FILED United States Court of Appeals Tenth Circuit PUBLISH February 20, 2014 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT
KIM DAHL,
Plaintiff - Appellant,
v. No. 13-4023
CHARLES F. DAHL, M.D., P.C. DEFINED BENEFIT PENSION TRUST; CHARLES F. DAHL, individually; ROSEMOND V. BLAKELOCK; KELLY PETERSON; DOES 1 - 5,
Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH (D.C. No. 2:11-CV-00949-TC)
Steve S. Christensen (Craig L. Pankratz with him on the briefs), Christensen Corbett & Pankratz, PLLC, Salt Lake City Utah, for Plaintiff – Appellant.
Stanford E. Purser, Assistant Utah Attorney General, (John E. Swallow, Utah Attorney General, with him on the brief), Salt Lake City, Utah, for Defendant – Appellee, Kelly Peterson.
Rosemond V. Blakelock (Ryan D. Petersen with her on the brief), Blacklock & Petersen, Provo, Utah, for Defendants – Appellees, Charles F. Dahl, M.D., P.C. Defined Benefit Trust, Charles F. Dahl, M.D.P.C., Charles F. Dahl, M.D., and Rosemond V. Blakelock. Before HARTZ, McKAY, and MATHESON, Circuit Judges.
HARTZ, Circuit Judge.
Dr. Charles Dahl and Ms. Kim Dahl were divorced on July 20, 2010, after some
four years of bitter wrangling. The divorce did not end the battles. Ms. Dahl filed suit in
the United States District Court for the District of Utah, alleging federal-law and state-
law claims (1) that Dr. Dahl improperly administered the pension trust of his medical
practice to deny her funds and an accounting and (2) that her telephone conversations
with the Dahls’ minor children were unlawfully monitored, recorded, and disclosed by
Dr. Dahl, his attorney, and the children’s guardian ad litem (GAL) in the divorce
proceedings. The district court dismissed the federal-law pension claims for lack of
subject-matter jurisdiction and granted summary judgment against Ms. Dahl on the
federal-law wiretapping claims. It then declined to exercise jurisdiction on the state-law
claims. Ms. Dahl appeals.
We have jurisdiction under 28 U.S.C. § 1291. We affirm the district court’s
dismissal of Ms. Dahl’s pension claims under the federal Employment Retirement
Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001–1461, on the ground that the
pension trust did not qualify as an employee benefit plan under ERISA, although the
dismissal should have been on the merits rather than for lack of jurisdiction. Given that
ruling, we also hold that the court properly declined to exercise jurisdiction over the 2 related state-law claims. We also affirm the district court’s summary judgment for the
GAL because he was entitled to quasi-judicial immunity for his actions. Finally, we
affirm the summary judgment on the claim based on the monitoring of a telephone call on
October 12, 2009, because at that time it was objectively reasonable for Dr. Dahl to rely
on a court order that had authorized monitoring, but we remand for further proceedings
on the alleged monitoring of later calls because there is a genuine dispute of fact about
whether such monitoring occurred.
I. BACKGROUND
A. State Court Proceedings
When Dr. Dahl filed for divorce in Utah state court, he also filed a motion
requesting temporary custody of the couple’s two children, C.D. and D.D. He alleged
that the children would be irreparably harmed if Ms. Dahl were awarded custody because
she was verbally, emotionally, and sometimes physically abusive toward the children.
On November 2, 2006, Ms. Dahl stipulated to an order granting Dr. Dahl temporary
custody of the children and prohibiting her from unsupervised visitation with them.
Kelly Peterson entered his appearance as GAL a month later.
At a review hearing in December 2006, the court’s domestic-relations
commissioner, noting that the GAL, ACAFS (a private business that was ordered to
supervise Ms. Dahl’s visits), and the professionals treating the children all agreed that
Dr. Dahl should have custody, ordered that the children remain in Dr. Dahl’s sole custody
and imposed limitations, including the supervision requirement, on Ms. Dahl’s visitation. 3 But the commissioner rejected the GAL’s recommendation that Dr. Dahl be permitted to
record Ms. Dahl’s phone calls with the children.
