United States District Court, D. Colorado
Brooke Jackson United States District Judge
George moves to vacate an order entered by the Court granting
a stipulated dismissal with prejudice of his claims against
defendant Joyce Ann Wayman. For the reasons described in this
Order, the motion is denied.
George is a semi-retired photographer. In 2011 he apparently
provided a number of photographic images of property in
Cortez, Colorado to several real estate brokers, including
Southwest Realty. In 2012 the images remained on
Southwest's computer, but Southwest no longer had his
permission to use them. Nevertheless, and over his objection,
a Southwest broker named Bonnie Leighton used the images when
it listed a property owned by Joyce Ann Wayman. Therefore,
Mr. George filed this suit seeking injunctive relief and
damages for violation of federal copyright laws. He named Ms.
Leighton; Southwest's owner Barbara Smith; a company
called Colorado Real Estate Network, Inc. which operated a
multiple listing service; and Ms. Wayman as defendants.
See Complaint, ECF No. 1, at ¶¶ 9-27.
particular relevance to the present motion, Mr. George
claimed that thousands of his images were on a hard drive
(sometimes referred to in this case as a “wallet
drive”) that Ms. Wayman “physically removed . . .
from the Plaintiff's control.” Id. at
¶28. He alleged that Ms. Wayman “acknowledged
taking the disk however stated it was in error and would
return the hard drive so the images could be
recovered.” Id. at ¶29. However, she did
not return the hard drive and did not respond to his attempts
to contact her. Id.
Answer Ms. Wayman asserted, among other things, that she
owned the hard drive; that she used it primarily for music;
that Mr. George had sent the images to Ms. Leighton or Ms.
Smith, and she believed she that had permission to use them;
and that she did not know that Mr. George had put the images
on her hand drive until sometime after he had done so. ECF
No. 19 at ¶¶6, 8.
George was representing himself when he filed the case, but
he later requested that the Court appoint counsel to
represent him. Magistrate Judge Watanabe granted the motion,
meaning that the Clerk of Court would attempt to find a
volunteer lawyer who would represent Mr. George through the
Court's civil pro bono program. A volunteer lawyer
stepped forward and was appointed to represent Mr. George on
November 4, 2015. ECF No. 60.
approximately one month after the pro bono lawyer entered his
appearance the parties had negotiated settlements. Between
December 18 and December 24, 2015 stipulations of dismissal
with prejudice executed by Mr. George and all defendants were
filed. ECF Nos. 68, 69 and 70. The stipulations are all
similar, but I focus on the Wayman stipulation because it is
now at issue. It is short and straightforward, providing in
pertinent part that “all claims and counterclaims in
this action made by Plaintiff against Defendant Wayman and
made by Defendant Wayman against Plaintiff are hereby
dismissed WITH PREJUDICE, subject to the terms of that
certain agreement between them entitled “SETTLEMENT
AGREEMENT” dated December 16, 2015.” ECF No. 70.
A copy of the Settlement Agreement was not filed with the
Court. The Court entered orders granting the stipulations and
dismissing the case with prejudice on December 28, 2015. ECF
Nos. 71, 72, and 73.
case is before the Court again because approximately six
months after the case was dismissed Mr. George, once again
representing himself pro se, filed the pending
motion. He asks the Court to vacate its order dismissing the
case as against Ms. Wayman and then either to vacate or
enforce his settlement agreement and impose certain other
relief. ECF No. 76. The essence of it is that Ms. Wayman to
relinquish the hard drive pursuant to their settlement
agreement, but he later discovered that his images had been
deleted. Id. at 1. He wants the Court to order Ms.
Wayman to produce the images, to sanction her, and to award
damages to him. He claims that during a scheduling conference
on September 17, 2015 the court (Magistrate Judge Watanabe)
informed him that any destruction or deletion of information
could result in serious sanctions, and he states that this
Court should apply the same standard to Ms. Wayman.
Id. at 2.
Wayman filed a response in which she emphasizes that the case
was dismissed with prejudice, and that she complied with the
settlement agreement. ECF No. 80. She again suggests that Mr.
George placed the images on the “wallet drive, ”
unbeknownst to her. Id. at 3. Although the wallet
drive was hers, not Mr. George's, she agreed to give it
to him in order to accomplish a settlement. Id. at
4. She denies that she removed any images from the hard
drive. Id. at 5. In any event, she made “no
independent promise, guarantee or warranty that anything in
particular would be on that drive.” Id. She
also advises the Court that Mr. George has since filed a
separate action against her in Florida. Id. at 6.
reply Mr. George emphasizes that the ownership of the hard
drive is not important. ECF No. 83 at 1. Rather, the problem
concerns content missing from the hard drive, and states that
Ms. Wayman violated the court's instructions that were
given at the scheduling conference. Id. at 2. He
states, “The intent of the Plaintiff was for a full
return of all images and property as the defendant was
although neither party raises it, I have some question about
the Court's jurisdiction to provide any relief to Mr.
George. He asserted jurisdiction in this case under 28 U.S.C.
§ 1331 (federal question) and 28 U.S.C. § 1338
(patents, copyrights, trademarks and unfair competition). ECF
No. 1 at 2. But his copyright claim was concluded when the
case was dismissed with prejudice. The issues presented now
are contract issues. I doubt that there would be ancillary
jurisdiction to interpret or enforce the parties'
settlement agreement at this point. See Morris v. City of
Hobart, 39 F.3d 1105, 1110-12 (10th Cir. 1994).
however, that Ms. Wayman was served with the original
Complaint in Port St. Lucie, Florida. ECF No. 13.
“[T]he relevant time period for determining the
existence of complete diversity is the time of the filing of
the complaint.” Siloam Springs Hotel, LLC v.
Century Ins. Co., 781 F.3d 1233, 1239 (10th Cir. 2015).
If one were to construe the present dispute as meeting the
jurisdictional amount, then there might be diversity of
citizenship jurisdiction. However, even assuming jurisdiction
exists, I do not find a basis ...