Raymond G. Kuntz P.O. Box 2187 IN THE UNITED STATES ... · Attorney for Defendant Alex Nixon IN THE UNITED STATES DISTRICT COURT, FOR THE DISTRICT OF MONTANA BILLINGS DIVISION WILLIAM

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Raymond G. Kuntz23 N. BroadwayP.O. Box 2187Red Lodge, MT 59068(406) [email protected] Attorney for Defendant Alex Nixon

IN THE UNITED STATES DISTRICT COURT, FOR THE DISTRICT OF MONTANA

BILLINGS DIVISION

WILLIAM D. BURGAN and LYNETTEBURGAN,

Plaintiffs,vs.

ALEX NIXON, THOMAS RIEGER andCARBON COUNTY,

Defendants.

Cause No.: CV-16-61-BLG-TJC

Judge: Timothy J. Cavan

ANSWER, DEFENSES AND JURYDEMAND OF DEFENDANTALEX NIXON

DEFENDANT Alex Nixon, for his answers and defenses to the complaint

alleges as follows:

1. Deny the allegations of paragraph 1. Each numbered paragraph below

answers the corresponding numbered paragraph of the complaint.

2. Denies knowledge or information sufficient to form a belief as to the

truth of the allegations and accordingly deny the allegations as to Brien, Deny the

remaining allegations.

Case 1:16-cv-00061-TJC Document 82 Filed 10/12/18 Page 1 of 25

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3. Deny, and affirmatively state that Alex Nixon was never invited to a

barbeque at Brien’s residence, and has never been to Brien’s residence.

4. Deny, and affirmatively state that Nixon had never met Brien before

August of 2013. Nixon and Brien have not been, and are not now, friends. Nixon

and Brien have never hunted together, or done anything together socially. Admit

that Nixon is a licensed outfitter.

5. Deny that Lynette Burgan has ever contacted Nixon. Admit that

William Burgan (hereinafter “Burgan”) contacted Nixon, affirmatively state that

the record of communications between Nixon and Burgan speak for themselves,

and except as admitted deny the allegations.

6. Admit that Burgan presented various documents, affirmatively state

that the documents speak for themselves. Deny that any easement had at that time

been established. Affirmatively state that after firing his civil attorney, Burgan

pursued a campaign of self help reliant on the threat of imminent violence.

Burgan sent an email to Nixon complaining that he was being discriminated

against and stating "We are done with this bullshit and my bolt cutters are ready. I

am not afraid as I have the AG on my side now. I will try and be nice one last time

then that's it." SAC exhibit 7 (ECF 23-7).

Burgan sent a letter to the Montana Attorney General's office complaining


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about his dispute with Brien and asking "When will this stop? When someone gets

hurt or killed?" SAC exhibit 11, p.5.

Burgan told the Attorney General that his confrontations with Brien were

potentially dangerous: "Are we (Bill, Lynette, and Chase Burgan) to live in

constant fear that this will escalate into an even more serious situation? Because it

will. We need your help. Please address this potentially dangerous situation as

soon as possible." SAC exhibit 11, p.6.

7. Admit that Burgan entered Brien’s property on August 15, 2013.

Admit that Nixon advised Rieger as to the existence of probable cause for criminal

mischief or trespass. Denies knowledge or information sufficient to form a belief

as to the truth of the allegations and accordingly deny the allegations as to the

remainder of the allegations.

8. Admit that the trespassing charge was dismissed on the motion of the

State of Montana based on Burgan’s representation that he would resolve the

easement dispute civilly. Affirmatively state that the State’s dismissal terminated

any and all involvement between Defendant and plaintiffs regarding the easement

issue. Affirmatively state that, as pled by plaintiffs, there was no further contact

with Defendant and Burgan after the dismissal. Admit that the decision issued by

Judge Moses established the easement.


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9. Deny and affirmatively state that the plaintiffs settled all claims for

damages and attorney fees in their civil suit with Brien.

