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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. DeNardo v. Cutler (09/21/2007) sp-6171
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
DANIEL DENARDO,
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| Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, John E. Suddock, Judge. | ||||||||||||||||||||||||||||||||||||||||||||||||||||
Appearances: Daniel
DeNardo, pro se, Anchorage. Jennifer M.
Coughlin, Preston Gates & Ellis LLP,
Anchorage, for Appellees Louisiana Cutler,
Preston Gates & Ellis LLP and Alaska
Cleaners, Inc. James Cantor, Assistant
Attorney General, Anchorage, and David W.
M rquez, Attorney General, Juneau, for
Appellee Mark Rindner.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice
I. INTRODUCTION
I. In this case Daniel DeNardo, for the third time, seeks a
determination that Superior Court Judge Mark Rindner incorrectly
dismissed his lawsuit in DeNardo v. Alaska Cleaners, Inc.1 (first
lawsuit). When that dismissal was on direct appeal before this
court, DeNardo failed to post a cost bond, and we dismissed the
appeal sua sponte in July 2004. Two years later, in July 2006,
we affirmed the dismissal of DeNardos Alaska Civil Rule 60(b)
motion to set aside the judgment in the first lawsuit.2 DeNardos
2006 claim was that the actions of Alaska Cleaners constituted a
fraud upon the court. We rejected DeNardos claim as both
untimely and inadequate on the merits. In the present lawsuit,
the third iteration of this case, DeNardo argues that the rulings
in the first lawsuit constituted an abuse of process, and DeNardo
has named as parties Alaska Cleaners, Inc., the lawyer and law
firm that represented Alaska Cleaners in the first lawsuit, as
well as Judge Rindner, the presiding judge in the first lawsuit.
DeNardo also argues that he has a valid 42 U.S.C. 1983 claim
against everyone but Judge Rindner, whose dismissal from the case
is not at issue in this appeal. DeNardo also argues that the
superior court erred in awarding attorneys fees to Judge Rindner.
We conclude that DeNardo failed to establish the elements of an
abuse of process or a 1983 claim, and that the superior court
properly awarded attorneys fees. Accordingly, we affirm the
superior courts decision in all respects.
II. FACTS AND PROCEEDINGS
A. Facts
A. Daniel DeNardo filed a previous lawsuit in federal court
against his employer, Alaska Cleaners, Inc. alleging unlawful
termination due to age discrimination. In that lawsuit, Alaska
Cleaners retained Preston Gates & Ellis LP (Preston) for its
defense, and Louisiana Cutler, a Preston partner, was primarily
responsible for the case. Because DeNardo did not wish to divulge
his address to opposing counsel (or provide a fax number), Cutler
and DeNardo stipulated in a signed order that Preston could
notify DeNardo by phone of a document to be served. DeNardo
would then come to the Preston offices in Anchorage to receive
hand delivery. Under the agreement, service was deemed completed
as of 5 p.m. on the day the phone call was made. Preston alleges
that in July 2003 the phone number provided by DeNardo was no
longer in service and DeNardo refused to provide a new phone
number or a physical address. DeNardo sought a voluntary
dismissal of his federal case against Alaska Cleaners and refiled
the case in state court under Case No. 3AN-03-13497.
DeNardos state age discrimination claim was heard by
Judge Rindner. Alaska Cleaners filed a motion to enforce a
provision similar to the service stipulation that had been in
effect in the federal case, requiring DeNardo to provide either a
telephone number or physical address. DeNardo opposed this
request, citing his right to privacy. In January 2004 Judge
Rindner issued an order requiring DeNardo to provide Alaska
Cleaners with his physical address and a working telephone number
within five days. Judge Rindner noted that Civil Rule 76(d)(1)3
requires parties to provide both a telephone number and an
address and that, because it contemplates personal service, the
requirement of a physical address is reasonable. In February
2004 Judge Rindner denied DeNardos motion for reconsideration of
the Order Regarding Telephone Contact and Address. Judge Rindner
advised DeNardo to dismiss the case or file a petition to review
the courts order with the supreme court if he did not wish to
obey the court order. The judge warned that barring a reversal,
DeNardos failure to comply with the court order would result in
sanctions including, potentially, dismissal of the case.
