Wyatt v. Highsmith et al

MOTION to Dismiss Case for Failure to State a Claim & Brief in Support

E.D. Okla.February 14, 2017

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA Case No. 6:16-cv-00523-RAW (1) ERICK PAUL WYATT, Plaintiff, vs. (1) ROBERT HIGHSMITH, (2) JACK WALLACE COPPEDGE, II, and (3) LAUREN TRUITT, Defendants. MOTION OF THE DEFENDANT ROBERT HIGHSMITH TO DISMISS PLAINTIFF’S COMPLAINT AND BRIEF IN SUPPORT The Honorable Ronald A. White, Presiding JAMES K. SECREST, II, OBA No. 8049 EDWARD J. MAIN, OBA No. 11912 SECREST, HILL, BUTLER & SECREST 7134 S. Yale Ave., Ste. 900 Tulsa, OK 74136 (918) 494-5905 (918) 494-2847 Facsimile jsecrest@secresthill.com emain@secresthill.com Attorneys for Defendant, Robert Highsmith Dated this 14 th day of February, 2017. 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 1 of 30 i TABLE OF CONTENTS I. INTRODUCTION ........................................................................................................... 1 II. ARGUMENT AND AUTHORITIES ............................................................................ 4 A. The Standard for Notice Pleading ...................................................................... 4 B. This Court May Take Notice of Plaintiff’s Prior Actions......................................................................................................... 6 C. No Civil Action For Perjury Is Recognized in Oklahoma ................................ 8 D. Robert Highsmith Is Immune From Liability to Plaintiff ............................. 13 E. Plaintiff’s Claim Alleging DHS Contacts Must Fail ....................................... 16 F. Plaintiff May Not Recover His Expenses In The Wyatt Divorce Action ........................................................................................ 19 G. Robert Highsmith’s Representation of Plaintiff’s Former Wife Is Not Actionable ....................................................... 20 III. CONCLUSION .............................................................................................................. 23 CERTIFICATE OF SERVICE ................................................................................................ 24 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 2 of 30 ii TABLE OF AUTHORITIES CASES Application of State, ex rel., Department of Transportation, 1982 OK 36, 646 P.2d 605........................................................................................................... 22 Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 ............................................................................................. 6, 16-17 Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) .................................................................................................................. 22 Barrett v. Pearson, 355 Fed.Appx. 113 (10 th Cir., 2009) .............................................................................................. 7 Bell v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) .................................................................................................. 4-6, 16-17 Bradford v. Bank of America, 2015 WL 1954465 (N.D. Okla., April 29, 2015) ........................................................................... 8 Briscoe v. LaHue, 460 U.S. 325, 103 S. Ct. 1108, 75 L.Ed.2d 96 (1983) .............................................................................................................. 9, 12 Butz v. Economou, 438 U.S. 478, 512 98 S.Ct. 2894, 57 L.Ed.2d 895, (1978) .................................................................................................................. 9 Chamberlin v. Chamberlin, 1986 OK 30, 720 P.2d 721........................................................................................................... 19 Cooper v. Parker-Hughey, 1995 OK 35, 894 P.2d 1096...................................................................................................... 9-12 Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) ................................................................................................................. 22 Hammett v. Hunter, 1941 OK 253, 189 Okla. 455, 117 P.2d 511 ........................................................................................................................... 13-15 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 3 of 30 iii Hartley v. Williamson, 2001 OK CIV APP 6, 18 P.3d 355 ............................................................................................. 12 Hatchcock v. Barnes, 2001 OK CIV APP 69, 25 P.3d 295 ............................................................................................ 10 Hayes v. Central States Orthopedic Specialists, 2002 OK 30, 51 P.3d 562........................................................................................................ 20-21 Hendrick v. Walters, 1993 OK 162, 865 P.2d 1232....................................................................................................... 22 Housing Authority of the Kaw Tribe of Indians of Oklahoma v. Ponca City, 952 F.2d 1183, (10 th Cir., 1991), cert. denied, 504 U.S. 912, 112 S.Ct. 1945, (1992) ..................................................................... 22 Hutchinson v. Carter, 2001 OK CIV APP 124, 33 P.3d 958 ..................................................................................... 10-11 Hutchinson v. Hahn, 402 Fed.Appx. 391, (10 th Cir., 2010) ............................................................................................. 7 In Re: Towne, 2000 OK 30, 3 P.3d 154.......................................................................................................... 20-21 Jensen v. Poindexter, 2015 OK 49, 352 P.3d 1201......................................................................................................... 18 Kirschstein v. Haynes, 788 P.2d 941, (Okla., 1990) ....................................................................................... 12, 14-15, 18 Knight v. Mooring Capital Fund, 749 F.3d 1180, (10 th Cir., 2014) .................................................................................................. 12 Miller v. Glanz, 948 F.2d 1562 (10 th Cir., 1991) .................................................................................................. 12 Moore v. City of Tulsa, 55 F.Supp.3d 1337, (N.D. Okla., 2014) ........................................................................................ 8 Moses v. Hoebel, 1982 OK 26, 646 P.2d 605........................................................................................................... 19 Murry County v. Home Sales, 2014 OK 52 .................................................................................................................................. 22 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 4 of 30 iv Patel v. OMH Medical Center, 1999 OK 33, 987 P.2d 1185 cert. denied, 528 U.S. 1188, 120 S.Ct. 1242, 146 L.Ed.2d 100 (2000) ............................................................................................................... 10 Paulson v. Sternlof, 2000 OK CIV APP 128, 15 P.3d 981 .......................................................................................... 