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Wirs v. United World Wrestling

United States District Court, D. Colorado

February 2, 2018

PETER J. WIRS, Hon., Plaintiff,
v.
UNITED WORLD WRESTLING Defendant.

          ORDER ON PENDING RECOMMENDATIONS AND “EMERGENCY MOTION”

          William J. Martinez United States District Judge.

         Plaintiff Peter J. Wirs (“Wirs”), proceeding pro se, sues Defendant United World Wrestling (“UWW”) for, among other things, violation of U.S. antitrust laws. UWW is a Swiss organization that serves as the worldwide governing body for amateur wrestling (freestyle and Greco-Roman).

         This matter is before the Court on four Recommendations made by United States Magistrate Judge Scott T. Varholak. (ECF Nos. 17, 20, 29, 34.) These Recommendations are incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). All of them deny the relief Wirs requests in the underlying motions. Wirs filed timely objections to the latter three Recommendations. (See ECF Nos. 22, 32, 35.)

         Also before the Court is Wirs's Emergency Motion for Reconsideration of Motion to Set Down Settlement Conference Denied By By [sic] Operation of Law (ECF No. 21), which the Court never referred to Judge Varholak.

         For the reasons explained below, the motions referred to Judge Varholak are denied on their merits in part, and otherwise denied as moot. The portions of Judge Varholak's Recommendations regarding Wirs's moot requests for relief are vacated, but the Recommendations are otherwise adopted. As to the motion the Court did not refer, it is denied.

         I. LEGAL STANDARD

         When a 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 instructions.” Id.

         Because Wirs 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 Wirs, 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).

         II. BACKGROUND

         Wirs filed this action on July 5, 2017. (ECF No. 1.) His chief complaint is that UWW eliminated from its “Veterans World Championships” event all competitions for wrestlers that are age 60 or older. (Id. ¶ 1.) Wirs asserted that this choice violated, among other things, section 2 of the Clayton Act (15 U.S.C. § 13). (Id. ¶¶ 37-44.) As noted previously, UWW is a Swiss organization. Whether Wirs has properly served UWW with process remains unresolved.

         III. ANALYSIS

         A. August 10, 2017 Recommendation

         On August 7, 2017, Wirs filed an “Omnibus Motion for Temporary Restraining Order, Preliminary Injunction, Consolidation of Hearing with Trial on Merits, and for Summay [sic] Judgment on Antitrust Liability” (“August 7 Motion”). (ECF No. 10.) Wirs asserted that he had some sort of “August 10, 2017 registration deadline.” (Id. ¶ 5.) He requested “a TRO to enlarge the registration deadline by fourteen days . . . to allow the time for a hearing on the merits.” (Id. ¶ 6.)

         Wirs also described “pretrial settlement discussions via email and telephone conference calls” with “Mr. Nenad Lalovic, of Belgrade, Serbia, ” UWW's president. (Id. ¶¶ 7, 9.) Wirs stated that he and Lalovic had discussed Wirs's “proffered ‘Proposed Consent Decree'” appointing receivers for UWW that would then cause it to take legal action to protect its “intellectual property rights [as] against a U.S. commercial vaudeville producer stigmatizing the Sport for damages currently estimated at $970 million.” (Id. ¶¶ 9-11.)[1] Wirs noted, however, his belief that Lalovic (“despite his authority under [the] UWW Constitution . . . is unable to enter into the Proposed Consent Decree without the UWW Bureau's [i.e., board of director's] approval.” (Id. ¶¶ 10, 13.) Wirs attributed this lack of independence to UWW's “General Secretary, Michael Dusson, of Dijon, France, ” whom Wirs alleges to be “a ‘hardliner' [who] promotes male hegemony in opposition to the progressives, such as Mr. Lalovic, ” and who “[e]xerts such full, complete, and exclusive control over [UWW] as to render all other Bureau Members a ‘disinterested majority' powerless to correct Dusson's ult[r]a vires acts, such as banning [Wirs] ¶ 2016 from competition.” (Id. ¶ 14.)

         The Court referred this motion to Judge Varholak. (ECF No. 14.) On August 10, 2017, Judge Varholak issued a Recommendation (“August 10 Recommendation”) denying the motion without prejudice because Wirs had failed “to identify the nature of this deadline, the harm that purportedly would befall [him] if it is not ...


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