DeNardo did not comply with the court order and did not
appeal the order. On February 23, 2004, Alaska Cleaners filed a
motion to compel compliance with the courts order and for
sanctions. In mid-March Judge Rindner dismissed the case without
prejudice as a sanction for failing to comply with the court
order. Judge Rindner entered a final judgment of dismissal
without prejudice on March 23, 2004. On April 28, 2004 Judge
Rindner granted Alaska Cleanerss motion for Rule 82 attorneys
fees in the amount of $1,315. DeNardo appealed to the supreme
court and moved to waive the cost bond. We denied DeNardos
motion to waive the cost bond, and when he failed to pay,
dismissed the appeal sua sponte for want of prosecution. We
denied DeNardos subsequent petition for rehearing.
In July 2006 we heard a second iteration of this case
when we affirmed the dismissal of DeNardos separate Civil Rule
60(b) motion to set aside the judgment in the first lawsuit.4 We
held that his motion was both untimely and inadequate on the
merits.5
DeNardos present lawsuit alleges that the dismissal of
his first lawsuit was a result of abuse of process and violated
his rights to due process.
B. Proceedings
A. DeNardo filed the present lawsuit on March 22, 2004, before
his motion for reconsideration of dismissal of the first lawsuit
had been ruled upon. DeNardo sued Alaska Cleaners, Preston,
Cutler, and Judge Rindner. His central claims, as advanced in
his amended complaint, alleged abuse of process, stating that the
defendants conspired . . . to delay and dismiss plaintiffs age
discrimination action. DeNardo also argued that he had a valid
42 U.S.C. 1983 claim against Alaska Cleaners, Preston, and
Cutler, and that Civil Rule 5 did not require him to give his
telephone number and thus his first lawsuit was unfairly
dismissed. DeNardos case was assigned to Superior Court Judge
John E. Suddock.
On April 6, 2004, Judge Rindner filed a motion to
dismiss the action with respect to himself because of judicial
immunity. On April 26, 2004, DeNardos answer to the motion
apparently conceded that Judge Rindner did indeed have immunity.
Judge Suddock issued a court order granting Judge Rindners motion
to dismiss on May 5, 2004, and issued a final judgment on all
claims against Judge Rindner on July 6, 2004. The superior court
awarded Judge Rindner $1,275 in attorneys fees on August 5, 2004,
and denied reconsideration.
In February 2005 the remaining defendants moved for
summary judgment. In April 2005 Judge Suddock granted the motion
for summary judgment on the basis of (1) res judicata and
collateral estoppel, (2) a finding that DeNardos complaint did
not satisfy the elements of an abuse of process claim, and (3) a
finding that the 42 U.S.C. 1983 claim failed as a matter of law
because the defendants were not acting under color of law. The
order noted that any one of the above reasons would have been
sufficient to require dismissal of DeNardos claims. Judge
Suddock denied reconsideration of summary judgment on May 23,
2005. DeNardo appealed to this court on June 22, 2005, stating
that he was appealing the summary judgment of April 2005 and the
denial of reconsideration of May 2005. He also appealed the
denial of his recusal motion and motion to compel discovery. On
August 1, 2005, DeNardo amended his points on appeal to include
the grant of attorneys fees to Judge Rindner. Judge Rindner
included in his brief to this court a proposition that we should
take some preventative action to control DeNardos repeated
filings.
At issue on appeal is: (1) whether the superior court
properly dismissed DeNardos abuse of process claim; (2) whether
the superior court properly held that attorneys using the courts
are not acting under color of law for the purpose of a 42 U.S.C.
1983 suit; (3) whether Judge Suddock (and Judge Dan A. Hensley,
the Third Judicial Presiding Judge who reviewed Judge Suddocks
decision) erred in denying DeNardos motions to disqualify Judge
Suddock; (4) whether the superior court erred in denying DeNardos
motion to compel discovery; (5) whether the superior court abused
its discretion in awarding attorneys fees to Judge Rindner; and
(6) whether this court should take action to control DeNardos
repeated filings.
