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Fedynich v. The Inn Between of Longmont

United States District Court, D. Colorado

May 3, 2018



          Scott T. Varholak, Magistrate Judge.

         This matter is before the Court on (1) Defendant's Motion to Strike Plaintiffs' Answer to Defendant's Motion to Dismiss under Fed.R.Civ.P. 12(b)(6) [#35] (“Defendant's Motion to Strike”); (2) Plaintiffs' Motion for Appointment of Counsel [#37] (“Plaintiffs' Motion for Counsel”); and (3) Plaintiffs' Motion for Extension of Time to Add Defendants and Amend Claim, and Motion for Appointment of Counsel for Pro Se Litigants [#38] (“Plaintiffs' Motion for Extension”). All three motions have been referred to this Court. [#36, 39, 40]

         I. Defendant's Motion to Strike

         Defendant's Motion to Strike seeks to strike Plaintiffs' Response to Defendant's Motion to Dismiss [#34] (“Plaintiffs' Response”), arguing that (1) Plaintiffs' Response was not timely filed; and (2) Plaintiffs' Response failed to comply with the page limitations set forth in Judge Martinez's Practice Standards.

         At the March 15, 2018 Scheduling Conference [#32], the Court granted Plaintiffs an extension until April 16, 2018 to file their response to Defendant's Motion to Dismiss [#23]. As reflected by both the docket entry and the Clerk of Court's stamp applied to Plaintiffs' Response, Plaintiffs' Response was filed with the Clerk of Court on April 16, 2018. In arguing that Plaintiffs' Response was filed one day after the deadline, Defendant appears to refer to the date that Plaintiffs' Response was docketed by the Clerk of Court. Plaintiffs' Response thus was timely filed.

         Judge Martinez's Practice Standards establish a 15-page limitation for motions to dismiss and responses to motions to dismiss. The Practice Standards state that exceptions to this limitation will be made “only in exceptional circumstances” and advises that “[p]ermission to file such papers of greater length shall be sought by way of an appropriate motion filed in advance of the deadline for filing the brief.” Pursuant to D.C.COLO.LCivR 10.1(e), all pleadings and documents filed in the District of Colorado shall be double-spaced. Here, Plaintiffs' Response is 36 pages in length and a significant portion of Plaintiffs' Response is single-spaced. The Court thus agrees with Defendant that Plaintiffs' Response constitutes a significant violation of both the Local Rules and Judge Martinez's Practice Standards. The Court notes that the violation is somewhat mitigated by Plaintiffs' inclusion of long quotations from documents. It is also worth noting that, as Defendant acknowledges, Defendant's Motion to Dismiss also violated Judge Martinez's page limitations [#35 at 4 n.1], though admittedly not to the same extent as Plaintiffs' Response.

         Under the circumstances and particularly given Plaintiffs' pro se status, the Court finds that striking Plaintiffs' Response is too harsh a sanction for their violation of the formatting requirements and would needlessly delay resolution of Defendant's pending Motion to Dismiss. Perhaps recognizing this, Defendant's Motion to Strike, in the alternative, requests an extension of time to file its reply. The Court finds that an extension coupled with leave to file a reply in excess of the normal page limitation provides Defendant an adequate remedy for Plaintiffs' failure to comply with Judge Martinez's page limitations and D.C.COLO.LCivR 10.1.

         Accordingly, the Motion to Strike [#35] is DENIED to the extent it seeks to strike Plaintiffs' Response, but is GRANTED to the extent it seeks an extension of time for Defendant to file its reply in support of the Motion to Dismiss. The deadline for Defendant to file a reply in support of the Motion to Dismiss is extended until May 16, 2018. Any reply filed by Defendant shall not exceed 15 pages in length.

         The parties are advised that future failures to comply with the Federal Rules of Civil Procedure, the Local Rules of the District of Colorado, or Judge Martinez's Practice Standards may result in filings being stricken.

         II. Plaintiffs' Motion for Counsel

         Plaintiffs' Motion for Counsel seeks the appointment of pro bono counsel.[1] [#37] The determination of whether to appoint counsel in a civil case is left to the sound discretion of the trial court. Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). In deciding whether to request counsel for a civil litigant, the district court should evaluate “the merits of a [litigant's] claims, the nature and complexity of the factual issues, and the [litigant's] ability to investigate the facts and present his claims.” Hill v. Smithkline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (citations omitted). Under Local Rule 15(f), the Court applies the following factors and considerations in reviewing a motion for appointment of counsel in a civil action: 1) the nature and complexity of the action; 2) the potential merit of the pro se party's claims; 3) the demonstrated inability of the unrepresented party to retain an attorney by other means; and 4) the degree to which the interests of justice will be served by appointment of counsel, including the benefit the Court may derive from the assistance of the appointed counsel. D.C.COLO.LAttyR 15(f). “The burden is on the applicant to convince the court that there is sufficient merit to his claim to warrant the appointment of counsel.” Hill, 393 F.3d at 1115 (citation omitted). “Only in those extreme cases where the lack of counsel results in fundamental unfairness will the district court's decision be overturned.” Id. at 1115 (citation omitted).

         This Court has considered Plaintiffs' Motion for Counsel in light of the factors identified in Hill and D.C.COLO.LAttyR 15(f). The following three causes of action asserted in Plaintiffs Amended Complaint remain in this case: (1) Failure to Accommodate under the Fair Housing Act. (2) retaliation; and (3) breach of the parties' lease agreement.[2] [#16, 17] The Court finds that the legal issues and facts presented in the pleading are not uniquely complex.[3] The Court notes that, with respect to these claims, Plaintiffs-without the assistance of counsel-successfully articulated allegations sufficient to address the deficiencies identified in Magistrate Judge Gallagher's August 18, 2017 Order directing Plaintiffs to file an Amended Complaint. [See #7, 17]

         At this time, it is not clear whether the merits of Plaintiffs' claims are sufficient for the Court to request counsel to volunteer to represent them. Defendant has filed a Motion to Dismiss [#23] that is not yet fully briefed. If the Motion to Dismiss is denied and the case proceeds toward trial, the Court will at that point consider a renewed motion for counsel.

         With respect to Plaintiffs' ability to obtain an attorney by other means, Plaintiffs inform the Court that they have attempted to contact no less than twenty attorneys, including “all legal clinics in the Denver/Boulder area” but have been unable to locate counsel who will accept the case without the payment of a retainer. [#37 at 2] Although this factor supports Plaintiffs' request for counsel, it does not ...

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