United States District Court, D. Utah
RIVERBEND RANCH EQUESTRIAN CENTER LLC, a Utah Limited Liability Company; and TAMARA RAE LARSEN, an individual; Plaintiffs,
ROBERT DUVALL, an individual; ROBERT CARLINER, an individual; WILD HORSES PRODUCTIONS ENTERTAINMENT LLC, a Canceled California Limited Liability Company; and JOHN DOE DEFENDANTS I - XX; Defendants.
MEMORANDUM DECISION AND ORDER
N. Parrish United States District Court Judge
the Court is Defendant Wild Horses Productions Entertainment
LLC's (“Wild Horses”) motion to dismiss its
remaining counterclaim with prejudice (ECF No. 41).
Plaintiffs oppose the motion (ECF No. 49). Also pending
before the Court is White Horses' motion for leave to
amend the same counterclaim (ECF No. 26). The Court has
reviewed the filings, and oral argument would not
significantly assist the Court in its determination. For the
reasons below, the Court grants White Horses' motion to
dismiss and denies as moot its motion for leave to amend.
a contract case. In 2014, White Horses contracted with
Plaintiffs Riverbend Ranch Equestrian Center LLC
(“Riverbend Ranch”) and Tamara Rae Larsen to use
the Riverbend Ranch in its production of the motion picture
“Wild Horses.” ECF No. 10-1. On September 11,
2015, Plaintiffs filed a Complaint in the Utah Third District
Court against Robert Duvall, Robert Carliner, Wild Horses,
and John Doe Defendants I-XX. Plaintiffs alleged that
Defendants breached the Location Agreement by failing to
include Plaintiffs' names in the movie's screen
credits. Plaintiffs also alleged breach of the implied
covenant of good faith and fair dealing. On October 30, 2015,
Defendants removed the case to this Court based on diversity
the case was in this Court, Wild Horses filed an Answer to
the Complaint alleging two counterclaims: (1) breach of the
Location Agreement by Larsen for posting advertisements to
sell a prop used in the movie without Wild Horses'
consent; and (2) breach of the Location Agreement against
both plaintiffs for interference with Wild Horses'
filming and full use of the Riverbend Ranch.
4, 2017, Wild Horses filed a motion for leave to amend its
first counterclaim to include Riverbend Ranch and to dismiss
its second counterclaim (ECF No. 14). The Court granted Wild
Horses' request to dismiss the second counterclaim but
denied without prejudice the request to add Riverbend Ranch
as a counter-defendant to the first. Wild Horses renewed its
motion to add Riverbend Ranch as a counter-defendant on March
13, 2017. That motion is still pending.
18, 2017, Plaintiffs accepted an offer of judgment as to
claims asserted in the Complaint under Federal Rule of Civil
Procedure 68. Under the terms of that offer, the Complaint
proceeding has been resolved, except for a determination of
attorneys' fees to be awarded to Plaintiffs. After
Plaintiffs accepted the offer of judgment, the parties
attempted to negotiate a global resolution of the
attorneys' fees and Defendants' remaining
counterclaim. Those negotiations failed, and the parties
disagree on the appropriate resolution. In essence,
Defendants want the Court to dismiss their remaining
counterclaim, leaving the parties to split attorneys'
fees. Plaintiffs object, seeing Defendants' motion to
dismiss the counterclaim as an attempt to “ride off
into the sunset after saddling [Plaintiffs] with thousands of
dollars” in attorneys' fees. ECF No. 49 at ii.
DECLARATIONS OF JOANN SHIELDS AND TAMARA LARSEN
preliminary matter, the Court turns to the Declarations of
Joann Shields and Tamara Larsen that Plaintiffs submitted in
support of their memorandum opposing Wild Horses' motion
(ECF No 49, Exhibits B, C). Wild Horses argues that these
declarations are self-serving and conclusory, that they lack
foundation, and that they set forth no facts.
Court agrees. The nearly identical declarations amount to
legal horseplay. They allege only that the declarants
“have personal knowledge of the facts set out in
Plaintiffs' Response Memorandum” and that those
facts “set out in the Motion and supported by [their
declarations] are true.” Bare-bone declarations of this
nature add nothing of value to Plaintiffs' motion. They
omit even the most basic details necessary to support a
finding that either declarant has personal knowledge of the
matters they declare; they are thoroughly self-serving and
conclusory; and they leave entirely to the Court's
imagination to which of the facts in Plaintiffs' 18-page
motion they refer. Therefore, the Court excludes both
declarations from its consideration. See Hansen v. Native
Am. Oil Refinery Co., No. 2:06-CV-109, 2012 WL 567191,
at *7 (D. Utah Feb. 21, 2012) (“Such conclusory
statements . . . should be excluded from consideration unless
the declaration lays a foundation of the declarant's
personal knowledge of the matter.”), aff'd sub
nom. Hansen v. PT Bank Negara Indonesia (Persero), 706
F.3d 1244 (10th Cir. 2013); Hall v. Bellmon, 935
F.2d 1106, 1111 (10th Cir. 1991) (“[T]he
nonmovant's affidavits must be based upon personal
knowledge and set forth facts that would be admissible in
evidence; conclusory and self-serving affidavits are not
CHOICE OF LAW
the parties' dispute is the issue of applicable law.
Plaintiffs argue that “Utah law governs attorney fees
and costs after voluntary dismissal with prejudice.”
ECF No. 49 at 1. But Defendants jockey for position,
contending that “Plaintiffs are bound to the provisions
of the Location Agreement they negotiated and signed, and
consequently, California law governs.” ECF No. 52 at 9.
evaluate the effect of a contractual choice-of-law clause,
courts in the Tenth Circuit look to the choice-of-law rules
in the forum state. Been v. O.K. Indus., Inc., 495
F.3d 1217, 1236(10th Cir. 2007). In Utah, “courts
generally uphold choice-of-law provisions based on the intent
of the contracting parties and a respect of the parties'
right to choose the governing law for a contract.”
GRB Enters. LLC v. JPMorgan Chase Bank, N.A., No.
2:11-cv-833, 2012 WL 845418, at *3 (D. Utah Mar. 12, 2012)
(citing Innerlight, Inc. v. Matrix Group, LLC, 214
P.3d 854, 857- 58 (Utah 2009)). Furthermore,
Utah law provides that “the law of the state chosen by
the parties to govern their contractual rights and duties
will be applied unless either (a) the chosen state has no
substantial relationship to the parties or the transaction
and there is no other reasonable basis for the parties'
choice or (b) application of the law of the chosen state
would be contrary to a fundamental policy of a state which
has a materially greater interest than the chosen state in
the determination of the ...