In June 2007, Dr. Dahl filed with the court an affidavit alleging that Ms. Dahl
frequently violated the supervised-visitation order and that her conduct was harming the
children. As examples of violations, he alleged that Ms. Dahl had discussed the divorce
litigation with the children during visitation, contacted the children at school, showed up
at the children’s church on Sundays, assaulted Dr. Dahl in public with her purse, and
accused him in front of the children of being evil and of killing his mother and cousin.
He requested, among other things, that the court allow him to monitor and record
Ms. Dahl’s phone conversations with the children. On July 18, 2007, the court entered an
order granting that request. The order said, in part:
1. [Ms. Dahl] is restrained from having any type of contact or visitation with the minor children, except for the previously ordered visitation which shall occur under the supervision of ACAFS; one four hour period per week and one eight hour period per week. All visitation shall continue to occur with the supervision of ACAFS and it shall occur and be limited to those areas with good cell phone reception. [Ms. Dahl] is hereby restrained from attending any event, or location, where the minor children may be present, unless her attendance is supervised by ACAFS as part of the Court ordered schedule of visitation. 2. [Ms. Dahl] is hereby restrained from harming, harassing, contacting or communicating with [Dr. Dahl], in any place or manner. All communications between [Dr. Dahl] and [Ms. Dahl] shall occur through ACAFS. 3. [Ms. Dahl] is hereby restrained from unmonitored telephone communications with the minor children. All telephone communications between the minor children and [Ms. Dahl] may be monitored by [Dr. Dahl].
Aplt. App., Vol. 1 at 103–104 (emphasis added). 4 On November 27, 2007, Dr. Dahl’s attorney, Rosemond Blakelock, filed a
transcript of three phone calls recorded on November 19. The transcript shows that Ms.
Dahl discussed the divorce with child C.D. (for instance, encouraging C.D. to advocate
for living with Ms. Dahl) and made disparaging comments about Dr. Dahl. A judge
issued an ex parte order prohibiting Ms. Dahl from having any telephone contact with the
children. When the order was reconsidered during a December 3, 2007, hearing, the
commissioner permitted Ms. Dahl to have telephone contact with the children, but only if
supervised by ACAFS. The commissioner also noted, with apparent approval, that the
telephone conversations were being taped.
In 2009, Ms. Blakelock filed transcripts of four more conversations that had been
recorded in January and February of that year between Ms. Dahl and C.D. The court held
an evidentiary hearing in March to reevaluate the custody arrangements and issued an
order on May 27, 2009. Although the court observed “bad parenting on both sides,”
Supp. App., Vol. 16 at 3241, it determined that the current arrangement—limiting
Ms. Dahl’s contact with the children to supervised visitation—was in the best interests of
the children and that “at this point in time, there is no basis in the evidence to change the
prior orders of the Court.” Id. at 3242.
A little over four months later the court revisited its decision. On October 7, 2009,
it ended supervised visitation and ordered that the children be with Ms. Dahl every other
weekend. It explained:
5 But I’m satisfied that in the best interests of the children that the present arrangement is harmful. Something’s got to change. And these kids are in pain right now. How we ultimately resolve it I just wouldn’t want to forecast, but I think we need some changes right now. So what I’m inclined to do is that effective immediately we would move to essentially statutory visitation; that the children would be with Mrs. Dahl every other weekend without supervision, that—without—it goes without saying, supervised visitation would be immediately terminated. She would have the children every other weekend. That will start this Friday after school and will go until Sunday at 8:00 p.m. Telephone restrictions, the children should be able to call either parent, except that whichever parent they’re physically with at the time may impose reasonable time limit restraints. So no calls after ten or no midnight calls. That’s a reasonable [prerogative] of the custodial parent.
Aplt. App., Vol. 2 at 363. At the same hearing the judge ordered GAL Peterson to
interview the children and report back on how they were doing.
