Case 5:19-cv-05014-TLB Document 13 Filed 02/20/19 Page 1 of 19 PageID #: 131

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS,

FAYETTEVILLE DIVISION

JAMES A. BATES, )
)
Plaintiff, )
)
V. ) Case No. 5:19-cv-05014
)
BENTONVILLE police CHIEF JON SIMPSON, )
DETECTIVES JERROD WISEMAN, )
ANDY OLIVER, THOMAS BOYLE, )
KRIS MOFFIT, AND JOSHUA WOODHAMS, )
CAPTAIN JUSTIN THOMPSON, )
THE CITY OF BENTONVILLE, ARKANSAS, )
DR. CHARLES P. KOKES, AND )
KRISTINE COLLINS HOMAN, )
)
Defendants. )

BRIEF IN SUPPORT OF MOTION TO DISMISS COMPLAINT

A. Introduction

On November 2, 2018, Separate Defendant Kristine Collins Homan (“Homan”) filed a

Complaint in the Circuit Court of Benton County, Arkansas alleging that Plaintiff James Bates

wrongfully caused the death of her husband and father of her children, Victor Collins. A copy of

the Complaint is attached to the Motion to Dismiss Complaint at Law and incorporated herein by

reference as Exhibit A. On December 10, 2018, a Default Judgment against Mr. Bates was entered

in said case as a result of his failure to timely respond to the Complaint. A copy of the Default

Judgment is attached to the Motion to Dismiss Complaint at Law and incorporated herein by

reference as Exhibit B. Mr. Bates filed Defendant’s Original Answer and Jury Demand Filed

Subject to Default Judgment (“Answer”) and a Motion to Set Aside Default Judgment, which were

heard along with other motions on January 10, 2019. A copy of the Answer is attached to the

Motion to Dismiss Complaint at Law and incorporated herein by reference as Exhibit C. On

January 25, 2019, the Order Denying Defendant’s Motion to Set Aside Default Judgment

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(“Order”) was entered, a copy of which is attached to the Motion to Dismiss Complaint at Law

and incorporated herein by reference as Exhibit D. The circuit court also found the Motion to

Strike Defendant’s Original Answer and Jury Demand Filed Subject to Default Judgment (“Motion

to Strike”) to be moot as a result of the Order Denying Defendant’s Motion to Set Aside Default

Judgment. See, Exhibit E, which is attached to the Motion to Dismiss Complaint at Law and

incorporated herein. On January 23, 2019, Mr. Bates filed his Complaint at Law herein in which

he denies responsibility for the death of Mr. Collins and claims that the evidence against him is

false. See, Complaint at Law filed herein. Plaintiff’s Complaint at Law should be dismissed

because his claims against Separate Defendant Homan are barred by res judicata and because he

has failed to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure.

B. Standard for Rule 12(b)(6)

“To survive a 12(b)(6) 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.’” Park Irmat Drug

Corp. v. Express Scripts Holding Co., 911 F.3d 505, 512 (8th Cir. 2018) (quoting Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)). “We assess plausibility considering only the materials that are

necessarily embraced by the pleadings and exhibits attached to the complaint.” Id. “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. (quoting Iqbal,

556 U.S. at 678). “Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice, and the court is not bound to accept as true a legal conclusion

couched as a factual allegation.” Stoebner v. Opportunity Fin., LLC, 909 F.3d 219, 225-26 (8th

Cir. 2018).

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C. Argument

1. Plaintiff’s claims are barred by res judicata and collateral estoppel.

Plaintiff’s claims against Defendant Homan were compulsory counterclaims that should

have been brought originally in the Arkansas suit and were permanently waived by the Plaintiff’s

default which is now entitled to complete preclusive effect before this Court. Plaintiff’s claims

against Defendant Homan are wholly barred and precluded by both doctrines of res judicata (claim

preclusion) and collateral estoppel (issue preclusion).

Res judicata is an affirmative defense which may be properly raised in a motion to dismiss

under Fed. R. Civ. P. 12(b)(6) if the defense is “apparent on the face of the complaint.” C.H.

Robinson Worldwide, Inc. v. Lobrano, 695 F.3d 758, 763-64 (8th Cir. 2012). “Our interpretation

of the phrase ‘face of the complaint . . . includes public records and materials embraced by the

complaint, and materials attached to the complaint.” Id. at 764.