18 Samson Investment Co. v. Chevaillier, 1999 OK 19, 988 P.2d 327 .......................................................................................................... 11 State ex rel. Regents v. McCloskey Brothers, 227 P.3d 133, 227 P.3d 133 ......................................................................................................... 22 Stricklen v. O.I.P.M., 2017 OK CIV APP 3.................................................................................................................... 11 St. Louis Baptist Temple v. Federal Deposit Insurance Corp., 605 F.2d 1169 (10 th Cir., 1979) .................................................................................................. 7-8 Tanique v. State ex rel., Oklahoma Bureau of Narcotics & Dangerous Drugs, 2004 OK CIV APP 73, 99 P.3d 1209 .......................................................................................... 10 United States Parole Commission v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) ................................................................................................................. 22 Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) ................................................................................................................. 22 Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 3443 (1975) ............................................................................................................... 22 OKLAHOMA STATUTES Title 10A O.S. 2011, §1-2-101(B-C) ...................................................................................... 16-18 Title 10A O.S. 2011, §1-2-104(A-B) ...................................................................................... 16-18 Title 12 O.S. 2011, §1443.1(A) .................................................................................. 11, 13-15, 18 Title 43 O.S. 2011, §110(D, E) .................................................................................................... 19 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 5 of 30 v DISTRICT COURT RULES Rule 8, Rules for the District Courts of Oklahoma ....................................................................... 4-5 Rule 12, Rules for the District Courts of Oklahoma ........................................................................ 8 RULES OF PROFESSIONAL CONDUCT Rule 1.8(F)(2), Oklahoma Rules of Professional Conduct, Title 5 O.S., Ch. 1, App 3A ............................................................................................................. 20 FEDERAL STATUTES 15 U.S.C. § 1 .................................................................................................................................. 5 FEDERAL RULES Fed.R.Civ.P. 8 ............................................................................................................................ 4, 6 Fed.R.Civ.P. 12(b)(6).................................................................................. 1, 4, 6, 8, 12, 18-19, 23 Fed.R.Evid. 201(b-d) ..................................................................................................................... 7 EXHIBIT INDEX Exhibit 1 - Docket Report, Wyatt Divorce Action Exhibit 2 - Petition for Dissolution of Marriage, Wyatt Divorce Action, filed September 16, 2014 Exhibit 3 - Order Granting Decree of Dissolution of Marriage, Wyatt Divorce Action, July 14, 2016 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 6 of 30 1 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA ERICK PAUL WYATT, Plaintiff, v. ROBERT HIGHSMITH, JACK WALLACE COPPEDGE, II, AND LAUREN TRUITT, Defendants. ) ) ) ) ) ) ) ) ) ) ) Case No. 6:16-cv-00523-RAW MOTION OF THE DEFENDANT ROBERT HIGHSMITH TO DISMISS PLAINTIFF’S COMPLAINT AND BRIEF IN SUPPORT COMES NOW, the Defendant, Robert Highsmith, and moves the Court to dismiss Plaintiff’s Complaint for failure to state claims upon which relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6). In further support of this Motion to Dismiss, Robert Highsmith would show the Court as follows: I. INTRODUCTION The allegations in Plaintiff’s Complaint [Doc. 2] disclose that his claims are completely without merit. Plaintiff describes the circumstances underlying this action: Plaintiff went through a nearly two year long divorice [sic] . . . . Robert Highsmith was lead councel [sic] for the Plaintiff’s wife . . . . The case ended on July 14, 2016. Complaint, ¶C(1), p. 2; [Doc. 2, p. 3 of 5]. Robert Highsmith was the attorney representing an opposing party to Plaintiff in prior litigation. No cause of action may arise in favor of Plaintiff from those circumstances. Any issues relating to the conduct of that litigation needed to be raised during the course of it, and may not be the subject of a separate action in this Court. 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 7 of 30 2 Specifically, Plaintiff was the Petitioner in divorce proceedings with the style Erick Paul Wyatt and Allyson Marie Wyatt, filed in the District Court of Marshall County, State of Oklahoma, bearing Docket No. FD-2014-00059 of that Court (hereinafter “Wyatt Divorce Action”). Complaint, ¶¶C(1), D(2), p. 2; [Doc. 2, p. 3 of 5]; Exhibit 1, Docket Report, Wyatt Divorce Action; Exhibit 2, Petition for Dissolution of Marriage, Wyatt Divorce Action, filed September 16, 2014; Exhibit 3, Order Granting Decree of Dissolution of Marriage, Wyatt Divorce Action, July 14, 2016. These documents establish that Plaintiff commenced the Wyatt Divorce Action seeking to terminate his marriage to his former wife and to have custody of their child, that he retained primary custody of the child during the progress of those proceedings, and that he ultimately succeeded in obtaining the divorce and custody of the child. Having commenced those proceedings and having obtained by them the relief he sought, Plaintiff can have no cause of action based upon them. Plaintiff asserts four overlapping, redundant but nevertheless meritless claims against Robert Highsmith. Plaintiff’s first claim alleges: Robert Highsmith perjured himself as well as willing [sic] allowed his client to perjure herself on numerous occasions, thus putting the Plaintiff and his minor child, A.A.W. through extreme amounts of undue stress and making the trial very expensive. Supporting facts: . . . . Mr. Highsmith openly made false statements that he knew to be false as well as allowed his client to perjure herself with facts that both parties knew were false though [sic] the divorice [sic] [.] Complaint, ¶D(1), p. 2; [Doc. 2, p. 3 of 5]. A number of separate claims appear to be conflated together, but none are actionable. Allegations of perjury must be pursued in the prior action itself, not in a separate, later action. No claim for infliction of emotional distress may be based upon statements relating to litigation. If Plaintiff is seeking to recover the expense of the prior 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 8 of 30 3 litigation, that also is an issue of recoverable costs which must be raised, if at all, in the prior action. Plaintiff’s second claim against Robert Highsmith advances similar allegations: Mr. Robert Highsmith continued to