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Conkling v. Tri-State Careflight, LLC

United States District Court, D. New Mexico

March 27, 2017

MARK CONKLING, Personal Representative of the Estate of Bryan Conkling, Plaintiff,
TRI-STATE CAREFLIGHT, LLC and BLAKE STAMPER, individually, Defendants.


         THIS MATTER comes before the Court upon Plaintiff's Motion for Summary Judgment on Count IV for Malicious Abuse of Process, filed February 10, 2017 (Doc. 89). Having reviewed the relevant pleadings and the applicable law, the Court finds that Plaintiff's motion is not well-taken and, therefore, is denied.


         This is an employment discrimination case, filed in First Judicial District Court, County of Santa Fe, on January 13, 2014. Defendants removed the case to federal court on March 10, 2014 based on diversity jurisdiction. Bryan Conkling (“Bryan”) worked as a flight paramedic and base manager for Tri-State Careflight (“Tri-State”), an emergency medical services (“EMS”) provider that provides air ambulance services in Arizona, Colorado, Nevada and New Mexico.[1]Bryan contends that Tri-State and Dr. Stamper began to discriminate against him after he became ill in the summer of 2012 and had to take medical leave. He alleges that when he returned to work, he was not permitted to work in Santa Fe as he had done in the past, but was assigned to the Gallup base and was demoted. He eventually was returned to a position as a co-manager at the Santa Fe base, but found that position intolerable. Bryan also alleges retaliation because he engaged in protected labor organizing activity when he informed certain governmental regulatory agencies about safety violations and violations regarding transport, storage and use of controlled substances. Bryan was terminated from his position, and he contends that his termination was based on discrimination on the basis of his serious health condition and in retaliation for his protected labor organizing (union) activity and for reporting safety violations. The Amended Complaint (Doc. 11) alleges four counts:[2]

Count I: Retaliatory Discharge;
Count II: Defamation; and
Count IV: Malicious Abuse of Process.

         In this motion, Plaintiff moves for summary judgment on Count IV for Malicious Abuse of Process. Plaintiff contends that the First judicial District Court in Santa Fe, New Mexico has already concluded that Dr. Stamper and Tri-State Careflight (“Tri-State”), both Defendants in this lawsuit, perpetrated fraud on a court in their suit against Conkling, and that such fraudulent action satisfies the elements of the tort of malicious abuse of process.

         I. Undisputed Facts

         The basis for Plaintiff's malicious abuse of process claim arises from a separate lawsuit that was filed by Defendants Stamper and Tri-State in state court in Arizona. According to Defendants, Bryan's employment at Tri-State was troubled and in the final months before his termination in July 2013, numerous co-workers complained about his hostile, rude and generally unprofessional behavior. When Plaintiff allegedly submitted a fraudulent time card, he was terminated.

         About a week after his termination, an “anonymous” posting appeared on a web site devoted in part to recruiting helicopter pilots. The posting stated, “As you might have heard, I was notified on Friday, July 26, 2013 of my termination from Tri-State CareFlight after almost 6 years.” Ex. A.[3] The posting specifically referred to “Bryan” and discussed the termination of his employment in the first person. Id. It was also identical to an e-mail that Bryan sent the day before the posting. Ex. B. The posting contained numerous allegations of supposedly “factual, documented” events at Tri-State that attacked or impugned Tri-State's reputation for safety, among other things. Dr. Stamper believed these representations were factually false and had caused damage to Tri-State and for this reason he and Tri-State filed a defamation lawsuit against Bryan in state court in Maricopa County, Arizona Superior Court. Ex. E at 66:6-20.

         On April 16, 2014, the Arizona court entered a default judgment against Bryan Conkling in the Arizona lawsuit, and that judgment was never appealed and remains in full force and effect under Arizona law. Ex. K.[4]

         On December 15, 2014, Defendants attempted to domesticate that judgment in New Mexico by filing a “Notice of Filing of Foreign Judgment” in the First Judicial District Court in Santa Fe, New Mexico. Ex. 2. However, District Court Judge Sarah Singleton refused to apply full faith and credit to the Arizona state court default judgment because Defendants (who were plaintiffs in the Arizona lawsuit) never properly served Bryan Conkling. Judge Singleton further. found that the Arizona judgment was secured through fraud because Defendants had represented to the Arizona court that Bryan had been served when in fact he had not. Ex. 3. The court found that this conduct was “unprofessional” and “constitutes intrinsic fraud.” Id. at 3. Judge Singleton also found that the court “lacked authority” to dismiss the default judgment in the Arizona Court.

         Notwithstanding Judge Singleton's denial of full faith and credit to the foreign judgment, the facts surrounding service of process in the Arizona case are still disputed. Plaintiff's position is that Defendants elected to sue Bryan for defamation in Arizona even though he lived in Santa Fe. They then “deliberately avoided properly serving” Bryan with process in New Mexico and instead had process delivered to Bryan's father's address despite having been informed by Bryan years earlier that he did not use that address. See Doc. 89 at 7. Defendants' position is that service of the Arizona lawsuit was particularly difficult because Bryan did not give a valid physical address. They contend that they relied on the services of a professional process server in New Mexico and an Arizona lawyer who engaged that individual's services, to comply with their legal obligations with respect to service of process. Ex. H (affidavit of counsel of record in Arizona lawsuit).

         II. ...

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