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Power Places Tours, Inc. v. Free Spirit

United States District Court, D. Colorado

June 23, 2017

POWER PLACES TOURS, INC., a Colorado corporation, FRED TOBY WEISS, THERESA WEISS, Plaintiffs,
FREE SPIRIT, a/k/a Paul Marsh. Defendant.


          CHRISTINE M. ARGUELLO United States District Judge

         This 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.

         I. BACKGROUND

         Plaintiffs 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.)

         On 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.)

         On 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.

         On 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).

         On 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.)

         On 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 complaint.


         a) Pro Se Party

         The 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).

         b) Fed.R.Civ.P. 37

         The 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 ...

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