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Conry v. Estate of Barker

United States District Court, D. Colorado

December 1, 2017

THE ESTATE OF EUGENE H. BARKER BERNARD C. MAYNES, an individual, SHARON M. HAMILTON, an individual, B&B VENTURES, LLC, a Colorado limited liability company, B&B 2ND MORTGAGE, LLC, a limited liability company, HIGH POINTE, LLC, a Colorado limited liability company, TERRY D. HAMILTON, an individual, CHEM-AWAY, INC., a Colorado corporation, CHEM-AWAY, INC., a California corporation, DAVID HAMILTON, an individual ALL UNKNOWN PERSON who claim an interest in the subject matter surface and mineral estates in this action Defendants.



         This matter is before the Court on the Recommendation of United States Magistrate Judge Kristen L. Mix (Doc. # 407) that this Court deny Plaintiff Suzanne Conry's pro se Motion for an Injunction and Restraining Order (Doc. # 376) against Defendants Estate of Eugene H. Bar, Bernard C. Maynes, B&B 2nd Mortgage LLC, High Pointe LLC, and B&B Ventures LLC (the Barker Defendants). Magistrate Judge Mix also recommends that this Court Strike Plaintiff's Notice of Removal (Doc. # 404) as untimely and improperly filed. For the following reasons, the Court affirms and adopts the Recommendation in its entirety.


         Plaintiff filed an Objection to the Recommendation, essentially challenging it entirely. (Doc. # 408.) Federal Rule of Civil Procedure 72(b)(3) thus requires this Court to conduct a de novo review of the issues. In so doing, the Court “may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Id. Any arguments raised for the first time in objections are deemed waived and need not be considered.[1] Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996).


         Magistrate Judge Mix's Recommendation details the relevant factual and procedural history of this case. Her Recommendation is incorporated by reference herein, see 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b), and the facts will be reiterated only to the extent necessary to address Plaintiff's Objections to the Recommendation.

         The parties in this case have been involved in numerous Colorado state court proceedings. In December 2016, Plaintiff and the Barker Defendants entered into a Settlement and Release Agreement (the SRA) that was approved by the Weld County District Court and purportedly resolved many of the state court issues between them. (Doc. # 177 at ¶¶ 46-48.) In a status report from April 2017, the Barker Defendants informed the Weld County District Court that Plaintiff had not yet fully performed under the SRA. (Doc. # 376-3 at 1-2.) The status report also notified the Court that the Barker Defendants intended to notify Plaintiff that she would have ten days from the date of that notice to perform under the SRA. (Id.) In response, Plaintiff filed the instant Motion requesting that this Court enjoin the Barker Defendants and the Weld County District Court. (Doc. # 376.) She also requests that this Court enter sanctions against the Barker Defendants and their attorney, Robert Eugene Ray. (Id.)


         Injunctive relief is an extraordinary remedy that should be granted only when the moving party clearly and unequivocally demonstrates its necessity. See Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir.2005). It is well-established that “a showing of probable irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction.” Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1260 (10th Cir. 2004). A party requesting injunctive relief must therefore first establish that she will suffer irreparable injury unless the injunction issues before any other requirements for the issuance of an injunction will be considered.” Id.

         Plaintiff has not established that an irreparable injury is likely. The scope of Plaintiff's motion is unclear-she first ask that the Court enjoin “the requests submitted by [the Barker Defendants] to the [Weld County District Court] and any other court(s).” (Doc. # 375 at 1.) She later expands her request to include prohibiting “the Weld County Court [from] taking any action regarding the disputed issues under the jurisdiction of this Court including, but not limited to, the SRA.” (Id. at 7.)

         With respect to Plaintiff's desire to enjoin the Barker Defendants' “requests, ” the Court assumes that Plaintiff is referring to the Barker Defendants' status report to the Weld County Court, wherein they indicated a plan to notify Plaintiff about her remaining obligations under the SRA and ask her to perform within ten days. It is unclear to this Court whether the Barker Defendants did so notify Plaintiff, and in any event, Plaintiff provides little to no support to suggest that allowing the Barker Defendants to ask Plaintiff to perform under a contract to which she previously agreed would result in irreparable harm to her. Assuming Defendants did so notify Plaintiff, it also appears that the ten-day deadline has lapsed, and Plaintiff cannot unequivocally establish that she faces imminent injury based on an expired request.

         With respect to Plaintiff's expanded request that the Court enjoin Weld County District Court[2], Plaintiff provides no specifics regarding what Weld County District Court actions she seeks to enjoin. Nor does she provide any facts to support that she faces an actual, as opposed to theoretical, injury in the state proceeding, particularly considering that it is administratively closed. Plaintiff merely states that she would “suffer irreparable harm” if the Barker Defendants were able to “obtain a judgment against [her].” (Doc. 376 at 4.) This contention is conjectural, unsubstantiated, and insufficient to establish that Plaintiff will suffer irreparable harm if her request for injunctive relief is denied.[3]

         Because Plaintiff has not demonstrated that an irreparable injury is likely, the Court need not address the other requirements for the issuance of a preliminary injunction. The Court accordingly denies Plaintiff's request for injunctive relief.[4]

         IV. ...

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