Hello Statute of Limitations and Motion to Dismiss
Holiday? What holiday? Less than two weeks after the plaintiff’s filed an amended complaint in their civil suit, the defendants have entered a response. And not just any old reply; late last week they asked for the moon.
Sent to Judge Brook Hedge on October 4, was the Defendants’ Joint Motion to Dismiss Counts One, Three and Four, or in the Alternative, for Summary Judgment as to Counts One, Three and Four of Plaintiff’s Complaint.
The defendants are relying upon a long anticipated argument. In their twenty-page Memorandum of Points and Authorities , they lay it out: Kathy Wone’s original complaint failed to be filed within the one-year time limit required. Hedge should toss nearly every count, the defense argues, because the statute of limitations expired.
So when exactly did the clock start ticking on the civil case and how did the criminal case, and its glacial pace, impact the process?
The defense maintains the clock started when “the plaintiff has actual knowledge of a cause of action,” Robert’s murder. “Within hours of Mr. Wone’s death, Plaintiff had notice of the existence of its wrongful death claim,” a section of the filing begins.
Aggressive interrogations plus “the extensive and pervasive press coverage within the first weeks and months” after the murder, they say, made it clear the cause of action was obvious to all. A half dozen press clips are attached as well as potions of Eric Holder’s remarks at the one year anniversay press conference. A date by which the defense argues, the Estate of Robert Wone ran out of time.
The defense goes after the plaintiff’s contention that they were unable to file before the criminal indictment came down. Sections 50 -52 of the complaint states that since the defendants fraudlently concealed the facts, cleaned and staged the crime scene, destroyed evidence and delayed reporting, they were hamstrung:
51. As a result of Defendants’ fraudulent concealment, as well as the secrecy of the ongoing grand jury investigation into Robert Wone’s murder, Plaintiff did not gain knowledge until reviewing the MPD Affidavit, despite Plaintiff’s reasonable diligence, of the existence and the facts forming the basis of this wrongful death claim against the Defendants.
52. Plaintiff filed this action less than one month after learning from the MPD Affidavit of Plaintiff’s wrongful death claim against Defendants.
None of this is new, we saw the same passages, word for word, in the plaintiff’s initial complaint, and the limitations fight has been hanging over this case ever since the civil charges were first made.
Defense also argues plaintiffs can’t sustain claims for either spoliation or conspiracy, and although count 2, Negligence (failure to aid), has a three year statute, not one, “one cannot conspire to be negligent. Jurisdictions across the country require that a civil conspiracy claim be based on an intentional act, not negligence.” Some state law citations follow.
Judge Hedge set an August 1, 2011 deadline for decisions on dispositive motions. Question time: Can the defense have any more dispositives or is this it? What’s left to toss out or can they move to dismiss the same counts again but on different grounds? And does Hedge have to rule on this now or can she wait until next summer’s deadline?
Defendants’ Joint Motion to Dismiss Counts 1,3,4 or Summary Judgment
I hope the lawyers will comment on this. Does this motion have any merit? I would really hate to see the civil suit lose ground over legal technicalities!
Hi Rebecca,
It will be easier to make a comment after the plaintiff’s responsive brief is filed – that said, I’d be shocked that Covington would blow the statute of limitations. If I had to bet, my guess is that this issue was researched thoroughly and ‘put to bed’ long before the year expired.
Bea,
When the defendants filed for a motion to dismiss counts 1 and 2 (I think) during the criminal trial, their brief read very well, yet Judge Liebovitz eviserated it from the bench calling their arguments “meritless.” So you are right, we have only heard half of the story. This issue was raised since right after the Ward affadavit hit. This is something Covington has been very well aware of for nearly two years.
David, co-ed.
Defendants are banking on what seems to be a looser interpretation of ‘discovery of harm?’ Bottom line I guess is that Team Price says that early MPD statements and press reports were the trigger as opposed to the Oct 2008 Ward affidavit, when everything actually became public.
Does this have anything to do with tolling? Should I stick to the horses?
Craig and David – It may well be like the Zaborsky claim that he was held against his will – only there was a transcript of the cops asking him those very questions. In other words, for all I know, Price sent an email which agreed to ‘toll’ the statute and the Covington response will blow this out of the water. I really can’t imagine that Covington would blow this crucial date and thus I am awaiting the plaintiff’s brief (and the other shoe to drop) before my blood pressure goes up even a teeny amount.
so, probably just (motion) business as usual?