III. STANDARD OF REVIEW
We independently review the decision to dismiss
DeNardos 42 U.S.C. 1983 and abuse of process claims on summary
judgment, drawing all reasonable inferences in favor of the
nonmoving party.6 We will uphold summary judgment only if no
genuine issue of material fact exists and the moving party is
entitled to judgment as a matter of law.7 Additionally, we
review de novo the question of whether collateral estoppel or
res judicata applies.8
The independent standard of review . . . applies to
considering whether the trial court properly applied the law when
awarding attorneys fees,9 while we review for abuse of discretion
a trial courts fact-based decisions as to whether attorneys fees
are reasonable and should be awarded.10 We will overturn an award
only when the award is manifestly unreasonable.11
IV. DISCUSSION
A. The Superior Court Properly Dismissed DeNardos Abuse of
Process Claim.
A. The abuse of process tort comprises two elements: (1) an
ulterior purpose and (2) a willful act in the use of the process
not proper in the regular conduct of the proceeding.12 The
ulterior purpose usually takes the form of coercion to obtain a
collateral advantage, not properly involved in the proceeding
itself, such as the surrender of property or the payment of
money, but the use of the process as a threat or a club.13 In
Kollodge v. State,14 we emphasized that the second element of the
tort contemplates some overt act done in addition to the
initiating of the suit,15 and noted that threatening suit,
initiating suit, and requesting discovery did not qualify as
overt acts even if done for an ulterior purpose. Similarly, we
held in Meidinger v. Koniag Inc.,16 that actions taken in the
regular course of litigation . . . cannot be a proper basis for
an abuse of process claim.17
DeNardo claims that the appellees ulterior motive was
retribution because DeNardo had sued Alaska Cleaners. DeNardo
argues further that the appellees wanted to coerce DeNardo to
abandon his cause of action while they also, allegedly, wanted to
create a multiplicity of actions and appeals substantially
increasing the costs and expenses of DeNardos pursuit of his
[r]ight of action. It is clearly incorrect to argue that
appellees sought to have DeNardos case dismissed in order to
create more appeals. Additionally, DeNardos claim is not
sufficient to support any inference that the appellees were
attempting anything other than the successful dismissal of a
lawsuit, which is not an ulterior motive. For this reason alone,
the superior courts dismissal of the claim was proper.
DeNardo never asserts a clear willful act other than
the filing of motions which were ruled upon favorably. The
superior court did not err in holding that an action taken in the
regular course of litigation without an ulterior motive, such as
the defendants filing of a motion to compel compliance with a
court order, cannot serve as the basis for an abuse of process
claim.
B. The Superior Court Properly Dismissed DeNardos 42 U.S.C.
1983 Claims Because No Defendant Was Acting Under Color of State
Law.
DeNardo also sued Alaska Cleaners, Cutler, and Preston
under 42 U.S.C. 1983. That section provides a cause of action
for deprivation of rights against persons acting under color of
any statute, ordinance, regulation, custom or usage, of any
State.18 In West v. Atkins19 the United States Supreme Court
explained that [t]he traditional definition of acting under color
of state law requires that the defendant in a 1983 action have
exercised power possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority
of state law. 20 The Supreme Court has also held that lawyers
representing clients are not acting under color of state law: It
is often said that lawyers are officers of the court. But . . . a
lawyer representing a client is not, by virtue of being an
officer of the court, a state actor under color of state law
within the meaning of 1983.21 Additionally, the court noted that
the absolute immunity traditionally accorded judges [is]
preserved under 1983.22
Private parties may come under the reach of 1983 if
they conspire with a state actor.23 But where that association is
the basis for the necessary state action, mere conclusory
allegations with no supporting factual averments are
insufficient; the pleadings must specifically present facts
tending to show agreement and concerted action.24
Alaska Cleaners is a private corporation, Cutler is a
private citizen not employed by the state, and Preston is a
private law firm organized as a limited liability partnership.
