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Sevier v. Hickenlooper

United States District Court, D. Colorado

September 29, 2017

JOHN HICKENLOOPER, in his Official Capacity as Governor of Colorado, CYNTHIA COFFMAN, in her Official Capacity as Attorney General, MATT CRANE, in his Capacity as Supervisor Marriage License and County Recorder of Arapahoe County, STACY WORTHINGTON, in her Capacity as Assistant Attorney General in Colorado, and AUBREY ELENIS, Director of the Colorado Rights Division, Defendant.



         Now before the Court are: (1) the Motion for Reconsideration Pursuant to Fed.R.Civ.P. 72 filed by Plaintiff Chris Sevier (ECF No. 40 (“Plaintiff Sevier's Objection”)); (2) the pleading titled “Plaintiff Gunter Moving to Supplement the Record, ” filed by Plaintiff John Gunter, Jr. (ECF No. 32 (“Plaintiff Gunter's Objection”));[1] (3) Plaintiff Gunter's Joinder in Plaintiff Sevier's Objection (ECF No. 50); (4) Plaintiff Sevier's additional Fed.R.Civ.P. 72 Objection (ECF No. 53);[2] (5) Plaintiff Sevier's now-pending Motion for Summary Judgment (ECF No. 51); (6) Plaintiff Gunter's now-pending Motion for Summary Judgment (ECF No. 52); and (7) Plaintiff Joan Grace Harley's now-pending Motion for Summary Judgment (ECF No. 56).

         I. BACKGROUND

         This case was opened on July 19, 2017. (ECF No. 1.) Plaintiffs Sevier and Gunter filed Motions for Summary Judgment, on August 16 and August 21, 2017 respectively. (ECF Nos. 19, 27 (Plaintiff's “First Motions”).) The Court referred both Motions to U.S. Magistrate Judge Nina Y. Wang, pursuant to Federal Rule of Civil Procedure 72, D.C.COLO.LCivR 72.1, and 28 U.S.C. § 636(b)(1)(B). (ECF Nos. 17, 20, 28.)

         On August 21, 2017, Judge Wang entered a Minute Order striking both Motions for exceeding the page limits imposed by the undersigned's Revised Practice Standards. (ECF No. 29 at 2 (“Judge Wang's Order” or “the Order”).) Plaintiff Gunter and Plaintiff Sevier filed Objections to Judge Wang's Order. (ECF Nos. 32, 40, 50, 53.) Subsequently, Plaintiffs Sevier and Gunter re-filed Motions for Summary Judgment, which are substantially identical to their First Motions (ECF Nos. 51, 52), and Plaintiff Harley also filed a Motion for Summary Judgment (ECF No. 56) (collectively, the “Pending Motions for Summary Judgment”).

         Because Plaintiffs appear pro se, the Court gives liberal construction to their pleadings. Ghailani v. Sessions, 859 F.3d 1295, 1303 (10th Cir. 2017). However, “pro se litigants must follow the same procedural rules that govern other litigants.” Dodson v. Bd. of Cnty. Comm'rs, 878 F.Supp.2d 1227, 1240 (D. Colo. 2012) (citing Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994)). In addition, Plaintiffs Gunter and Sevier represent that Plaintiff Sevier is “an immensely competent attorney, ” albeit no longer licensed. (ECF No. 50 at 15; see also ECF No. 19; ECF No. 32 at 4-5.) Therefore Plaintiff Sevier's filings are not entitled to the same liberal construction as pro se litigants. Tatten v. Bank of Am. Corp., 562 F. App'x 718, 720 (10th Cir. 2014).[3]

         II. FED. R. CIV. P. 72 OBJECTIONS

         Judge Wang's Order was not a determination of Plaintiffs' First Motions on the merits, and was not dispositive of any claim or defense, and is thus subject to reversal only if it was “clearly erroneous or is contrary to law.” Fed.R.Civ.P. 72(a); 28 U.S.C. § 636(b)(1)(A). This standard “requires that the reviewing court affirm unless it on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988).

