Summary: Plaintiff brought claim against defendant for defamation and intentional infliction of emotional distress. After defendant failed to respond to mail sent to her, plaintiff moved for default judgment. The court granted plaintiff’s motion for default on the defamation claim, but dismissed plaintiff’s emotional distress claim because plaintiff’s distress in this case was not severe enough to be actionable.

Case Name: Louis Charles Hamilton, II v. Christine Mostad

Case Number: A3-99-11

Docket Number: 81

Date Filed: 8/6/01

Nature of Suit: 320

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

SOUTHEASTERN DIVISION

REPORT AND RECOMMENDATION

            On December 15, 2000, plaintiff made a motion for default judgment and for dismissal of defendant’s counterclaim, because defendant’s whereabouts were unknown and mail sent to her address had been returned. On January 31, 2001, the undersigned magistrate judge entered a Report and Recommendation recommending dismissal of the defendant’s counterclaim for failure to prosecute, but held the motion for default judgment in abeyance pending a hearing on the issue. The court determined plaintiff must present a factual basis for his claims in order for judgment to be entered in his favor

            On March 12, 2001, a hearing was held where Hamilton presented evidence, through documents and testimony, attempting to support his claims of defamation and intentional infliction of emotional distress. Based on the evidence plaintiff produced, this court recommends his motion for default judgment be granted on the defamation claim and that his intentional infliction of emotional distress claim be dismissed with prejudice.

I. Background

            Many of the background facts in this case are sketchy. What is clear is defendant accused plaintiff of attempting to rape her. The events in question took place August 17-18, 1998 in Fargo. Sometime that night, defendant and a friend of hers met plaintiff. The three of them went to a party together. Defendant took her friend home at some point and then later agreed to give plaintiff a ride home. Defendant drove plaintiff, apparently as directed by plaintiff, to a parking lot near Main Avenue and 45^th Street. Defendant told police and others that plaintiff attacked her at this point and attempted to rape her. She said plaintiff told her he was going to do to her what he did to “that girl,” presumably (according to defendant) in reference to Julie Ann Holmquist, a 16-year old girl from Hallock, MN who disappeared on July 29, 1998 and whose body was found three weeks later north of Lancaster, MN. Defendant claimed she got away from plaintiff and out of the car, ran down the street, and flagged down a motorist. She claimed plaintiff then took off with her car.

            Plaintiff disputes this characterization of the events. Plaintiff agrees they went to the parking lot but denied under oath that he ever assaulted defendant in any way or attempted to rape her. He apparently doesn’t deny, however, taking her car, which was found near the campus of North Dakota State University shortly after defendant reported the alleged incident. Plaintiff was arrested on charges of attempted sexual assault and car theft. Plaintiff was investigated in the murder case of Julie Ann Holmquist, but after nine days was cleared of any wrongdoing in that case. It became apparent plaintiff could not have been in Hallock, MN, on the day Holmquist disappeared.

            After plaintiff was incarcerated for 154 days awaiting trial, the sexual assault charges against him were dropped. Plaintiff pled guilty to the charge of Unauthorized Use of a Motor Vehicle and was sentenced to time served. Hamilton brought this suit against Mostad alleging defamation and intentional infliction of emotional distress. Mostad appeared in this case with an answer through counsel, but some time after that, she apparently moved and could not be located. The court has granted her attorney’s motion to withdraw from the case.

II. Analysis

            Entry of default judgment is a harsh remedy and should be avoided if possible. See Comiskey v. JFTJ Corp., 989 F.2d 1007, 1008 (8^th Cir. 1993). However, at times it is necessary to enter a judgment of default. Default judgments are commonly entered when a party has not appeared, but default may also be entered in other cases, such as where a party has failed to respond to motions or failed to appear at trial. See 10 JAMES WM MOORE ET AL., MOORE’S FEDERAL PRACTICE § 55.10 (3d ed. 2000). A trial court has broad discretion in determining if it is appropriate to enter default. See id. at § 55.20[2][b].

            In this case, the court employed its broad discretion by ordering a hearing to determine if there is a factual basis underlying plaintiff’s claims and to allow plaintiff to produce evidence of damages. In default proceedings it is not necessary for the non-defaulting party to prove liability by a preponderance of the evidence. See Everyday Learning Corp. v. Larson, 242 F.3d 815, 818 (8^th Cir. 2001). However, since the defendant had originally answered and disputed plaintiff’s claims, this court wanted to ensure there was some factual basis for plaintiff’s claims.