slander Mr. Wyatt in court as well as liable [sic] Mr. Wyatt both in official court documents in Marshall County Oklahoma FD-2014-59 as well as outside of court with Cleveland County Department of Human Services. Supporting facts: . . . . Mr Highsmith continued to make knowly [sic] false allegations verbally as well as written to the court in Marshall County as well as written allegations to Cleveland County DHS. Complaint, ¶D(2), p. 2; [Doc. 2, p. 3 of 5]. Statements made during Court, whether written or oral, are absolutely privileged and may not be the subject of a cause of action. The same privilege protects reports to the Department of Human Services. Plaintiff advances yet another claim against Robert Highsmith alleging: Robert Highsmith knowing [sic] assisted Plaintiff’s ex-wife in calling in a fraudulent DHS report. Supporting Facts: DHS was called on Mr. Wyatt alleging that he abused his girlfriend Shannon Steele. Reporter stated that Mrs. Wyatt’s attorney knew about the incident. Complaint, ¶D(4), p. 2a; [Doc. 2, p. 4 of 5]. It is unclear how “kn[o]w[ing] about the incident” can conceivably be the basis of a cause of action. This is merely a restatement of Plaintiff’s second claim against Robert Highsmith, based upon alleged but in any case privileged communications to the Oklahoma Department of Human Services. Lastly, Plaintiff pursues a claim against Robert Highsmith alleging: Robert Highsmith knowing [sic] continued to represent Allyson Wyatt even after it was shown that she was outside of income guidelines. 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 9 of 30 4 Supporting Facts: During the trial, Allyson Wyatt’s income was shown to be well outside of Legal Aid income guidelines at the time she applied for services and he looked the other way as if it didn’t matter. Complaint, ¶D(5), p. 2a; [Doc. 2, p. 4 of 5]. Plaintiff has no standing to raise an issue regarding Robert Highsmith’s professional relationship with his client; it is purely a matter between Robert Highsmith and his client. Certainly, this allegation cannot state a cause of action in favor of Plaintiff. For these reasons and more, as developed in greater detail below, Plaintiff’s Complaint must be dismissed for failure to state claims upon which relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6). II. ARGUMENTS AND AUTHORITIES A. THE STANDARD FOR NOTICE PLEADING “A pleading that states a claim for relief must contain: . . . a short and plain statement of a claim showing that the pleader is entitled to relief; . . . .” Fed.R.Civ.P. 8(a)(2) (emphasis added). Plaintiff’s Complaint does not “show” that he is entitled to relief from Robert Highsmith. Interpreting Rule 8, the United States Supreme Court has stated that “a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, . . . .” Bell v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-1965, 167 L.Ed.2d 929 (2007) (citation, internal quotation marks and bracketing omitted). In Bell v. Twombly, one of the issues was whether there had been a conspiracy. The Court stated: The need at the pleading stage for allegations plausibly suggesting (not merely consistent with) agreement reflects the threshold requirement of Rule 8(a)(2) that the “plain statement” possess enough heft to “sho[w] that the pleader is entitled to relief.” A statement of parallel conduct, even conduct consciously 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 10 of 30 5 undertaken, needs some setting suggesting that the agreement necessary to make out a [15 U.S.C.] § 1 claim; without that further circumstance pointing toward a meeting of the minds, an account of a Defendant’s commercial efforts stays in neutral territory. An allegation of parallel conduct is much like a naked assertion of conspiracy in a § 1 complaint: it gets the complaint close to stating a claim, but without some further factual enhancement it stops short of the line between possibility and plausibility of “entitle[ment] to relief.” Bell v. Twombly, 550 U.S. at 557, 127 S.Ct. at 1966 (citation omitted). In that case, the Plaintiff’s allegations were sufficient to suggest that there had possibly been a conspiracy agreement, but that was not enough to state a cause of action and the United States Supreme Court held that the district court had properly dismissed the action. The United States Supreme Court emphasized the “practical significance of the Rule 8 entitlement requirement” observing that “when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, this basic deficiency should be exposed at the point of minimum expenditure of time and money by the parties and the court.” Bell v. Twombly, 550 U.S. at 557, 558, 127 S.Ct. at 1966 (citation, internal quotation marks, and ellipsis deleted). The United States Supreme Court later summarized its Bell v. Twombly holdings: A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” [Bell v. Twombly,] 550 U.S. at 555, 127 S.Ct. 1955. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id., at 557, 127 S.Ct. 1955. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id., at 570, 127 S.Ct. 1955. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556, 127 S.Ct. 1955. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Id., at 557, 127 S.Ct. 1955 (brackets omitted). 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 11 of 30 6 Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id., at 555, 127 S.Ct. 1955 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we “are not bound to accept as true a legal conclusion couched as a factual allegation” (internal quotation marks omitted)). . . . Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id., at 556, 127 S.Ct. 1955. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not “show[n]”-“that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2). Ashcroft v. Iqbal, 556 U.S. 662, 677-679, 129 S.Ct. 1937, 1949-1950, 173 L.Ed.2d 868 (2009). In the present case, Plaintiff’s allegations are conclusory and fail under these standards. Plaintiff’s claims are based upon prior litigation in which Robert Highsmith was an attorney representing a party adverse to Plaintiff. Services rendered by Robert Highsmith to his client, and not to Plaintiff, cannot be the basis for a cause of action. Plaintiff’s allegations do not “show” that he is entitled to relief. Fed.R.Civ.P. 8(a). Therefore, Plaintiff’s Complaint must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). B. THIS COURT MAY TAKE NOTICE OF PLAINTIFF’S PRIOR ACTION Plaintiff’s claims against Robert Highsmith arise out of prior litigation, the Wyatt Divorce Action in Marshall County. Complaint, ¶¶C(1); D(2), p. 2; [Doc. 2, p. 3 of 5]; Exhibit 1, Docket Report, Wyatt Divorce Action; Exhibit 2, Petition for Dissolution of Marriage, Wyatt Divorce Action. Exhibit 3, Order Granting Decree of Dissolution of Marriage, Wyatt Divorce Action. This Court may consider these and other documents from the record in the Wyatt Divorce Action in ruling on Robert Highsmith’s Motion to Dismiss under Fed.R.Civ.P. 12(b)(6) without transforming this motion into one for summary judgment. Several principles support this Court’s consideration of the record in the Wyatt Divorce Action. First, this Court may take judicial notice of the public