Probably. So much of litigation is generating paper in the hope that some judge will like one of one’s lame arguments.
Yet more chutzpah from Team Swann. They maintain their innocence and in the aftermath of the murder expected Kathy to believe them in good faith. Now, they are in essence saying that she should have sued them as soon as it became obvious that they were the prime suspects.
Regardless, the motion is no surprise — it has been the elephant in the room since the civil case started, as Craig notes, and must be made by the defense team to serve its clients, in order to preserve the issue for appeal and to avoid malpractice. I agree with Bea that Covington never would have blown the statute — even much lesser firms than Covington diligently track such things. Nor would they have filed essentially a frivolous suit had they, incredibly, let the statute run. Their reply brief should be very educational.
This is basically a motion for dismissal based on law of the statute of limitations. There could conceivably be other dispositive motions down the road such as a post-discovery motion for summary judgement based on the facts (that there is no issue of material fact and that the facts show, viewed most favorably to the plaintiff, that the plaintiff has no case).
“…Yet more chutzpah from Team Swann. They maintain their innocence and in the aftermath of the murder expected Kathy to believe them in good faith. Now, they are in essence saying that she should have sued them as soon as it became obvious that they were the prime suspects….”
Hoya, I was pretty much drafting the exact same sentence ~ including the word “chutzpah, (!)” except I was going to say that they seem to be saying that should have sued them as soon as she realized that they were lying. Which, when you think about it, as an argument takes some balls.
They’d need wheelbarrows to carry a pair that big. You know, I am aware it’s their job to throw paper and hope something sticks, but this kind of thing makes me want to slap the faces of the Swannettes.
Equity is clearly on plaintiff’s side (“didn’t know I had a claim because of your lies”), but this is not a claim under the old equity laws, it’s a statutory right; is the law on her side? I am hopeful (as is Bea and Hoya) that “Covington never would have blown the statute [of limitations].” This is a dispositive motion that cannot wait until next August, Craig; the judge will have to rule soon after plaintiff responds.
How long do the plaintiffs have to respond? From the legal discussion here(thanks all), it sounds like they would have been anticipating this and will have a draft of a response already waiting to file?
My recollection of Federal Rules is that the response to the Motion for Summary Judgment must be filed within 21 days (plus extra for mail time if not personally served) – I think that the MSJ would govern the responsive time (over the Motion to Dismiss – typically a Motion to Dismiss is filed BEFORE an Answer to the Complaint is filed).
While I suspect you’re right that Covington was ready for this, they’ll likely still take the full amount of time – while the ‘law’ portion has likely been ready for some time, they have to deal specifically with the defendants’ motion and the application of law to facts as presented. With a MSJ, there is often a Reply brief.
It’s really hard for me to see the judge going for this. It’s pretty clear that Kathy Wone’s “WTF moment” came when she read the affidavit against Ward. Furthermore, all three of them were indicted for obstruction, and while they were acquitted, the judge’s ruling made it pretty clear that she thought SOMEONE was obstructing, but she couldn’t be sure of who it was. Obstruction pushes back the statute of limitations, I think.
In any case, I think this is where we’ll see if the defendants’ invocations of their fifth amendment rights is going to come back to bite them in the ass. It’s going to be fairly easy for Team Wone to craft a rebuttal saying that not only did the defendants not tell the truth about what happened that night, but they’re STILL refusing to do so. I think this was a tactical error on the part of the defense–this motion really should have been filed before the defendants refused to even acknowledge what their phone numbers were.
Thanks everyone for the responses on the legal nuances of this motion. I’m feeling better already……
I had always thought that Columbus had a lot of nerve going to his grave sueing the even more greedy Ferdinand and Isabella for a greater cut of the “New” World’s plunder, but this “statute of limitations” gamut by Team Price really takes the proverbial cake.
It puts Lisa G.’s attempt to get the parties together in 2007 at her wedding in an even more sinister light: perhaps, the most trivial events such as Joe’s charm offensive in the fall of that year were designed chiefly and apparently to run out the clock. On that Grimm note, then, Happy Native American Genocide Remembrance Day to all!
