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Ellerton v. Sefton Resources, Inc.

United States District Court, D. Colorado

December 29, 2016



          Nina Y. Wang United States Magistrate Judge

         This civil action is before the court on the following motions:

1. Defendant Sefton Resources, Inc.'s (“Sefton”) Motion for Sanctions (“First Motion for Sanctions”) [#75, filed May 12, 2016];
2. Plaintiff John J. Ellerton's Motion to Dismiss Without Prejudice [#84, filed June 3, 2016];
3. Sefton's Motion for Monetary Sanctions Under Federal Rule of Civil Procedure 37(d) (“Second Motion for Sanctions”) [#89, filed June 10, 2016]; and
4. Sefton's Motion for Summary Judgment [#93, filed July 25, 2016].

         These motions were referred to the undersigned pursuant to the Order Referring Case dated August 17, 2015 and memoranda dated May 12, 2016 [#76], June 3, 2016 [#86], June 17, 2016 [#90], and July 26, 2016 [#94]. For the following reasons, I respectfully RECOMMEND that the Motion to Dismiss be DENIED, Motion for Summary Judgment be GRANTED, and the First Motion for Sanctions be DENIED as moot, and ORDER that the Second Motion for Sanctions is GRANTED IN PART and DENIED IN PART.


         This court finds that the factual and procedural history of this action is particularly relevant to the various pending motions and the requested relief, and thus provides an extensive discussion of the background of this lawsuit as follows.

         I. Factual Background

         The following facts derive from the Verified Complaint, which is signed by Mr. Ellerton “under oath, ” but does not include an attestation verifying the factual contentions under penalty of perjury. See [#4]. Mr. Ellerton is a founding member of Sefton, which was formed in January 1995. [Id. at ¶ 12]. Sefton became a public company traded on the London Exchange in December 2000. [Id. at ¶ 17]. After Sefton went public, Mr. Ellerton maintained his position as its largest individual shareholder. [Id. at ¶ 20]. In October 2010, Sefton and Plaintiff C&J Resources, Inc. (“C&J”) entered into a Consultancy Agreement, whereby Mr. Ellerton contracted his services as an independent contractor to Sefton and its subsidiaries. [Id. at ¶ 35]. Mr. Ellerton alleges that pursuant to the Consultancy Agreement, C&J agreed to provide his services as Sefton's Chief Executive Officer and/or Chairman of the Board of Directors, provide his skill and expertise in running Sefton, promote the interests of Sefton, and insure Sefton's compliance with all applicable laws and regulations. [Id. at ¶ 36]. C&J and Plaintiff C&J Resources Pension Plan & Trust (the “Trust”) (collectively, “Corporate Plaintiffs”) are shareholders of Sefton. [Id. at ¶ 39].

         Following an Annual General Meeting in June 2013, Sefton's Board of Directors was comprised of Mr. Ellerton and Mark R. Smith, Thomas G. Milne, and Keith A. Morris (collectively, “Individual Defendants”). [#4 at ¶ 28]. In August 2013, Mr. Ellerton agreed to temporarily step down as Sefton's Chairman and Chief Executive Officer “to allow Sefton's Board of Directors sufficient time to investigate certain allegations made against [him] on the internet in a personal lawsuit brought by a third party against [him] some years before.” [Id. at ¶ 40]. Mr. Ellerton alleges that his agreement to temporarily step down was premised on two conditions: “that the Board act in such manner as to preserve the terms of the Consultancy Agreement with C&J, ” and that “the Board conduct a full and thorough investigation into the allegations as outlined in the August 22, 2013 press announcement by Sefton.” [Id.] On August 20, 2013, “without Mr. Ellerton's or C&J's approval or consent, ” Sefton's Board announced that Mr. Ellerton's departure was permanent. [Id. at ¶ 42]. Mr. Ellerton alleges that Sefton unilaterally terminated and thereby breached the Consultancy Agreement on or about October 23, 2013. [Id. at ¶¶ 44, 49]. C&J thereafter initiated an arbitration proceeding (“Arbitration Proceeding”) to assert a breach of contract claim. [Id. at ¶ 51]. Plaintiffs claim damages arising from the alleged breach as follows: Sefton owes C&J “in excess of $316, 700, ” for breaching the Consultancy Agreement; Sefton owes C&J “over $40, 000 for legal expenses and costs incurred by C&J” in “actions against Mr. Ellerton while performing his duties for Sefton”; and “Sefton owes the Trust approximately $19, 546, for the unpaid pension plan contributions required under the Consultancy Agreement.” [Id. at ¶¶ 52, 53, 54].