As appellees Cutler, Preston, and Alaska Cleaners note in their
brief, lawyers using a courtroom to engage in private litigation
are not acting under color of state law, and nothing in the
record supports the notion that they conspired with a state
actor. Cutler filed an affidavit specifically denying any ex
parte communication with Judge Rindner and DeNardo has not
presented any evidence whatsoever of a conspiracy.
DeNardo alleges that Cutler, Preston, and Alaska
Cleaners acted under color of state law because they could not
obtain dismissal [of the first lawsuit] but for the intervention
of the state chancellor as a state actor pursuant to state court
procedures. This is not sufficient to support a finding of
conspiracy with a state actor and use of the court system by
private parties for the purpose of litigation is not sufficient
to bring them under color of state law. Thus, the superior court
correctly dismissed DeNardos 1983 claims.25
C. DeNardos Claims Regarding Judge Recusal and Motions To
Compel Discovery Need Not Be Addressed.
A. DeNardo also argues that Judge Suddock, the superior court
judge who heard this case, erred in failing to recuse himself
from this case and abused his discretion in failing to grant
DeNardos requests to compel discovery. Because DeNardos abuse of
process and 1983 claims are insufficient as a matter of law, we
need not reach the merits of DeNardos procedural complaints from
the present lawsuit.
D. The Superior Court Did Not Abuse Its Discretion in Awarding
Attorneys Fees to Judge Rindner.
In Hughes v. Rowe26 the United States Supreme Court held
that in order for attorneys fees to be awarded against a
plaintiff in a civil rights action under 42 U.S.C. 1983, [t]he
plaintiffs action must be meritless in the sense that it is
groundless or without foundation.27 The fact that a plaintiff
loses his case, standing alone, is not sufficient for awarding
the defendant attorneys fees.28 Judge Suddock specifically cited
Hughes in his order granting attorneys fees and found that
DeNardos action more than met the standard, declaring it
vexatious and in bad faith. The Supreme Court held in
Christiansburg Garment Co. v. EEOC29 that while bad faith is not
required for an award of attorneys fees in the analogous actions
brought under Title VII of the Civil Rights Act of 1964, its
presence provides an even stronger basis for charging [the
plaintiff] with the attorneys fees incurred by the defense.30
DeNardo misreads the law on this point and argues that
42 U.S.C. 1988 forbids the award of fees against plaintiffs
seeking to enforce a provision of 42 U.S.C. 1983. In support of
his proposition he cites DeNardo v. Municipality of Anchorage.31
In that case, this court found that although DeNardos action was
barred by collateral estoppel, the award of attorneys fees was
improper in a civil rights claim [u]nless DeNardos action was
frivolous, unreasonable or without foundation.32 The court found
nothing in the record suggesting that DeNardos suit was
frivolous, unreasonable or without foundation.33 On the contrary,
the trial court in that suit remarked in passing that his claim
appeared to have merit.34
The record here is very different. There is no reason
to believe that the superior court abused its discretion in
deciding that DeNardos claim met the standard of being frivolous,
nor that the award of $1,275 was manifestly unreasonable.
DeNardo may not sue a judge merely because he disagrees with a
ruling.35 That he persisted in doing so despite his apparent
understanding of the law supports Judge Suddocks conclusion that
he initiated the action in bad faith. We affirm Judge Suddocks
award of attorneys fees.
E. Future Action To Control DeNardos Repeated Filings
Against Judges
Though not a formal point on appeal, Judge Rindner in
his brief argues that this court should take action to control
DeNardos repetitive pleadings, and in particular his lawsuits
against judges. Rindner lists nine separate lawsuits that
DeNardo has filed against judges since he was informed in DeNardo
v. Michalski that judges are immune from lawsuit even when they
allegedly violate a partys rights.36 Judge Rindner has since
supplemented the record multiple times with new suits brought by
DeNardo.