That is a Grimm note, Clio, and thanks for tying it in with today’s historical grim history.
Wonder if JP was as close to Ms. Desjardins as he was to Ms. Ragone, and if so, if he took her into his “Catch-22”-type confidences as well. Ms. Ragone can’t be the only one he shared with.
I would suspect that Ms. Lisa Goddard Desjardins, Sarah Morgan and Scott Hixson know the most.
Wasn’t Lisa Goddard Desjardins the one who had Joe’s wallet when he was being questioned the night of the murder. How and when did Lisa receive the wallet? Why would Joe even let the wallet out of his sight .. unless … he thought perhaps we was going to be arrested that night/morning. Then – didn’t Lisa Goodard Desjardins and Sarah Morgan meet up at Cosi bright and early in the morning following what must have been a night of anxiousness.
This is a ‘cosi’ group.
Full disclosure: Lisa Goddard was a friend of mine in the 80s and 90s. My impression of her is that she is both a loyal friend and a very moral person. I would wager that Joe Price has the exact same impression of her. This means that she will believe whatever bullshit story he tells her unless there is incontrovertible proof to the contrary, and Joe Price knows it.
So I would imagine that he told Lisa that (a) Robert Wone was stabbed by an unknown intruder, and (b) the police immediately suspected “the boys” because they’re gay and in an unconventional relationship. It will take either a videotape or a confession to shake her belief in Joe’s story. However, she will NOT help him perpetuate a crime, and I can’t see her being involved in any sort of cover up.
She is one of the first people you would call if you found yourself at the police station in the middle of the night. She is the LAST person you would call to help cover up the murder of a mutual friend.
Sounds like a tough position she is in but when a crime is linked to her this way, boy it sure is difficult to get out without being questioned at some point. Thanks for stepping up to share the story, Bill O.
I have no doubt she’ll be questioned, and I have no doubt that she’ll tell the truth. But I really doubt that Joe told her anything incriminating at Cosi. I’m actually much more interested in what Sarah Morgan had to say that morning.
Keeping in mind that I am a criminal lawyer and have no expertise in civil law, I am not as convinced as some of the others that this motion is completely without merit.
I do think we will know more once the plaintiff’s brief is filed, and certainly it is very difficult to predict what a judge will do in any case. But after reading the defendant’s motion and doing some research, I think the plaintiff’s will have a hard time sustaining every alleged count.
The biggest defense claim is the running of the SOL. This seems to me to be a very fact specific claim. The law on this is pretty clear. The SOL begins to run when the plaintiff either has actual or constructive knowledge of the tort. So in other words, even if you don’t know for sure that you have a claim against someone, if you should have known, the clock will start running.
What knowledge is necessary? The case law seems to suggest that if there is “peppercorn” of knowledge the plaintiff has a duty to investigate. Further, the plaintiff’s clock will begin to run when s/he has knowledge of ANY cause of action not ALL possible causes of action.
So based on the law, lets look at the facts alleged by the defendants. I think that the fact that the defendants were interrogated is not enough to trigger the peppercorn of knowledge. However, when MPD began to publicize its accusations, this is perhaps enough to trigger the plaintiff’s duty to investigate. Specifically, because the allegations made by the MPD were very similar to the accusations made in the affidavit, it is hard for the plaintiff to argue that the affidavit itself was the trigger of knowledge.
So the question is, what knowledge did the affidavit give to the plaintiffs that they did not have before the affidavit? If the only answer is the specific factual scenario, then I think the plaintiffs are in a tough spot because the duty to investigate would have theoretically led to the knowledge of the specific facts. (keep in mind that in the legal world we are not necessarily talking about what did happen or what was likely to happen but what could have happened).
What other evidence is there of plaintiff’s actual or constructive knowledge of the tort? Well, I think Eric Holder acting as the plaintiff’s attorney speaking at the press conference is pretty clear evidence of knowledge. I also think that the call by the plaintiff’s lawyers 2 months before the affidavit threatening suit, is a pretty clear indication that there was at least a peppercorn of knowledge of at least one cause of action before the affidavit was released. So all that being said, I am not convinced that this is just a throw away motion.