Dr. Dahl recorded another telephone conversation that took place between
Ms. Dahl and C.D. on October 12, 2009. Mr. Peterson played part of this recording when
he interviewed C.D. and also referred to it during the divorce trial on November 3, 2009.
At the trial the court, although not condemning any prior monitoring or recording,
indicated that the practice should not be continued:
With regard to recording telephone conversations, you know, if a party to the conversation—my understanding of the law is that if a party to the conversation, either party, knows that it’s being recorded, then it can be recorded whether the other side knows or not, but a third party, it’s unlawful to record a telephone conversation between two people where the other two people do not know. Don’t break that law. I can’t change the law. That’s the law whether I want it to be different or want it to be the same. Now, Mrs. Dahl, that puts a burden on you, not because of what you may have said or you may say, but because of what will be assumed that you have said. Be very cautious with your child’s feelings and emotions, okay, because where—you know, I’ve just removed a pretty important 6 source of information because the law requires that. We—I may still have to look—at some point, if not in this proceeding, in some proceeding down the road, somebody’s going to have to say, what’s going on over there? [C.D.] talks to her mom on the phone. And because there are no tapes, then they’ll be assuming—from the conduct, they’ll be inferring what goes on. It removes the quality of the information, so you need to be very careful about what you do.
Id. at 403–04 (emphasis added).1 Ms. Dahl alleges, but Dr. Dahl disputes, that
Dr. Dahl recorded later conversations in November and December of 2009.
Mr. Peterson was removed as GAL on February 10, 2010, because his brother,
who had provided him legal assistance in the case, had joined Ms. Blakelock’s law
practice. After removing Mr. Peterson, the court ruled that a new GAL would have to be
appointed because of an ongoing need for someone to represent the children.
The divorce decree was entered on July 20, 2010. The court awarded Dr. Dahl his
medical practice, Charles F. Dahl, M.D., P.C. (the practice), as his separate property. But
it awarded Ms. Dahl a share of the defined-benefit pension trust created by the practice in
2002. She received a distribution of roughly $750,000 from the pension trust on
January 19, 2012.
B. Federal Litigation
In October 2011, Ms. Dahl brought her federal suit against Dr. Dahl, the pension
trust, Ms. Blakelock, and Mr. Peterson. She sued Dr. Dahl and the trust on state-law
claims of conversion and breach of fiduciary duty and on a claim for breach of fiduciary
1 We express no view on the state court’s interpretation of the wiretapping statutes.
7 duty under ERISA, and she brought claims under federal and state wiretap laws against
Dr. Dahl, Ms. Blakelock, and Mr. Peterson. The defendants filed motions for summary
judgment on all claims. The district court granted Mr. Peterson’s motion for summary
judgment on the federal wiretapping claims, holding that he was entitled to quasi-judicial
immunity for actions performed within the scope of his GAL duties. It granted Dr. Dahl
and Ms. Blakelock’s motion for summary judgment on the federal wiretapping claims on
the ground that Dr. Dahl’s recording of calls between Ms. Dahl and the children fell
within a vicarious-consent (Dr. Dahl on behalf of the children) exception to the federal
wiretap statute. Finally, it held that it did not have jurisdiction over the ERISA claim
because the pension trust was not subject to ERISA, and it declined to exercise
supplemental jurisdiction over the state-law claims, see 28 U.S.C. § 1367(c).
II. DISCUSSION
A. Standard of Review
“We review the district court’s grant of summary judgment de novo, applying the
same standards that the district court should have applied.” Merrifield v. Bd. of Cnty.
