United States District Court, D. Colorado
A. BRIMMER United States District Judge.
matter is before the Court on plaintiff's Forthwith
Motion for an Order to Show Cause Why the State Court Order
Authorizing Sale Should Not Be Vacated as Void Ab Initio
[Docket No. 62] and that portion of Plaintiff's Forthwith
Motion in re ex Parte Young Motion for Temporary Restraining
Order and Preliminary Injunction [Docket No. 61] that seeks a
temporary restraining order. In light of plaintiff's
pro se status, the Court will construe
plaintiff's motion liberally, but will not advocate for
him. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
MOTION FOR TEMPORARY RESTRAINING ORDER
John Davis claims an interest in residential property that
has been foreclosed on and sold, but which he apparently
still occupies. Docket No. 61 at 12. Plaintiff asks the Court
to enjoin defendant Judge Elizabeth Weishaupl, a District
Court Judge for the Eighteenth Judicial District of Colorado,
from proceeding in a state forcible entry and detainer action
to evict him. See Deutsche Bank National Trust Company v.
Briggs, No. 2016CV000336 (Colo. Dist. Ct., Arapahoe
Cty.); Docket No. 61 at 2-3. Plaintiff argues that the
proceedings carried out under Colorado Rule of Civil
Procedure 120 (“Rule 120”) prior to the sale
violated his due process rights and that allowing Judge
Weishaupl to continue to preside over the eviction
proceedings after having decided the Rule 120 proceedings
would be a further due process violation. Docket No. 61 at 3.
Plaintiff argues that Rule 120 is unconstitutional for
lowering the burden of proof required in foreclosure
proceedings, not requiring the original copies of the
original note, and not allowing homeowners to present all
possible defenses. Id. at 5-9. Plaintiff claims he
was unconstitutionally deprived of the defense that defendant
Deutsche Bank National Trust Company (“Deutsche
Bank”) was not a holder in due course, which he claims
Judge Weishaupl did not require Deutsche Bank to prove.
Id. at 9. Plaintiff argues that he is entitled to
injunctive relief under Ex parte Young, 209 U.S.
123, 126 (1908), and that the Court should evaluate his
request for injunctive relief under the modified standard for
likelihood of success on the merits found in RoDa
Drilling Co. v. Siegal, 552 F.3d 1203, 1209 n.3 (10th
Cir. 2009). Docket No. 61 at 3, 10.
succeed on a motion for a preliminary injunction or temporary
restraining order, the moving party must show (1) a
likelihood of success on the merits; (2) a likelihood that
the movant will suffer irreparable harm in the absence of
preliminary relief; (3) that the balance of equities tips in
the movant's favor; and (4) that the injunction is in the
public interest. RoDa Drilling Co., 552 F.3d at 1208
(citing Winter v. Natural Resources Defense Council,
Inc., 555 U.S. 7, 20 (2008)); see Little v.
Jones, 607 F.3d 1245, 1251 (10th Cir. 2010)).
“[B]ecause a preliminary injunction is an extraordinary
remedy, the right to relief must be clear and
unequivocal.” Beltronics USA, Inc. v. Midwest
Inventory Distribution, LLC, 562 F.3d 1067, 1070 (10th
Cir. 2009) (quoting Greater Yellowstone Coalition v.
Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003)) (internal
quotation marks omitted). Granting such “drastic
relief, ” United States ex rel. Citizen Band
Potawatomi Indian Tribe of Oklahoma v. Enter. Mgmt.
Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir.1989),
“is the exception rather than the rule.” GTE
Corp. v. Williams, 731 F.2d 676, 678 (10th Cir. 1984).
Under the modified test for a preliminary injunction, a
plaintiff can satisfy the likelihood of success on the merits
prong by showing that there are “questions going to the
merits so serious, substantial, difficult and doubtful, as to
make the issues ripe for litigation and deserving of more
deliberate investigation.” RoDa Drilling Co.,
552 F.3d at 1208 n.3 (quoting Walmer v. United States
Dep't of Defense, 52 F.3d 851, 854 (10th Cir.
cannot succeed on his motion for a temporary restraining
order even under the modified standard for success on the
merits because he cannot show that there are questions going
to the merits that are doubtful and deserve investigation.
plaintiff's claim that Judge Weishaupl is
unconstitutionally biased simply because she presided over
related proceedings, such allegations are insufficient.