         In addition, on or about August 29, 2013, while Mr. Ellerton served as an officer and director of Sefton, he provided a personal loan worth $10, 000 to Sefton (the “Ellerton Loan”). [#4 at ¶ 56]. Mr. Ellerton expected that Sefton would repay the Ellerton Loan “upon demand with interest thereon at the current market rate.” [Id. at ¶ 58]. Mr. Ellerton also incurred business expenses on behalf of Sefton (the “Ellerton Expenses”), for which he used his personal credit cards. [Id. at ¶ 59]. Plaintiff alleges that he incurred the Ellerton Expenses with the expectation that Ellerton would repay such funds upon demand, and claims that the total principal amount of the Ellerton Expenses approximates $35, 700 as of the filing of the Verified Complaint. [Id. at ¶¶ 59, 61].

         II. Insolvency and Derivative Allegations

         Of particular relevance to this Recommendation and Order, Mr. Ellerton alleges that the Board “engaged in several short term financing transactions and borrowings” in 2014 that increased the balance of Sefton's subordinated debt. [#4 at 10-11]. For instance, Hawker Energy, LLC, now known as Hawker Energy, Inc. (“Hawker”), advanced approximately $1, 500, 000 to Sefton in the first half of 2014. [Id. at ¶¶ 78, 79]. In July of 2014, the Board called an Extraordinary General Meeting (the “Meeting”) to approve a restructuring of Sefton's activities and the financing from Hawker (“Hawker Transaction No. 1”). The restructuring proposed that Hawker acquire 80 percent of an oil field owned by Sefton's principal asset, TEG USA. TEG USA would own the remaining 20 percent. Hawker would pay TEG $3, 000, 000 in an unsecured promissory note to acquire a controlling interest in the oil field. [Id. at ¶ 80]. Mr. Ellerton alleges that prior to the Meeting, the Board issued new shares to the Individual Defendants, who then back dated the issuance to July 18, 2014 so as to vote the shares at the Meeting. [Id. ¶ 82]. Mr. Ellerton alleges that the Board “was in possession of price sensitive information, including Sefton's production and revenues, status of [debt], the engineering evaluation of Sefton's assets and reserves, and other pertinent financial data, as well as knowledge of the [Meeting] voting, ” and did not share this information with Sefton's shareholders, and did not share relevant information about Hawker's financial status. [Id. at ¶ 83]. According to Mr. Ellerton, the issuance of additional stock to the Individual Defendants diluted the shares held by him and the Corporate Plaintiffs and caused the price of Sefton's stock to decline. [Id. at ¶ 84]. The Board voted to approve the sale of 80 percent of the oil field to Hawker. Hawker was “effectively insolvent” at the time of the Meeting, and the insolvency was not disclosed to Sefton shareholders. [Id. at ¶¶ 86-88]. Following the Meeting, Hawker provided Sefton and TEG USA “with approximately $600, 000 as a loan.” [Id. at ¶ 92].

         In January 2015, Sefton and Hawker entered into a revised agreement (“Hawker Transaction No. 2”), by which Hawker would acquire 100 percent of TEG USA “in exchange for an assumption of certain liabilities…, the issuances of 3, 000, 000 shares of stock in Hawker, and 5, 000, 000 warrants for Hawker stock, ” and would loan funds to TEG USA to acquire an additional forbearance of bank debt. [#4 at ¶¶ 93, 96]. Mr. Ellerton alleges that Hawker was insolvent at the time of Hawker Transaction No. 2, and the Board again failed to provide sufficient information to Sefton's shareholders to facilitate an informed decision. [Id. at ¶¶ 96, 97]. Furthermore, Sefton's “true financial condition” was not disclosed to the company's shareholders. [Id. at ¶ 98]. Ultimately, Mr. Ellerton asserts, the “net result of Hawker Transaction No. 2, left Sefton still liable on [bank debt], and holding worthless stock of an insolvent company.” [Id. at ¶ 100]. Mr. Ellerton alleges that, “[b]ased upon the filings to the [Securities Exchange Commission] by Hawker and Sefton's own press releases, Sefton lacks sufficient assets to pay all of its liabilities, including the liabilities owed to the Plaintiffs, ” and that Sefton is insolvent. [#4 at ¶¶ 110, 111].

