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Faircloth v. Beneze

United States District Court, D. Colorado

November 14, 2016

JAMES FAIRCLOTH, Mr. Faircloth,
v.
LT. TOM BENEZE, in his official and individual capacity, and CORRECTIONAL OFFICER MARQUEZ, in his official and individual capacit Defendants.

          ORDER ADDRESSING TENTH CIRCUIT'S LIMITED REMAND AND GRANTING MOTION TO REOPEN TIME TO APPEAL

          Robert E. Blackburn United States District Judge.

         This matter is before the court on the Tenth Circuit's Order [#194], [1] filed June 21, 2016, remanding this case for the limited purpose of determining whether any of plaintiff James Faircloth's post-judgment pleadings might be construed as requesting leave to reopen the time to file an appeal under Fed. R. App. P. 4(a)(6) and, if so, whether that request should be granted. I find and conclude that Mr. Faircloth both requested such relief and is entitled to it.

         A recitation of the relevant facts, albeit lengthy, is necessary for context. On September 3, 2015, the magistrate judge granted attorney Elizabeth Owen's Motion for Leave to Provide Limited Scope Representation Pursuant to D.COLO.LAttyR 2(a) [#150], filed August 31, 2015, and permitted Ms. Owen to appear for the limited purpose of attempting to negotiate a settlement of this and several other lawsuits filed by Mr. Faircloth in state and federal court against these same (or related) defendants. (See Minute Order [#153], filed September 3, 2016.) The court also extended the then-existing stay until November 27, 2015, and ordered that “[i]f a Notice of Settlement or dismissal papers have not been filed by that date, Mr. Faircloth shall file a Status Report on or before November 27, 2015 informing the Court of the status of this case.” (Id.)

         On November 16, 2015, Ms. Owen filed a motion seeking court-mediated alternative dispute resolution. (Motion for Order Referring Case to Alternative Dispute Resolution Pursuant to D.C.COLO.LCivR 16.6 and for Stay [#157], filed November 16, 2015.) The court granted that request, but denied the concomitant request to continue the stay, noting the age of this case and the imminent trial date. (Order Re: Motion for Order Referring Case to Alternative Dispute Resolution [#158], filed November 18, 2015.) Accordingly, the court lifted the stay and established deadlines for the submission of motions for summary judgment. (Amended Order Lifting Stay and Directing Submission of Dispositive Motions [#160], filed November 19, 2015.)

         In accordance with that order, defendants' filed their summary judgment motion ([#164], filed November 25, 2015). Mr. Faircloth failed to file a response in the time established by the court's order. Meanwhile, the magistrate judge conducted a settlement conference on January 7, 2016. (See Minute Order [#165], filed November 27, 2015.) Although neither of the parties in this case apprised the court of the outcome of those discussions, defense counsel in one of the related cases also assigned to this court, Faircloth v. Schwartz, Civil Action No. 12-cv-02764-REB-KLM, in seeking an extension of the deadline to file summary judgment motions in that case, illuminated the issue:

On January 7, 2016, undersigned counsel participated in a court-ordered settlement conference that was held in this case, as well as Faircloth's two other federal suits: Faircloth v. Marquez, et al., No. 12-cv-03317, and Faircloth v. Colo. Corp. of Am., No. 14-cv-00464. At the conference's conclusion, all parties in the three lawsuits reached a preliminary agreement on settlement terms.
Though the substance of the agreement is confidential, the parties have agreed to execute fully the draft preliminary settlement agreement by 5 p.m. M.S.T. on January 14, 2016.

(Defendant's Motion for an Extension of Time To File Summary Judgment Motion To Allow for Settlement at 2 [#194], filed January 13, 2016, in Civil Action No. 12-cv-02764-REB-KLM.) Despite the hopeful tone of this advisement, the January 14 deadline passed without any further notice, in any of the cases before this court, as to the status of the settlement.

         Thus concluding that settlement negotiations ultimately had failed, the court proceeded to consider the pending motion for summary judgment. It found both remaining defendants entitled to qualified immunity and directed entry of judgment against Mr. Faircloth as to all claims in the case. (Order Granting Motion for Summary Judgment [#168], filed January 26, 2016.) Judgment was entered that same day ([#169], filed January 26, 2016).

         It is not disputed that from the time Ms. Owen was granted leave to appear in this case in early September 2015 until she properly withdrew on April 22, 2016, and despite the limited nature of her representation, the court did not serve notice of any filings docketed in this case, including particularly defendants' motion for summary judgment, the order granting that motion, or the judgment, on Mr. Faircloth personally. Instead, all such documents were served electronically on Ms. Owen as Mr. Faircloth's attorney of record.

         The Tenth Circuit concluded that Mr. Faircloth was not properly served with the court's order granting summary judgment or the judgment. (See Order at 1 [#194], filed June 21, 2016). Because Mr. Faircloth filed his notice of appeal more than 30 days after the court denied his first Rule 59 motion on March 17, 2016 ([#176])[2] see Fed. R. App. P. 4(a)(1)(a), [3] the Tenth Circuit is concerned that it might lack jurisdiction over Mr. Faircloth's appeal. It therefore has remanded to this court to determine whether Mr. Faircloth requested leave to reopen the time to appeal and, if so, whether that request should be granted.

         The court first is asked to consider whether any of Mr. Faircloth's post-judgment filings adequately raised a request to reopen the time to appeal as contemplated by Fed. R. App. P. 4(a)(6). On April 11, 2016, Mr. Faircloth filed a Motion for Court Docket To Be Sent to Mr. Faircloth By Clerk [#180], requesting information regarding the status of his case.[4] Therein, Mr. Faircloth stated, “I'd hate to file an appeal to a mere ghost or speculative determination of something has been dismissed.” (Id. at 3-4.) Giving this statement the most lenient, liberal construction, see Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), the court finds it can be construed reasonably as a request to reopen the time for appeal.[5]

         This determination brings the court to consider whether the request to reopen should be granted. Under Fed. R. App. P. 4(a)(6), the court may reopen the time to file an appeal “but only if all the following conditions are satisfied:”

(A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be ...

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