Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Suter v. Denton

United States District Court, N.D. Texas, Dallas Division

July 16, 2019

RUDOLF SUTER, Plaintiff
v.
PETER DENTON, et al., Defendants.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE

         Before the Court are separate motions to dismiss this pro se civil action filed by Defendants Diane Reed and David Elmquist (ECF No. 36), Richard G. Dafoe (ECF No. 37), Abel Leal (ECF No. 38), Robert I. Berry (ECF No. 39), Robert D. Allen (ECF No. 43 & 58), David Jarvis (ECF No. 55), and Peter Denton (“Denton”) and Harvest Investors, L.P. (together with Denton, the “Denton Defendants”) (ECF No. 60). For the following reasons, the Court should grant Defendants' motions and dismiss all of Plaintiff's claims.

         Background

         Plaintiff Rudolf Suter (“Suter”), a Swiss citizen currently residing in Switzerland, is no stranger to this Court. He previously was found liable for more than $1 million in damages in a civil action filed in this district, was held in contempt of court for his recalcitrance in cooperating in post-judgment discovery, and pleaded guilty to committing perjury in connection with filings made in a bankruptcy proceeding in this district. See generally Compl. (ECF No. 3); see also Denton v. Suter, No. 3:11-cv-02559-N, (N.D. Tex.); In re Rudolf Suter, No. 14-30364-sgj7 (N.D. Tex.); United States v. Suter, No. 3:17-cr-00046-N (N.D. Tex.).[1]Suter now brings this action against several civil attorneys and their clients, the U.S. bankruptcy trustee, and the federal prosecutor who were adverse to Suter in those legal proceedings.

         In his Complaint, Suter alleges that he lived and worked in the United States from May 2010 to December 2015 on an H1B visa as CEO and President of Pro Fit Optix Inc. See Compl. at 2, 14. In August 2012, the Denton Defendants, represented by their attorney, Robert Allen, obtained judgments for over $1 million against Suter in a civil action filed in this district. Id. at 2, ¶ 1; see also Denton v. Suter, No. 3:11-cv-02559-N, 2016 WL 6581288 (N.D. Tex. Mar. 10, 2016). The Denton Defendants subsequently served Suter post-judgment discovery requests as part of their attempt to collect on the judgments. Compl. at 2, ¶ 1. Suter did not fully respond to the Denton Defendants' discovery requests, even after the Court ordered him to do so. Id. at 4, ¶ 9. Instead, Suter left the country. Id. at 3, ¶ 7. On March 10, 2016, the Court found Suter to be in civil contempt and ordered that he be “coercively incarcerated” until he fully and completely answered under oath the Denton Defendants' post-judgment discovery requests. Id. at 4, ¶ 9; see also Order, Denton v. Suter, 2016 WL 6581288 (N.D. Tex. Mar. 10, 2016). Suter returned to the United States several months later and was arrested based on the Court's contempt order and corresponding warrant for his arrest. Compl. at 7, ¶ 21.

         Suter also tried to stave off post-judgment discovery of his assets by filing for Chapter 7 bankruptcy protection in the United States Bankruptcy Court for the Northern District of Texas in 2014. Id. at 2, ¶ 2; see also In re Rudolf Suter, No. 14-30364-sgj7 (N.D. Tex.). Richard Dafoe represented the Denton Defendants in the bankruptcy proceeding. Compl. at 3, ¶ 4. Diane Reed was appointed Trustee for the bankruptcy estate, and she was represented in the bankruptcy proceeding by attorney David Elmquist. Id. at 4, ¶ 4. Suter committed perjury in the context of the bankruptcy proceeding and pleaded guilty in 2017 to violating 18 U.S.C. § 1621(2). See Id. at 9, ¶ 24; see also United States v. Suter, No. 3:17-cr-46-N (N.D. Tex.). David Jarvis, a federal prosecutor, represented the government in the perjury case. Compl. at 9, ¶ 24.

         On August 8, 2018, Suter, proceeding pro se, filed this civil action asserting claims against Defendants for allegedly “conspiring and for perjuring to give Plaintiff a criminal charge. Assassination of character, defamation, slander, wrongful accusations, emotional distress injuries and mental anguish injuries, that subject Plaintiff to cruel and unusual punishment under State and Federal Constitution of the Unites [sic] States 8th Amendment.” Compl. at 15. Suter contends that Allen, on behalf of the Denton Defendants, conspired with Jarvis to initiate the criminal proceedings against him. Id. at 8-9, 10-12. He further contends that Allen, again on behalf of the Denton Defendants, slandered him and published false and defamatory statements about him in the local Dallas paper and other periodicals. Id. at 4-5, 13 As a result of these false stories, Suter allegedly suffered harm to his reputation and lost business opportunities. Id. Suter claims that the Defendants' conduct caused him to suffer mental anguish and emotional distress. Id. at 9, ¶ 24. By this action, he seeks “not less than $50 million U.S. dollars and for the Defendants' assets to be held and seized until this matter is resolved or an agreement is reached.” Id. at 15.

