United States District Court, D. Colorado
STANLEY CREIGHTON LOBATO-WRIGHT and TODD ANTHONY LOBATO-WRIGHT, Plaintiffs,
GERRITT KOSER, Defendant.
A. BRIMMER, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiffs' Motion to
Accept Complaint Filed on March 23, 2017 [Docket No. 87] and
Defendant Gerritt Koser's Motion to Strike
Plaintiffs' Second Amended Complaint (Docket #84) [Docket
March 24, 2016, the Court granted plaintiffs leave to amend
their complaint. Docket No. 70. Plaintiffs then filed an
amended complaint that was six pages longer than their
proposed amended complaint, significantly revised, and
contained substantial material that was originally contained
in a pleading that plaintiff was not granted leave to file.
See Docket Nos. 61, 65, 74. On March 9, 2017, on
defendant's motion, the Court ordered plaintiffs to file
an amended complaint within ten days that was compliant with
the Court's March 24, 2016 order. Docket No. 83.
Specifically, the Court stated that plaintiffs "may only
alter their proposed second amended complaint to correct
typographical errors and withdraw claims and
contentions as necessary to comply with Rule 11."
Id. at 4 (emphasis in original). On March 23, 2017,
more than ten days after the Court's order, plaintiff
filed their second amended complaint. Docket No. 84. On April
6, 2017, plaintiffs filed their motion requesting that the
Court accept their second amended complaint and defendant
filed his motion to strike it. Docket Nos. 87, 88.
MOTION TO ACCEPT
request the Court to accept their untimely filed Second
Amended Complaint [Docket No. 84]. Docket No. 87.
Plaintiffs' counsel states that her father's funeral
occurred two days after the Court's order and that she
incorrectly calendared the due date for the pleading.
Id. at 2. The Court finds excusable neglect for
plaintiffs' delay in filing their pleading. See
Fed. R. Civ. P. 6(b)(1)(B).
MOTION TO STRIKE
moves the Court to strike plaintiffs' second amended
complaint. Docket No. 88. Defendant argues that plaintiffs
have failed to comply with the Court's orders by again
including certain language present in the plaintiffs'
previously-filed pleading. Id. at 3-4. Defendant
claims that he is prejudiced by the addition of allegations
"with no meaningful opportunity to explore the veracity
of [those allegations] since discovery is closed."
Id. at 7, ¶ 21. Nonetheless, defendant presents
evidence that the allegations are false. Id. at 5-8.
Defendant also objects to the removal of certain
"admissions" regarding defendants' living
arrangements included in previous versions of the complaint.
Id. at 11.
claim to be "perplexed" by defendant's motion
and argue that the issues raised therein should be addressed
in a motion to dismiss or a motion for summary judgment.
Docket No. 93 at 1. Plaintiffs claim that they "removed
all of the language from the complaint for which the
Defendant filed his motion for clarification, " but
plaintiffs also acknowledge that they made further changes to
the complaint "regarding when certain conversations
among the Defendant, other witnesses and the Denver DA took
place in the courtroom." Docket No. 93 at 1-2.
a portion of a pleading is a drastic remedy; the federal
courts generally view motions to strike with disfavor."
Holderness v. Birner Dental Mgmt. Servs. Inc., No.
12-CV-1391-WJM-MJW, 2013 WL 618162, at *1 (D. Colo. Feb. 19,
2013) (citing 5C Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1380 (3d ed.
2004)). There is a strong preference for the disposition of
litigation on the merits, particularly where there has been
no showing of prejudice. Gulley v. Orr, 905 F.2d
1383, 1386 (10th Cir. 1990) (affirming district court's
denial of a motion for default judgment made at the close of
trial, even when the defendant conceded that it failed to
file an answer). Thus, when faced with a motion to strike,
courts should balance the preference to reach the merits with
the prejudice, if any, to the moving party. Holmes v.
Newark Pub Sens., 2013 WL 6199190, at *2 (D.N.J. Nov.
