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Jenkins v. Murphy
United States District Court, E.D. Louisiana
November 27, 2018
MARK ANTHONY JENKINS
ROBERT M. MURPHY, et al.
ORDER & REASONS
W. ASHE, UNITED STATES DISTRICT JUDGE.
the Court is a Motion to Dismiss filed by defendant Barron
Burmaster (“Burmaster”),  to which plaintiff Mark
Anthony Jenkins (“Jenkins”) responds in
opposition, and in support of which Burmaster
replies; a Motion to Dismiss filed by defendant
Kristyl Treadaway (“Treadaway”),  to which Jenkins
responds in opposition,  and in support of which Treadaway
replies; a Motion to Dismiss filed by defendant
Robert M. Murphy (“Murphy”),  to which Jenkins
responds in opposition,  and in support of which Murphy replies,
in further opposition to which Jenkins has filed a
sur-reply; and a Motion to Dismiss filed by
defendant Timothy O'Rourke (“O'Rourke”),
to which Jenkins responds in opposition,  and in
support of which O'Rourke replies. Having
considered the parties' memoranda and the applicable law,
the Court issues this Order & Reasons.
action is a collateral attack on a state court judgment. The
pertinent facts and procedural history of this case were
recited by the Louisiana court of appeal for the fifth
circuit in an appeal stemming from the underlying state-court
Mark Anthony Jenkins, Sr. and Latasha Jackson began their
relationship while Ms. Jackson was in high school. During the
time of their sexual involvement, Ms. Jackson became
pregnant. On September 18, 1997, Mark Anthony Jenkins, Jr.
(hereinafter referred to as “Mark, Jr.”) was born
to Latasha Jackson. According to Mr. Jenkins, he signed an
acknowledgement of paternity establishing filiation to Mark,
Jr., and the acknowledgement was filed by November 1997.1 The
following year, on May 31, 1998, Mr. Jenkins and Ms. Jackson
were married. At some point, the parties separated, and Ms.
Jackson obtained a judgment of child support against Mr.
Jenkins on October 27, 2003. Mr. Jenkins and Ms. Jackson were
divorced on April 13, 2004.
On February 15, 2012, Mr. Jenkins filed a “Petition for
Revocation of Acknowledgement of Paternity, for Damages Due
to Fraud under C.C. art. 2315, and for Restoration of
Payments Not Due under C.C. art. 2299” in the
24thJudicial District Court. In his petition, Mr.
Jenkins alleged that Ms. Jackson fraudulently concealed the
truth about the paternity of Mark, Jr. and obtained child
support while knowing that another man, Samuel Scott, was the
biological father. He also alleged that he mistakenly signed
the acknowledgement of paternity for Mark, Jr. In addition,
Mr. Jenkins sought to have his acknowledgement of paternity
revoked, monetary damages from Ms. Jackson, and a court order
for a paternity test for himself and Mark, Jr.
In opposition to the petition for revocation, Ms. Jackson
filed an “Exception of Prescription and/or No.
Cause/Right of Action.” In her exception, Ms. Jackson
argued that Mr. Jenkins' right to revoke the formal act
of acknowledgement was perempted because he failed to disavow
Mark, Jr. within 180 days of the marriage; thus, he had
neither a right of action nor cause of action to revoke the
acknowledgement. The matter was heard by a domestic
commissioner. In a judgment rendered on July 5, 2012, the
domestic commissioner sustained the exception of prescription
but overruled the exceptions of no cause of action and no
right of action. Mr. Jenkins filed a “Motion for New
Trial, ” which was heard on September 13, 2012. A new
trial was granted, and the matter was set for arguments.2 On
October 15, 2012, the domestic commissioner rendered a
judgment in favor of Mr. Jenkins, which overruled Ms.
Jackson['s] exception of prescription. Ms. Jackson
objected to the domestic commissioner's ruling.
The matter was heard by the trial court on January 16, 2013.