Judge Rindner focuses on DeNardos multiple suits
against judges, though he also notes that as of the time of the
filing of his brief, DeNardo had filed a total of thirty-seven
known cases since 1990 in state and federal court. These suits,
like the instant case, are often repetitive reiterations of prior
lawsuits. Judge Rindner points out that
[e]ach time DeNardo files another fruitless
pleading against a judge, the judge must
obtain representation at public expense from
the Office of the Attorney General. It is
sometimes necessary for the judge to provide
notice of that representation to parties in
litigation unrelated to DeNardo because the
Attorney Generals representation can raise
conflicts in other cases pending before the
judge. This raises the potential need to
hire conflict counsel at public expense.
Judge Rindner makes compelling points about the costs
to the court system and to the public of DeNardos litigation
against judges. In many ways, moreover, judges are the more
fortunate of DeNardos targets in litigation because they have
judicial immunity and can extricate themselves from a case
relatively quickly. While rare, there is support in the
case law for court orders prospectively limiting the litigation
of a pro se litigant. The U.S. Supreme Court recognized in In re
McDonald 37 that:
Every paper filed with the Clerk of this
Court, no matter how repetitious or
frivolous, requires some portion of the
institutions limited resources. A part of the
Courts responsibility is to see that these
resources are allocated in a way that
promotes the interests of justice. The
continual processing of petitioners frivolous
requests for extraordinary writs does not
promote that end. Although we have not done
so previously, lower courts have issued
orders intended to curb serious abuses by
persons proceeding in forma pauperis.[38]
Similarly, American Jurisprudence (Second) addressed
this topic in its section on Vexatious, frivolous, or oppressive
litigation:
Although litigiousness alone will not
support an injunction restricting a
plaintiffs filing activities, the courts have
the authority to enjoin persons engaged in
the manifest abuse of the judicial process,
regardless of whether the threatened
litigation is legal or equitable in
character, or whether the vexatious
litigation results from the prosecution of
many suits by the same individual, or from
many suits by different individuals. The
courts may take creative actions to
discourage hyperactive litigators so long as
some access to courts is allowed, such as by
limiting the amount of filings a litigant may
make, and prescribing conditions precedent to
those filings so as to determine the
propriety of a suit on a case by case basis.
. . . .
That the plaintiff had objective good
faith in filing vexatious lawsuits in a
Federal District Court is not a factor in
determining the courts power to exercise
control over abuse of that court as a legal
forum by enjoining future pro se pleadings .
. . .[39]
While at least five states have statutory solutions to
the problem of vexatious litigants,40 courts also have inherent
power to control this problem.41 The Ninth Circuit has held that
courts may issue orders restricting a persons access to the
courts so long as they are based on adequate justification in the
record and narrowly tailored to the abuse perceived.42
Control of judicial resources is an important concern
of our court system. A request for an injunction or other court
order should be raised initially in the superior court in order
to allow all parties the proper due process which must include a
hearing, adequate justification in the record, and a narrowly
tailored order. Because Judge Rindners request for a court order
controlling DeNardos actions was raised for the first time on
appeal, we decline to reach the merits of that request.
V. CONCLUSION
Because the superior court properly ruled on DeNardos
claims, we AFFIRM the grant of summary judgment. Because the
award of attorneys fees was not an abuse of discretion, we AFFIRM
that award. But because the request for an injunctive order was
not raised in the superior court, we decline to reach Judge
Rindners suggestion that DeNardos future filings be restrained.
_______________________________
1 Case No. 3AN-03-13497 CI (Alaska Super., March 11,
2004).
2 DeNardo v. Alaska Cleaners, Inc., Mem. Op. & J. No.
1256, 2006 WL 1868489 (Alaska, July 5, 2006).
3 Civil Rule 76(d)(1) provides:
Attorney Information. The name, address and
telephone number of the attorney appearing
for a party to an action or proceeding, or of
a person appearing in propria personal,
should be typewritten or printed in the left-
margin of the first page of the document . .
. .
4 DeNardo v. Alaska Cleaners, Inc., Mem. Op. & J. No.
1256 2006 WL 1868489 (Alaska, July 5, 2006).