         Mr. Ellerton alleges that he is a shareholder of Sefton and was a shareholder at all times relevant to the Verified Complaint, and that he has commenced this action “to enforce the rights that Sefton may properly assert but has failed to enforce.” [#4 at ¶ 120]. Mr. Ellerton further alleges that he made “numerous written demands upon Sefton and its Board of Directors, including [the Individual Defendants], to correct the actions taken, including, but not limited to, restoring Mr. Ellerton to his status as Chairman and CEO of Sefton.” [Id. at ¶ 124]. Mr. Ellerton participated in the July 2014 Meeting “but was denied the ability to ask questions or seek any additional information concerning the transactions approved by the Board.” [Id.] Plaintiffs made demand upon Sefton for, and have been refused, the corporation's books, records, and financial information. [Id. at ¶ 125]. They assert that any additional demand that may be required would be fruitless because the Board is not disinterested and independent. [Id. at ¶ 126].

         III. Initial Procedural History

         On May 14, 2015, Mr. Ellerton and the Corporate Plaintiffs initiated this action, through counsel, in the District Court for the City and County of Denver, Colorado. Sefton, as the only Defendant Plaintiffs had served, removed the matter to the United States District Court for the District of Colorado on June 10, 2015 on the basis of diversity. See [#1]. The Verified Complaint asserts as follows: First Claim for Breach of Fiduciary Duty brought by Plaintiffs on behalf of Sefton as to the Board; Second Claim for Civil Conspiracy brought by Plaintiffs on behalf of Sefton as to the Board; Third Claim for Breach of Duty of Good Faith and Fair Dealing brought by Plaintiffs on behalf of Sefton as to the Board; Fourth Claim for Breach of Fiduciary Duty brought by Plaintiffs against Sefton and the Board; Fifth Claim for Breach of Contract brought by Plaintiff Ellerton against Defendant Sefton; Sixth Claim for Breach of Contract brought by Corporate Plaintiffs against Sefton; and Seventh Claim for Unjust Enrichment & Quantum Meruit brought by Plaintiffs against Sefton. [#4].

         On August 7, 2015, Sefton filed a “Notice of Filing of Counterclaims and Partially Unopposed Request to Confirm Automatic Stay and to Confirm Filing of Counterclaims, ” notifying the court that Plaintiffs had filed an Involuntary Petition in the United States Bankruptcy court for the District of Colorado listing each Plaintiff as “creditor” and asserting allegations of a breach of contract identical to the allegations of breach asserted in this matter. [#15]. The same day, Sefton filed a responsive pleading containing eleven counterclaims, noting its belief that the automatic stay prevented it from filing an answer or motion to dismiss at that time. See [#16 at n.1]. Plaintiffs thereafter filed a Suggestion of Bankruptcy confirming that they had commenced an involuntary proceeding under Chapter 7 of Title 11 of the United States Bankruptcy Code. [#17]. Plaintiffs filed a response to Sefton's counterclaims on August 28, 2015. [#32].