In a judgment rendered on January 22, 2013, the trial court
overruled Ms. Jackson's exception of prescription. The
trial court also ordered genetic testing and assigned costs
for the test. Ms. Jackson sought supervisory review of the
trial court's judgment.
In Jenkins v. Jackson, 13-296 (La.App. 5 Cir.
5/14/13) (unpublished writ disposition), writ not
considered, 13-1835 (La. 8/22/13); 122 So.3d 1009, this
Court granted Ms. Jackson's writ application in part,
reversing the trial court's ruling on the exception of
prescription and rendering a ruling that sustained the
exception. Citing J.P. v. C.E., 12-20 (La.App. 3
Cir. 5/2/12); 94 So.3d 107, this Court found that the
two-year prescriptive period in La. R.S. 9:406 should apply
prospectively from its effective date, which was August 15,
2008. Because Mr. Jenkins did not file his petition to revoke
until February 15, 2012, which was well over the two years
from the effective date, Mr. Jenkins' action to revoke
his acknowledgement of paternity was prescribed. This Court
also vacated the order for genetic testing and remanded the
matter to the trial court for determination of whether Mr.
Jenkins was entitled to the genetic testing pursuant to
applicable law, specifically La. R.S. 9:396. Upon remand, Mr.
Jenkins filed a “Motion for Court to Rule on
Petitioner's Previous Motion for Genetic Testing under
R.S. 9:396.” The trial court granted the motion and
ordered that Mr. Jenkins, Ms. Jackson and Mark, Jr. submit to
the genetic testing.3
On September 11, 2013, Mr. Jenkins filed a “Motion to
Amend Petition to Annul Judgment of Juvenile Court.”4
In that motion, Mr. Jenkins alleged that he filed a petition
to nullify child support in the juvenile court; however, he
was informed by the court that the nullification had to take
place in the district court. Mr. Jenkins sought to amend his
original petition filed, which was filed in the trial court,
to include a request for damages for mental anguish and
nullification of the judgment of child support rendered in
the juvenile court. The motion was heard by the trial court
and granted on November 25, 2013.
Mr. Jenkins subsequently filed a “Petition for
Nullification of the Judgment of the Fifth Circuit which
Reversed a Judgment of This Court” on June 25, 2014. In
that petition, Mr. Jenkins sought to annul the portion of the
May 14, 2013 writ disposition of this Court that found his
right to revoke the acknowledgement prescribed. He alleged
that his acknowledgement of paternity was signed at the
hospital after Mark, Jr. was born, but the only copy of the
acknowledgement was destroyed during Hurricane Katrina, while
in the possession of the State.5 Mr. Jenkins sought to have
the judgment of this Court annulled on the basis that it did
not consider whether the form of the acknowledgement was by
On October 14, 2014, Mr. Jenkins filed a “Rule to Show
Cause Why Plaintiff's Name Should Not Be Removed from the
Birth Certificate and Why An Expert Should Not be Appointed
to Calculate Probability of Paternity.” In that
pleading, Mr. Jenkins requested that, since the genetic
testing ordered by the court showed that he cannot be Mark,
Jr.'s biological father, the testing be admitted into
evidence, the signing of the birth certificate be given no
legal effect, and his name be removed from the birth
certificate. Mr. Jenkins also requested that an expert be
allowed to use Samuel Scott's DNA report6 to calculate
the probability of paternity, and Ms. Jackson be cast with
the costs of the genetic testing.
In opposition to Mr. Jenkins' petition to revoke
acknowledgement and rule to show cause, Ms. Jackson filed an
“Exception of Prescription, ” arguing that Mr.
Jenkins' cause of action was prescribed under the
ten-year liberative prescriptive period. She also argued that
fraud was not a procedural avenue that could be used to
vitiate the birth certificate; specifically, Mr. Jenkins
could have ascertained the truth regarding his paternity of
Mark, Jr. prior to signing the birth certificate.
