoption -- to Defendants Lincoln and McKay on March 4, 2010. Order, ECF No. 11-1, Ex. 1.
Plaintiff did not seek to establish paternity in Utah prior to the Utah court's order terminating parental rights, but he did move to intervene in the adoption process after it had begun. Order Den. Mot. to Intervene, ECF No. 11-1, Ex. 2. On March 23, 2010, the Utah state court denied Plaintiff's motion to intervene, determining that he lacked standing to do so. Id. The Utah state court also determined that Plaintiff had unlawfully obtained documents from Defendants Lincoln and McKay's ICPC (Interstate Compact on the Placement of Children) filing. Id. The Utah State ...