         On October 16, 2015, counsel for Plaintiffs filed a Motion to Withdraw. [#35]. On December 14, 2015, Mr. Ellerton and Sefton filed a Joint Status Report, in which the Parties advised that the stay in the bankruptcy action had been lifted, Plaintiff Ellerton represented his intention to pursue this litigation, and Sefton represented its intention to defend against Plaintiffs' claims and pursue its counterclaims.[1] [#41]. This court thereafter held a Telephonic Status Conference at which the undersigned granted the Motion to Withdraw and ordered that counsel for the Corporate Plaintiffs enter an appearance on or before February 1, 2016. This court advised Mr. Ellerton that to the extent he intended to proceed pro se as an individual, he was required to comply with the Federal Rules of Civil Procedure, the Local Rules of the District of Colorado, and the Practice Standards of the Honorable Raymond P. Moore. [#42]. The court specifically advised that the Corporate Plaintiffs could not proceed without counsel, and warned that failure to retain representation would result in the court issuing an order to show cause as to why any claims asserted by the Corporate Plaintiffs should not be dismissed. [#42]. This court further ordered the Individual Defendants, once and if served, to file a response to the Verified Complaint on or before February 10, 2016. Finally, the undersigned set a Scheduling Conference to be held February 24, 2016. [Id.]

         On February 10, 2016, Sefton filed its “Answer, Defenses, and Amended Counterclaims” against Plaintiffs. [#44]. The Counterclaims plead as follows: (1) Breach of Contract as to C&J; (2) Breach of the Duty of Good Faith and Fair Dealing as to C&J; (3) Fraud in the Inducement as to C&J; (4) Breach of Contract as to Mr. Ellerton; (5) Breach of the Duty of Good Faith and Fair Dealing as to Mr. Ellerton; (6) Fraud in the Inducement as to Mr. Ellerton; (7) Abuse of Process as to all Plaintiffs; (8) Malicious Prosecution as to all Plaintiffs; (9) Violation of the Colorado Consumer Protection Act as to Mr. Ellerton; (10) Vicarious Liability as to C&J and the Trust; (11) Violation of the Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. §§ 1962, 1964(c) as to all Plaintiffs; and (12) Violation of the Colorado Organized Crime & Control Act, Colo. Rev. Stat. §§ 18-17-101 to 108 as to all Plaintiffs. [#44]. Plaintiffs had not served the Individual Defendants by that time and thus those Defendants did not join in the “Answer, Defenses, and Amended Counterclaims.” [Id.]. On February 23, 2016, Mr. Ellerton filed a Response to Sefton's Counterclaims. [#48]. However, the Response is dated February 5, 2016-five days before Sefton filed its Amended Counterclaims. See [id.] On March 9, 2016, Sefton filed a supplemented computation of its damages. See [#55].

         IV. The Corporate Plaintiffs and Individual Defendants

         On February 3, 2016, this court issued an Order to Show Cause as to the Corporate Plaintiffs to explain their lack of prosecution and failure to comply with a court Order, and as to all Plaintiffs as to why the Individual Defendants should not be dismissed for failure to timely effect process as to those Defendants. [#43]. On February 22, 2016, Mr. Ellerton, proceeding pro se, filed a Response to the Order to Show Cause, representing that his former counsel, Mr. Buechler, had previously withdrawn from this action on the basis of past-due invoices and that he could re-engage Mr. Buechler if he paid the invoices as well as a retainer for on-going services. [#46]. Mr. Ellerton further represented that his access to the assets needed to reengage Mr. Buechler were the subject of a dispute currently being adjudicated in his divorce proceeding in Hawaii state court. [Id.] Plaintiff then requested that the court “provide a continuance on this action until more discovery is obtained in [the divorce proceeding] and the results of on-going discussions with Sefton, regarding a possible agreement/settlement to this action, are determined.” [#46 at 4]. This court denied Plaintiff's request for an extension of the response deadline in a Minute Order dated February 23, 2016. [#51]. Mr. Ellerton's Response to the Order to Show Cause did not address the failure to serve the Individual Defendants. The Corporate Plaintiffs failed altogether to file a Response to the Order to Show Cause.

         This court held a Scheduling Conference on February 24, 2016. The undersigned ordered in relevant part that the Parties complete discovery by June 24, 2016 and file dispositive motions by July 25, 2016. [#52]. At the Scheduling Conference, Mr. Ellerton admitted that the Corporate Plaintiffs were not currently represented by counsel, and the Individual Defendants had not been served. On February 25, 2016, this court issued a Recommendation that the Corporate Plaintiffs and Individual Defendants be dismissed and the First, Second, Third, and Sixth Claims be dismissed. With respect to the Verified Complaint, the Recommendation identified the Fourth, Fifth, and Seventh Claims as pending, to be limited to Mr. Ellerton as an individual and Sefton as the sole remaining Defendant. [#53]. On October 24, 2016, the court adopted the Recommendation. [#108].

