United States District Court, D. Colorado
ORDER ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ROBERT E. BLACKBURN, District Judge.
This matter is before me on the following: (1) Defendants' Motion To Dismiss for Failure To File Certificate of Review [#30] filed August 14, 2013; and (2) the Recommendation of United States Magistrate Judge and Order [#51] filed November 15, 2013. The defendants filed a supplement [#37] to their motion to dismiss, the plaintiff filed a response [#39] to the motion to dismiss, and the defendants filed a reply [#41]. Additional filings relevant to the motion to dismiss are noted below. I overrule the objections, approve and adopt the recommendation, dismiss this case without prejudice, and deny the motion to dismiss as moot.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the recommendation to which objections have been filed. Thus, I have considered carefully the recommendation, objections, and applicable caselaw.
The plaintiff is proceeding pro se. Thus, I have construed his pleadings and other filings more liberally and held them to a less stringent standard than formal pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
This is a professional negligence case in which the plaintiff, Alan DeAtley, alleges that the defendants, who are attorneys hired by Mr. DeAtley to represent him in a criminal case, were negligent in investigating the case and in defending Mr. DeAtley. In addition, Mr. DeAtley asserts a breach of contract claim.
In an earlier order [#43], the magistrate judge denied the motion [#20] of Mr. DeAtley to stay this case. Addressing that motion, the magistrate judge reiterated his findings in a related case filed by Mr. DeAtley:
It is apparent to me that Mr. DeAtley is engaged in abusive litigation tactics for the improper purpose of manipulating the judicial system to delay both Keybank's attempts to pursue its foreclosure action and the state criminal prosecution. Mr. DeAtley has refused to engage substitute defense counsel in the state criminal prosecution, bringing that action to a stop. In the meantime, he commenced this action alleging misconduct by Keybank, which resulted in Keybank's withdrawal of its foreclosure action. Now Mr. DeAtley seeks to postpone indefinitely this action until resolution of the criminal case, progress of which he has stymied. I do not intend to facilitate Mr. DeAtley's improper manipulation of the judicial system.
Order [#43], pp. 2-3. Addressing the above-captioned case, the magistrate judge concluded that this case,
alleging malpractice against [Mr. DeAtley's] Colorado criminal defense counsel in the state prosecution, is part-and-parcel of Mr. DeAtley's abusive litigation strategy. Mr. DeAtley refuses in the state prosecution to proceed pro se or to retain substitute counsel. Through this malpractice action, he makes it impossible for his current criminal counsel to represent him in the state prosecution. And now he seeks to postpone this malpractice action until the criminal case he has stymied is resolved. Here, as in the Keybank case, I do not intend to facilitate Mr. DeAtley's improper manipulation of the judicial system.
Id., p. 3.
Applying the relevant standards, the magistrate judge granted the motion to require a cost bond based on the conclusions stated below:
I am persuaded that the plaintiff, a resident of Washington State, should be required to post a bond for pre-judgment costs. First, I have found that this action is part-and-parcel of Mr. DeAtley's abusive litigation strategy to postpone the state prosecution and foreclosure of his property in Jackson County, Colorado. In addition, Mr. DeAtley concedes in his Response [Doc. # 38] that he lacks sufficient resources to post a cost bond, id. at pp. 1-2, and therefore to pay any costs which might be awarded against him. Finally, I agree with the defendants that there are likely to be substantial costs incurred in connection with their defense of this case. The defendants estimate those costs at $100, 000, and Mr. DeAtley offers no argument to the contrary.
Order [#43] filed October 28, 2013, p. 4.
Mr. DeAtley has not filed a cost bond and contends he is not able to file such a bond. The magistrate judge recommends that this case be dismissed without prejudice based on the failure of Mr. DeAtley to file a cost bond. In determining whether it is appropriate to dismiss a case as a sanction for the ...