            On October 23, 2000, defendant’s attorney requested to withdraw as counsel because defendant had failed to contact him or respond to his letters. The request was granted. On December 15, 2000, plaintiff moved for default judgment and for dismissal of defendant’s counterclaim. The hearing on the motion was held on March 12, 2001 where plaintiff was to provide a factual basis for his claims as well as to present evidence of damages. Plaintiff appeared, called witnesses and testified under oath himself. Defendant did not appear. Defendant has been notified of all relevant information in this case at her last known address. However, all mail sent by the clerk’s office since late in 2000 has been returned. As of the date of this report and recommendation, defendant has still not contacted the court.

            Under North Dakota law, “[s]lander is a false and unprivileged publication other than libel, which charges any person with crime, or with having been indicted, convicted, or punished for crime.” N.D.C.C. §14-02-04. It is undisputed Mostad told others Hamilton attempted to rape her. It is also undisputed that Mostad claimed Hamilton made reference to doing to Mostad what he did to Julie Ann Holmquist. The only question is whether these allegations are false, that is, that Hamilton did not attempt to rape Mostad and that Hamilton did not make reference to doing the same thing to Mostad he did to Julie Ann Holmquist. Hamilton himself testified under oath the allegations were false and also produced other evidence, including the fact the attempted sexual assault charges against him were dropped and that he was cleared of any wrongdoing in the Holmquist investigation. With this information established, and with defendant’s failure to defend this action, plaintiff is entitled to default judgment on the defamation claim.

            Intentional infliction of emotional distress requires proof of (1) extreme and outrageous conduct that is (2) intentional or reckless and causes (3) severe emotional distress. Hougum v. Valley Memorial Homes, 574 N.W.2d 812, 819 (N.D. 1998). The first and second prongs appear to be met. The only issue is whether plaintiff suffered “severe emotional distress.”

            The North Dakota Supreme Court has not had occasion to analyze what constitutes severe emotional distress for purposes of proving intentional infliction of emotional distress. Other courts have laid down varying rules on what constitutes sufficient distress to be actionable. See 82 Am. Jur.2d Wrongful Discharge § 153 (2000). 38 Am. Jur. Fright, Shock, and Mental Disturbance § 15 (2000). Severe emotional distress generally means any type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so, including post-traumatic stress disorder, neurosis, psychosis, chronic depression, or phobia. 38 Am. Jur. Fright, Shock, and Mental Disturbance § 15 (2000). Plaintiff claims the false charges caused him to be depressed and withdrawn from others. He claims because of the distress he refused contact with his family, except for limited contact with his father.

            The court finds that this distress is not severe enough to be actionable in this case. While defendant’s conduct was extreme, plaintiff has not shown any evidence that his distress was severe. Thus, the court will move on to analyze plaintiff’s alleged damages from the defamation.

III. Damages

            Once a party has defaulted regarding liability, the district court has considerable latitude in determining the amount of damages. See MOORE’S FEDERAL PRACTICE § 55.12[2]. When a defendant defaults, facts in plaintiff’s complaint regarding liability may be taken as true. See Larson, 242 F.3d at 818. However, facts relating to the amount of damages must be proved by a preponderance of the evidence. See id.

            Plaintiff’s complaint does not specifically delineate the type of damages he is seeking, but it does refer to emotional distress and humiliation and at being charged with rape. The complaint also refers to his 154-day incarceration. At the aforementioned hearing, plaintiff testified as to his loss of earning during the time of incarceration as well as his depressed mental state. Therefore, plaintiff’s claim of damages appears to relate to his humiliation, distress, inconvenience and loss of income from spending 154 days in jail. Nevertheless, the difficulty with determining damages in this case is that defendant did plead guilty to a charge of unauthorized use of a motor vehicle and was sentenced to time served, or 154 days. See, e.g., Allen v. Kleven, 306 N.W.2d 629, 636 (N.D. 1981) (concluding uncertainty as to the fact of damages prevents recovery). Unauthorized Use of a Motor Vehicle is a Class A Misdemeanor, with the maximum punishment available being one year imprisonment and a $1000 fine. See N.D.C.C. § 12.1-23-06 and § 12.1-32-01. If plaintiff had been charged only with the vehicle offense, he may not have received any jail time, or he may have served the entire 154 days. This court may not speculate what sentence the state court would have imposed if plaintiff had not been charged with sexual assault. Under the circumstances, this court cannot award plaintiff damages for any claimed injuries flowing from his incarceration.

            The court does acknowledge that humiliation and damage to reputation generally flow from accusations of sexual assault and murder, even if the accused is not incarcerated. In this case, the magistrate judge finds plaintiff has suffered such damages in the amount of $6,000.

            IT IS RECOMMENDED that an order for judgment be entered awarding plaintiff the sum of $6,000 on his defamation claim against defendant and that plaintiff’s claim for intentional infliction of emotional distress be dismissed with prejudice.