Opinion
Case No. 2:02-CV-1122 PGC.
July 6, 2004
ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT
This civil rights matter is before the court on a motion by the plaintiff to alter or amend judgment. The court DENIES this motion.
BACKGROUND
On May 15, 1998, plaintiff Bertina R. Olseth was injured after an arrest while handcuffed in a police vehicle. While the police were outside of the vehicle, something caused it to roll forward. Defendant Officer Matthew D. Larson fired four rounds into the vehicle, injuring Ms. Olseth.
Ms. Olseth first filed a complaint on May 15, 2000, alleging that Salt Lake City, Salt Lake City Police Department, and other individuals (including officer Larson) violated her civil rights. This first action was dismissed on May 15, 2002 for failure to prosecute. Ms. Olseth then filed another complaint on October 11, 2002 adding a new RICO cause of action. In this complaint, officer Larson was sued in his individual capacity, but not official. Officer Larson filed a motion for summary judgment asking the court to dismiss the case because the statute of limitations had passed and because this was the first time he had been sued in his individual capacity.
Summary judgment was granted at a hearing on March 2, 2004. At this hearing Ms. Olseth's counsel was given the opportunity to look at the controlling law on this subject, Lund v. Hall and Ankers v. Rodman, and file a motion to reconsider based on those cases.
ANALYSIS
Ms. Olseth's motion to alter or amend judgment did not address the subject raised by this court. Under Utah law, the statute of limitations ceases to run when a perpetrator leaves the state. However, Lund and Rodman make clear that the statute is not tolled when an out-of-state defendant is amenable to service. Though Ms. Olseth argued Lund did not apply, she failed to address Rodman in any respect, instead rehashing old arguments rejected and asking for the case to be reinstated based on equitable estoppel. Indeed, Rodman states the statute of limitations will not be tolled "when a nonresident is subject to the reach of Utah's long arm statute."
Utah Code Ann. § 78-12-35 (2003).
See Lund v. Hall, 938 P.2d 285 (Utah 1997) (holding statute was not tolled when defendant was amenable to service under the nonresident motor vehicle act); See also Ankers v. Rodman, 995 F. Supp. 1329 (D. Utah 1997) (holding statute was not tolled when a nonresident was subject to the reach of Utah's long arm statute).
Ankers, 995 F. Supp. at 1334.
In the present case, officer Larson was amendable to service of process in the state of Utah through publication or amendable to service of process through long-arm statutes. Accordingly, the court must reject Ms. Olseth's argument that the statute of limitations must be tolled during the time Mr. Larson was out of state, Ms. Olseth's motion to alter or amend judgment (#42-1) is DENIED.
SO ORDERED.