Summary
The Utah Supreme Court considered a direct appeal and a petition for extraordinary writ challenging a permanent public-nuisance injunction against the Ogden Trece criminal street gang. The court held that the purported appellants were not parties and therefore lacked appellate jurisdiction, but that it had jurisdiction over the extraordinary-writ petition. It further held that Ogden Trece was an unincorporated association amenable to suit, while concluding that the gang had not been properly served with process.
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Practice areas
Questions Presented
- Whether the alleged gang-member appellants, who were not named parties and had not intervened, had a right to appeal the permanent injunction.
- Whether the Utah Supreme Court had jurisdiction to consider an extraordinary-writ petition filed by nonparties challenging the injunction.
- Whether Ogden Trece was an unincorporated association amenable to suit under Utah Rule of Civil Procedure 17(d).
- Whether service of process on Ogden Trece was valid when the County served individual members and published notice without showing reasonable diligence in identifying and serving an officer, managing or general agent, or functional equivalent.
- Whether the petitioners were entitled to attorney fees for the allegedly wrongful permanent injunction.
Holdings
- Individuals who were not named parties and had not moved to intervene were not entitled to appeal as of right; the court therefore lacked appellate jurisdiction over their direct appeal.
- The court had jurisdiction to consider the extraordinary-writ petition filed by nonparty individuals challenging the injunction.
- Ogden Trece was an unincorporated association amenable to suit because it transacted business under a common name, even though its activities were unlawful.
- Ogden Trece was not properly served. Service on individual gang members did not satisfy the rule governing service on an unincorporated association, and service by publication was unauthorized because the County failed to demonstrate reasonable diligence in identifying and attempting to serve an officer, managing or general agent, or functional equivalent.
- The petitioners were not entitled to attorney fees because they cited no authority establishing a right to recover fees for a wrongfully entered permanent injunction.
Key quotations
“Mere notice of or appearance in proceedings is not enough.” (¶ 28)
“Such motions should be granted only where the district court is satisfied that the requesting party has indeed exercised reasonable diligence by undertaking specific steps to ascertain the identity and whereabouts of the person to be served.” (¶ 51)
“Because the County did not serve any of Trece’s officers or managing or general agents or their functional equivalent and did not establish a sufficient factual basis for service by publication under rule 4, Trece was not properly served.” (¶ 60)
“The district court therefore lacked jurisdiction over Trece and the Injunction is void.” (¶ 64)
Factual background
Ogden Trece was found by the district court to be a criminal street gang with an organized hierarchy, identifying signs and symbols, and revenue generated through criminal activity including burglaries, thefts, robberies, drug dealing, and trafficking in stolen property. Weber County obtained a permanent injunction covering a twenty-five-square-mile safety zone and restricting association, conduct toward witnesses and victims, weapons possession, and nighttime activity. The County personally served several alleged members, mailed process to others, and obtained authorization to serve Trece by publication without demonstrating specific efforts to identify and personally serve a gang officer, managing agent, general agent, or functional equivalent.
Procedural history
Weber County sued Ogden Trece as an unincorporated association seeking a permanent injunction to abate a public nuisance under Utah law. The district court authorized service by publication, entered a preliminary injunction, and later made it permanent. Individuals served with the injunction attempted to appeal, while three of them also petitioned for an extraordinary writ. The Utah Supreme Court held that the individual appellants were not parties entitled to appeal, but that the writ petition was a proper vehicle for review; it concluded that Trece was amenable to suit but had not been properly served, rendering the injunction void.
Remand instructions
No specific remand instructions were stated. The court vacated the injunction as void because the district court lacked jurisdiction over Ogden Trece; it also dismissed the direct appeal for lack of appellate jurisdiction and denied attorney fees.