record in those proceedings. Second, that record is integral to 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 12 of 30 7 Plaintiff’s claims which arise out of allegations relating to the course of those proceedings. The rule governing judicial notice states: Kinds Of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) Is generally known within the trial court’s territorial jurisdiction; or (2) Can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Taking Notice. The court: (1) May take judicial notice on its own; or (2) Must take judicial notice if a party requests it and the court is supplied with the necessary information. Timing. The court may take judicial notice at any stage of the proceeding. Fed.R.Evid. 201(b-d) (emphasis original). On this subject, the Tenth Circuit has stated: The scope and reach of the doctrine of judicial notice has been enlarged over the years until today it includes those matters that are verifiable with certainty. Thus, this court has held that a court may sua sponte, take judicial notice of its own records and preceding records if called to the court’s attention by the parties. Further, it has been held that federal courts, in appropriate circumstances, may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue. St. Louis Baptist Temple v. Federal Deposit Insurance Corp., 605 F.2d 1169, 1172 (10 th Cir., 1979) (citations omitted); see also, Hutchinson v. Hahn, 402 Fed.Appx. 391, 394-395 (10 th Cir., 2010) (“But a court may take judicial notice of its own records as well of those of other courts, particularly in closely related cases”); Barrett v. Pearson, 355 Fed.Appx. 113, 116 (10 th Cir., 2009) (“The district court was authorized to take judicial notice of judicial proceedings in other courts if they have a direct relation to the matters at issue.”) (citations, bracketing and internal quotations marks omitted). A United States District Court in Oklahoma has stated: 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 13 of 30 8 Facts subject to judicial notice may be considered in a Rule 12 motion without converting the motion to dismiss into a motion for summary judgment. A court may take judicial notice of matters that are verifiable with certainty. Such matters include public records. Moore v. City of Tulsa, 55 F.Supp.3d 1337, 1341 (N.D. Okla., 2014) (citations, bracketing and internal quotation marks omitted). In Moore v. Tulsa, the Court took notice of “[t]he petition in plaintiff’s state court proceeding” as well as the City Charter because it was a public record. Moore v. Tulsa, 55 F.Supp.3d 1341-1342. In Bradford v. Bank of America, 2015 WL 1954465 (N.D. Okla., April 29, 2015), the Court took notice of “a lengthy history of proceedings” in state court and dismissed the action before it in federal court for lack of subject matter jurisdiction stating that “the Court may take judicial notice of these proceedings.” Bradford, at *3, n. 2, citing Moore v. Tulsa, supra, and St. Louis Baptist Temple v. F.D.I.C., 605 F.2d at 1172. Accordingly, Robert Highsmith requests the Court to take judicial notice of the pleadings, orders, exhibits, motions and other documents filed of record in the Wyatt Divorce Action. The action currently pending before this Court arises out of representation provided to Robert Highsmith to Plaintiff’s former wife in that prior litigation, and the viability of his claims must be evaluated in that context. C. NO CIVIL ACTION FOR PERJURY IS RECOGNIZED IN OKLAHOMA Oklahoma does not recognize a civil action for perjury; to the extent Plaintiff alleges perjury or false statements in connection with the Wyatt Divorce Action, Plaintiff fails to state claims upon which relief may be granted requiring the dismissal of his Complaint pursuant to Fed.R.Civ.P. 12(b)(6). At least two of Plaintiff’s claims are based upon allegations of perjury or false statements during the Wyatt Divorce Action. Specifically, Plaintiff alleges that “Robert Highsmith perjured 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 14 of 30 9 himself”, that “Mr. Highsmith openly made false statements” and that he “allowed his client to perjure herself . . . .” Complaint, ¶D(1), p. 2; [Doc. 2, p. 3 of 5]. Plaintiff further alleges that “Mr. Highsmith continued to make knowly [sic] false allegations verbally as well as written to the court in Marshall County . . . .” Complaint, ¶D(2), p. 2; [Doc. 2, p. 3 of 5]. The Oklahoma Supreme Court has emphatically held that such allegations cannot state a cause of action: The general rule is that, absent a statute authorizing such an action, no action lies to recover damages caused by perjury. . . . . Public policy reasons for the rule include: (1) the absolute immunity for witnesses in judicial proceedings . . . encourages witnesses to speak freely without fear of civil liability, (2) perjury is a public offense and subject only to the criminal law, (3) the need for finality in judgments, (4) the possibility of multiplicity of suits by parties dissatisfied by the outcome of trials, and (5) lack of precedent for such actions. This rule has strong public policy reasons supporting it, and we hereby adopt it as the rule in Oklahoma. Therefore, there being no statute authorizing a cause of action and allowing damages for perjury, we find no civil cause of action for perjury exists in Oklahoma. Cooper v. Parker-Hughey, 1995 OK 35, ¶¶25-27, 894 P.2d 1096, 1100-1101 (citations omitted). The Court endorsed a holding of the United States Supreme Court: Absolute immunity is thus necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation. Cooper v. Parker-Hughey, 1995 OK 35, ¶12, 894 P.2d 1098, quoting, Briscoe v. LaHue, 460 U.S. 325, 335, 103 S. Ct. 1108, 1115, 75 L.Ed.2d 96 (1983), further quoting, Butz v. Economou, 438 U.S. 478, 512 98 S.Ct. 2894, 2913, 57 L.Ed.2d 895, (1978). The Oklahoma Supreme Court further held that the policy reasons prohibiting an action based on allegations of perjury also prohibited an action for fraud under the same allegations. Cooper v. Parker-Hughey, ¶¶18-21, 894 P.2d at 1099-1100. 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 15 of 30 10 This continues to be the law in Oklahoma. More recently, the Court stated: In Cooper v. Parker-Hughey, this court held that in this state no civil action may be maintained for damages caused by perjury, whether the petition for damages refers to the tort as perjury or as fraud or deceit. The court’s holding in Cooper reasoned that perjurious testimony constitutes a fraud or deceit on the finders of fact and on the judicial system as a whole, and not on an individual litigant. The court looked to the common law, the Oklahoma Constitution, and to Oklahoma statutory provisions. It found there no support for the adoption of a tort remedy to provide damages for perjury. To the extent [Plaintiff]’s petition relies on perjurious testimony as the basis of her claim for damages, whether denominated perjury, fraud, deceit, or “prima facie tort”, the petition fails to state a claim. It was properly dismissed. Patel v. OMH Medical Center, 1999 OK 33, ¶44, 987 P.2d 1185, 1202 (footnote omitted), cert. denied, 528 U.S. 1188, 120 S.Ct. 1242, 146 L.Ed.2d 100 (2000). The Oklahoma Court of Civil Appeals has