United States District Court, D. Colorado
CHRIS SEVIER, JOAN GRACE HARLEY, JOHN GUNTER, JR., and WHITNEY KOHL, Plaintiffs,
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.
ORDER ON PENDING FILINGS AND CASE PROCEDURES
WILLIAM J. MARTÍNEZ UNITED STATES DISTRICT JUDGE
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”)); (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); (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).
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.)
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
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.
FED. R. CIV. P. 72 OBJECTIONS
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).
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.
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”).
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
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.”).
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.
PENDING MOTIONS ...