Federal Appeal on Civil Rights Dismissal
Uploaded by
Scribd Government DocsFederal Appeal on Civil Rights Dismissal
Uploaded by
Scribd Government Docs72 F.
3d 139
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
Betty J. WERMY, Plaintiff-Appellant,
v.
NORWEST FINANCIAL WASHINGTON, INC.; The Singing
Source,
Inc.; Honorable Steve Lile, Judge of the District Court for
Comanche County, Oklahoma; Godlove, Joyner, Mayhall,
Dzialo, Dutcher & Erwin, a professional law corporation,
Defendants-Appellees.
No. 95-6076.
United States Court of Appeals, Tenth Circuit.
Dec. 5, 1995.
Before TACHA and BARRETT, Circuit Judges, and BROWN, ** Senior
District Judge.
ORDER AND JUDGMENT1
TACHA, Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Plaintiff-Appellant Betty J. Wermy, appearing pro se, appeals the district
court's order dismissing her civil rights complaint. For the reasons set forth
below, we affirm.
Norwest Financial Washington, Inc. (Norwest) sued plaintiff in Oklahoma state
court for enforcement and collection of a retail purchase contract and unsecured
promissory note. Plaintiff was personally served and responded to Norwest's
motion for summary judgment with a motion to dismiss, denying the
authenticity of her signature on the documents. Plaintiff appeared at a hearing
at which she withdrew her motion to dismiss and her forgery defense, and
consented to judgment. Judgment was subsequently entered in state court on
June 2, 1994.
On June 13, 1994, plaintiff filed a motion to set aside the judgment which was
denied on July 14, 1994. Plaintiff did not appeal in state court. However, on
August 25, 1994, plaintiff filed a complaint in federal district court alleging that
the named defendants conspired to violate her constitutional rights during the
course of the state court action.
Defendant Judge Steve Lile filed a motion to dismiss on the ground of judicial
immunity, and alternatively, on the ground that plaintiff's federal court action
was an impermissible collateral attack on a state court judgment. Defendant
Godlove, Joyner, Mayhall, Dzialo, Dutcher & Erwin (the Godlove firm) filed a
motion pursuant to Fed.R.Civ.P. 12(b)(6), also premised on the ground that
plaintiff's federal action was an impermissible collateral attack on the judgment.
Finally, Norwest moved for summary judgment asserting that plaintiff's
complaint was an impermissible collateral attack and that her claims were
barred by res judicata.2
The district court granted Judge Lile's motion to dismiss based on judicial
immunity. In dismissing plaintiff's complaint as to Norwest and the Godlove
firm, the district court held that the state court had personal and subject matter
jurisdiction over the matter, and therefore, plaintiff's federal complaint was an
impermissible collateral attack on a valid state court judgment.
On appeal plaintiff argues that, because she is an enrolled Indian living in
Indian country, the state court was without subject matter jurisdiction to enter
judgment in the matter, and consequently, the state court judgment is void. On
collateral attack upon the judgment of a court of competent jurisdiction, the
existence of personal and subject matter jurisdiction will be presumed "unless
the fact of want of jurisdiction and the consequent invalidity of the judgment
affirmatively appears on the face of the judgment or of the record, or is
otherwise properly established by proof." Choctaw & Chickasaw Nations v.
City of Atoka, 207 F.2d 763, 765-66 (10th Cir.1953); see also Crockett v.
Prudential Ins. Co., 789 P.2d 1, 2-3 (Okla.Ct.App.1990)(holding that, under
Oklahoma law, a judgment must be void on its face to be subject to collateral
attack for lack of jurisdiction).
8
The burden is on the collaterally attacking party to overcome the presumptions
of jurisdiction and establish the invalidity of the judgment by "competent and
convincing proof." Choctaw & Chickasaw Nations, 207 F.2d at 766. Although
plaintiff discusses at length the law surrounding Oklahoma state court
jurisdiction in areas involving Indian lands, she fails to affirmatively show, in
the record or elsewhere, that the state court lacked jurisdiction to enter
judgment in this matter. Therefore, where, as here, the lack of jurisdiction is not
apparent on the face of the judgment, the existence of jurisdiction is presumed,
the state court judgment is valid, and dismissal of plaintiff's complaint as an
impermissible collateral attack was proper.
As a party to the appeal, Judge Lile filed a brief in this matter. However,
plaintiff does not offer any specific arguments assigning error to the district
court's grant of judicial immunity to Judge Lile, except as the grant of immunity
may be affected by her claim that the state court lacked jurisdiction to enter the
judgment. See Stump v. Sparkman, 435 U.S. 349, 356-57 (1978)(holding a
judge absolutely immune from civil damages liability unless the judge has
acted "in the clear absence of all jurisdiction"); see also Hunt v. Bennett, 17
F.3d 1263, 1266 (10th Cir.), cert. denied, 115 S.Ct. 107 (1994). Because of our
determination that state court jurisdiction over this matter was existent, and
because all actions taken by Judge Lile were in his judicial capacity, see Stump,
435 U.S. at 362-63, as a matter of law, Judge Lile was judicially immune.
10
The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED. The mandate shall issue forthwith.
**
Honorable Wesley E. Brown, Senior District Judge, United States District
Court for the District of Kansas, sitting by designation
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of the court's General
Order filed November 29, 1993. 151 F.R.D. 470
Defendant The Singing Source, Inc. was never served in this action. The district
court dismissed The Singing Source, Inc. pursuant to Fed.R.Civ.P. 4(m), and
alternatively, on the merits. The Singing Source, Inc. is not a party to this
appeal
You might also like
- No ratings yetLester L. Cooks v. James M. Franklin, Judge, El Paso District Court Geoffrey De Wolfe, Judge, El Paso District Court D. Richard Toth, Judge Juanita L. Rice, Juvenile Commissioner Ronald G. Crowder, Former Spouse's Attorney Patricia A. Shepard, Law Firm Robert S. Shoop, Plaintiff's Former Attorney, 948 F.2d 1294, 10th Cir. (1991)4 pages