Comm’rs, 654 F.3d 1073, 1077 (10th Cir. 2011) (internal quotation marks omitted). “The
court shall grant summary judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). A dispute is genuine “if there is sufficient evidence on each side so that a
rational trier of fact could resolve the issue either way,” and it is material “if under the
substantive law it is essential to the proper disposition of the claim.” Becker v. Bateman, 8 709 F.3d 1019, 1022 (10th Cir. 2013) (internal quotation marks omitted). When
considering a motion for summary judgment “[w]e examine the record and all reasonable
inferences that might be drawn from it in the light most favorable to the non-moving
party.” Merrifield, 654 F.3d at 1077 (internal quotation marks omitted). We also review
questions of subject-matter jurisdiction de novo. See Robinson v. Union Pac. R.R., 245
F.3d 1188, 1191 (10th Cir. 2001).
We begin with the issues arising out of the pension trust. We then turn to the
monitoring of telephone calls, although we address GAL immunity before discussing the
merits.
B. ERISA
ERISA was “[e]nacted to protect the interests of participants in employee benefit
plans and their beneficiaries.” Raymond B. Yates, M.D., P.C. Profit Sharing Plan v.
Hendon, 541 U.S. 1, 6 (2004) (ellipses and internal quotation marks omitted). It does so
in part “by providing for appropriate remedies, sanctions, and ready access to the Federal
courts.” 29 U.S.C. § 1001(b). Most of these protections are found in Title I of the Act,
which includes provisions for civil and criminal enforcement. See Yates, 541 U.S. at 6.
The threshold question here, however, is whether ERISA covers Dr. Dahl’s
pension trust. A “benefit plan is subject to ERISA only if it provides benefits to at least
one employee.” Sipma v. Mass. Cas. Ins. Co., 256 F.3d 1006, 1009 (10th Cir. 2001).
The applicable regulations exclude from Title I’s definition of employee a sole owner or
an individual and spouse who together have complete ownership. See id. at 1011; 9 29 C.F.R. § 2510.3-3(c). “Plans that cover only sole owners or partners and their spouses
. . . fall outside Title I’s domain.” Yates, 541 U.S. at 21.
Ms. Dahl acknowledges that the pension trust created by Dr. Dahl’s practice could
not qualify for ERISA protection during her marriage because she and Dr. Dahl were the
only plan participants. She argues in her opening brief, however, that the trust became
ERISA qualified upon her divorce because she was transformed from a spousal
participant into an employee participant. Ms. Dahl’s argument assumes that she was an
employee of Dr. Dahl’s practice following her divorce in 2010. But although tax records
show that she was compensated as an employee of the practice in 2002 and 2003, she has
not presented comparable records for any later year. And her occupation being listed as
“manager” on tax returns for 2003 through 2006 hardly established her employment
status at the time of her divorce in 2010.
Ms. Dahl’s reply brief on appeal asserts the new argument that “ERISA’s
definition of employee includes former employees.” Aplt. Reply Br. at 22. But we will
not consider this argument because Ms. Dahl did not make it in her opening brief or in
district court. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e
routinely have declined to consider arguments that are not raised, or are inadequately
presented, in an appellant’s opening brief.”); McDonald v. Kinder-Morgan, Inc., 287 F.3d
992, 999 (10th Cir. 2002) (“It is clear in this circuit that absent extraordinary
circumstances, we will not consider arguments raised for the first time on appeal.”).
Thus, Ms. Dahl has not shown that the pension trust qualifies as an employee benefit plan 10 under ERISA. We affirm the district court’s dismissal of the ERISA claims. We hold,
however, that the dismissal was on the merits, not for lack of jurisdiction. We are
persuaded by the reasoning of the Sixth Circuit that recent Supreme Court decisions
compel the conclusion that the existence of a benefit plan subject to ERISA is not a
jurisdictional requirement but an element of a claim under ERISA. See Daft v. Advest,
Inc., 658 F.3d 583, 587–94 (6th Cir. 2011). Therefore, on remand the district court must
correct its judgment in this regard. This correction requires no change in the dismissal of
the state-law pension claims. Given its ruling on the ERISA claim, the district court did
not abuse its discretion in declining under 28 U.S.C. § 1367(c) to continue its jurisdiction
over the state-law claims. See Nielander v. Bd. of Cnty. Comm’rs, 582 F.3d 1155, 1172
(10th Cir. 2009) (“We review a denial of supplemental jurisdiction for abuse of
discretion.”).