In order to determine whether a claim brought in federal court is barred by a prior state

judgment through either res judicata or collateral estoppel, the federal court must “apply the same

preclusive effect to a prior state court judgment as the courts of that state would apply.” Harrison

v. Springdale Water & Sewer Com., 780 F.2d 1422, 1431 (8th Cir. 1986) (examining whether

plaintiff’s § 1983 claim was barred by Arkansas rules of preclusion as a compulsory counterclaim

in a previously litigated state court action). Accordingly, because Plaintiff is barred from bringing

his claims against Defendant Homan in Arkansas state court, Plaintiff may not retreat to the federal

courts in an effort to circumvent Arkansas law and revive his otherwise defunct claims.

Arkansas Preclusion

Arkansas law couches both preclusion doctrines under the singular umbrella of “res

judicata.” “The concept of res judicata has two facets, one being issue preclusion and the other

claim preclusion.” Mason v. State, 361 Ark. 357, 367, 206 S.W.3d 869, 874 (2005).

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Claim preclusion has five elements:

(1) the first suit resulted in a final judgment on the merits; (2) the first suit was
based on proper jurisdiction; (3) the first suit was fully contested in good faith; (4)
both suits involve the same claim or cause of action; and (5) both suits involve the
same parties or their privies.

Baptist Health v. Murphy, 2010 Ark. 358, 7-8, 373 S.W.3d 269, 278 (internal citation omitted).

Issue preclusion, also referred to as collateral estoppel, has four elements:

(1) the issue sought to be precluded must be the same as that involved in the prior
litigation; (2) the issue must have been actually litigated; (3) the issue must have
been determined by a valid and final judgment; and (4) the determination must have
been essential to the judgment.

Hardy v. Hardy, 2011 Ark. 82, at 6, 380 S.W.3d 354, 357. While the satisfaction of the

elements of each doctrine is examined in turn below, it is clear that under Arkansas law, default

judgments are entitled to preclusive effect.

A judgment by default is just as binding and forceful as a judgment entered after a

trial on the merits in a case; and it is not to be discredited or regarded lightly because
of the manner in which it was acquired. A default judgment determines a plaintiff’s
right to recover and a defendant’s liability just as any conventional judgment or
decree. A defense not presented before the entry of a default decree is barred by the
doctrine of res judicata.

Williams v. Conn. Gen. Life Ins. Co., 26 Ark. App. 59, 61, 759 S.W.2d 815, 817 (1988).

Claim Preclusion

Plaintiff’s claims against Defendant Homan were compulsory counterclaims in the

Arkansas lawsuit which Plaintiff is precluded from bringing in a federal lawsuit. “Res judicata

bars not only the re-litigation of claims that were actually litigated in the first suit, but also those

that could have been litigated.” Baptist Health, 2010 Ark. 358 at 8, 373 S.W.3d at 278. “When

the case at bar is based on the same events and subject matter as the previous case, and only raises

new legal issues and seeks additional remedies, the trial court is correct to find the present case is

barred by res judicata.” Francis v. Francis, 343 Ark. 104, 111, 31 S.W.3d 841, 845 (2000).

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The Arkansas court had both subject matter and personal jurisdiction over an Arkansas tort

claim between a Benton County Plaintiff and a Benton County Defendant in a Benton County

Circuit Court. In any event, Plaintiff has certainly never alleged that the Arkansas court lacked

jurisdiction. Furthermore, as noted above, a hearing on the propriety of the default judgment was

held in the Arkansas suit, and default judgments are entitled to preclusive effect, so the matter was

fully contested in good faith. Lastly, Kristine Collins Homan as beneficiary of the estate of Victor

Collins is in privity to the Estate of Victor Collins which is the named plaintiff in the Arkansas

lawsuit, and James Bates is the same party from both suits as well. The only elements of claim

preclusion that might warrant discussion are the requirements of finality and the same claim or

cause of action.

Finality

While the issue of the extent of damages remains to be tried by a jury in the Arkansas suit,

the default judgment, although not directly final for appeal, is still “final” for preclusive concerns.

It has been noted, “Finality for purposes of appeal is closely related to finality for purposes of res

judicata.” Crockett & Brown, P.A. v. Wilson, 314 Ark. 578, 582, 864 S.W.2d 244, 246 (1993).

However, although closely related, the standard is not necessarily identical. “We note that what

constitutes a final judgment for res judicata purposes is not necessarily the same as what constitutes

a final judgment for other purposes.” Griffin v. First Nat’l Bank, 318 Ark. 848, 853-54, 888 S.W.2d

306, 310 (1994) (citing Restatement (Second) of Judgments § 13).