A hearing on Mr. Jenkins' rule to show cause was held on
January 21, 2015. In a judgment rendered on February 4, 2015,
the trial court denied the rule and made a handwritten
notation that “no authority [was] provided by mover to
show this court that this is the proper procedure to alter or
amend birth certificates. Dept. of Vital Records is not a
party.” In a separate judgment rendered on the same
date, the trial court overruled Ms. Jackson's exception
of prescription, admitted the genetic testing into evidence,
found that Mr. Jenkins is not the father of Mark, Jr., and
ordered Ms. Jackson to reimburse Mr. Jenkins for the total
costs incurred for the testing, which included attorney's
fees and court costs. The trial court also ordered a rule to
show cause hearing to show why the birth certificate should
not be altered and why DCFS should not authorize the
calculation of Mr. Scott's probability of paternity for
Ms. Jackson filed a “Motion and Order for Appeal”
on February 24, 201, seeking appellate review of the trial
court's rulings that overruled her exception of
prescription and ordered her to pay the costs incurred to
prove paternity. The motion was granted by the trial court,
and an appeal was lodged. This Court dismissed Ms.
Jackson's appeal through an order on May 26, 2015,
finding that the trial court's February 4th
judgments were not final judgments. Ms. Jackson was allowed
30 days to file an appropriate writ application seeking
review of the interlocutory rulings.
After the trial court rendered its February 4th
judgments, Mr. Jenkins filed a “Petition for
Alternation of a Birth Certificate to Remove Petitioner's
Name as Father of the Child, Void His Signature, and Change
the Surname of the Child” on February 9, 201.
Subsequently, he filed a “Motion to Amend Petition a
Third Time.” In that motion, Mr. Jenkins sought
permission to add allegations against DCFS, mainly that it
failed to establish paternity prior to obtaining a judgment
of child support against him for Mark, Jr. Mr. Jenkins also
filed a “Motion for Order to Calculate the Probability
of Paternity.” He claimed that he obtained permission
from the juvenile court to allow the use of the DNA report
for Mr. Scott and requested that the DNA information be used
in the instant matter.
On June 23, 2015, Ms. Jackson filed a supervisory writ with
this Court, seeking review of the trial court's February
4, 201 judgments. Ms. Jackson alleged that the trial court
erred when it overruled her exception of prescription and
found Mr. Jenkins not to be the legal father of Mark, Jr. She
argued that Mr. Jenkins' cause of action was prescribed
under La. R.S. 9:392 and 9:406.7 Ms. Jackson further alleged
that the trial court erred in ordering her to reimburse Mr.
Jenkins for the costs incurred in obtaining the genetic
testing. In opposition to the writ application, Mr. Jenkins
contended the prior writ disposition did not preclude his
claim to rebut the presumption of legal paternity created by
signing Mark, Jr.'s birth certificate because there was
no evidence of an authentic act of acknowledgement.
In Jenkins v. Jackson, 15-399 (La.App. 5 Cir.
6/23/15) (unpublished writ disposition), writ
denied, 15-1622 (La. 9/4/15); 177 So.3d 709, 8 Ms.
Jackson's writ application was granted in part and denied
in part. This Court found that Mr. Jenkins had judicially
confessed, in more than one pleading, that he signed both the
birth certificate and an acknowledgement of paternity at the
time of Mark, Jr.'s birth in 1997, and that Mr.
Jenkins' confession constituted full proof against him.
Consequently, this Court found that Mr. Jenkins'
subsequent allegations that he could not remember signing any
acknowledgement or that no authentic act of acknowledgement
existed could not be considered for purposes of pursuing
another attempt to revoke or rebut his acknowledgement of
legal paternity in this matter. Thus, Mr. Jenkins' cause
of action was again found to be prescribed pursuant to La.
R.S. 9:406. The trial court's ruling concerning
prescription was reversed, and Ms. Jackson's exception
was sustained as to Mr. Jenkins' claim to revoke or rebut
his acknowledgement of legal paternity. This Court further
found no error in the portions of the trial court's
judgment that found Mr. Jenkins was not the father of Mark,
Jr., based upon the paternity test report, and ordered Ms.