C. Immunity of GAL
Ms. Dahl challenges the district court’s decision that GAL Peterson was entitled to
immunity from her claims against him under federal wiretap law. We reject the
challenge.
Absolute immunity has long been available to protect judges from liability for acts
performed in their judicial capacity. See Cleavinger v. Saxner, 474 U.S. 193, 199 (1985).
Over time the defense has been extended to “certain others who perform functions
closely associated with the judicial process.” Id. at 200. There is widespread recognition
that guardians ad litem are entitled to the defense, which is often called quasi-judicial 11 immunity when it is applied to someone other than a judge. See Cok v. Cosentino,
876 F.2d 1, 3 (1st Cir. 1989) (guardian ad litem has “absolute quasi-judicial immunity for
those activities integrally related to the judicial process”); Gardner ex rel. Gardner v.
Parson, 874 F.2d 131, 146 (3d Cir. 1989) (“We would agree that a guardian [ad litem]
should be absolutely immune when acting as an integral part of the judicial process.”
(brackets and internal quotation marks omitted)); Fleming v. Asbill, 42 F.3d 886, 889
(4th Cir. 1994) (guardians ad litem in custody cases are entitled to quasi-judicial
immunity from § 1983 liability); Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir.
1984) (“A failure to grant immunity would hamper the duties of a guardian ad litem in his
role as advocate for the child in judicial proceedings.”); Cooney v. Rossiter, 583 F.3d
967, 970 (7th Cir. 2009) (“Guardians ad litem . . . are absolutely immune from liability
for damages when they act at the court’s direction.”); McCuen v. Polk Cnty., Iowa,
893 F.2d 172, 174 (8th Cir. 1990) (guardian ad litem is entitled to absolute immunity);
Wideman v. Colorado, 409 F. App’x 184, 186 (10th Cir. 2010) (affirming grant of
absolute quasi-judicial immunity to a guardian ad litem).
There are limits to the scope of the immunity for a GAL. Not every act performed
by a person with that title is immunized. For example, there is no immunity for acts
taken in the “clear absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 357
(1978) (internal quotation marks omitted). We need not resolve the precise boundaries of
the privilege, however, because Mr. Peterson’s challenged acts were within the core
duties of a GAL in assisting the court—that is, in performing a “function[] closely 12 associated with the judicial process.” Cleavinger, 474 U.S. at 200. As a fellow circuit
has said, “[A] guardian ad litem would be absolutely immune in exercising functions
such as testifying in court, prosecuting custody or neglect petitions, and making reports
and recommendations to the court in which the guardian acts as an actual functionary or
arm of the court, not only in status or denomination but in reality.” Gardner, 874 F.2d at
146.
The claim against Mr. Peterson rests on his use of the recording of a conversation
between Ms. Dahl and C.D. on October 12, 2009. He used the recording twice: first,
when he played part of it during an interview with C.D.; and second, when he discussed it
during his verbal report to the court on November 3. Because the court on October 7 had
directed Mr. Peterson to meet with the children and report on how they were responding
to the change in Ms. Dahl’s visitation privileges, both uses were within the report-and-
recommendation function that generally warrants immunity for guardians ad litem. See
id.
Ms. Dahl argues that Mr. Peterson acted in in the absence of all jurisdiction because
he violated federal and state wiretapping laws. But an act is not outside of a GAL’s
jurisdiction just because it is wrongful, even unlawful. As the Supreme Court said in
Stump, “A judge will not be deprived of immunity because the action he took was in
error, was done maliciously, or was in excess of his authority; rather, he will be subject to
liability only when he has acted in the clear absence of all jurisdiction.” 435 U.S. at 356–
57 (internal quotation marks omitted). Immunity does not protect only the innocent. 13 Why grant immunity to those who have no need of it? See Snell v. Tunnell, 920 F.2d
673, 687 (10th Cir. 1990) (“Absolute immunity has its costs because those with valid
claims against dishonest or malicious government officials are denied relief.”). Immunity
is conferred so that judicial officers can exercise their judgment (which on occasion may
not be very good) without fear of being sued in tort.