A default judgment is ordinarily not a final appealable order if a separate hearing or trial

on damages remains outstanding. See Fields v. Byrd, 96 Ark. App. 174, 176-77, 239 S.W.3d 543,

545 (2006). However, a specific provision of the Arkansas Rules of Appellate Procedure-Civil

allows for a direct appeal from a trial court order striking any part of an answer. Ark. R. App. P.

Civ. 2(a)(4). Accordingly, even though a default judgment where damages remain to be litigated

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is not directly appealable, if the trial court also struck a belated answer, then that order striking the

answer is directly appealable and the question of the default judgment itself may be considered at

the same time on appeal since the analysis for striking a belated answer and setting aside the default

judgment are so closely related. See Fields, 96 Ark. App. 174, 239 S.W.3d 543 (deciding an appeal

on the merits of the trial court’s decision to not set aside a default judgment where damages

remained outstanding because the appeal was permitted by the trial court also striking the

appellant’s answer). Although the circuit court denied the Motion to Strike as moot, the Answer

was effectively struck when the Default Judgment was upheld. The circuit court also effectively

struck the affirmative defenses plead by Mr. Bates in his Answer by finding them to have been

waived in the Order. See, Exhibit D. Therefore, Plaintiff could have appealed the circuit court’s

order refusing to set aside the default judgment and striking his Answer. The judgment that James

Bates is liable for the intentional killing of Victor Collins is sufficiently final regardless of whether

the issue of damages remains outstanding.

Furthermore, a defendant should not be permitted to circumvent the doctrine of claim

preclusion where he retreats to the federal courthouse and files a lawsuit that wholly undermines

the state court judgment and seeks utterly inconsistent relief. Plaintiff’s lawsuit was carefully

crafted to avoid challenging the default judgment and violating the Rooker-Feldman doctrine, but

that is exactly what this lawsuit is attempting to achieve in reality.

Same Claims

Ultimately, Plaintiff was required to plead these claims against Defendant Homan in the

Arkansas lawsuit. Compulsory counterclaims under Arkansas Rule of Civil Procedure 13 are

given preclusive effect in Arkansas. ARCP 13 mandates that a litigant assert any counterclaim

that “arises out of the transaction or occurrence that is the subject matter of the opposing party’s

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claim and does not require for its adjudication the presence of third parties of whom the court

cannot acquire jurisdiction.” ARCP 13(a).

A party is obligated to assert compulsory counterclaims or be precluded through

res judicata from raising them in a subsequent action. When the case at bar is based
on the same events and subject matter as the previous case, the trial court is correct
to find the present case is barred by res judicata. One of the main purposes of the
doctrine of res judicata is to put an end to litigation by precluding a party who has
had the opportunity for one fair trial from drawing the same controversy into issue
a second time before the same or different court.

Pentz v. Romine, 75 Ark. App. 274, 280, 57 S.W.3d 235, 240 (2001). The “true policy purpose

for compulsory claims” is the “avoidance of multiple lawsuits on the same facts with the same

parties.” Allison v. Long, 336 Ark. 432, 434, 985 S.W.2d 314, 315 (1999).

Every claim in the federal complaint is a compulsory counterclaim under ARCP 13 and

barred by res judicata. The state lawsuit alleging Plaintiff Bates killed Victor and the current

federal lawsuit alleging Plaintiff Bates was framed for the murder of Victor arise out of the same

transaction or occurrence. Both cases would involve the same facts, evidence, and witnesses.

Plaintiff’s claims that he was framed and maliciously prosecuted were defenses to the merits of

Defendant Homan’s state lawsuit which Plaintiff should have but did not raise in that suit.

Furthermore, Plaintiff’s claims are not exempted from the confines of ARCP 13 due to the

fact Plaintiff’s claims involve multiple third parties not subject to the Arkansas lawsuit. First, to

the extent joinder of third parties might have been an issue, every single named defendant in

Plaintiff’s federal lawsuit, as Arkansas residents or political subdivisions, could have been joined

in the Arkansas suit and been subject to the court’s jurisdiction. Second, to the extent joinder of

claims might have been raised as an issue, Plaintiff could have easily brought his § 1983 claims at

the same time. Newton v. Etoch, 332 Ark. 325, 334, 965 S.W.2d 96, 100 (1998) (“A § 1983 suit is

one brought pursuant to an act of Congress for a deprivation of civil rights against persons

operating under color of state law. It establishes a federal cause of action to be enforced in either

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federal or state courts.”). Nothing stood in the way of Plaintiff brining his counterclaims in the

Arkansas suit.