10. Deny that the allegations of paragraph 10 require any response from

this answering defendant.

11. Deny that the general considerations underlying the supplemental

jurisdiction doctrine - “judicial economy, convenience, fairness, and comity” -

support the state-law claims, and affirmatively state that there are no remaining

federal claims against Nixon and that the State law claims raise novel and

complex issues of State law that substantially predominate over the claim against

the county over which the district court has original jurisdiction, and that in the

absence of viable federal claims against the County defendant supplemental

jurisdiction would be lacking. 28 U.S.C. § 1367(c).

12. Admit that defendants reside within the Billings Division and that the

events alleged occurred within the Billings Division, and except as admitted deny

the allegations.


truth of the allegations and accordingly deny the allegations




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15. Deny that defendant’s name is Alexander Nixon and affirmatively

state the defendant’s name is Alex Nixon, admit that Alex Nixon at all times

pertinent to this action is the County Attorney for Carbon County, Montana and

except as admitted deny the allegations.

16. Deny.

17. Admit that defendant Rieger served as Carbon County Sheriff from

2007 through 2014, and except as admitted deny the allegations.

18. Deny.

19. Admit that Carbon County is a governmental subdivision of the State

of Montana, and except as admitted deny the allegations.











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34. Deny as to Nixon, Denies knowledge or information sufficient to

form a belief as to the truth of the allegations and accordingly deny the allegations

as to the remaining allegations.

35. Deny as to Nixon, Denies knowledge or information sufficient to

form a belief as to the truth of the allegations and accordingly deny the allegations

as to the remaining allegations. Affirmatively state that Alex Nixon was never

invited to a barbeque at Brien’s residence, and has never been to Brien’s

residence.

36. Deny and affirmatively state that Nixon had never met Brien before

August of 2013. Nixon and Brien have not been, and are not now, friends.

37. Deny and affirmatively state that Nixon had never met Brien before

August of 2013. Nixon and Brien have not been, and are not now, friends. Nixon

and Brien have never hunted together, or done anything together socially. Admit

that Nixon is a licensed outfitter.




truth of the allegations and accordingly deny the allegations , and affirmatively

state that the exhibit speaks for itself.


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45. Admit and affirmatively state that the exhibit speaks for itself.

46. Admit that Burgan asserted various unrecorded legal rights, except as

admitted deny the allegations and affirmatively state that the exhibit speaks for

itself.

47. Admit and affirmatively state that the exhibit speaks for itself.


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truth of the allegations and accordingly deny the allegations as to Bill Burgan’s

travel to the Sheriff’s office, and affirmatively state that in his report McJunkin is

simply reporting Burgan's claims and describing the documents that were given to

him by Burgan. He is not issuing an opinion on Burgan's easement right.


truth of the allegations and accordingly deny the allegations as to Burgan’s

submission of additional documents, and affirmatively state that the documents

speak for themselves.

50. Admit that McJunkin provided various documents to Nixon, deny

knowledge or information as to the specific documents attached as exhibits.

51. Deny.


truth of the allegations and accordingly deny the allegations .







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62. Admit and affirmatively state that the documents speak for

themselves.


themselves.


themselves. Affirmatively state that the Assistant Attorney General advised Bill


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Burgan on or about the date of the letter that although the easement dispute with

Brien was civil in nature, Burgan could face criminal liability for destruction of

Brien’s property or trespassing. The Assistant Attorney General confirmed in

conversation with Nixon and Bill Burgan that she believed there was probable

cause for the criminal charges and that the Attorney General’s office would not

intervene in the civil or criminal cases.





67. Admit.

68. Deny and affirmatively state that Nixon advised Rieger that the facts

presented supported probable cause for criminal trespass or criminal mischief.