consistently adhered to this precedent. Presiding Judge (now Justice) John Reif held in one case: The Oklahoma Supreme Court has squarely held that “no civil cause of action for perjury exists in Oklahoma.” Cooper v. Parker-Hughey, 1995 OK 35, ¶ 27, 894 P.2d 1096, 1101. In this same case, the Oklahoma Supreme Court made it clear that statutory provisions defining fraud and deceit do not create a right of action for perjury. Id. at ¶ 21, 894 P.2d at 1100. The Court stressed that “[t]he tort of fraud or deceit provides a remedy [only] to a person who suffers damages due to his reliance upon another’s willful misstatement of fact [and] one [who] testifies falsely ... is practicing deceit upon ... the judicial system.” Id. In the case of an affidavit for search warrant that contains falsehoods, the magistrate who relies on the falsehoods is the one that is deceived, and not the party against whom the warrant is sought. While plaintiffs correctly characterize falsehoods in an affidavit for search warrant as “fraud on the court,” they are wrong in maintaining that they can prosecute a tort claim for such a legal wrong. Tanique v. State ex rel., Oklahoma Bureau of Narcotics & Dangerous Drugs, 2004 OK CIV APP 73, ¶16, 99 P.3d 1209, 1214-1215; see also, Hutchinson v. Carter, 2001 OK CIV APP 124, ¶7, 33 P.3d 958, 961; Hatchcock v. Barnes, 2001 OK CIV APP 69, ¶5, 25 P.3d 295, 296. Moreover: 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 16 of 30 11 Attorney misconduct may be sanctioned by the court in which the misconduct occurred. . . . But advocacy, even abusive advocacy is not an independent tort that a party litigant may bring against a lawyer or his client outside the action in which the person believes the misconduct occurred. Hutchinson v. Carter, ¶9, 33 P.3d 958, 961 (footnote omitted). The appellate court recently held: Pursuant to both common and statutory law, Oklahoma recognizes the “litigation privilege” which “accords attorneys, parties, jurors and witnesses immunity for comments or writings made during the course of or preliminary to judicial or quasi-judicial proceedings.” Samson Investment Co. v. Chevaillier, 1999 OK 19, ¶5, 988 P.2d 327; 12 O.S. §1443.1. This privilege applies “regardless of whether [the communications] are true or false.” Samson, 1999 OK 19, ¶8, 988 P.2d 327. Relatedly, Oklahoma offers no civil remedy for litigation related misconduct. Patel v. OMH Medical Center, Inc., 1999 OK 33, ¶¶43-47, 987 P.2d 1185. “[N]o civil action may be maintained for damages caused by perjury, whether the petition for damages refers to the tort as perjury or as fraud or deceit.” Id. at ¶44. The Oklahoma Supreme Court’s stated reasons for why there is no civil action for damages caused by perjury, are pertinent to the reasons why lawyer [party, juror, and witness] statements in litigation are also non-actionable. Those reasons include the need for finality of judgments and the possibility of multiplicity of suits by parties dissatisfied with the outcome of trials.” Hutchinson v. Carter, 2001 OK CIV APP 124, ¶7, 33 P.3d 958 (citing Cooper v. Parker-Hughey, 1995 OK 35, ¶26, 894 P.2d 1096, 1101). These authorities demonstrate that, even if Stricklen’s allegation that Anderson lied in his affidavit where he stated he obtained personal service on her is true and that the wrongful judgment and garnishment followed as a result, Stricklen cannot obtain relief in a separate suit. E.g. Patel, 1999 OK 33, ¶44, 987 P.2d 1185. Stricklen v. O.I.P.M., 2017 OK CIV APP 3, ¶6 (footnote omitted) (mandate, January 12, 2017). Recognizing that this is the law in Oklahoma, the United States Court of Appeals for the Tenth Circuit affirmed the dismissal of an action stating: Oklahoma, however, has afforded participants in judicial proceedings an absolute immunity against later civil suits grounded in litigation conduct. See Patel v. OMH Med. Ctr., Inc., 987 P.2d 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 17 of 30 12 1185, 1202 (Okla.1999) (“To the extent [plaintiff’s] petition relies on perjurious testimony as the basis of her claim for damages, whether denominated perjury, fraud, deceit, or ‘prima facie tort’, the petition fails to state a claim.”); id. at 1202-03 (remedies for litigation-related misconduct must be pursued in the litigated case, or by criminal or bar-discipline proceedings); Cooper v. Parker- Hughey, 894 P.2d 1096, 1098-1101 (Okla.1995) (absolute immunity for witness testimony; no civil cause of action for perjury); Kirschstein v. Haynes, 788 P.2d 941, 945, 954 (Okla.1990) (barring claim of defamation or intentional infliction of emotional distress against attorneys, parties, or witnesses founded on communications made in preparation for contemplated judicial proceeding); Hartley v. Williamson, 18 P.3d 355, 358 (Okla.Civ.App.2000) (barring claims for negligence, deceit, and conspiracy founded on testimony at judicial proceeding); see also Briscoe v. LaHue, 460 U.S. 325, 330-35, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983) (immunity of parties and witnesses); Miller v. Glanz, 948 F.2d 1562, 1570-71 (10th Cir.1991) (Briscoe immunity extends to alleged conspiracies to commit perjury). Knight v. Mooring Capital Fund, 749 F.3d 1180, 1185 (10 th Cir., 2014). These precedents are controlling in the present case; Plaintiff can have no claim based upon allegations of perjury or false statements made in connection with litigation in another court. Plaintiff has no claim for alleged perjury or false statements made during the course of the Wyatt Divorce Action in the District Court of Marshall County, State of Oklahoma. Plaintiff’s claims based on these actions must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). D. ROBERT HIGHSMITH IS IMMUNE FROM LIABILITY TO PLAINTIFF Statements made in a judicial proceeding are absolutely privileged and may not be the basis for a cause of action. 12 O.S. 2011, §1443.1(A)(1). Therefore, Plaintiff has no claim against Robert Highsmith for any form of defamation based upon statements made in connection with, or as a necessary predicate for, legal proceedings and those claims must be dismissed for failure to state a claim upon which relief may be granted. Fed.R.Civ.P 12(b)(6). Plaintiff alleges that “Mr. Robert Highsmith continued to slander Mr. Wyatt in court as well as liable [sic] Mr. Wyatt both in official court documents in Marshall County Oklahoma 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 18 of 30 13 FD-2014-59” and that “Mr Highsmith continued to make knowly [sic] false allegations verbally as well as written to the court in Marshall County . . . .” Complaint, ¶D(2), p. 2; [Doc. 2, p. 3 of 5]. Plaintiff further alleged “Mr. Highsmith openly made false statements . . . .” Complaint, ¶D(1), p. 2; [Doc. 2, p. 3 of 5]. These allegations do not state a claim for relief and must be dismissed. Fed.R.Civ.P 12(b)(6). Statements made in the course of judicial proceedings are absolutely privileged: A privileged communication is one that is made: First, in any legislative or judicial proceeding or any other proceeding authorized by law . . . . 