United States District Court, D. Colorado
MARGARET A. SILVA, Plaintiff,
US BANK, NATIONAL ASSOC., as Trustee under the Pooling and Service Agreement dated as of February 1, 2007, GSAMP trust 2007-NCI, MORTGAGE PASS-THROUGH CERTIFICATES, series 207, NCI, PAUL KING, District Court Judge, in his individual capacity, DAVID J. STEVENS, District Court Judge, in his individual capacity, 18TH JUDICIAL DISTRICT, Court of Colo. Arapahoe County, RICHARD B. CASCHETTE, District Court Judge, in his individual capacity, CHRISTINE DUFFY, Douglas County Public Trustee, in her individual capacity, LAWRENCE E. CASTLE, in his corporate capacity, ROBERT J. HOPP, in his individual and corporate capacity, MERS INC., a division of MERSCORP INC., and Does 1-10, Defendants.
ORDER ADOPTING RECOMMENDATION OF MAGISTRATE JUDGE
DENYING PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING
William J. Martínez, United States District Judge
matter is before the Court on United States Magistrate Judge
Kristen L. Mix's Recommendation dated June 26, 2017
(“Recommendation”), which recommended denying
without prejudice Plaintiff's motion seeking a temporary
restraining order against Judge David J. Stevens
(“Motion”). (ECF Nos. 13, 14.) Plaintiff Margaret
A. Silva (“Plaintiff”) filed a timely Objection
to the Recommendation (“Objection”). (ECF No.
15.) For the reasons set forth below, Plaintiff's
Objection is overruled and the Recommendation is adopted.
STANDARD OF REVIEW
magistrate judge issues a recommendation on a dispositive
matter, Federal Rule of Civil Procedure 72(b)(3) requires
that the district judge “determine de novo any
part of the magistrate judge's [recommendation] that has
been properly objected to.” In the absence of a timely
and specific objection, “the district court may review
a magistrate . . . [judge's] report under any standard it
deems appropriate.” Summers v. Utah, 927 F.2d
1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn,
474 U.S. 140, 150 (1985)); see also Fed. R. Civ. P.
72 Advisory Committee's Note (“When no timely
objection is filed, the court need only satisfy itself that
there is no clear error on the face of the record.”).
An objection to a recommendation is properly made if it is
both timely and specific. United States v. One Parcel of
Real Property Known as 2121 East 30th St., 73 F.3d 1057,
1059 (10th Cir. 1996). An objection is sufficiently specific
if it “enables the district judge to focus attention on
those issues-factual and legal-that are at the heart of the
parties' dispute.” Id. (quoting
Thomas, 474 U.S. at 47). In conducting its review,
“[t]he district court judge may accept, reject, or
modify the recommendation; receive further evidence; or
return the matter to the magistrate judge with
Plaintiff is proceeding pro se, the Court must
liberally construe his pleadings. Haines v. Kerner,
404 U.S. 519, 520-21 (1972); Trackwell v. United States
Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007). The
Court, however, cannot act as an advocate for Plaintiff, who
must still comply with the fundamental requirements of the
Federal Rules of Civil Procedure. See Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
preliminary injunction is an extraordinary remedy;
accordingly, the right to relief must be clear and
unequivocal. See, e.g., Flood v. ClearOne
Commc'ns, Inc., 618 F.3d 1110, 1117 (10th Cir.
2010). To meet this burden, a party seeking a preliminary
injunction must show: (1) a likelihood of success on the
merits, (2) a threat of irreparable harm, which (3) outweighs
any harm to the non-moving party, and that (4) the injunction
would not adversely affect the public interest. See,
e.g., Awad v. Ziriax, 670 F.3d 1111, 1125 (10th
filed her initial motion seeking a temporary restraining
order against Colorado District Court Judge David J. Stevens
(“Judge Stevens”) in June 2017. (ECF No. 3 at 1.)
Judge Stevens is the presiding judge in Plaintiff's
Forcible Entry and Detainer proceeding in state court, which
arose pursuant to a Rule 120 foreclosure proceeding.
(Id.) Plaintiff's underlying claim is that
Colorado Rule of Civil Procedure 120(d) and the state
foreclosure statute Colo. Rev. Stat. § 38-38-101 as
amended by HB06-1387 facially and procedurally violate the
Fourteenth Amendment to the united States Constitution.
(Id. at 5.) Thus, Plaintiff argues, an eviction
which follows these proceedings is facially unconstitutional
and a denial of due process. (Id.) Plaintiff would
like to enjoin the Forcible Entry and Detainer proceeding
until her constitutional claims can be adjudicated.
Mix recommended that Plaintiff's Motion be denied without
prejudice because Plaintiff had not complied with the
conferral and notice requirement of D.C.COLO.LCivR 7.1 and
65.1(a). (ECF No. 13 at 2.) Plaintiff then filed another
motion for preliminary injunction, which was essentially
identical to the first motion and also did not comply with
the Local Rules. (ECF No. 11.) Judge Mix issued the same
Recommendation to the second Motion. (ECF No. 14.) Plaintiff
then timely filed an Objection to the Recommendation. (ECF
Mix's Recommendation denies both motions seeking a
temporary restraining order. (ECF Nos. 13, 14.) The
Recommendation was based on the Plaintiff's failure to
comply with the conferral and notice requirements of
D.C.COLO.LCivR 7.1 and 65.1(a). (ECF No. 13 at 2; ECF No. 14
Rule 65.1(a) imposes notice and conferral requirements on
parties seeking a temporary restraining order. A motion for a
temporary restraining order shall be accompanied by a
certificate of counsel or an unrepresented party, stating:
(1) that actual notice of the time of filing the motion, and
copies of all pleadings and documents filed in the action to
date or to be presented to the court at the hearing, have
been provided to opposing counsel and any unrepresented
adverse party; or
(2) the efforts by the moving party to provide the required
notice and documents. Except as provided by Fed.R.Civ.P.
65(b)(1), the court shall not consider an ex parte ...