5 Id. at *1.
6 Fuller v. City of Homer, 113 P.3d 659, 662 (Alaska
2005).
7 Id.
8 Renwick v. State, Bd. of Marine Pilots, 971 P.2d 631,
633 (Alaska 1999).
9 Ellison v. Plumbers & Steam Fitters Union Local 375,
118 P.3d 1070, 1073 (Alaska 2005).
10 Marron v. Stromstad, 123 P.3d 992, 998 (Alaska 2005).
11 Id.
12 Kollodge v. State, 757 P.2d 1024, 1026 (Alaska 1988).
13 W. Page Keeton et al., Prosser and Keeton on the Law of
Torts 121, at 897 (5th ed. 1984). See also Barquis v. Merchants
Collection Assn, 496 P.2d 817, 825 (Cal. 1972) (collection agency
abused process where it instituted suits in improper county with
ulterior purpose of making action more difficult to defend,
thereby forcing adversary to default or to settle on terms
favorable to agency).
14 757 P.2d 1024 (Alaska 1988).
15 757 P.2d at 1026.
16 31 P.3d 77 (Alaska 2001).
17 Id. at 86.
18 42 U.S.C. 1983.
19 487 U.S. 42 (1988).
20 Id. at 50 (quoting United States v. Classic, 313 U.S.
299, 326 (1941)).
21 Polk County v. Dodson, 454 U.S. 312, 318 (1981).
22 Owen v. City of Independence, Mo., 445 U.S. 622, 637
(1980).
23 See Sooner Prods. Co. v. McBride, 708 F.2d 510, 512
(10th Cir. 1983).
24 Id.
25 Because we affirm the superior courts grant of summary
judgment and dismissal of DeNardos abuse of process and 1983
claims, we need not address the superior courts alternative res
judicata and collateral estoppel grounds for decision. See M.J.
S. v. State, Dept of Health and Soc. Servs., 39 P.3d 1123, 1126
n.12 (Alaska 2002) (Our decision affirming the superior court on
this ground makes it unnecessary to address the courts findings
on alternative grounds . . . .).
26 449 U.S. 5 (1980).
27 Id. at 14.
28 Id.
29 434 U.S. 412 (1978).
30 Id. at 422.
31 775 P.2d 515 (Alaska 1989).
32 Id. at 518.
33 Id.
34 Id.
35 See DeNardo v. Michalski, 811 P.2d 315, 317 (Alaska
1991) (holding that judicial immunity applies to all judicial
actions within the scope of a judges subject matter
jurisdiction).
36 See id.
37 489 U.S. 180, 184 (1989).
38 Id.
39 42 Am. Jur. 2d Injunctions 191 (electronic edition,
updated May 2006) (citing as examples of creative actions courts
have taken Abdul-Akbar v. Watson, 901 F.2d 329 (3d Cir. 1990)
(require prior leave of the court to file); In re Vincent, 105
F.3d 943 (4th Cir. 1997); Filipas v. Lemons, 835 F.2d 1145 (6th
Cir. 1987); In re Tyler, 839 F.2d 1290 (8th Cir. 1988); Bd. of
County Commrs of Morgan County v. Winslow, 862 P.2d 921 (Colo.
1993) (litigant could no longer appear pro se); Howard v. Sharpe,
266 Ga. 771, 470 S.E.2d 678 (Ga. 1996) (require prior judicial
approval); Spickler v. Dube, 644 A.2d 465 (Me. 1994) (require
prior judicial approval) (other footnotes omitted).
40 Cal. Civ. Proc. Code 391 (2006); Fla. Stat. 68.093
(2006); Haw. Rev. Stat. 634J (2006); Ohio Rev. Code Ann.
2323.52 (2006); Tex. Civ. Prac. & Rem. Code Ann. 11.054 (2005).
41 See Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir.
1989) (There is strong precedent establishing the inherent power
of federal courts to regulate the activities of abusive litigants
by imposing carefully tailored restrictions under the appropriate
circumstances.).
42 De Long v. Hennessey, 912 F.2d 1144, 1149 (9th Cir.
1990).
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