70. Admit and affirmatively state that the ticket speaks for itself.





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74. Deny



76. Admit and affirmatively state that the trespassing charge was

dismissed on the motion of the State of Montana based on Burgan’s representation

that he would resolve the easement dispute civilly. Affirmatively state that the

State’s dismissal terminated any and all involvement between Defendant and

plaintiffs regarding the easement issue. Affirmatively state that, as pled by

plaintiffs, there was no further contact with Defendant and Burgan after the

dismissal.

77. Deny and affirmatively state that Nixon never made any such threat.

78. Admit.

79. Admit and affirmatively state that the decision of Judge Moses speaks

for itself.


for itself.


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for itself.

82. Admit that summary judgment was granted, affirmatively state that

the decision of Judge Moses speaks for itself.









87. Admit that summary judgment was granted affirmatively state that the

order of Judge Moses speaks for itself.

88. Admit that summary judgment was granted affirmatively state that the

decision of Judge Moses speaks for itself.



FIRST CAUSE OF ACTION


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90. Defendant Nixon incorporates all previous answers by reference as if

restated in full.

91. Admit and affirmatively state that the Constitution speaks for itself.

92. Admit to the general principles of due process and except as admitted

deny.



94. Deny.

95. Deny.

96. Deny.

SECOND CAUSE OF ACTION

97. Defendant Nixon incorporates all previous answer by reference as if

restated in full.


99. Admit to the general principles of takings law, and except as admitted

deny.



101. Deny.


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102. Deny.

103. Deny.

THIRD CAUSE OF ACTION


restated in full.




107. Deny.

108. Deny.

109. Deny.

FOURTH CAUSE OF ACTION


restated in full.




113. Deny.

114. Deny.


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115. Deny.

FIFTH CAUSE OF ACTION


restated in full.

117. Admit to the general principles of law, and except as admitted deny.

118. Deny and affirmatively state that plaintiff Lynette Burgan admits that

her claims to have been charged are without merit. Admit the plaintiff Bill Burgan

was cited for criminal trespass.

119. Deny.

120. Deny.

121. Admit and affirmatively state that the trespassing charge was

dismissed on the motion of the State of Montana based on Burgan’s representation

that he would resolve the easement dispute civilly, and except as admitted deny

the allegations and conclusions.

122. Deny.

SIXTH CAUSE OF ACTION


restated in full.

124. Admit to the general principles of law, and except as admitted deny.


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125. Deny and affirmatively state, as confirmed by the Attorney General’s

office, that Bill Burgan’s escalating threats of violence, and refusal to seek civil

remedies, took the situation out of the realm of a civil dispute.

126. Deny and affirmatively state that plaintiff Lynette Burgan admits that

her claims to have been charged are without merit. Admit the plaintiff Bill Burgan

was cited for criminal trespass and except as admitted deny the allegations.

127. Deny.

128. Deny.

129. Deny each and every allegation not specifically admitted.

DEFENSES

1. To the extent any Defense should be treated as a counterclaim,

Defendant requests the Court exercise its authority pursuant to Rule 8(c)(2),

Federal Rules of Civil Procedure, to treat the pleadings as if there had been a

proper designation.

2. Plaintiffs fail to state a claim upon which relief may be granted as to

the claims in Plaintiffs’ Second Amended Complaint.

3. Defendant asserts that to the extent the claims of Plaintiffs in the

Second Amended Complaint seek to impose liability upon Defendant under a

theory of respondeat superior, such claims are barred as against Defendant.


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4. Defendant asserts that to the extent Defendant was a state actor at all

times relevant to Plaintiffs' claims in the Second Amended Complaint, the claims

of Plaintiffs in the Second Amended Complaint are barred by the Eleventh

Amendment to the United States Constitution and therefore cannot be sustained as

against Defendant.

5. Plaintiffs damages, if any, were caused by the negligence and/or

conduct of other parties, including, but not limited to, individuals not named in

this lawsuit, and defendant is not liable nor responsible for the negligence and/ or

conduct of these other parties.

6. Defendant is entitled to an offset and/or credit for any amounts

received or that will be received by plaintiffs which in any way relate to damages

awarded or amounts received by plaintiff by way of settlement, verdict, and/or

judgment.

