Opinion
Case No. CIV–16–1002–R
12-12-2017
Lea Ann LAVIELLE and Michael Lavielle Individually and on Behalf of their Minor Children, H.L., A.L., and D.L., Plaintiffs, v. Daniel Bertram ACOSTA, Defendant.
Mark D. Spencer, McAfee & Taft A Professional Corporation, Oklahoma City, OK, for Plaintiffs. Timothy D. Beets, Midtown Attorneys, Oklahoma City, OK, for Defendant.
Mark D. Spencer, McAfee & Taft A Professional Corporation, Oklahoma City, OK, for Plaintiffs.
Timothy D. Beets, Midtown Attorneys, Oklahoma City, OK, for Defendant.
ORDER
DAVID L. RUSSELL, UNITED STATES DISTRICT JUDGE
By verdicts dated November 14, 2017, a jury found Defendant liable to each of the Plaintiffs for the tort of outrage under Kansas law, and imposed both non-economic and punitive damages in Plaintiffs' favor. Plaintiffs now seek a permanent injunction to prevent Defendant Daniel Acosta from continuing his harassment of Plaintiffs. (Doc. No. 95). Defendant responded to the request and asked for similar protection from the Plaintiffs. Having considered the parties' submissions, the Court finds as follows.
Under traditional equitable principles, a plaintiff must demonstrate four things to obtain a permanent injunction:
(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.
eBay v. MercExchange, LLC , 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006) (Thomas, J.). See Fisher v. Oklahoma Health Care Auth. , 335 F.3d 1175, 1180 (10th Cir. 2003) (stating that, to obtain a permanent injunction, the party requesting such relief bears the burden of showing: "(1) actual success on the
merits; (2) irreparable harm unless the injunction is issued; (3) the threatened injury outweighs the harm that the injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest." (citations omitted)). "[I]rreparable injury [is] a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again—a ‘likelihood of substantial and immediate irreparable injury.’ " City of Los Angeles v. Lyons , 461 U.S. 95, 110, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (quoting O'Shea v. Littleton , 414 U.S. 488, 502, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) ).
Daye v. Community Financial Loan Service Centers, LLC, d/b/a Speedy Loan , ––– F.Supp.3d ––––, 2017 WL 5990133 (D.N.M. Nov. 30, 2017). By prevailing at trial, each of the Plaintiffs has achieved actual success on the merits. Accordingly, the Court turns to the remaining three inquiries.
The Court finds there is a substantial threat of future harm to Plaintiffs if an injunction is not granted against Mr. Acosta. In a supplement filed on December 5, 2017, Plaintiffs present the Court with evidence that despite the substantial verdicts against him, Mr. Acosta contacted Plaintiffs' expert witness via the Facebook Messenger App to assert that she lied in Court. (Doc. No. 101–2). Additionally, according to a declaration by Lee Ann and Michael Lavielle, the Oklahoma Department of Human Services informed them that the Department had received an anonymous call regarding their family. The caller falsely indicated that Lea Lavielle testified at trial in this matter that she was going to kill her husband and children. Although the call was made anonymously, it is consistent with testimony at trial that Defendant made calls to child welfare in Kansas regarding the Lavielles. Finally, the Lavielles were visiting friends in Elkhart and while in a store, Defendant drove past the store three times and then followed them as they drove through town for miles as they returned to Oklahoma. Additionally, the harm Plaintiffs seek to avoid is their continued emotional degradation, which is undoubtedly irreparable.
Plaintiffs have additionally established that the threatened injury outweighs any harm to Defendant and the limitations imposed herein on Defendant will not disserve the public interest. The Lavielles were driven from their home in Kansas because of Defendant's abusive tactics toward various members of the family, including the minor children. Under an appropriately tailored injunction, Defendant will be limited with regard to his activities as they relate to the Lavielle family and his campaign of harassment, but otherwise should not have his life disrupted. Finally, the public interest is served by protecting families, especially minor children, from the harassing behavior of others. The Court finds Plaintiffs have established injunctive relief is appropriate and that monetary damages alone are insufficient, accordingly, the Court must determine the scope of any injunction.
The Court takes guidance from protective orders entered by state courts in Oklahoma and Kansas in instances of alleged stalking and harassment. Defendant Daniel Acosta is hereby ordered to have no contact with any Plaintiff in this action, in any manner, including but not limited to: in person, by telephone, online, or by mail, at any time or place. Defendant is not to abuse, threaten, injure, assault, molest, stalk, harass or otherwise interfere with any Plaintiff and he may not damage or injure any property in which any Plaintiff has an interest. Defendant may not place any Plaintiff under surveillance, for any purpose, including with the intent to kill, injure, harass, or intimidate any Plaintiff. Defendant may not follow any Plaintiff either by vehicle or on foot. Defendant may not enter upon the property of the Plaintiffs or direct any object or person upon their property. Defendant may not direct or request that any third party do that which he is prohibited from doing by this Order.
This Order is effective immediately. No person, including any Plaintiff, may give permission to Defendant to ignore or violate any provision of this Order during its period of validity. Every provision of this Order is in full force and effect unless a Court changes this Order.
For the reasons set forth herein, Plaintiffs' Motion for Permanent Injunction is GRANTED AS SET FORTH HEREIN. Defendant's request for injunctive relief is denied.
IT IS SO ORDERED this 12th day of December 2017.