Conclusion

When Defendant Homan filed her state lawsuit claiming Plaintiff killed her husband

Victor Collins, at that moment, the Arkansas Rules of Civil Procedure mandated that Plaintiff

Bates either assert or forever waive the compulsory counterclaim that he did not kill Victor Collins

but was framed for his murder by Defendant Homan. Accordingly, all claims by Plaintiff against

Defendant Homan arising out of Plaintiff’s intentional killing of Victor Collins are barred by claim

preclusion, and moreover, the essential issue of Plaintiff’s liability for intentionally killing Victor

Collins is barred by issue preclusion. Plaintiff may not run to the Federal courthouse and complain

he was framed for murdering Victor Collins when he has already admitted to and been found liable

for such murder in an Arkansas court of sound jurisdiction.

Issue Preclusion

Moreover, Plaintiff is estopped from challenging the factual issue that he intentionally

killed Victor Collins. “When an issue of fact or law is actually litigated and determined by a valid

and final judgment and the determination is essential to the judgment, the determination is

conclusive in a subsequent action between the parties, whether on the same or a different claim.”

John Cheeseman Trucking, Inc. v. Pinson, 313 Ark. 632, 636, 855 S.W.2d 941, 943 (1993)

(quoting Restatement (Second) of Judgments § 27). Unlike claim preclusion, Arkansas does not

require mutuality of parties for issue preclusion, and the defensive use of collateral estoppel is

permissible. Fisher v. Jones, 311 Ark. 450, 456, 844 S.W.2d 954, 958 (1993).

Just like with claim preclusion, default judgments are entitled to preclusive effect under

issue preclusion. “In the context of collateral estoppel, ‘actually litigated’ means that the issue

was raised in pleadings, or otherwise, that the defendant had a full and fair opportunity to be heard,

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and that a decision was rendered on the issue.” Powell v. Lane, 375 Ark. at 186, 289 S.W.3d at

445. “‘[A]ctually litigated’ has nothing to do with whether the judgment was obtained by default,

summary adjudication, trial, or otherwise; rather, the question is whether the issue to be precluded

was adjudicated in the judgment at issue.” Id. at 186 n.2, 289 S.W.3d at 445.

The issue that is being precluded in this case is the fact that James Bates intentionally killed

Victor Collins, which was an essential fact admitted by Plaintiff in the Arkansas lawsuit and

material to the judgment of liability entered in that case. Again, the only potential source of debate

over the elements is the requirement of the finality of the default judgment.

Finality

As noted above in Griffin, the Arkansas Supreme Court cited The Restatement (Second) of

Judgments § 13 with approval. That section provides:

The rules of res judicata are applicable only when a final judgment is rendered.
However, for purposes of issue preclusion (as distinguished from merger and bar),
‘final judgment’ includes any prior adjudication of an issue in another action that
is determined to be sufficiently firm to be accorded conclusive effect.

Restatement (Second) of Judgments § 13.

The restatement notes that that finality for preclusion purposes and finality for appeal

purposes are not always the same standard. Also, the Restatement framework indicates a lesser

degree of “finality” is required for issue preclusion than might be needed under claim preclusion.

The Restatement offers the following pertinent illustration discussing issue preclusion finality:

In a jurisdiction that permits “split” trials (a trial of liability followed, if liability is

found, by a separate trial to ascertain the damages), the jury in a negligence case
finds for the plaintiff A as to liability, the defendant B having denied his own
negligence and pleaded contributory negligence on the part of A. Under the law of
the jurisdiction, B cannot appeal at this point as there is no judgment that qualifies
as final for that purpose; an appealable judgment would be reached later, when, in
the second phase of trial, another jury assessed the damages. But prior to the second
phase, the jury's verdict as to liability may be held conclusive as to the issues of A's
and B's negligence in any other action between them in which the same issues
appear.

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Restatement (Second) of Judgments, § 13 cmt. g, ill. 3.

