Supreme Court affirms dismissal of 2013 Shepherd assault lawsuit

By Kyla Asbury | Jun 1, 2016

CHARLESTON – The West Virginia Supreme Court of Appeals has affirmed a dismissal of a lawsuit alleging assault by Shepherd University and its police department in Jefferson Circuit Court.

The petitioners appealed an order of Jefferson Circuit Court, entered on April 17, 2015, granting the respondents’ motions to dismiss the complaint upon finding that petitioners’ claims were barred by res judicata.

The lawsuit asserted claims for state constitutional violations, abuse of process, malicious prosecution, negligence and infliction of emotional distress against the university’s police department.

The court has considered the parties’ briefs and the record on appeal, according to the May 25 decision.

“The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument,” the decision states. “Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.”

Chief Justice Menis E. Ketchum and Justices Robin Jean Davis and Brent D. Benjamin concurred in the decision. Justices Margaret L. Workman and Allen H. Loughry II dissented. Loughry authored a dissenting opinion.

John Bradley Midkiff, Beth Midkiff and the Estate of John A. Midkiff filed a complaint in Jefferson Circuit Court on Feb. 25, 2013, asserting claims for state constitutional violations, abuse of process, malicious prosecution, negligence, and infliction of emotional distress based on allegations that John Bradley Midkiff, the son of John A. Midkiff and Beth Midkiff, was unlawfully arrested and assaulted while detained approximately one year prior.

Shepherd University; Shepherd University Police Department; Officer S.A. Moskowitz, individually, and in his/her official capacity as a Shepherd University Police Officer; Unknown and Unnamed Officers, Individually and in their official capacities as Shepherd University Police Officers; Peter H. Dougherty, in his capacity as Jefferson County Sheriff; Jefferson County Sheriff’s Department; Jefferson County Commission; and Unknown and Unnamed Deputies, individually, and in their official capacities as Employees of the Jefferson County Sheriff were all named as defendants in the suit.

The 2013 lawsuit was dismissed on June 4, 2014, and the court stated that its dismissal was made with prejudice, according to the decision. The petitioners did not appeal the circuit court’s dismissal, but chose instead to file the complaint instituting this action.

“We note, however, that when respondents filed motions for dismissal on the re judicata ground, petitioners did not assert that the prior action should have been dismissed with prejudice,” the decision states. “Not until petitioners filed their reply brief before this Court did not argue that the earlier dismissal did not comport with the requirements of the rule.”

For this reason, the court declined to consider whether the circuit court erred in dismissing the earlier action with prejudice.

“…we find that petitioners failed to comply with an order of the circuit court when they failed to effect service on all defendants within the time extension granted by the circuit court in the earlier case,” the decision states.

In failing to comply with the court order, the petitioners were subject to dismissal of their claims pursuant to Rule 41(b) of the West Virginia Rules of Civil Procedure.

In his dissent, Loughry said that the dismissal for failure to effect service of process serves as an adjudication on the merits.

“In an effort to avoid agreeing with this erroneous conclusion, the majority magically transforms an earlier dismissal pursuant to West Virginia Rule of Civil Procedure 4(k)—which is not an adjudication on the merits—into a dismissal under Rule 41(b)—which does constitute an adjudication on the merits—in order to affirm the circuit court’s dismissal on res judicata grounds.”

By no mean should this dissent be construed as approval of the petitioners’ extraordinary dilatoriness in obtaining service of process; in fact, this extreme neglect is abhorrent.

“Nevertheless, the circuit court’s plainly erroneous conclusion that this matter has previously been adjudicated on the merits cannot stand under our law,” Loughry said. “For these reasons, I respectfully dissent.”

W.Va. Supreme Court of Appeals case number: 15-0436

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