27, 2013) (citing Wilson v. King, 2010 WL 678102, at
*3 (E.D. Pa. Feb. 24, 2010)); see also Davis v. Ruby
Foods, Inc., 269 F.3d 818, 821 (7th Cir. 2001)
(counseling against filing a motion to strike unless actual
prejudice can be shown). The decision about whether to grant
a motion to strike is discretionary. McPherson v. Bachus
& Schanker, LLC, No. 10-cv-01768-CMA-KMT, 2011 WL
2415003, at *2 (D. Colo. June 10, 2011) (citing F.D.I.C.
v. Isham, 782 F.Supp. 524, 530 (D. Colo. 1992)).
acknowledgment that they further altered their complaint
shows that they have again failed to comply with the
Court's orders. Plaintiffs simply ignored the Court's
instruction that revisions would only be allowed to
"correct typographical errors and withdraw
claims and contentions as necessary to comply with Rule
11." Docket No. 83 at 4 (emphasis in original). The
Court agrees with defendant that defendant would be
prejudiced by plaintiffs' late addition and modification
of allegations after the close of discovery. Such prejudice
is particularly apparent in relation to plaintiffs'
allegations at paragraph 38 of the amended complaint
regarding defendant's alleged actions during
plaintiffs' trial. See Docket No. 84-1 at 16. As
defendant notes and plaintiffs do not contest, despite
testifying at length about defendant's conduct during the
trial, neither plaintiff mentioned the incident newly alleged
at paragraph 38 during such testimony. See Docket
No. 88 at 8, ¶ 22 (citing various portions of
plaintiffs' deposition testimony in Docket Nos. 88-3,
88-4). Plaintiffs' untimely addition of these allegations
would deny defendant the opportunity to depose plaintiffs
with respect to this alleged incident. In light of the
prejudice to defendant, the Court strikes the following
portions of plaintiffs' second amended complaint:
Location of Text
Docket No. 84 at 10, ¶ 23.
When Defendant was present when this happened, he
indicated his agreement.
Docket No. 84 at 11, ¶ 27.
Two weeks before finding out about the DORA
Complaint, Mr. Koser believed that there were no
grounds to charge the Plaintiffs with fraud; after he
found out about the DORA complaint, the Defendant set
in motion the criminal prosecution of the Plaintiffs.
It is the Plaintiffs' position that the Defendant
did so in retaliation for the DORA Complaint and
because of his anti-homosexual animus against the
Docket No. 84 at 11, ¶ 28.
as a matter of "common sense"
Docket No. 84 at 11, ¶ 29.
Mr. Koser's position was incorrect both as a
matter of fact and a matter of law.
Docket No. 84 at 12, ¶ 31.
These criminal charges were brought on the false
complaint of the Defendant who told DDA that the
Plaintiffs were as a matter of "common
sense" family members, and therefore were
committing fraud by not disclosing Stan's income
on the paperwork.
Docket No. 84 at 13, ¶ 38.
After Defendant finished his testimony at the
criminal trial of Stan Lobato-Wright, during a recess
that took place after Defendant's testimony, a
member of the Public Defender's office came into
the courtroom to talk to Stan's attorney. Joe
Morales pointed out to him the pictures of the
Plaintiffs, bare chested with their infant son. Mr.
Morales asked whether this other attorney thought
these pictures were "disgusting." Mr. Koser
was present in the courtroom and appeared to be
listening. He nodded his head, as if to agree that
the pictures were disgusting.
Docket No. 84 at 14, ¶ 42.
Mr. Koser admitted that there was no probable cause
to charge the Plaintiffs two weeks before he found
out about Todd's DORA Complaint. He caused the
criminal investigation and subsequent prosecution of
the Plaintiffs after finding out about the DORA
complaint and in retaliation for the DORA Complaint.
Docket No. 84 at 14, ¶ 45.
The Defendant's motivation to prosecute the
Plaintiffs was his anti-homosexual agenda, and in
retaliation for Todd's DORA Complaint.
Court notes that, on November 1, 2017, defendant filed an
Unopposed Motion to Vacate the Parties' November 17, 2017
Trial Preparation Conference and December 4, 2017 Trial
[Docket No. 102]. In his motion, defendant refers to his
statement in the final pretrial order that he intended to
file a motion for summary judgment if his motion to strike
were denied. Docket No. 102 at 2, ¶ 5 (citing Docket No.
100 at 18, ¶ 9). It is unclear, however, whether
defendant still intends to file a motion for summary judgment
in light of the Court's partially granting his motion to
strike. The Court will order defendant, within one week, to
file an answer and a notice stating whether he still intends
to file a motion for summary judgment. Any such notice must
clearly identify the issues on which plaintiff intends to
seek summary judgment.