         V. Current Posture of Case and Pending Motions

         The sole remaining Parties to this action are Mr. Ellerton, as Plaintiff and Counterclaim Defendant, and Sefton, as Defendant and Counterclaim Plaintiff. On April 26, 2016, this court held a Telephonic Status Conference to discuss matters of timing involving discovery. The same day, Sefton filed a Motion for Entry of Default as to all Plaintiffs, asserting that the Corporate Plaintiffs never responded to the Amended Counterclaims, and that Mr. Ellerton's Response (dated February 5 but filed February 23) failed to respond to either the Eighth Amended Counterclaim for Malicious Prosecution arising from the bankruptcy action or numerous factual allegations and allegations related to punitive damages. See [#68 at 3]. The Motion for Entry of Default asked the Clerk of the Court to enter default as follows: (1) Sefton's First, Second, and Third Claims for Relief asserted against C&J; (2) Sefton's Tenth Claim for Relief asserted against C&J and the Trust; (3) Sefton's Eighth Claim for Relief and its requests for exemplary or punitive damages under Colorado Revised Statute § 13-21-102(1)(a) against all Plaintiffs/Counterclaim Defendants; and (4) Sefton's Seventh, Eleventh, and Twelfth Claims for Relief as asserted against C&J and the Trust. [Id.] On May 6, 2016, Mr. Ellerton filed a “Declaration Regarding Sefton Resources, Inc.'s Motion for Entry of Default, ” reiterating his position that Sefton owes him money. See [#72]. Sefton then filed a Reply in support of the Motion for Entry of Default. [#79].

         On May 12, 2016, Sefton filed the pending First Motion for Sanctions seeking dismissal of Mr. Ellerton's claims with prejudice citing his “numerous failures to comply with the rules and orders of this Court, including his failure to provide Initial Disclosures or otherwise advance this case.” [#75 at 1]. Mr. Ellerton opposed the Motion, and filed a Motion to Dismiss his claims without prejudice the same day. See [#77]. Mr. Ellerton did not include a certificate of conferral in his motion.

         In a Minute Order dated May 17, 2016, this court considered the Motion for Entry of Default, First Motion for Sanctions, and Motion to Dismiss and noted, among other things, that neither Party addressed how the court should resolve the Amended Counterclaims. This court directed the Clerk of the Court to enter default as to C&J and the Trust only and struck the Motion to Dismiss with leave to refile. See [#80]; see also [#81].

         On June 3, 2016, Mr. Ellerton filed the pending Motion to Dismiss, to which he attached electronic correspondence from counsel for Sefton indicating Defendant's intention to pursue its Amended Counterclaims against all the Plaintiffs/Counterclaim Defendants. [#84; #84-5]. Sefton opposed the Motion and filed a Response the same day, articulating its position that the Amended Counterclaims remain pending against all Plaintiffs regardless of the disposition of the Motion to Dismiss and the only appropriate disposition of Mr. Ellerton's claims is with prejudice, and asking that the court award it fees and costs incurred in defending the lawsuit.[2]See [#85].

         On June 10, 2016, notwithstanding Mr. Ellerton's failure to file a Response to the First Motion for Sanctions, Sefton filed a Reply, reiterating its position that the court should dismiss all claims against it with prejudice. Sefton also asked that the court enter default as to all Plaintiffs on all of its Amended Counterclaims due to Plaintiffs' failure to participate in the discovery process (as opposed to their failure to respond to the Amended Counterclaims). See [#88].