7. Defendant asserts that the allegations in the claims of Plaintiffs in the

Second Amended Complaint do not rise to the level of a constitutional violation.

8. Probable cause existed for issuance of a trespassing ticket.

9. Probable cause existed for issuance of a criminal mischief ticket.

10. A neutral judicial officer determined that probable cause existed for

issuance of the trespassing ticket.


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11. Plaintiff s claims based on negligence are barred by the Public Duty

Doctrine.

12. Discovery may disclose that the comparative fault provisions of

Mont. Code

Ann. § 27-1-703 are applicable to Plaintiffs negligence claims.

13. Plaintiffs’ State Constitutional claims are duplicative. Plaintiffs are

limited to a single damage recovery for any provable violation of the State

Constitution.

14. Plaintiffs cannot seek dual recoveries from both a governmental

entity and an individual acting on behalf of the governmental entity for the same

subject matter.

15. Any alleged wrongful conduct on the part of Nixon, which wrongful

conduct he specifically denies, occurred while he was lawfully acting within the

course and scope of his duties as a public officer of the State of Montana and / or

the County of Carbon, thereby entitling him to all protections and immunities set

out in Mont. Code Ann. § 2-9-305.

16. Any damage recovery against Nixon would be subject to the statutory

monetary limitations set out in Mont. Code Ann. § 2-9-108.

17. Discovery may disclose that Plaintiffs suffered from pre-existing


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physical and/or mental/emotional conditions and or financial and/or agricultural

conditions unrelated to the allegations of Plaintiffs’ Complaint thereby

precluding or proportionately reducing any damage recovery against defendant

Nixon.

18. The private attorney general doctrine does not apply to the facts of

this case and no attorney fee award is justified.

19. If defendant Nixon is the prevailing party, he is entitled to an award

of reciprocal attorney fees and costs from Plaintiff as allowed by law.

20. Discovery may show that Plaintiffs failed to reasonably mitigate their

claimed damages.

21. Subject to amendment and in order not to waive this affirmative

defense, the facts may show that defendant is protected by qualified or absolute

immunity.

22. Subject to amendment and in order not to waive this affirmative

defense, any damages alleged by Plaintiff were the result of superseding or

intervening events, factors, occurrences, or conditions, which were in no way

caused or contributed to by Defendant.

23. Subject to amendment as discovery continues and in order not to

waive this affirmative defense, plaintiffs' damages, if any, are due to the acts


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and/or omissions of persons or entities, named and/or unnamed, other than

defendants; however, in the event a finding is made that liability exists against any

of them, defendants are entitled to indemnity and/or contribution from such

persons or entities in direct proportion to their respective fault.

24. Subject to amendment as discovery continues and raised at this time

in order not to waive this affirmative defense, plaintiffs' damages were

proximately caused by their own negligence and/or lack of due care, therefore

their recovery, if any, must be reduced or barred accordingly.


waive this affirmative defense, plaintiff's alleged damages were caused by the

conduct, fault, negligence, breach of duty and/or wrongful misconduct of persons,

parties and/or non-parties other than defendant, and for which defendant can have

no responsibility nor otherwise be held liable to plaintiff.


waive this affirmative defense, plaintiff's alleged damages were the result of

independent, superceding and/or intervening and/or independent acts/omissions of

persons, parties and/or non-parties other than defendant thereby cutting off any

responsibility or liability of defendant to plaintiffs.