This illustration is near identical to the facts at hand. Liability in the state case has

conclusively been decided even though the default judgment is not directly ripe for appeal because

the issue of damages remains outstanding. Under the doctrine of issue preclusion, the default

judgment bars Plaintiff from challenging the factual issue that he is responsible for the death of

Victor Collins. See e.g., John Morrell & Co. v. Local Union 304A of United Food & Commercial

Workers, 913 F.2d 544, 563 (8th Cir. 1990) (quoting Zdanok v. Glidden Co., Durkee Famous

Foods Div., 327 F.2d 944, 955 (2d Cir. 1964) (“We see no reason why in an appropriate case a

ruling that is final on the issue of liability should not preclude the party against whom the decision

ran from presenting further evidence on the issue there finally determined.”). In John Morrell, the

Eighth Circuit cited the above quoted illustration from the Restatement and gave preclusive effect

to a jury verdict of liability where the damages phase of litigation remained outstanding. Id.

Perhaps more importantly and relevant to the case at bar, in Zdanok, the Second Circuit gave

preclusive effect to the issue of liability determined by a default judgment even though litigation

for the amount of damages remained outstanding. Zdanok, 327 F.2d 944 at 955.

The specific question of whether a default judgment is “final” for preclusion purposes

under either claim preclusion or issue preclusion while litigation concerning the extent of damages

remains outstanding is an issue of first impression in Arkansas. However, given the positive

citation to the Restatement in Griffin, the Arkansas Supreme Court would be expected to continue

to reach the same results as the Eighth Circuit in John Morell and the Second Circuit in Zdanok

and hold that a default judgment establishing liability is “final” for purposes of issue preclusion.

Conclusion

Accordingly, the factual issue that Plaintiff intentionally killed Victor Collins has already

been fully adjudicated in an Arkansas state court by a valid and final judgment on the issue.

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Plaintiff is estopped from bringing any claims against Defendant Homan, or anyone for that matter,

which are inconsistent with the conclusive fact that James Bates intentionally killed Victor Collins.

Plaintiff’s claims against Defendant Homan are wholly barred by both claim preclusion and issue

preclusion because Plaintiff has already been found liable by an Arkansas state court for the

wrongful death of Victor Collins.

2. Plaintiff has failed to state a claim upon which relief can be granted for any
tort.

Even if Plaintiff’s claims were not barred by res judicata, the Complaint at Law fails to

state claims for malicious prosecution, conspiracy or outrage upon which relief can granted.

Malicious Prosecution

To establish a claim for malicious prosecution, Plaintiff must allege and prove: (1) that

Defendant caused a criminal proceeding to be initiated/continued against Plaintiff; (2) that

Defendant lacked probable cause to do so; (3) that Defendant acted with a sinister motive or

malice; (4) the criminal prosecution was terminated in favor of the Plaintiff; (5) that the Plaintiff

sustained damages; and (6) that the Defendant’s actions were the proximate cause of such

damages. See AMI 413. Accepting all facts as true as alleged by Plaintiff, his claims against

Defendant Homan fail because: (1) Defendant Homan did not cause a criminal proceeding to be

initiated/continued against the Plaintiff and (2) Defendant Homan’s actions were not the proximate

cause of his damages.

First, in order to claim that Defendant as a private citizen caused criminal proceedings to

be brought against Plaintiff, Plaintiff has to prove that Defendant either lied to the prosecuting

attorney/law enforcement or withheld exculpatory evidence from the prosecuting attorney/law

enforcement which would have affected their discretionary decision to prosecute Plaintiff. “If the

original proceeding was criminal, the defendant must have taken an active role in initiating the

criminal prosecution, not merely stated facts to a prosecutor who then independently determined

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whether to prosecute.” Howard Brill, ARKANSAS LAW OF DAMAGES § 33:4; See e.g., Machen

Ford-Lincoln-Mercury, Inc. v. Michaelis, 284 Ark. 255, 681 S.W.2d 326 (1984) (employee of auto

dealer signed an affidavit claiming buyer issued a hot check when it was really a stopped payment

because of a contract dispute); Kellerman v. Zeno, 64 Ark. App. 79, 983 S.W.2d 136 (1998)

(furniture store owners gave false information to the prosecuting attorney and signed an inaccurate

affidavit drafted by the prosecutor claiming an employee had stolen from the store); Burkett v.

