Kirby v. O'Dens , 628 F. App'x 602 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT October 13, 2015
Elisabeth A. Shumaker
Clerk of Court
ELBERT KIRBY, JR.; CALEB
MEADOWS,
Plaintiffs - Appellants,
v. No. 15-5045
(D.C. No. 4:15-CV-00156-GKF-FHM)
DAVID M. O’DENS, (N.D. Oklahoma)
Defendant - Appellee.
ORDER AND JUDGMENT*
Before TYMKOVICH, Chief Judge, HARTZ and MORITZ, Circuit Judges.
Elbert Kirby Jr. and Caleb Meadows (Appellants), proceeding in forma pauperis,
sued David O’Dens for defamation, slander, and libel in the United States District Court
for the Northern District of Oklahoma. The district court dismissed the action sua sponte
*
After examining the brief and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument. This order and judgment is not binding precedent, except under
the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited
for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
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under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on which relief may be
granted. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the dismissal.
“We review de novo the district court’s decision to dismiss an IFP complaint
under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.” Kay v. Bemis, 500 F.3d
1214, 1217 (10th Cir. 2007). Appellants premise their complaint on a statement made by
Mr. O’Dens while litigating an earlier case in the same federal district court. Their
complaint, however, does not describe the circumstances of Mr. O’Dens’s statement,
alleging only that he “published a public document viewable to the public quoting the
Plaintiffs were ‘control[ling] the state court judge,’ by the FDCPA action which was filed
by the Plaintiffs in this federal court.” Verified Compl. at 2, Kirby v. O’Dens, No. 4:15-
cv-00156-GKF-FHM (N.D. Okla. Apr. 1, 2015). In evaluating the sufficiency of the
complaint, we exercise our discretion to take judicial notice of publicly filed records in
that earlier case, Kirby v. O’Dens, No. 14-CV-388-JHP-PJC (N.D. Okla. 2015). See Gee
v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (“matters of which a court may take
judicial notice” may be used in deciding whether to dismiss for failure to state a claim
(internal quotation marks omitted)).
The prior litigation alleged violations of federal consumer-protection laws arising
out of state-court foreclosure proceedings against property owned by Kirby and tenanted
by Meadows. Appellants had moved to compel discovery responses. In his response to
the motion, Mr. O’Dens wrote: “[T]he gravamen of [Appellants’] complaint is based
upon what they perceive as incorrect rulings by [the state judge] in the state court
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collection action. As expressed by Kirby at the scheduling conference, this action was
brought to ‘control the state court judge.’” Resp. to Mot. to Compel at 6, Kirby, No. 14-
CV-388-JHP-PJC, (N.D. Okla. Feb. 20, 2015). Appellants claim that Mr. O’Dens’s
statement about controlling the state judge was “libelous on its face” and “clearly exposes
the [Appellants] to hatred, contempt, ridicule and obloquy because it accuses the
[Appellants] of saying something behind someone’s . . . back out of spite.” Verified
Compl. at 2‒3, Kirby, No. 4:15-cv-00156-GKF-FHM.
Appellants’ claim fails because the allegedly libelous statement was privileged.
“Oklahoma has long recognized that attorneys, parties and witnesses are immune from
defamation and certain other suits where those suits are based upon communications
made during or preliminary to judicial proceedings as long as the communication is in
some way relevant to the proceeding.” State ex rel. Okla. Bar Ass’n v. Dobbs, 94 P.3d
31, 45 (Okla. 2004). The statement in Mr. O’Dens’s response to Appellants’ motion to
compel satisfies these conditions. It was made during a judicial proceeding. And it was
relevant because it concerned the factual background of Appellants’ complaint. The
purpose of the statement was apparently to strengthen the argument that the motion to
compel was meritless by pointing out that the claim itself was frivolous. There is ample
authority for Mr. O’Dens’s effort. In Munoz v. St. Mary-Corwin Hosp., 221 F.3d 1160,
1169 (10th Cir. 2000), we upheld the denial of a motion to compel because the action was
brought “without any factual basis evincing specific misconduct by the defendants” and
the plaintiff’s discovery requests were a “fishing expedition” based “upon conclusory
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allegations in the hope of finding the necessary evidence of misconduct.” And the
federal rules permit a district court to forbid discovery “to protect a party . . . from
annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P.
26(c)(1). Mr. O’Dens’s statement is therefore absolutely privileged because it was made
during a judicial proceeding and was relevant to that proceeding.
The judgment of the district court is AFFIRMED.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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