Alternatively, Ms. Dahl argues that Mr. Peterson was not acting within his
jurisdiction because he “abandoned his role as the GAL to advocate for [Dr. Dahl].”
Aplt. Br. at 44. But her complaint amounts to no more than challenging Mr. Peterson’s
motives and criticizing what he decided to do or say on various occasions; she does not
dispute his authority to make the decisions. Certainly a GAL has authority to assist one
of the parties when the parties are at odds about who should have custody. Ms. Dahl’s
grievance is only that the GAL decided to assist Dr. Dahl instead of her. Moreover, even
if Mr. Peterson had acted outside his jurisdiction in some respects, he would not thereby
forfeit immunity for the conduct challenged here regarding the October 12 recording.
Because Mr. Peterson used the recording in furtherance of his GAL duties and in
response to the court’s order to report on the well-being of the children, he is entitled to
quasi-judicial immunity on the federal wiretapping claim.
D. Federal Wiretapping Claims
The federal wiretap statute makes it unlawful to “intentionally intercept[] . . . any
wire, oral, or electronic communication” or to intentionally use or disclose the contents of
any communications known to be illegally obtained. 18 U.S.C. § 2511(1)(a), (c), (d). It 14 authorizes civil actions against violators to recover statutory damages, punitive damages,
reasonable attorney fees, and other litigation costs. See id. § 2520. The statute, however,
provides an exception when one party to the communication has given prior consent to
the interception, see id. § 2511(2)(d), and recognizes a defense for good-faith reliance on
a court order, see id. § 2520(d). The parties agree that § 2520(d) applies in this context
and they agree on the applicable test for good faith: “[A] defendant may invoke the
defense of good faith reliance on a court order only if he can demonstrate (1) that he had
a subjective good faith belief that he acted legally pursuant to a court order; and (2) that
this belief was reasonable.” Jacobson v. Rose, 592 F.2d 515, 523 (9th Cir. 1978). We
will apply that test for purposes of this litigation.
Ms. Dahl alleges that Dr. Dahl and his attorney, Ms. Blakelock, violated the
federal wiretap statute when they recorded or used recordings of telephone conversations
that she had with C.D. on October 12, 2009, and thereafter. We first address Ms. Dahl’s
argument regarding the October 12 conversation—which all parties agree Dr. Dahl
recorded—and then turn to Ms. Dahl’s allegations that there were later recordings.
Dr. Dahl contends that he recorded the October 12 conversation in reliance on the
state court’s order of July 18, 2007. Ms. Dahl does not dispute Dr. Dahl’s subjective
reliance on the order, but only the objective reasonableness of that reliance. The July 18
order stated: “[Ms. Dahl] is hereby restrained from unmonitored telephone
communications with the minor children. All telephone communications between the
minor children and [Ms. Dahl] may be monitored by [Dr. Dahl].” Aplt. App., Vol. 1 at 15 104. Ms. Dahl argues that the court lifted the order permitting monitoring when it
granted her unsupervised visitation on October 7, 2009. In particular, she points to the
language in the October 7 order regarding telephone restrictions:
Telephone restrictions, the children should be able to call either parent, except that whichever parent they’re physically with at the time may impose reasonable time limit restraints. So no calls after ten or no midnight calls. That’s a reasonable [prerogative] of the custodial parent.
Id. at 363. She says that it is “unambiguous” that the order does not allow Dr. Dahl to
record her calls. Aplt. Br. at 38. She also offers the judge’s comments on November 3,
2009, admonishing the parties not to break the law, as additional evidence that the
October 7 order removed any authorization to record her calls.