         In response to Suter's complaint, Defendants filed separate motions to dismiss, see ECF Nos. 36, 37, 38, 39, 43, 55 & 60, asserting numerous bases for dismissal including that the Complaint must be dismissed under Rule 12(b)(6) because Suter's allegations are insufficient to state a claim for relief. All of the Defendants except Reed and Elmquist also argue that the Court should dismiss Suter's Complaint under Rule 12(b)(1) because Suter's allegations are insufficient to establish subject matter jurisdiction. Dafoe, Leal, Berry, Jarvis, and Allen further assert they are entitled to immunity from Suter's claims. Jarvis and the Denton Defendants argue that Suter's Complaint should be dismissed under Rule 12(b)(5) for insufficient service of process, and Allen and the Denton Defendants argue that Suter's Complaint must be dismissed pursuant to the Texas “Anti-SLAPP” Act. Finally, the Denton Defendants assert they are entitled to judgment on the pleadings under Rule 12(c) because it is facially apparent from Suter's Complaint that his claim for defamation is barred by the applicable one-year statute of limitations governing claims for defamation. Suter opposes only the motions filed by Allen and the Denton Defendants. He responded to the motions filed by Reed and Elmquist, Dafoe, Leal, and Berry stating that he does not intend to pursue any claims against those Defendants. He failed to file a response to Jarvis's motion. Accordingly, the motions to dismiss are ripe for determination.

         Legal Standards and Analysis

         As a preliminary matter, the Court addresses Suter's oft-repeated request to construe his filings “to a less straighten [sic] standard that pleadings drafted by lawyers” based on his pro se status. See, e.g., Compl. at 15 (citing Haines v. Kerner, 404 U.S. 519 (1972); Resp. Br. at 8 (ECF No. 50); Resp. Br. at 5 (ECF No. 65). Courts generally hold pro se complaints to less stringent standards than formal pleadings drafted by lawyers. Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (quoting Miller v. Stanmore, 636 F.2d 986, 988 (5th Cir. 1981)). However, “despite [the] general willingness to construe pro se filings liberally, ” courts “still require pro se parties to fundamentally abide by the rules that govern the federal courts.” E.E.O.C. v. Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir. 2014), as revised (Sept. 18, 2014) (cleaned up).[2] Therefore, a pro se plaintiff is not excused from the requirements to “properly plead sufficient facts that, when liberally construed, state a plausible claim to relief, [and] serve defendants . . . .” Id. (citations omitted). Additionally, “regardless of whether the plaintiff is proceeding pro se or is represented by counsel, ‘conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.'” Taylor, 296 F.3d at 378 (quoting S. Christian Leadership Conference v. Supreme Court of the State of La., 252 F.3d 781, 786 (5th Cir. 2001)); see also Simmons v. Methodist Hosps. of Dall., 106 F.Supp.3d 799, 803 (N.D. Tex. May 1, 2015) (stating that although pro se parties are “often given more leeway” to correct errors, they “are expected to comply with the rules of pleading and . . . . ‘must set forth facts giving rise to a claim on which relief may be granted.'”) (quoting Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993) (per curiam)) (citing Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981) (per curiam)).

         With these principles in mind, the Court turns to the pending motions to dismiss. The Court notes that when, as here, a party files a Rule 12(b)(1) motion in conjunction with other Rule 12 motions, the Court should consider the jurisdictional challenge before addressing any attack on the merits. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citation omitted). This “prevents a court without jurisdiction from prematurely dismissing a case with prejudice.” Id. (citation omitted). When the court dismisses for lack of subject matter jurisdiction, that dismissal “is not a determination of the merits and does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction.” Id. (citation omitted).

         Rule 12(b)(1)

         Federal courts are courts of limited jurisdiction; without jurisdiction conferred by the Constitution and by statute, they lack the power to adjudicate claims. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). Federal court jurisdiction generally requires (1) a federal question arising under the Constitution, a federal law, or a treaty, or (2) complete diversity of citizenship between adverse parties, and the matter in controversy exceeds $75, 000. 28 U.S.C. §§ 1331-32.

         A motion to dismiss under Rule 12(b)(1) challenges a federal court's subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The Fifth Circuit distinguishes between a “facial attack” and a “factual attack” on subject matter jurisdiction. Rodriguez v. Tex. Comm'n on the Arts, 992 F.Supp. 876, 878 (N.D. Tex. Jan. 29, 1998). “A facial attack requires the court merely to decide if the plaintiff has correctly alleged a basis for subject matter jurisdiction” by examining the allegations in the complaint, which are presumed to be true. Id. (citation omitted). If the defendant supports the motion with evidence, however, then the attack is “factual, ” and “no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). Regardless of the nature of the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.