Second, the defendant’s argument on spoliation and wrongful death seems to have some merit. The tort of spoliation is basically “you have done something that does not allow me to sue someone and recover.” Well, if the plaintiff is able to sue and recover on wrongful death, or survival action then what damages did the plaintiff suffer. Now if the wrongful death, or survival claim is dismissed, i think spoliation is a valid claim, but I have a hard time seeing how any one defendant can be libel for both wrongful death and spoliation.
The standing question on spoliation is a little harder and is a pretty good bar exam question. In a survival action (such as spoliation), the surviving plaintiff steps into the shoes of the dead person and basically sues for any claims that the dead person could have made. The defendant’s argument is that spoliation is an action that only the harm suffer (actual victim) could bring and therefore the tort had to occur prior to the death of the victim.
I am very weak on this area of law and would love to have a better explanation of spoliation by some of our tort lawyers.
So my point is just that, I do think there is some chance that at least one of the counts could be struck based on the defendants arguments. Although I agree that it is unlikely that all the counts could be dismissed.
Many thanks KiKi for your evaluation – very thought-provoking, as always.
In your professional estimation, which one of the three counts under consideration is the weakest link in the Plaintiff’s claim, and therefore the most likely to be struck down?
Regards,
Kate
Hi Kate,
It is hard for me to say as I am not a civil lawyer. The dismissal of the wrongful death claim is a very fact specific argument, so in that sense, it gives the judge some leeway in finding for the plaintiffs even if the defendant’s have a good argument.
I am having a really hard time seeing how the plaintiffs can sustain a spoliation claim and a wrongful death/survival action claim. I just don’t see where the damages are.
I think someone like Bruce or Cat could probably answer this question better than I can.
Kiki,
I am a civil attorney and have represented plaintiffs my entire career. I completely agree. This is not an easy analysis. I was unable to find “the case” that made Covington’s decision to wait to file readily explainable.
My thoughts – 1) good lawyers in good firms do, on occasion, make mistakes and blow statutes; 2) sometimes, clients are initially unwilling to pull the trigger and file a lawsuit, and then later change their minds, leaving their lawyers argue the statute of limitations should not apply; and 3) the fact that one judge has already decided, based on the evidence, that one or more of the defendants knows what really happened and covered it up may be plaintiff’s saving grace here.
If, incredibly, Covington did blow the statute, it would be just the latest in the unbelievable streak of errors (Ashley’s Reagent, the non-imaged BlackBerry, inadequate blood testing and preservation, etc.).
Statute of Limitations = Sh!t Out of Luck! Plaintiff should settle through mediation and stop this disgraceful abuse of the courts.
BF, the widow of Robert Wone is exercising her constitutional rights.
If only Joseph Price had been more forthcoming with information and didn’t lie to police. When did he clean up the scene as he alluded to T. Ragone? And the “Mercedes” convo.–right there in the police parking lot. One story inside the station, another outside.
Maybe he’s innocent. But how much greater the justice system would be working had he been truthful and cooperated with police. Did you say disgraceful? Yes, that was disgraceful of him. Very sad, too.
I don’t hear any fat lady singing, BF. And so the justice system is still pluggin’ away and the charge still stands.
P.S. In any account I’ve ever read of lifesaving measures, I never hear of the lifesaver taking a break from the lifesaving to clean up the scene and go wash up.
But that’s just what JP told a friend who testified to this in court. How in the world did that escape his account to at least three other officers? What a consistent omission.
I missed that. Who testified to that account?
Thanks for the info.
“I hate that I’m having the questions that I’m having–but I have questions,” Ragone recalled saying to Price during an Aug. 18, 2006, chat. “If the scene was tampered with,” she later added, “I’d have a big problem with that.”
To which, Ragone recalled Price saying, “There’s a difference between tampering with a crime scene and wiping away blood because you’re freaking out.”
An omission in his convo. with police.
But according to what JP told police, he was applying pressure on RW. Did he lift one hand to do a one-hand clean up? Police noted how tidy the crime scene was. Even the knife was placed just so on the side table.
Then there’s that Catch-22 note.
Talk about abusing our justice system and disrespect for the victim’s family.
For the sake of justice, the full truth, and nothing less should have been told. It was not.
That was and is disgraceful. I’d also say it was obstruction, tampering, etc.
What I want to know though, is what TR said in response to JP’s statement, if anything. And what he said in resturn.
I think I’d ask, “What do you mean?”