Burkett, 95 Ark. App. 314, 236 S.W.3d 563 (2006) (ex-husband signed an affidavit claiming his

wife trespassed on the marital home which he was granted “sole possession” of, but he withheld

from the prosecutor a subsequent order that modified the date of sale of the home and allowed the

wife to inspect the property before the sale); Bank of Eureka Springs v. Evans, 353 Ark. 438, 109

S.W.3d 672 (2003) (bank on multiple occasions made knowingly false claims to prosecutors that

a debtor had defrauded them and unlawfully sold or disposed of collateral); S. Arkansas Petroleum

Co. v. Schiesser, 343 Ark. 492, 36 S.W.3d 317 (2001) (employer accused cashier of theft and

provided police officer with documents to support his claim of theft but withholding known

exculpatory information such as the fact that the employee was not working on several days of the

alleged theft); Southern Farmers Asso. v. Whitfield, 238 Ark. 607, 383 S.W.2d 506, (1964)

(gasoline distributer complained to the prosecuting attorney that a hot check had been issued but

withheld information that it had been common practice amongst the parties for several years to

hold checks from the purchaser until he had sufficient funds in his account from future sales of

gasoline).

Not one paragraph of the complaint alleges that Defendant lied or gave false information

to the prosecuting attorney or law enforcement in an effort to further the criminal prosecution of

Plaintiff. Not one paragraph of the complaint alleges that Defendant, in giving a statement,

withheld exculpatory information in an effort to further the criminal prosecution of Plaintiff. The

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complaint merely alleges that Defendant expressed to law enforcement officers that she was

concerned whether Victor’s death would be covered by insurance. The complaint does not specify

if Defendant was worried about a life insurance policy held by Victor, Plaintiff’s homeowner’s

insurance, or some other type of insurance policy. Regardless, the complaint does not allege a

single affirmative act taken by Defendant to cause Plaintiff to be arrested and prosecuted for

murdering her husband Victor Collins.

Unlike any of the above cited cases, Defendant did not give false or incomplete information

that was used to cause Plaintiff’s prosecution and the Complaint at Law does not claim otherwise.

Rather, Plaintiff was prosecuted because the evidence conclusively indicated he had murdered

Victor Collins. The only portion of the complaint which could be construed as even hinting at

false information would be in Paragraph 121 which alleges Defendant Homan wrote a letter to the

prosecutors claiming Plaintiff was stalking her and her children in a truck that Plaintiff established

was not in Northwest Arkansas at the time. To the extent this paragraph alleges an affirmative act

on behalf of Defendant to cause the prosecution of Plaintiff, this claim fails because: (1) no further

prosecution ever came from this allegation, so Plaintiff suffered no injury; and (2) nothing in this

paragraph alleges Defendant made this allegation knowingly without probable cause. Mistaken

facts relayed in good faith do not constitute malicious prosecution. See e.g., Jennings Motors v.

Burchfield, 182 Ark. 1047, 34 S.W.2d 455 (1931) (agents of a car dealership acted in good faith

by reporting a vehicle as stolen by a former employee when they had no knowledge that the

employee had been re-hired); Taylor v. Doss, 2016 Ark. App. 288, 494 S.W.3d 456 (2016) (no

malicious prosecution where employer provided complete video surveillance of employee along

with their investigative report alleging theft and criminal mischief to law enforcement).

Furthermore, Plaintiff’s claim of malicious prosecution is foreclosed by the fundamental

rule that the guilt of the plaintiff bars recovery. “Proof of the plaintiff’s actual guilt of the offense

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charged is a complete defense to an action to recover damages for a malicious prosecution for the

offense.” Whipple v. Gorsuch, 82 Ark. 252, 101 S.W. 735, 736 (1907) (holding where criminal

charge of trespass was ultimately dropped, there was no malicious prosecution because the

Plaintiff had indeed trespassed). Here, Plaintiff cannot sue for being prosecuted for murdering

Victor Collins because Plaintiff is actually guilty of murdering Victor Collins, has already admitted

to such in an Arkansas court, and has been judged liable for such in an Arkansas court. See Nucor

Corp. v. Kilman, 358 Ark. 107, 127, 186 S.W.3d 720, 732 (2004) (a default admits the facts alleged

in the complaint). Accordingly, because Plaintiff has already admitted in an Arkansas state court

that he intentionally killed Victor Collins, he may not retreat to the federal courthouse and allege

that he was framed for murdering Victor Collins.

