United States District Court, D. Colorado
POWER PLACES TOURS, INC., a Colorado corporation, FRED TOBY WEISS, THERESA WEISS, Plaintiffs,
FREE SPIRIT, a/k/a Paul Marsh. Defendant.
ORDER GRANTING PLAINTIFFS' MOTION FOR DEFAULT
CHRISTINE M. ARGUELLO United States District Judge
matter is before the Court upon Plaintiffs” Motion for
Judgment Under Fed.R.Civ.P. Rules 37 and 55. (Doc. # 39.) For
the reasons described herein, the Motion is granted.
initiated this lawsuit on November 4, 2016, alleging
violations of the Lanham Act, the Colorado Organized Crime
Control Act, and a common law claim for injurious falsehood,
all stemming from an acrimonious dispute with Defendant Free
Spirit over his alleged publication of false and disparaging
allegations against Plaintiffs on a variety of websites.
(Doc. # 1.) Plaintiffs, who are in the business of marketing
and selling spiritual travel and vacation goods and services,
prayed for injunctive relief permanently barring Mr. Spirit
from publishing allegedly defamatory statements, an order of
this Court directing third-parties to remove existing
defamatory materials from online sites, and monetary damages.
(Id. at 31-33.)
December 28, 2016, Mr. Spirit, who is pro se, filed his
self-styled answer to the Complaint. (Doc. # 11.) In truth,
the “answer” was a thirty page screed wherein Mr.
Spirit identified himself as an “inter-dimensional time
traveler” from “several million years into the
future, ” sent as an emissary of “an advanced
alien race” located 20, 000 light years away in
“a blue hyper giant binary system close to the Galactic
Centre existing in a reality beyond what humans know as
'space-time.'” (Id. at 3.) Needless to
say, the “answer, ” which was unresponsive to the
Complaint and entirely devoid of legal argument, fell well
short of the pleading requirements set forth in Fed.R.Civ.P.
8. Acting sua sponte pursuant to Fed.R.Civ.P. 12(f)
and D.C.COLO.LCivR 7.1(i), this Court struck Mr. Spirit's
“answer” on January 13, 2017. (Doc. # 20.) The
Court further ordered Mr. Spirit to submit an answer
“that complies with the Federal Rules on or before
February 13, 2017, ” described the requirements of
Fed.R.Civ.P. 8, and directed Mr. Spirit to the Guide to Civil
Lawsuits prepared for pro se litigants by the United States
District Court for the District of Colorado. (Id. at
2-3.) Finally, the Court warned Mr. Spirit that the
submission of “another prolix, vague, or
incomprehensible answer would result in additional sanctions,
and pave the way for an entry of default.”
(Id. at 3.)
January 30, 2017, Mr. Spirit filed a second
“answer” that was essentially identical to his
first. (Doc. # 26.) For the same reasons set forth in the
order striking the first “answer, ” this Court
struck the second “answer” on February 3, 2017.
(Doc. # 29.) The Court further ordered Mr. Spirit to show
cause in writing on or before February 17, 2017, why,
pursuant to Fed.R.Civ.P. 37, default judgment should not be
entered for his willful failure to comply with court orders.
Mr. Spirit's response, submitted on February 21, 2017,
was identical to his second “answer.” (Doc. #
30.) In other words, Mr. Spirit failed to comply with the
Court's order to show cause.
February 21, 2017, Mr. Spirit filed a motion to dismiss.
(Doc. # 31.) Like his “answers, ” the Motion was
a verbose and unintelligible spiritual manifesto, which cited
to and relied on unsubmitted exhibits and immaterial
documents not before the Court, including Wikipedia articles
on predestination and blog posts about the Arctic Tundra.
(Doc. # 31 at 3, 5 ¶¶ 29, 31.) The grounds set
forth for dismissal included “[t]he greater good of the
human race” (id. at 2 ¶ 8),
unsubstantiated allegations that Plaintiffs and their
attorneys engaged in deceptive or unethical conduct
(id. at 1 ¶ 3; 2 ¶ 18; 4 ¶¶
13-24; 8 ¶¶34-36; 9 ¶¶ 42-43); that
“settlement of a million in [Mr. Spirit's] favour
is predestined and thus can be seen as God's Will”
(id. at 7 ¶ 29); that “[a]ny member of
the human race, including a judge, cannot judge against [Mr.
Spirit] without seriously harming the human race”
(id. at 7 ¶ 31); and this Court “does not
have the capacity to understand the dispute, nor has had 20
years training in higher ethics, morality, wisdom, and karmic
purification” (id. at 8 ¶ 33).
March 10, 2017, Plaintiffs filed a motion to strike Mr.
Spirit's motion to dismiss for his failure to comply with
D.C.COLO.LCivR 7.1(i), which provides that “[a]
verbose, redundant, ungrammatical, or unintelligible
motion…may be stricken or returned for revision, and
its failing may be grounds for sanctions.” (Doc. # 32.)
Because the motion to dismiss failed to comply with the local
rules of the District of Colorado, the practice standards of
this Court, and was otherwise legally uncognizable, this
Court granted Plaintiffs' motion to strike the motion to
dismiss on March 14, 2017. (Doc. # 33.)
March 29, 2017, Plaintiffs filed the instant Motion for
Judgment Under Fed.R.Civ.P. Rules 37 and 55 on the bases that
Mr. Spirit's frivolous pleadings do not constitute
meaningful participation in this litigation and that Mr.
Spirit's willful disregard of this Court's order
warrants an entry of default. (Doc. # 39.) In terms of the
judgment, Plaintiffs request injunctive relief requiring Mr.
Spirit to take reasonable steps to remove the derogatory and
false statements that are the subject of this lawsuit from
certain online sites, a permanent injunction barring Mr.
Spirit from publishing the same or substantially similar
statements about the Plaintiffs, and an order permitting
third party individuals and entities in the United States to
delete, delist, or deindex Mr. Spirit's statements from
their internet publications or search engine results.
Plaintiffs also request costs in the amount of $669.74.
Notably, the prayer for judgment does not request the
monetary and special damages set forth in the original
Pro Se Party
Defendant in this action is proceeding pro se, and this Court
must construe his pleadings liberally. Haines v.
Kerner, 404 U.S. 519, 520-21 (1972). Nevertheless, it
cannot serve as a pro se litigant's advocate, Walters
v. Wal-Mart Stores, Inc., 703 F.3d 1167, 1173 (10th Cir.
2013), nor may it excuse Defendant for failing to follow the
same procedural rules that govern all litigants, Nielsen
v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
Federal Rules of Civil Procedure authorize default judgments
against parties who fail to comply with court orders.
Fed.R.Civ.P. 37(b); see also M.E.N. Co. v.
Control Fluidics, Inc., 834 F.2d 869, 872 (10th Cir.
1987). Default judgment is generally considered a harsh
sanction that should be used only when a party's
noncompliance is due to “willfulness, bad faith, or any
fault of the [disobedient party], ” and not when a
party is unable to comply with a discovery order.
Nat'l Hockey League v. Metro. Hockey Club, Inc.,
427 U.S. 639, 640, (1976) (quoting Societe Internationale
v. Rogers, 357 U.S. 197, 212 (1958)). The Tenth Circuit
has defined a willful failure as “any intentional
failure as distinguished from involuntary ...