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Jenkins v. Murphy

United States District Court, E.D. Louisiana

November 27, 2018

MARK ANTHONY JENKINS
v.
ROBERT M. MURPHY, et al.

         SECTION: M (1)

          ORDER & REASONS

          BARRY W. ASHE, UNITED STATES DISTRICT JUDGE.

         Before the Court is a Motion to Dismiss filed by defendant Barron Burmaster (“Burmaster”), [1] to which plaintiff Mark Anthony Jenkins (“Jenkins”) responds in opposition, [2]and in support of which Burmaster replies;[3] a Motion to Dismiss filed by defendant Kristyl Treadaway (“Treadaway”), [4] to which Jenkins responds in opposition, [5] and in support of which Treadaway replies;[6] a Motion to Dismiss filed by defendant Robert M. Murphy (“Murphy”), [7] to which Jenkins responds in opposition, [8] and in support of which Murphy replies, [9] and in further opposition to which Jenkins has filed a sur-reply;[10] and a Motion to Dismiss filed by defendant Timothy O'Rourke (“O'Rourke”), [11] to which Jenkins responds in opposition, [12] and in support of which O'Rourke replies.[13] Having considered the parties' memoranda and the applicable law, the Court issues this Order & Reasons.

         I. BACKGROUND

         This 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 litigation:

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 authentic act.
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 Mark, Jr.
Ms. Jackson filed a “Motion and Order for Appeal” on February 24, 201[5], 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[5]. 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[5] 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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