Outrage

There are four elements that are necessary to establish liability for the tort of
outrage: (1) the actor intended to inflict emotional distress or knew or should have
known that emotional distress was the likely result of his conduct; (2) the conduct
was "extreme and outrageous," was "beyond all possible bounds of decency," and
was "utterly intolerable in a civilized community;" (3) the actions of the defendant
were the cause of the plaintiff's distress; and (4) the emotional distress sustained by
the plaintiff was so severe that no reasonable person could be expected to endure
it.

Faulkner v. Ark. Children's Hosp., 347 Ark. 941, 957, 69 S.W.3d 393, 403-04 (2002).

“Arkansas caselaw makes clear that the tort of outrage is not easily established; merely

describing conduct as outrageous does not make it so. Clear-cut proof is necessary to establish the

four elements of this tort.” Family Dollar Trucking, Inc. v. Huff, 2015 Ark. App. 574, 9, 474

S.W.3d 100, 107 (internal quotation omitted). “[T]his tort does not make actionable every ‘insult

or indignity one must endure in life’. . . .” Id. at 8-9, 474 S.W.3d at 107.

The emotional distress suffered must be beyond “the type that reasonable people may be

faced with throughout their lives.” FMC Corp. v. Helton, 360 Ark. 465, 486, 202 S.W.3d 490, 505

(2005) (sleep loss, loss of appetite, and anxiety were not sufficient distress beyond ordinary life to

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state a claim of outrage); Schmidt v. Stearman, 98 Ark. App. 167, 178-79, 253 S.W.3d 35, 44

(2007) (insufficient evidence of emotional distress when plaintiff claimed depression and fear of

remaining in his home after his neighbor shot and killed the plaintiff’s dogs and “ransacked” the

plaintiff’s house taking over 100 items from the plaintiff’s home while the plaintiff was on

vacation).

Where a complaint merely made a legal conclusion that the defendant willfully and

wantonly breached a contract causing the plaintiff emotional distress, the plaintiff failed to

sufficiently plead the tort of outrage. Rabalaias v. Barnett, 284 Ark. 527, 528, 683 S.W.2d 919,

921 (1985); See also Hunt v. Riley, 322 Ark. 453, 459, 909 S.W.2d 329, 333 (1995) (plaintiff failed

to sufficiently plead outrage where he failed to allege emotional distress and merely stated in

conclusory terms that the defendant’s conduct resulted in a loss of income).

Here, Plaintiff has failed to properly plead a claim of outrage under Arkansas law because

Plaintiff has not alleged any kind of emotional distress cognizable under the claim. Plaintiff has

only offered a bare recitation of the elements of outrage and has failed to actually show what severe

emotional distress he has suffered.

Moreover, Plaintiff has failed to allege any actual outrageous conduct. For example,

Paragraph 418 of the complaint alleges ongoing “harassment” by Defendant. The only other

reference to harassment by Defendant in the complaint can be found around Paragraph 329 which

states that Defendant Homan made “public statements to the effect that Plaintiff was guilty of

Victor’s murder.” As stated above, the Default Judgment established Plaintiff’s liability for

wrongfully causing the death of Victor Collins. The statements alleged to have been made by

Defendant Homan cannot be considered “extreme and outrageous” and “beyond all possible

bounds of decency” after the hearing where the Default Judgment was upheld. See, Faulkner, 347

Ark. at 957, 69 S.W.3d 403-04.

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The Complaint at Law also claims in Paragraph 419 of the complaint alleges that Defendant

has “endeavored to interfere with Plaintiff’s relationship with his son.” However, the rest of the

complaint is devoid of a single reference to any action by Defendant Homan to interfere with

Plaintiff’s son or even that Defendant knew that Plaintiff had a son. Again, bare recitals of the

elements of a cause of action and legal conclusions do not constitute a well-pleaded complaint.

The Complaint also fails to establish that Defendant Homan’s actions were the cause of his

alleged distress. Defendant Homan is not a prosecutor or a police officer and, thus, could not have

arrested or prosecuted Mr. Bates. Therefore, the third element required to establish a cause of

action of outrage is lacking. Id.

Civil Conspiracy

“A civil conspiracy is not actionable in and of itself, but a recovery may be had for damages

caused by acts committed pursuant to the conspiracy.” Faulkner v. Ark. Children's Hosp., 347

Ark. 941, 961, 69 S.W.3d 393, 406 (2002). Plaintiff cannot recover for a civil conspiracy if

Plaintiff cannot establish all of the elements of an underlying tort. See AMI 714 (requiring

sufficient evidence of an underlying tort). As explained above, Plaintiff has failed to state claims

for outrage or malicious prosecution. Therefore, Plaintiff’s claim for civil conspiracy also fails.

