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Gabriel v. Emergency Medical Specialists, PC

United States District Court, D. Colorado

May 4, 2016

VINCENT GABRIEL, Plaintiff,
v.
EMERGENCY MEDICAL SPECIALISTS, PC, and LAURENCE J. COHEN, Defendants.

ORDER

Robert E. Blackburn United States District Judge

The matter before me is plaintiff’s 1) Objection to Order [Doc #31], 2) Motion for Reconsideration of Entry of Default and Default Judgment, [Dispositive Motion, Doc #18] and 3) Motion To Voluntarily Dismiss Remaining Causes of Action, Doc #12 Without Prejudice, 4) Preservation of [Doc #14] [Doc #18] and [Doc #27] Motion To Produce, Motion To Enforce and Motion To Strike [#32], [1] filed May 1, 2016. To the extent this filing constitutes an objection to the non-dispositive order of the magistrate judge, I overrule the objection. I deny plaintiff’s other requests for relief as further specified herein.

Because plaintiff is proceeding pro se, I continue to review his filings more liberally than pleadings or papers filed by attorneys. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Nevertheless, I note initially that in conflating his objection to the order of the magistrate judge with other requests for substantive relief, plaintiff’s submission contravenes the local civil rules of this district court. See D.C.COLO.LCivR 7.1(d) (“A motion shall be filed as a separate document.”). Accordingly, plaintiff’s request to voluntarily dismiss various causes of action is procedurally improper and denied without prejudice on that basis.

As for plaintiff’s ostensible “preservation” of other issues, matters already of record are more than adequately preserved once they have been submitted to the court for determination.[2] Plaintiff’s continued reiteration of these same issues is not only inefficient, confusing, and unhelpful - it borders on abusive.[3] Once plaintiff has lodged an objection to a particular ruling of the court, he has preserved his arguments for any future appeal. There is no need to continue to reassert them with each subsequent filing, especially when the court has not had opportunity to rule on the request for relief.

The court is neither required nor inclined to let this pattern continued unremarked or unabated. Plaintiff thus is advised yet again that I will consider sanctions, including revoking his privilege to file documents electronically using the court’s CM/ECF system, if he persists in littering the docket with redundant, unnecessary motions, objections, “preservations, ” and similar filings. Moreover, if plaintiff proves unable to comply with this directive and abide by the rules that pertain to all litigants in federal court, or if the court perceives further abusive use legal process, it will consider further sanctions as well, including contempt of court or dismissal with prejudice.

Pivoting to plaintiff’s objections to the magistrate judge’s Order [#31], filed April 19, 2016, (and the putative “motion for reconsideration” which essentially reiterates the same request for relief), these objections pertain to non-dispositive matters that were referred to the magistrate judge for resolution. Pursuant to 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(a), I may modify or set aside any portion of a magistrate judge’s order which I find to be clearly erroneous or contrary to law.

Having reviewed the apposite order and the motion which it addressed ([#18], filed March 4, 2016), I find and conclude that the magistrate judge’s order is not clearly erroneous or contrary to law. As the magistrate judge appropriately found, defendants have not failed to answer or otherwise defend in this lawsuit. The Federal Rules of Civil Procedure provide that a “responsive pleading” is due within 21 days of service of the summons and complaint, Fed.R.Civ.P. 12(a)(1)(A), to which three days are added pursuant to Fed.R.Civ.P. 6(d). If a party intends to assert one of the defenses enumerated in Rule 12(b), if must file a motion asserting such defenses before pleading. Fed.R.Civ.P. 12(b). Defendants appear to have been served on February 10, 2016 (see [#12], Exh. 5), making a responsive pleading due March 5 (i.e., 24 days later). Defendants’ motions to dismiss, filed March 3, 2016 [##16 & 17], thus were timely.[4] Plaintiff’s motion for default judgment in this case was properly denied.[5]

THEREFORE, IT IS ORDERED that plaintiff’s 1) Objection to Order [Doc #31], 2) Motion for Reconsideration of Entry of Default and Default Judgment, [Dispositive Motion, Doc #18] and 3) Motion To Voluntarily Dismiss Remaining Causes of Action, Doc #12 Without Prejudice, 4) Preservation of [Doc #14] [Doc #18] and [Doc #27] Motion To Produce, Motion To Enforce and Motion To Strike [#32], filed May 1, 2016, is overruled in part, denied in part, and denied as moot in part, as follows:

1. That to the extent plaintiff objects to the magistrate judge's Order [#31], filed April 19, 2016, such objection is overruled;

2. That to the extent plaintiff moves to voluntarily dismiss certain of his claims, the motion is denied without prejudice; and

3. That to the extent plaintiff seeks to "preserve" any previously lodged objection or request for relief, ...


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