12 O.S. 2011, §1443.1(A). Defamatory words published by the parties, counsel or witnesses in due course of a judicial proceeding and which are connected with, or relevant or material to, the cause in hand or subject of inquiry, constitute an absolutely privileged communication, and no action will lie therefor, however false or malicious they may in fact be. Hammett v. Hunter, 1941 OK 253, 189 Okla. 455, 117 P.2d 511, First Syllabus by the Court. The plaintiff and defendant in that action had been divorced with custody of their child awarded to the mother. Subsequently, the father sought to have custody changed alleging that the mother was an unfit parent, and presenting testimony at a hearing on the motion. The mother then commenced a slander action against the father. The Oklahoma Supreme Court cited an earlier version of the statute quoted above and affirmed a directed verdict for the defendant: There was no factual dispute as to the circumstances under which the publication was made. It was therefore a legal question for the court to determine whether the occasion was such as to bring the defamatory statement within the protection of absolute privilege. . . . The trial court had before it the facts concerning the nature of the proceeding, the relation of the defendant thereto, and the defamatory statement made, and the circumstances under which it was uttered. In such case, it is the court’s duty to say as a matter of law whether the communication was an absolute privileged one. 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 19 of 30 14 The court in this case did not err in its decision in this regard. A directed verdict for the defendant was proper. Id., ¶15, 117 P.2d at 513-514. These principles apply in the present case. Statements made by Robert Highsmith or his client in the Wyatt Divorce Action, and documents filed of record with the Court, are absolutely privileged. Plaintiff has no claim based upon the contents of those statements and Robert Highsmith is entitled to the dismissal of the claims against him. Plaintiff alleges he experienced “extreme amounts of undue stress” because of the Wyatt Divorce Action. Complaint, ¶D(1), p. 2; [Doc. 2, p. 3 of 5]. Perhaps he is attempting to advance a claim for intentional infliction of emotional distress, but such a claim may not be based on participation in prior litigation. If that is Plaintiff’s claim, it still must be dismissed pursuant to Fed.R.Civ.P 12(b)(6). A claim seeking recovery for emotional distress may not be based upon Plaintiffs’ participation in the Wyatt Divorce Action. Although the absolute privilege provided by 12 O.S. 2011, §1443.1(A) applies primarily to defamation claims, it also bars claims for emotional distress: Courts considering the matter have determined the privilege bars not only the defamation action, but a cause for intentional infliction of emotional distress. We join those jurisdictions that have held the privilege applies to bar a claim for intentional infliction of emotional distress, as well as the defamation claim. For us to rule otherwise would effectively emasculate the privilege, the primary rationale given by those courts holding the privilege also bars the distress claim. Kirschstein v. Haynes, 1990 OK 8, ¶30, 788 P.2d 941, 954 (footnote omitted). The policy supporting the absolute privilege is: Public policy demands that attorneys be granted the utmost freedom in their efforts to represent their clients. To grant immunity short of absolute privilege to communications related to pending or proposed litigation, and thus subject an attorney to liability for defamation, might tend to lessen an attorney’s efforts on behalf of his client. The 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 20 of 30 15 conduct of litigation requires more than in court procedures. An attorney must seek discovery of evidence, interrogate potential witnesses, and often resort to ingenious methods to obtain evidence; thus, he must not be hobbled by the fear of reprisal by actions for defamation. Yet this absolute privilege must not be extended to an attorney carte blanche. The act to which the privilege applies must bear some relationship to a judicial proceeding in which the attorney is employed, and must be in furtherance of that representation. Kirschstein v. Haynes, ¶20, 788 P.2d at 951 (footnote omitted). The Court rejected an “argu[ment] that the communication cannot be privileged because the parties knew it was false” noting instead that the communications “had some relation” to the proceeding. Kirschstein v. Haynes, ¶18, 788 P.2d at 950. The privilege for communications by attorneys in connection with judicial proceedings is absolute: Defamatory words published by the parties, counsel or witnesses, in due course of a judicial proceeding and which are connected with, or relevant or material to, the cause in hand or subject of inquiry, constitute an absolutely privileged communication, and no action will lie therefor, however false or malicious they may in fact be. Hammett v. Hunter, 1941 OK 253, 117 P.2d 511, First Syllabus by the Court. In the present case, Plaintiff’s allegations fail to state a claim because everything Robert Highsmith allegedly did or allegedly failed to do was directly related to a judicial proceeding, the Wyatt Divorce Action. Plaintiff cannot pursue a defamation claim based upon those proceedings; it necessarily follows that he cannot pursue a claim for emotional distress based upon the same underlying events. Kirschstein v. Haynes, ¶30, 788 P.2d at 954. In summary, Robert Highsmith requests the Court to dismiss Plaintiff’s Complaint because statements made during Court proceedings are not actionable as defamation. Such statements are subject to an absolute privilege pursuant to 12 O.S. 2011, §1443.1(A)(1). Therefore, Plaintiff may not pursue a claim for defamation based upon alleged statements during the Wyatt Divorce Action, nor may he seek recover for any emotional distress allegedly 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 21 of 30 16 experienced because of them. Those claims must be dismissed for failure to state a claim upon which relief may be granted. Fed.R.Civ.P 12(b)(6). E. PLAINTIFF’S CLAIM ALLEGING DHS CONTACTS MUST FAIL Oklahoma law requires anyone and everyone who has reason to suspect abuse to convey that information to the Department of Human Services (hereinafter “DHS”); a failure to report suspected abuse is punishable as a misdemeanor. 