United States District Court, E.D. Oklahoma
(1) J. RONALD UNGER, a/k/a RON UNGER, and (2) JANICE OBROCK, a/k/a JANICE U. OBROCK, by and through her Guardian Ad Litem, J. RONALD UNGER, Plaintiffs,
ERIC L. PENDERGRASS, Defendant.
A. WHITE, UNITED STATES DISTRICT JUDGE
filed this action on September 1, 2015 in the District Court
in Sequoyah County, Oklahoma, case number CJ-2015-146,
against their former tenants Kristina and Robert Henson and
the Henson's attorney, Mr. Pendergrass. Plaintiffs did
not serve any defendant. On October 20, 2016, Plaintiffs
filed an Amended Petition against Mr. Pendergrass only.
Plaintiffs served Mr. Pendergrass on November 16, 2016. Mr.
Pendergrass removed this action on December 6, 2016.
Pendergrass now moves for dismissal pursuant to Fed.R.Civ.P.
12(b)(5) for insufficient service of process. Mr. Pendergrass
also argues that Plaintiffs cannot assert a cause of action
for litigation-related misconduct, that Plaintiffs'
claims are barred by res judicata, that Plaintiffs
cannot assert a cause of action for tortious interference
with contractual or business relations and that amendment
would be futile.
Oklahoma, service must be made upon a defendant within one
hundred eighty (180) days. 12 Okla. Stat. § 2004. If a
“plaintiff cannot show good cause why such service was
not made within that period, the action shall be deemed
dismissed as to that defendant without prejudice.”
Id. The filing of an Amended Petition does not
restart the clock. See Brown v. K-MAC Enterprises,
897 F.Supp.2d 1098, 1006-07 (N.D. Okla. 2012) (citing
Bolden v. City of Topeka, Kan., 441 F.3d 1129, 1148-49
(10th Cir. 2006), wherein the Tenth Circuit opined that if an
amended complaint could restart the clock, dilatory
plaintiffs could avoid the deadline altogether “simply
by filing an amended complaint when [they] felt like
inform the court that at the time they filed this action,
there was another action pending on appeal between the
parties for the same claim in case number CJ-2014-74.
Plaintiffs argue they had good cause not to serve Mr.
Pendergrass in this action because he “most
certainly” would have filed a motion to dismiss
pursuant to 12 Okla. Stat. § 2012(B)(8) based on the
action pending between the same parties for the same claim.
Plaintiffs provide no authority in support of their assertion
that avoidance of a motion to dismiss is “good
cause.” Anytime a defendant is served, the defendant is
likely to file a motion to dismiss. If avoidance of a motion
to dismiss is good cause to delay service, 12 Okla. Stat.
§ 2004 would be of no effect. Plaintiffs have not shown
good cause for their failure to timely effect service. By
operation of § 2004, this action was “deemed
dismissed” without prejudice in the District Court in
Sequoyah County, Oklahoma prior to its removal to this court.
The action, therefore, is dismissed without prejudice by this
the court has already determined this action must be
dismissed, in an effort to save the parties further time and
expense, it notes that Mr. Pendergrass is correct that this
action is barred by res judicata. In the case
Plaintiffs referred to in support of their “good
faith” argument, CJ-2014-74 in the District Court of
Sequoyah County, Oklahoma, Plaintiffs attempted to amend
their petition to add the same claims they have alleged in
this action against Mr. Pendergrass. See Docket No.
5, Exh. 2. On April 13, 2016, that court denied
Plaintiffs' motion to amend to add Mr. Pendergrass as a
defendant, finding that their proposed amendment
“attempts to assert an improper cause of action and
promotes the bad faith motives of Unger and Obrock, ”
that “Pendergrass is a properly licensed attorney in
the state of Oklahoma, ” and that “[i]t is black
letter law in Oklahoma that no civil remedy is available for
litigation-related misconduct.” Docket No. 5, Exh. 1,
p. 4. The District Court went on to note, “[a]dvocacy,
even abusive advocacy, is not an independent tort that a
litigant may bring against a lawyer.” Id The
District Court held that Plaintiffs hold no cause of action
against Mr. Pendergrass. Id. at 5.
preclusive effect of a state-court action is governed by
state law. Valley View Angus Ranch, Inc. v. Duke Energy
Field Srvcs., Inc., 497 F.3d 1096, 1100 (10th Cir.
2007). In Oklahoma, claim preclusion, also known as res
judicata, “bars the parties (or their privies)
from relitigating not only the adjudicated claim,
but also any theories or issues that were actually decided
together with those which could have been decided in that
action” McDaneld v. Lynn Hickey Dodge,
Inc., 979 P.2d 252, 255-56 (Okla. 1999) (emphasis in
original). All of Plaintiffs' claims alleged in this
action were adjudicated by the Sequoyah County District Court
in CJ-2014-74. Had the court not been dismissing this action
for failure to timely serve Mr. Pendergrass, it would have
dismissed based on claim preclusion. Amendment would be
foregoing reasons, Defendant's motion to dismiss [Docket
No. 5] is hereby GRANTED. This ...