Further, a bare assertion that an unlawful agreement or conspiracy was entered into is

merely a legal conclusion and not entitled to the presumption of truth afforded the remaining

factual pleadings in a motion to dismiss. See, Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937,

173 L. Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 570) (emphasis added). In Twombly, the

complaint in the anti-trust suit simply pleaded that the defendants “ha[d] entered into a contract,

combination or conspiracy to prevent competitive entry . . . and ha[d] agreed not to compete with

one another.” Twombly, 550 U.S. at 551. The Supreme Court aptly held that this bare assertion

was really a mere “legal conclusion” and therefore not entitled to the presumption of truth. Id. at

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551, 565. Accordingly, the plaintiff failed to plead sufficient plausible facts. “Had the Court

simply credited the allegation of a conspiracy, the plaintiffs would have stated a claim for relief

and been entitled to proceed perforce.” Iqbal, 556 U.S. at 680 (discussing Twombly).

Similarly, in Iqbal, the plaintiff alleged he was subjected to invidious discrimination due

to a conspiracy between former Attorney General Ashcroft and former Director of the FBI Robert

Mueller. The complaint alleged both individuals:

. . . knew of, condoned, and willfully and maliciously agreed to subject him to harsh
conditions of confinement ‘as a matter of policy, solely on account of his religion,
race, and/or national origin and for no legitimate penological interest. . . . that
Ashcroft was the “principal architect” of this invidious policy, and that Mueller was
“instrumental” in adopting and executing it.

Id. at 680-81. The Supreme Court held that these allegations were merely bare recitals of the

elements of a constitutional claim and were nothing more than legal conclusions. Id. at 681.

Accordingly, the plaintiff had failed to sufficiently plead a plausible set of facts.

The Complaint at Law offers the same “naked assertions” of an unlawful conspiracy that

were insufficient in Twombly and Iqbal. Plaintiff offers pure conclusory statements of speculation

that Defendant Homan conspired with the Bentonville Police Department to frame Plaintiff for

murdering Victor Collins. Beginning in Paragraph 117 of the complaint, Plaintiff alleges that

Defendant and others had a secret audio recorded meeting where a conspiracy to frame Plaintiff

was ordained, and that the Bentonville Police Department did not write a report concerning this

conversation and “further concealed” the audio recording of this conversation. Plaintiff does not

assert when or where this supposed conversation took place, what specific statements Defendant

Homan made during this conversation, who actually concealed the alleged recording or how it was

actually concealed. Plaintiff also fails to specify who the parties to this conversation were, and

simply claims Defendant Homan conspired with the amorphous “Defendant Officers”. There can

be no doubt that Plaintiff’s conclusory assertions that a conspiracy was entered into during a

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conversation Plaintiff admits he has absolutely no record for and therefore no way of knowing

whether it even occurred or what actually transpired is utter speculation. Like in Twombly and

Iqbal, Plaintiff has failed to plead a conspiracy to frame Plaintiff for murder by simply making the

bare allegation that “a conspiracy was entered into because I say one was entered into.”

3. The Court should decline supplemental jurisdiction.

Lastly and alternatively, pursuant to the discussion above in Part 1 examining the

preclusive effect of the Arkansas default judgment, Defendant respectfully requests that this Court

exercise its discretion under 28 U.S.C. § 11367(c) and decline supplemental jurisdiction over

Plaintiff’s state law claims against Defendant given the intense reliance upon Arkansas case law

to determine whether the default judgment is given preclusive effect and the heightened policy

interests of the Arkansas judiciary in deciding whether it wishes to permit a defaulting defendant

to circumvent an Arkansas judgment through federal litigation.

Respectfully submitted,

KRISTINE COLLINS HOMAN,

Separate Defendant

WILKINSON LAW FIRM

700 S. Walton Blvd. Ste. 2
Bentonville, Arkansas 72712
Telephone: (479) 273-2212
Fax: (479) 273-5655

By: /s/ Randall Wakefield

Randall Wakefield,
Bar No. 2005150

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CERTIFICATE OF SERVICE

I, Randall Wakefield, state that on this 20th day of February, 2019, I electronically filed a
copy of the foregoing document via the Court’s CM/ECF System, which will send notification of
such filing to all counsel of record herein.

/s/ Randall Wakefield

Randall Wakefield

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