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waive this affirmative defense, if any liability is assessed against defendant to any

extent, then the negligence of all other parties and non-parties, including the

plaintiff, must be evaluated by the trier of fact and liability must be apportioned

accordingly.


waive this affirmative defense, some or all of plaintiff's damage claims are limited

or barred due to the spoliation of evidence.


waive this affirmative defense, some or all of the plaintiff's claims may be barred

by applicable statutes of limitation.


waive this affirmative defense, some or all of the plaintiff's claims may be barred

by the doctrines of assumption of the risk, laches, waiver, estoppel, statute of

frauds, unclean hands and/or the parole evidence rule.


waive this affirmative defense, defendants are entitled to a dollar-for-dollar offset

or credit for the payment by any party, non-party or insurer, either directly or

indirectly to plaintiff or to any person/entity on plaintiff's behalf relating to any

damage claim in this lawsuit.


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waive this affirmative defense, plaintiff's claimed injuries or damages, if any, were

proximately caused by the negligent acts and/or omissions of parties and/or

non-parties other than defendants. As such, to the extent that plaintiff has now

settled or will settle with any such party or non-party and has released or will

release them from liability, plaintiff is deemed, as a matter of law, to have assumed

the total negligence/liability of each such settling party/non-party to be ultimately

determined by the jury in accordance with §27-1-703, MCA. As such, the total

amount of that assumed negligence/liability must be allocated against plaintiff's

recovery of damages, if any, thus reducing or barring their recovery accordingly.


waive this affirmative defense, punitive damages have not been properly pled nor

are such damages recoverable under totality of the facts and circumstances

relevant to the plaintiff's claims at issue as against defendants.


waive this affirmative defense, the actions and/or omissions attributable to

defendant do not constitute actual malice as required by §27-1-221, MCA upon

which an award of punitive damages must be based.



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waive this affirmative defense, plaintiffs’ claims for punitive damages violate the

Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States

Constitution and Article II, §§4, 17, 22 and 25 of the Montana Constitution.

36. Reservation Of Right To Add Further Defenses: defendant has raised

these affirmative defenses so as not to waive them. Defendant reserves the right to

add any additional defense that may be deemed necessary, applicable or otherwise

warranted as discovery proceeds in this litigation. Upon the completion of

discovery and prior to the Final Pretrial Conference, defendant’s counsel will

dismiss any defense deemed not applicable.

37. Defendant Nixon reserves the right to plead or withdraw such other

Affmnative Defenses which through ongoing investigation and discovery are

found to be applicable or inapplicable to the allegations of Plaintiffs Complaint.

WHEREFORE, Defendant requests this Court to enter judgment that:

1. Plaintiffs take nothing by reason of their Second Amended

Complaint;

2. Plaintiffs' Second Amended Complaint be dismissed with prejudice;

3. Awards Defendants the costs of suit incurred and reasonable attorney

fees; and


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4. Grants all other relief that the Court deems appropriate.

Dated: October 12, 2018

/s/ Raymond G. KuntzRaymond G. KuntzP.O. Box 2187Red Lodge, MT 59068(406) [email protected] for Defendant Alex Nixon

CERTIFICATE OF SERVICE

I hereby certify that the foregoing document was served upon the followingcounsel of record, by ECF Electronic filing, on October 12, 2018

Matthew G. MonfortonMonforton Law Office PLLC32 Kelly CourtBozeman MT, 59718(406) [email protected]

Jacqueline R. PapezDONEY CROWLEY P.C.Diamond Block, Suite 20044 West 6th AvenueP.O. Box 1185Helena, MT 59624-1185Telephone: (406) 443-2211Facsimile: (406) 449-8443Email: [email protected]

Attorneys for Defendant CarbonCounty

West Law Firm, P.C.GW Building, Suite 4002722 3rd Avenue NorthBillings, MT 59101Telephone: (406) 252-3858Facsimile: (406) [email protected] for Defendant Rieger

/s/ Raymond G. KuntzRaymond G. KuntzAttorney for Defendant Alex Nixon


mailto:[email protected]

mailto:[email protected]

Documents

Raymond G. Kuntz P.O. Box 2187 IN THE UNITED STATES ... · Attorney for Defendant Alex Nixon IN THE UNITED STATES DISTRICT COURT, FOR THE DISTRICT OF MONTANA BILLINGS DIVISION WILLIAM