Susan: I think that was the extent of TR’s testimony. It was left at that.
Susan, you said “the widow of Robert Wone is exercising her constitutional rights.”
But then spend your next several posts lambasting JP for exercising his constitutional rights.
Also I think your summary of what JP said to TR is very different then what she actually said, he said. (keeping in mind that TR’s account is hearsay and there is a reason the courts don’t trust hearsay).
TR said: “There’s a difference between tampering with a crime scene and wiping away blood because you’re freaking out.”
Your summary: “I never hear of the lifesaver taking a break from the lifesaving to clean up the scene and go wash up.But that’s just what JP told a friend who testified to this in court.”
I am unsure how “wiping away blood” equates to “clean[ing] up the scene” and “wash[ing] up”
And to the fact that JP did not tell the police this “fact”. I think there are very few people who after being accused of murder and covering up a murder would volunteer that they wiped up blood. One reason could be that they are guilty, but two equally justifiable explanations are that 1. he thought it was a bonehead move to wipe up the blood after he did it, and either due to ego or fear he did not tell the police, or 2. In such a stressful situation, and after being accused of murder for several hours, he was focused on denying the allegations and not the facts of what happened.
I agree that Kathy Wone has every right to bring the civil suit, (not sure that is a constitutional right – other than the 7th amendment right to a civil jury); but I also think it is important to remember that a lot of the criticism of the trouple stems from their exercise and continual exercise of their constitutional rights. And if it is acceptable for the party with which we sympathize it must be equally, or more so, important for the party which we detest.
Kiki darling, your eloquence, if not your reasoning, has greatly improved. One could imagine Voltaire or the Baron de Montesquieu mouthing that last paragraph to the real Ben Franklin, in the French of the Versailles of Madame du Pompadour.
Nevertheless, as even Joe probably knows on an abstract level, one should not abuse one’s constitutional rights to infringe on the life, liberty, and happiness of others. To paraphrase the English liberal, John Stuart Mill, one should have the freedom to do anything as long as it does not interfere with the liberties of others. The Swann Street Three may have tried to get away with murder, the ultimate curtailment of another’s civil rights. Thus, their exercise of their civil rights to avoid punishment, in my opinion, should be censured by the public, and ought to be judiciously and mercifully limited by Brook.
Clio, if you are going to insult my reasoning or eloquence, at least be kind enough to do some of your own fact checking.
While our constitution does require the government to afford us process before taking away our life, liberty or property; we do not have a constitutional, or statutory, or common law, right to life, liberty or the pursuit of happiness. That, in fact, is the preamble to the declaration of independence, a non-binding letter declaring our independence from the crown of England. The constitution is the document that governs our land, and Fortunately, it does not quote John Stuart Mill, nor does it make exceptions for those who you think may have committed a murder and “curtailed another’s civil rights.” – Again civil rights is a term with very specific meaning, and cannot just be defined as you see fit, just like you cannot add rights or take away rights from the constitution to fit your beliefs. The constitution, specifically, the bill of rights is intended for those accused of crimes such as JP and the rest of the trouple, no matter how guilty you think they are.
I will tell you this, after reading some of your comments, I am more happy than ever we have a Constitution that protects our rights. Now if only we could get you to read it…
You don’t own any hats, do you?
Kiki, doll, your passion for the American Constitution is shared by myself.
Although, on paper only, I much prefer the Mexican Constitution of 1917 with its nod to social justice as well as civil rights.
Nevertheless, after reading the fabled U.S. Constitution and its amendments many times, I have failed to find an explicit right to sexually assault and/or to murder one’s college friend and then to cover it up with an intruder theory. Not even the Rehnquist Court in Bush v. Gore could have espied those fanciful interpretations, I am afraid.
Also Clio, if you would be a dear and point out where my reasoning is flawed. Was it the point I made about the summary of TR’s statements not being an accurate description of the actual words? Or was it my point that the constitution is the protector of the accused as much, if not more so, than the plaintiff?
Or is it that you just don’t agree and wanted to flaunt you knowledge of 18th and 19th century literature?
Ouch! Major echo of bitchschlap. Guess we are supposed to pause between frantic guillotine sharpenings. Not so eloquent this time, oh short-sighted Muse of History!
Dieter, who are “we,” pray tell, waiting between these alleged sharpenings?
