United States District Court, D. Colorado
JAMES FAIRCLOTH, Mr. Faircloth,
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
E. Blackburn United States District Judge.
matter is before the court on the Tenth Circuit's Order
[#194],  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.
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
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.)
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
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.
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).
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
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]) see Fed. R. App. P.
4(a)(1)(a),  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.
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. 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.
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
(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 ...