         Also on June 10, 2016, Sefton filed the pending Second Motion for Sanctions seeking monetary sanctions for Plaintiffs' failure to appear for their depositions and failure to respond to interrogatories and other discovery requests. [#89]. On June 21, 2016, Mr. Ellerton filed a “Declaration Response Regarding Sefton Resources, Inc.'s Motion for Monetary Sanctions” again asserting his position that Sefton owes him money. See [#91]. Mr. Ellerton did not address the contention that he had failed to appear for his deposition or respond to discovery requests, other than to assert that the court should deny the Second Motion for Sanctions as “Sefton has for the most part ignored discovery rules.” [Id. at 3]. On July 7, 2016, Sefton filed a Reply specifying that it seeks monetary sanctions as an alternative to dismissal and default, and reimbursement of its expenses in addition to the sanctions. [#92 at 1 n.1].

         On July 25, 2016, Sefton filed the pending Motion for Summary Judgment seeking summary judgment on all claims asserted against it by Mr. Ellerton.[3] [#93]. This court instructed Mr. Ellerton to file a response on or before August 18, 2016. See [#95]. On August 9, 2016, Mr. Ellerton filed a “Response to Defendant's Motion for Summary Judgment and Plaintiff's Motion for Sanctions Against Defendant, ” along with a “Declaration By Plaintiff with Respect to Plaintiff's Motion for Dismissal Without Prejudice, Defendant's Counterclaims and Defendant's Motion for Monetary Sanctions.” [#96; #97]. On August 10, 2016, Judge Moore ordered the Response stricken for failure to comply with his Practice Standards and Local Rule 7.1(d) of this District. [#98]. Mr. Ellerton did not re-file a response.


         I. Pro Se Litigants

         Mr. Ellerton has been proceeding pro se in this action since the court granted his attorney's motion to withdraw on November 6, 2015. See [#38]. “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant, including…summary judgment proceedings.” Id. at n.3 (citations omitted). However, the court cannot be a pro se litigant's advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). In addition, a pro se litigant is held to the same procedural rules and substantive law as a represented party. See Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994); Dodson v. Bd. of Cty. Comm'rs, 878 F.Supp.2d 1227, 1236 (D. Colo. 2012).

         II. Federal Rule of Civil Procedure 37

         Sefton moves for sanctions under Rule 37(b), (c), and (d). Rule 37(b) pertains to a party's failure to obey a court order. Pursuant to Rule 37(b)(2)(A), the district court where the action is pending may order the following sanctions against a party who fails to obey an order to provide or permit discovery: (i) designating facts as established for purposes of the action; (ii) prohibiting the non-complying party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order at issue is obeyed; (v) dismissing the action; (vi) rendering a default judgment against the non-complying party; or (vii) treating as contempt of court the failure to obey the order. Fed.R.Civ.P. 37(b)(2)(A)(i)-(vii).

         Rule 37(c) pertains to a party's failure to disclose, supplement an earlier discovery response, or admit. Specifically, a party who fails to provide information or identify a witness as required by Rule 26(a) or (e) may not use that information or witness as evidence in support of a motion or at a hearing or during trial, unless the failure is “substantially justified or is harmless.” On motion and “after giving an opportunity to be heard, ” the court may also, or instead, order the non-complying party to pay his opponent's reasonable expenses caused by the failure to disclose, may inform the jury of the party's failure to disclose, or may impose any of the sanctions listed in Rule 37(b)(2)(A)(i)-(vi). Fed.R.Civ.P. 37(c)(1).

         Finally, Rule 37(d) governs sanctions the court may impose following a party's failure to attend his own deposition or serve answers to interrogatories. In either instance, and on motion, the court where the action is pending may order any of the sanctions listed in Rule 37(b)(2)(A)(i)-(vi) where party with proper notice fails to appear for his deposition, or where a party who is properly served with interrogatories under Rule 33 fails to serve his answers, objections, or written response. Fed.R.Civ.P. 37(d)(1)(A). A motion filed pursuant to this Rule must include a certification that the movant engaged in a robust meet and confer with the party who has failed to act, in an effort to resolve the dispute without court intervention. Id. at 37(d)(1)(B). In addition to or instead of the sanctions listed in Rule 37(b)(2)(A)(i)-(vi), the court may order the party failing to act to pay the movant's reasonable expenses caused by the failure, “unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Id. at 37(d)(3).

         III. Federal Rule of ...

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