But I do apologize for my delay in responding back to you immediately. Unfortunately, I’m not a lady of leisure in my current form, unlike apparently Lil Dyl, and therefore I cannot spend all day on this and other blogs.
As for a major B-slap, this retort by Kiki barely registered on the B scale. While it exhibited some erudition, it lacked Bruce’s comedic touch.
On the other hand, dispassionate, dry humor can kick a response up several notches.
Just a tip, Team Price.
P.S. Talleyrand, the ultimate cock roach in escaping History’s judgment, sends his regards posthumously. XO, Clio.
Kiki,
You are incorrect in your note above. I issued the summary, not TR. And per my note above, I then quoted the actual statement prior to your response to my post.
Kiki, if I am ever in a bind, I want you to use every semantic nuance and omission to get me off, legally, of course.
But until that most unlikely time, the Constitution does not give carte blanche to defendants to pervert its language and purpose to secure their liberties at the expense of the common good and justice. A criminal court has found a moral certainty in the involvement of at least Mr. Price in the tampering of evidence; the Constitution cannot, in my judgment, shield him from possible civil penalties.
P.S. More law schools, Kiki, should have their graduates to read the Great Books; Needham, after all, may have sent his youngest son (not Lil Dyl) to St. John’s for that type of grounding.
Vale, Clio.
Sadly, you probably couldn’t afford to have someone twist the facts in the name of The Constitution.
Thanks, KiKi, for pointing that out. A non-lawyer (like me) now understand a bit clearer of which to pay attention to, and which to discard.
Hi Kiki,
You are mistaken and mischaracterized what I wrote.
I never said anything about JP exercising his constitutional right; I responded to BF’s statement that Ms. Wone’s suit is a “disgraceful use of the courts” by stating that I believe lying to the police/withholding crucial facts about the case is the real disgrace here. And it is.
Re wiping away blood, I should have quoted JP directly–and I did in a follow up post.
But you write “I think there are very few people who after being accused of murder and covering up a murder would volunteer that they wiped up blood.”
Really? Do you have any statistics on that? I for one would probably go into minutia if I found someone dead in my home. That would have come out from the get-go. That’s my statistic of one. Pls. share what you have on authority on this.
Nevertheless, whatever the reason was for withholding this information and the Catch 22 reference, where JP states that he feared “retribution” from the police if he gave information he was withholding is, to me, disgraceful.
That viewpoint is my inalienable right. And actually, though the reference for life, liberty and the pursuit of happiness is in the Declaration of Independence, it also has been picked up in a number of ways in many U.S. State Constitutions.
So, Clio is, in fact, correct in that sense.
Let me clarify one point above, Kiki. JP had every opportunity to “come clean” with the truth about whatever that “Catch 22” is and the “wiping” away of blood before he was actually charged with obstruction, etc., or considered a suspect. He had every opportunity. But maybe sitting there next to Robert doing nothing with one clean towel around and one slightly bloody one, and all the rest of the weird circumstances did him no favors.
Still. He’s got his life right now and a one-year extension on EyeCandyDVDs.com.
Spitting in the Eye of justice.
Just my opinion there.
BF – What makes you say that? “Plaintiff should settle through mediation and stop this disgraceful abuse of the courts.” I am curious.
Denton,
Ben Franklin has been a longtime supporter of the defendants.
CD – Pheowwww! Thanks!
As mentioned before, I usually do not engage in discussion regarding the “Legal,” aspects of the case.
From my vantage point, I’ve seen too much over time in other cases.
However, everyone reread Kiki’s comments.
She is right on the money.
Yes, the defendants will not slam dunk the Plaintiffs, but, they will prevail on some counts.
The defendants were quite astute in their practices.
Many thanks to the fine legal minds commenting on this latest motion. After reading through the documents above, I have a few questions:
Why did the defendants not include count 2 – Negligence – Failure to Aid – in their Motions to Dismiss? Are they somewhat willing to concede to this count, or negotiate settlement on this count?
In DC, is there no statute of limitations regarding Negligence?
Your insights would be greatly appreciated,
Kate
Excellent analysis, KiKi. I agree with Cat that it is difficult to find precedent for plaintiff’s position. And I would predict that whichever way the judge rules it will be appealed…. delaying the progress of the proceeding.