United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KRISTEN L. MIX, Magistrate Judge.
This matter is before the Court on Defendant Price's Motion for Summary Judgment Pursuant to Rule 56 of the Federal Rules of Civil Procedure and Brief in Support of the Motion [#88] (the "Motion"). On July 1, 2013, Plaintiff filed a Response [#90]. On July 9, 2013, Defendant George Price ("Price") filed a Reply [#91]. The Motion is ripe for review. Pursuant to 28 U.S.C. § 636 (b)(1) and D.C.COLO.LCivR 72.1C, the Motion has been referred to this Court for a recommendation regarding disposition [#89]. The Court has reviewed the Motion, the Response, the Reply, the entire docket, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully recommends that the Motion [#88] be DENIED.
I. SUMMARY OF THE CASE
Karval High School (KHS) is located in Karval, Colorado. Am. Compl. [#80] at ¶ 5. During the incidents in dispute in this action, Plaintiff was a minor and student at KHS. Id. at ¶ 7. At that time, Defendant McCollum taught history and computer classes at KHS and served as an assistant coach. Id. at ¶ 10. Defendant Price is a Colorado attorney who defended Defendant McCollum against charges in a criminal action based on alleged sexual acts with Plaintiff. Id. at ¶¶ 11, 27; Answer [#92] at ¶¶ 5, 7. Defendant McCollum pled guilty to charges of sexual assault on a child and unlawful sexual contact. Am. Compl. [#80] at ¶ 35; Answer [#92] at ¶ 7.
Plaintiff brings one claim against Defendant Price for invasion of privacy. Am. Compl. [#80] at ¶¶ 61-65. Specifically, Plaintiff alleges that Defendant "Price violated [Plaintiff's] right to privacy by intentionally intruding upon [Plaintiff's] seclusion or solitude by serving an invalid subpoena on KHS demanding production of an overly broad range of documents which would encompass [Plaintiff's] educational and counseling records. [Defendant] Price failed to give notice of the subpoena to [Plaintiff's] parents prior to obtaining the confidential records." Id. at ¶ 63. Plaintiff further avers that Defendant Price's alleged invasion of her privacy by "distributing and/or obtaining her confidential educational and privileged counseling records would be very offensive to a reasonable person" and that Defendant Price's actions were "intentional, knowing, willful and wanton." Id. at ¶ 64. As a result, Plaintiff seeks compensatory, consequential, and exemplary damages. Id. at ¶ 65.
II. STANDARD OF REVIEW
The purpose of a motion for summary judgment pursuant to Fed.R.Civ.P. 56 is to assess whether trial is necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Under Fed.R.Civ.P. 56(c), summary judgment shall be granted if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." An issue is genuine if the evidence is such that a reasonable jury could resolve the issue in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 277 U.S. 242, 248 (1986). A fact is material if it might affect the outcome of the case under the governing substantive law. Id.
The burden is on the movant to show the absence of a genuine issue of material fact. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing Celotex, 477 U.S. at 323). When the movant does not bear the ultimate burden of persuasion at trial, the "movant may make its prima facie demonstration [of the absence of a genuine issue of material fact] simply by pointing out to the [C]ourt a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Id. at 671. If the movant carries the initial burden of making a prima facie showing of a lack of evidence, the burden shifts to the nonmovant to put forth sufficient evidence for each essential element of his claim such that a reasonable jury could find in his favor. See Anderson, 277 U.S. at 248; Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999). The nonmovant must go beyond the allegations and denials of his pleadings and provide admissible evidence, which the Court views in the light most favorable to him. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995) (citing Celotex, 477 U.S. at 324). Conclusory statements based merely on conjecture, speculation, or subjective belief are not competent summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). The nonmoving party's evidence must be more than "mere reargument of [his] case or a denial of an opponent's allegation" or it will be disregarded. See 10B Charles Alan Wright, et al., Federal Practice and Procedure § 2738 at 356 (3d ed.1998).
A. Undisputed Facts
In support of his request for summary judgment on Plaintiff's invasion of privacy claim, Defendant Price offers the following undisputed facts, which are supported by documentary evidence:
In June 2009, Defendant Price began representing Defendant McCollum in a criminal matter in Lincoln County, Colorado. Motion [#88] at 2, Response [#90] at 2; Affidavit of George C. Price ("Price Aff.") [#88-1] at ¶ 1.
On or about March 11, 2010, Defendant Price prepared a subpoena duces tecum directed to Karval School District (the "Subpoena") seeking school records of the complaining witness in the criminal case, Plaintiff. The preparation and issuance of the Subpoena were done in the course of representing Defendant McCollum in his criminal matter. The Subpoena was issued after the criminal matter commenced in Lincoln County. Motion [#88] at 2-3, Response [#90] at 2; Price Aff. [#88-1] at ¶ 8.
The Subpoena requested that the records be produced to Defendant Price on or before March 20, 2010. Motion [#88] at 3, Response [#90] ...