10A O.S. 2011, §1-2-101(B-C). A person reporting abuse is presumed to do so in good faith and is immune to civil liability for it. 10A O.S. 2011, §1-2-104(A-B). Some of Plaintiff’s claims allege representations about him were made to the DHS. Although Robert Highsmith denies these allegations, for purposes of this Motion to Dismiss, and even if those allegations are accepted at face value, they fail to state a claim upon which relief may be granted and must be dismissed pursuant to Fed.R.Civ. 12(b)(6). As part of his claims, Plaintiff alleges: Mr. Robert Highsmith continued to slander Mr. Wyatt . . . outside of court with Cleveland County Department of Human Services. . . . . Mr. Highsmith continued to make knowly [sic] false . . . written allegations to Cleveland County DHS. . . . . Robert Highsmith knowing [sic] assisted Plaintiff’s ex-wife in calling in a fraudulent DHS report. . . . . DHS was called on Mr. Wyatt alleging that he abused his girlfriend Shannon Steele. Reporter stated that Mrs. Wyatt’s attorney knew about the incident. Complaint, ¶D(2, 4), pp. 2, 2a; [Doc. 2], pp. 3, 4 of 5. As they stand, these allegations are insufficient to survive a Motion to Dismiss pursuant to Bell v. Twombly, supra, and Ashcroft v. Iqbal, supra. All these allegations offer are “labels and conclusions”; Plaintiff only “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement’”; Plaintiff disguises his conclusions 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 22 of 30 17 and inferences as “factual allegation[s]” which “do not suffice”, and still “stop[] short of the line between possibility and plausibility of ‘entitlement to relief’”. Ashcroft v. Iqbal, 556 U.S. at 677, 679, 129 S.Ct. at 149-150; Bell v. Twombly, 550 U.S. at 555-557, 127 S.Ct. at 1964-1966. These allegations do not have enough “heft” to state a plausible claim and it must be dismissed. Moreover, Oklahoma law imposes an obligation to report suspected abuse, and penalizes a failure to do so: Every person having reason to believe that a child under the age of eighteen (18) years is a victim of abuse or neglect shall report the matter promptly to the Department of Human Services. . . . . . . . Any person who knowingly and willfully fails to promptly report suspected child abuse or neglect or who interferes with the prompt reporting of suspected child abuse or neglect may be reported to local law enforcement for criminal investigation and, upon conviction thereof, shall be guilty of a misdemeanor. Any person who knowingly and willfully makes a false report pursuant to the provisions of this section or a report that the person knows lacks factual foundation may be reported to local law enforcement for criminal investigation and, upon conviction thereof, shall be guilty of a misdemeanor. 10A O.S. 2011, §1-12-101(B)(1), (C), (D)(1). An additional statute provides: Any person who, in good faith and exercising due care, reports suspected child abuse or neglect, or who allows access to a child by persons authorized to investigate a report concerning the child shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed. Any such participant shall have the same immunity with respect to participation in any judicial proceeding resulting from such report. For purposes of any proceeding, civil or criminal, the good faith of any person in making a report pursuant to the provisions of Section 1-2-101 of this title shall be presumed. 10A O.S.Supp. 2011, §1-2-104(A, B). These statutes impose an affirmative duty, pursuant to which immunity is also granted: 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 23 of 30 18 An attorney who suspects that a minor child in a paternity proceeding is being abused by the opposing party must immediately report the suspected abuse to the appropriate authorities. . . . The legislative pronouncement is explicit; all persons shall report suspected child abuse to DHS. Attorneys are not exempt from this statutory obligation. Jensen v. Poindexter, 2015 OK 49, ¶16, 352 P.3d 1201,1207, citing, 10A O.S. 2011, §1-2- 101(B)(1). The statutes explicitly allow for criminal penalties but there is no provision allowing a civil action by private litigants: [T]he child abuse reporting statutes do not create a private right of action. Knowing and willful failure to report is a criminal misdemeanor. There is no provision, however, for civil liability. Paulson v. Sternlof, 2000 OK CIV APP 128, ¶13, 15 P.3d 981, 984 (citing, predecessor statute). The statutory requirement to report suspected abuse to DHS precludes the possibility of a civil action. Subsection A of §1-2-104 recognizes that a “judicial proceeding [may] result[] from such report [of suspected abuse].” The absolute privilege conferred by 12 O.S. 2011, §1443.1(A) therefore applies, as discussed in Proposition D, above. Public policy supports such a result because individuals with information, or even suspicions of abuse, must be at liberty to convey that information and those suspicions to the relevant authorities without fear of reprisal. See, Kirschstein v. Haynes, ¶20, 788 P.2d at 951. Certainly, Plaintiff’s conclusory allegations that the information allegedly conveyed to DHS was known to be false, is insufficient to overcome the statutory presumption of good faith. 10A O.S. 2011, §1-2-104(B). Plaintiff has the burden to overcome the presumption but fails to provide any “factual enhancement” suggesting that a presumption could be defeated with any plausibility whatsoever. Therefore, Plaintiff has failed to state a claim upon which relief may be granted for alleged communications with DHS, and those claims must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 24 of 30 19 F. PLAINTIFF MAY NOT RECOVER HIS EXPENSES IN THE WYATT DIVORCE ACTION Plaintiff alleges that the Wyatt Divorce Action became “very expensive.” Complaint, ¶10(1), p. 2; [Doc. 2, p. 3 of 5]. Plaintiff may not recover the expenses of litigation by a separate action; costs are recoverable, if they are recoverable at all, only in the proceedings in which they are incurred, and only as allowed by statute. A fundamental principle of Oklahoma and common law is: Costs must be enforced in the action in which they are taxed and not by a subsequent suit. Moses v. Hoebel, 1982 OK 26, ¶9, 646 P.2d 605, 604 (footnote omitted). Costs are taxed in the court in which they are incurred. Chamberlin v. Chamberlin, 1986 OK 30, ¶11, 720 P.2d 721, 272 (footnote omitted). Moreover, in divorce actions, the recovery of costs is not a matter of right but is instead committed to the discretion of the court with jurisdiction over those proceedings. 43 O.S. 2011, §110(D, E). Two conclusions follow from these principles: first, any recovery of the expenses incurred in connection with the Wyatt Divorce Action needed to be awarded, if they were awarded at all, only by the District Court of Marshall County, in those very proceedings. Second, Plaintiff cannot claim a right to recover the expenses incurred in the Wyatt Divorce Action, because the decision whether and to whom to make an award is committed to the discretion of the District Court of Marshall County. Therefore, any claim by Plaintiff to recover expenses incurred in connection with the Wyatt Divorce Action must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 25 of 30 20 G. ROBERT HIGHSMITH’S REPRESENTATION OF PLAINTIFF’S FORMER WIFE IS NOT ACTIONABLE Plaintiff’s last claim alleges that Robert Highsmith should not have represented Plaintiff’s former wife in the Wyatt Divorce Action because her income exceeded Legal Aid guidelines. Complaint, ¶D(5), p. 2a; [Doc. 2, p. 4 of 5]. Plaintiff alleges no interest of his own which would be an impediment to the professional relationship between Robert Highsmith and his client. Plaintiff has no standing to raise this issue. Even if Plaintiff could articulate a basis for interfering with that professional relationship, he waived it by failing to seek disqualification during the Wyatt Divorce Action. Robert Highsmith’s professional relationship was with his client; his professional duties were owed to her. The relation between Plaintiff’s former