We are not persuaded. There was an outstanding, unchallenged order allowing
monitoring—the order of July 18, 2007. The court did not mention that order on
October 7, much less vacate it. The termination of supervised visitation might indicate
that the court thought monitoring was no longer proper; but the court described the new
arrangement as a “stopgap” and it wanted a follow-up report from the GAL on how the
new arrangement was working. Aplt. App., Vol. 2 at 363. Thus, it would have been
reasonable to conclude that monitoring would still be useful to assess the loosening of
restrictions on Ms. Dahl and that it was still approved. Ms. Dahl contends that the court’s
statements on November 3 establish that its statements on October 7 had prohibited
further monitoring. But what the court said in November could not affect Dr. Dahl’s
interpretation on October 12 of the court’s prior statements. And, in our view, the
16 November 3 statements actually support Dr. Dahl. When the court said to Ms. Dahl on
November 3 that “I’ve just removed a pretty important source of information,” id. at 404,
the natural inference is that it was referring to its immediately preceding remarks saying
that third-party recording of conversations is illegal. We doubt that the court was saying
that its ruling a month earlier was what “I’ve just [done].” Id. We hold that it was
objectively reasonable for Dr. Dahl to believe that the monitoring of the October 12
conversation was authorized by the court’s order of July 18, 2007. We therefore need not
address the vicarious-consent doctrine relied on by the district court.
We now turn to the alleged monitoring of conversations after November 3, 2009.
The sole defense of Dr. Dahl and Ms. Blakelock is that there is no evidence of any
monitoring after October 12. The district court apparently agreed that there was no such
monitoring, because it did not address the matter. In our view, however, Ms. Dahl put on
sufficient evidence in her response to the motion for summary judgment to raise a
genuine issue regarding whether such monitoring occurred.
Ms. Dahl submitted an affidavit stating:
34. On about December 27, 2009, I learned that Dr. Dahl had continued to record my telephone conversations, and I obtained fifteen digital recordings of telephone conversations that I had with either C.D. or D.D. 35. At least two of the telephone conversations were wiretapped in December 2009 because during one of them, I asked C.D. if she was excited to sing in a Christmas concert the next week.
Id. at 409. Defendants argue that “[n]o corroboration, proof, foundation or
authentication of the conversations or the statement was offered to the court in 17 response to the motion for summary judgment that was pending for over four
months.” Aplee. (Dahl and Blakelock) Br. at 43–44. But Ms. Dahl’s sworn
statement, based on personal knowledge, suffices. See Sanchez v. Vilsack, 695
F.3d 1174, 1180 n.4 (10th Cir. 2012) (“So long as an affidavit is based upon
personal knowledge and sets forth facts that would be admissible in evidence it is
legally competent to oppose summary judgment, irrespective of its self-serving
nature.” (brackets, citations, and internal quotation marks omitted)). She did not
need to produce the recordings of other conversations at the summary-judgment
stage. Even if the affidavit could be challenged on whether she had personal
knowledge of the dates of the recordings, her statement about the Christmas
concert was sufficient to raise a genuine fact question. We therefore must remand
to the district court for further proceedings regarding the alleged monitoring after
November 3.
III. CONCLUSION
We AFFIRM the judgment of the district court on the ERISA claims, except that
we instruct the district court to dismiss the claims on the merits with prejudice. We also
AFFIRM the district court’s decision not to exercise supplemental jurisdiction over the
state-law pension claims; we AFFIRM the grant of summary judgment to Mr. Peterson
on the federal wiretapping claims; and we AFFIRM the summary judgment to Dr. Dahl
and Ms. Blakelock on the federal wiretapping claims based on the October 12, 2009,
telephone monitoring. We REMAND to the district court for further consideration of 18 Ms. Dahl’s claims against Dr. Dahl and Ms. Blakelock based on alleged monitoring of
telephone conversations after November 3, 2009, and for further consideration of whether
to exercise its discretion not to assume jurisdiction over the state-law wiretapping claims.
We DENY the defendants’ motions to strike parts of Ms. Dahl’s briefs and their request
for resulting damages, fees, and costs.