See Fed. Trade Comm'n v. Cement Inst., 333 U.S.
683, 702-03 (1948) (“Neither the Tumey decision nor any
other decision of this Court would require us to hold that it
would be a violation of procedural due process for a judge to
sit in a case after he had expressed an opinion as to whether
certain types of conduct were prohibited by law. In fact,
judges frequently try the same case more than once and decide
identical issues each time, although these issues involved
questions both of law and fact.”).
claims about the Rule 120 proceedings are equally deficient.
Contrary to plaintiff's assertion that his due process
rights were violated because Deutsche Bank was not required
to prove that it was the holder in due course and was not
required to produce the original note, the order that issued
following the Rule 120 hearing found that Deutsche Bank was a
holder in due course based on its production at the hearing
of the duly-endorsed original note. In re Deutsche Bank
National Trust Company, No. 2016CV31190, slip op. at 5
(Colo. Dist. Ct., Arapahoe Cty. Aug. 18, 2016); Docket No.
35-6 at 5. Plaintiff's conclusory assertion that this did
not occur is not enough to overcome the findings in the Rule
120 order and otherwise show that the merits are doubtful and
deserve investigation. As a result, plaintiff fails to show a
likelihood of success on the merits, which results in denial
of his motion. See Fasi v. HSBC Bank USA, N.A., No.
12-cv-03290-PAB-MJW, 2013 WL 50434 at *3 (D. Colo. Jan. 3,
2013) (where plaintiff fails to demonstrate a likelihood that
she will suffer irreparable harm in the absence of a TRO,
“[t]he Court need not reach the other factors of the
MOTION FOR A SHOW CAUSE ORDER
asks the Court to issue “an order to show cause why an
order authorizing sale in the Colorado Rule 120 should not be
vacated as void ab initio on grounds that that [sic] the Rule
120 was conducted in a manner inconsistent with due
process.” Docket No. 62 at 2. Plaintiff seeks to
“collaterally attack and set aside a state court
order” that is related to and at issue in the ongoing
proceedings. Docket No. 62 at 15. Plaintiff repeats the
arguments discussed above regarding the constitutionality of
Rule 120 and the alleged due process violations. Docket No.
62 at 4-15.
Court will deny plaintiff's motion because it must
abstain from granting the relief he seeks under Younger
v. Harris, 401 U.S. 37 (1971).
defendant admits, there are ongoing eviction proceedings
against him in state court. Docket No. 61 at 2. The Court
takes judicial notice of the docket in that matter. St.
Louis Baptist Temple, Inc. v. F.D.I.C., 605 F.2d 1169,
1172 (10th Cir. 1979) (“Judicial notice is particularly
applicable to the court's own records of prior litigation
closely related to the case before it.”). The docket
shows that plaintiff has raised as defenses and counterclaims
the same issues that he asks this Court to address. Answer
and Counterclaims at 1-18, Deutsche Bank National Trust
Company v. Briggs, No. 2016C046432 (Colo. Dist. Ct.,
Arapahoe Cty. filed Oct. 7, 2016). As the state court
proceedings are ongoing, the Court must consider whether
abstention is proper under Younger. See Beeler
Properties, LLC v. Lowe Enterprises Residential Investors,
LLC, No. 07-cv-00149-MSK-MJW, 2007 WL 1346591 at *3 (D.
Colo. May 7, 2007) (explaining the Colorado foreclosure
directs a federal court to abstain from exercising its
(1) there is an ongoing state criminal, civil, or
administrative proceeding, (2) the state court provides an
adequate forum to hear the claims raised in the federal
complaint, and (3) the state proceedings involve important
state interests, matters which traditionally look to state