wife and Legal Aid is irrelevant. Robert Highsmith, as a lawyer, owed his professional duties to his client. For example, there can be “no interference with the lawyer’s independence of professional judgment or with the client- lawyer relationship” regardless of whether the client or someone else is paying for the professional services. Rule 1.8(F)(2), Rules of Professional Conduct, 5 O.S., Ch. 1, App 3A. Additionally, the Oklahoma Supreme Court recognizes: Legal practitioners are not interchangeable commodities. Personal qualities and professional abilities differ from one attorney to another, making the choice of a legal practitioner critical both in terms of the quality of the attorney-client relationship and the type and skillfulness of the professional services to be rendered. Hayes v. Central States Orthopedic Specialists, 2002 OK 30, ¶9, 51 P.3d 562, 565, quoting, In Re: Towne, 2000 OK 30, ¶14, 3 P.3d 154, 160 (italics original). [T]he barrier a party must surmount to secure the disqualification of his opponent’s counsel is high. A recurring theme in cases that have recognized waiver as a basis for denying motions to disqualify is the need to ensure that such 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 26 of 30 21 motions are not used for strategic purposes. . . . Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The reason for this concern is plain: disqualification is such a drastic measure that it should be invoked if, and only if, the Court is satisfied that real harm is likely to result from failing to invoke it. Hayes v. Central States, ¶¶9-10. 51 P.3d 565 (footnote, internal quotation marks and citation omitted). In that case, the Plaintiff waited eight months after acquiring information which allegedly would support disqualification of his opponent’s attorney before seeking to have the attorney disqualified. The Oklahoma Supreme Court held that any basis for disqualification was waived by that delay; the Court stated its “unwillingness to apply the harsh remedy of disqualification” under those circumstances. Hayes v. Central States, ¶14, 51 P.3d 566. In the present case, Plaintiff waived any objection he might conceivably have had to Robert Highsmith’s representation of his former wife by failing to raise the issue in a timely fashion while the Wyatt Divorce Action was still in progress. A court may interfere with a client’s chosen legal representative only if it is first shown that allowing the representation to continue would “threaten the integrity of the judicial process.” Hayes v. Central States, ¶9, 51 P.3d 565, quoting, In Re: Towne, ¶15, 3 P.3d at 161. In the present case, there can be no “threat[] [to] the integrity of the judicial process” because the Wyatt Divorce Action has proceeded to a resolution. Exhibit 3, Order Granting Decree of Dissolution of Marriage, Wyatt Divorce Action. That action is no longer pending. No interest Plaintiff may have had in Robert Highsmith’s participation in it is now moot. It may not be the subject of a claim in this Court. In any case, Plaintiff was not a party to the professional relationship between Robert Highsmith and Plaintiff’s former wife; Plaintiff had no direct interest of his own in that relation, 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 27 of 30 22 how it came into existence, or why it continued. Plaintiff does not have standing to assert a claim based upon that relation. It is fundamental that “a party must assert its own legal rights and cannot rest its claims on the interests of others.” Housing Authority of the Kaw Tribe of Indians of Oklahoma v. Ponca City, 952 F.2d 1183, 1187 (10 th Cir., 1991), cert. denied, 504 U.S. 912, 112 S.Ct. 1945 (1992), citing, Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 3443 (1975). Not only is standing confined to those whose interest in the controversy is direct, immediate and substantial, a litigant must also have a personal stake in the outcome. When standing is placed in issue in a case, the question to be answered is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue . . . . State ex rel. Regents v. McCloskey Brothers, 227 P.3d 133, ¶¶17-18, 227 P.3d 133, 144; Hendrick v. Walters, 1993 OK 162, ¶5, 865 P.2d 1232, 1236, 1237 (footnotes and other citations omitted). “Generally, the plaintiff can assert only that his own interests and legal rights have been injured, and not those of third parties.” Hendrick v. Walters, ¶5, n. 14, 865 P.2d at 1236 (italics original), citing, Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 474, 102 S.Ct. 752, 760, 70 L.Ed.2d 700 (1982); Warth v. Seldin, 422 U.S. 490, 500-501, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). “In standing problems, the inquiry posed is whether the party invoking the court’s jurisdiction has a legally cognizable interest in the outcome of the tendered controversy.” Murry County v. Home Sales, 2014 OK 52, ¶17; Application of State, ex rel., Department of Transportation, 1982 OK 36, ¶6, 646 P.2d 605, 609, citing, Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962); Flast v. Cohen, 392 U.S. 83, 100, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968); United States Parole Commission v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 1208, 63 L.Ed.2d 479 (1980). 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 28 of 30 23 Plaintiff does not have a direct and personal interest in Robert Highsmith’s professional relationship as the attorney for Plaintiff’s former wife in the Wyatt Divorce Action. Plaintiff does not have standing to assert a claim based upon Robert Highsmith’s professional relationship with his client. Any issue Plaintiff might have raised needed to be presented during the Wyatt Divorce Action; his failure to do so in that action waives the issue and prevents him from asserting it now. Accordingly, Plaintiff’s claims against Robert Highsmith must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). CONCLUSION WHEREFORE, premises considered, the Defendant Robert Highsmith, prays the Court to grant his motion and to dismiss Plaintiff’s claims against him for failure to state claims upon which relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff’s claims all relate, in one way or another, to professional services rendered by Robert Highsmith to Plaintiff’s former wife in separate proceedings before the District Court of Marshall County, State of Oklahoma. No cause of action can arise in favor of Plaintiff against Robert Highsmith under those circumstances and Plaintiff’s allegations fail to do so. Respectfully submitted, SECREST, HILL, BUTLER & SECREST By: s/ Edward J. Main JAMES K. SECREST, II (OBA #8049) EDWARD J. MAIN (OBA #11912) 7134 South Yale Avenue, Suite 900 Tulsa, Oklahoma 74136 (918) 494-5905 Telephone (918) 494-2847 Facsimile jsecrest@secresthill.com emain@secresthill.com Attorneys for Defendants 6:16-cv-00523-RAW Document 24 Filed in ED/OK on 02/14/17 Page 29 of 30 24 CERTIFICATE OF SERVICE I hereby certify that on the 14 th day of February, 2017, I transmitted, via U.S. Mail, the attached document to the following: Eric Wyatt 9133 Stone Brook Dr. Kingston, OK 73439 John D. Hadden john.hadden@oag.ok.gov s/ Edward J. 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