Jackson to reimburse Mr. Jenkins for the costs incurred in
obtaining the genetic testing and court costs; however, the
order for Ms. Jackson to pay Mr. Jenkins' attorney's
fees was vacated.
On October 7, 2015, Mr. Jenkins filed a “Motion to
Dismiss the Allegations against DCFS Contained in the Third
Amendment to the Petition and Motion to Rebut Finding of
Judicial Confession to Signing ‘An Acknowledgment'
other Than the Birth Certificate.” In the motion, Mr.
Jenkins alleged that Ms. Jackson and DCFS judicially
confessed in the juvenile court proceeding that there was no
authentic act of acknowledgement, and the June
23rd writ disposition from this Court was not the
law of the case. He sought to dismiss his allegations against
DCFS in his third amendment to his petition and sought
admission of the judicial confessions of DCFS and Ms. Jackson
into evidence for the purposes of rebutting this Court's
legal paternity finding. The motion was heard before the
trial court on October 16, 2015. In a judgment rendered on
February 1, 2016, the motion was denied.
Subsequently, in the same proceeding, Mr. Jenkins filed a
“Petition for Nullification 1) Request Nullification of
Fifth Circuit's Ruling for Lack of Jurisdiction and for
Fraud and Ill-Practice in the Writ Application, 2) Request a
Finding that R.S. 9:406(B)(2) is Unconstitutional, and 3)
Request an Injunction against Enforcement of the
Rulings” on March 10, 2016. Among his numerous
allegations, Mr. Jenkins alleged that the rulings of this
Court in the prior writ dispositions regarding the existence
of an authentic act of acknowledgement and legal paternity
were null because this Court lacked the subject matter
jurisdiction to consider the legal paternity of Mark, Jr. He
further alleged that Ms. Jackson's attorney obtained the
rulings in her favor through fraud and ill practices because
she misrepresented the law by claiming that the signing of
the birth certificate made him the legal father of Mark, Jr.
and by failing to enter the judicial confession of Ms.
Jackson from the juvenile court that there was no authentic
act of acknowledgement. He maintained that enforcement of the
rulings obtained through fraud and ill practices would be
unconscionable and inequitable because injustice was brought
about by depriving him of notice and the right to be heard.
Mr. Jenkins also alleged that La. R.S. 9:406(B)(2) was
unconstitutional because it did not provide for a suspension
of the two-year prescriptive period to revoke an authentic
act of acknowledgement obtained by fraud.
On April 5, 2016, Ms. Jackson filed an “Exception of
No. Cause of Action, Res Judicata, and for Sanctions.”
Ms. Jackson argued that Mr. Jenkins' petition for
nullification did not state a cause of action upon which
relief could be granted. She claimed that Mr. Jenkins'
grounds for nullifying the rulings were baseless; thus, she
requested that the action be dismissed. She also argued that
Mr. Jenkins' action sought to re-litigate issues that
were already considered by this Court and the supreme court.
As a result of the repeated litigation of the same issues and
the personal attack upon her attorney, Ms. Jackson requested
sanctions against Mr. Jenkins. The exception was heard before
the trial court on May 16, 2016. On May 24, 2016, the trial
court sustained the exceptions of no cause of action and
res judicata and denied the request for sanctions.9
The instant appeal followed.
* * *
On appeal, Mr. Jenkins alleges the trial court erred in
sustaining the peremptory exceptions of no cause of action
and res judicata, which resulted in the dismissal of
his action. He argues that the litigation has focused
entirely on whether the two-year prescriptive period of La.
R.S. 9:406 applied to an act executed in 1997, not whether
there had actually been an authentic act of acknowledgement
executed by him.
* * *
Mr. Jenkins alleges the trial court erred in sustaining Ms.
Jackson's exception of no cause of action. He claims that
his petition for nullification is authorized by La. C.C.P.
art. 2006 and is not simply another request for review of
this Court's previous rulings. Mr. Jenkins avers that the
grounds for nullity raised in his petition are mainly based
upon lack of subject matter jurisdiction over the issue of
legal paternity and deprivation of the right to be heard
through having an opportunity to present ...
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