         The Court finds no clear error in Judge Wang's Order. The undersigned's procedural requirements limit parties to “a single motion for summary judgment customarily filed at the conclusion of pretrial discovery, ” while also permitting “one early motion for partial summary judgment which presents a substantial and well-supported argument for significantly reducing the claims or issues in the case.” WJM Revised Practice Standard III.E.2. Plaintiffs Sevier and Gunter argue that theirs were “traditional” motions subject to a 40-page limit, rather than the 15-page limit for “early” motions. (ECF Nos. 32, 40.) Plaintiffs' First Motions were filed before any discovery had commenced, indeed before most Defendants had been served, and thus before it had even been established whether Defendants might pursue discovery, no matter how vociferously Plaintiffs insist none is necessary. (See ECF Nos. 13, 19, 27.) In these circumstances, Plaintiffs' First Motions were clearly premature under Rule 56, and this timing reflects no clear error in Judge Wang's conclusion that these were “early” motions and thus subject to the 15-page limit, which both Motions grossly exceeded. See WJM Revised Practice Standard III.C.1.

         Even if the Court were to engage in de novo review, it would sustain Judge Wang's Order to strike Plaintiff's First Motions. As that Order noted, the undersigned's Revised Practice Standards specify the required format for all motions for summary judgment. (ECF No. 29.) Plaintiffs' First Motions did not meet these requirements. To name two examples, among many, Plaintiff Sevier's Motion alleges as “material facts” that “[t]he governor and state officials are providing full marriage benefits and privileges to . . . homosexuals but not to self-identified polygamists and machinists, ” but with no citation to any form of evidence. (ECF No. 19 at 24, ¶ 3.) Plaintiff Sevier also alleges as a “fact” that “[f]ollowing Obergefell, the LGBTQ community has been entering public schools to advocate its ideology, ” citing only “See public record.” (Id. at 25, ¶ 12.) Such recitals do not meet the Court's procedural requirements; nor could they carry the burden of a party seeking summary judgment. See Fed. R. Civ. P. 56(a); Fed.R.Civ.P. 56(c)(1)(A) (“[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record”); WJM Revised Practice Standard III.E.3 (alleged material facts “must be accompanied by a specific reference to admissible evidence in the record which establishes that fact”).

         In addition, the “evidentiary” materials docketed with Plaintiffs' First Motions do not support a cognizable request for summary judgment. Most of these materials are clippings or reproductions of online news or opinion pieces, while some are litigation materials from other cases, and copies of proposed legislation supported by Plaintiff Gunter. (See e.g., ECF Nos. 19-1 through 19-50, ECF Nos. 27-1 through 27-42.) Most of these materials are facially inadmissible under the Federal Rules of Evidence. See, e.g., Fed.R.Evid. 801-02. There is no indication that the authors of these materials could be called as witnesses, and these materials cannot carry Plaintiffs' burden of proof under Rule 56. These submissions are thus both procedurally improper and substantively inadequate to support Plaintiffs' request for summary judgment. See Fed. R. Civ. P. 56(a), (c)(1), (c)(2); Argo v. Blue Cross & Blue Shield of Kansas, Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (at the summary judgment phase, “courts should disregard inadmissible hearsay statements, ” and “may consider only the evidence that would be available to the jury”).

         More broadly, the Court finds that Plaintiffs' First Motions fall short of the standards required by D.C.COLO.LCivR. 7.1(i) (“Motions . . . shall be concise. A verbose, redundant . . . or unintelligible motion . . . may be stricken . . . and . . . may be grounds for sanctions . . . .”), and by D.C.COLO.LCivR 56.1(c) (“Voluminous exhibits are discouraged. Parties shall limit exhibits to essential portions of documents.”).

         Given these pervasive failures, Plaintiffs' Motions for Summary Judgment did not present a competent record on which the Court could have addressed the merits of Plaintiffs' claims. For all these reasons-in addition to the problems with timing and length-Judge Wang was correct to strike Plaintiffs' First Motions. Accordingly Plaintiffs' Objections (ECF Nos. 32, 40, 50, 53) are OVERRULED.


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