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Tso v. Murray

United States District Court, D. Colorado

July 19, 2018

GILBERT T. TSO, Plaintiff,
v.
REBECCA MURRAY, a/k/a Tso, TANYA AKINS, SHERR PUTTMANN AKINS LAMB PC, JEANNIE RIDINGS, KILILIS RIDINGS & VANAU PC, RUSSELL MURRAY, DENA MURRAY, JOANNE JENSEN, RICHARD F. SPIEGLE, ELIZABETH A. STARRS, DAVID P. BRODSKY, CHARLES D. JOHNSON, ROSS B.H. BUCHANAN, DAVID H. GOLDBERG, MONICA JACKSON, individual and official capacity, LARA DELKA, individual and official capacity, CHRISTIAN MADDY, individual and official capacity, JENNIFER ADELMANN, individual and official capacity, DON MARES, official capacity, BARRY PARDUS, official capacity, MICHAEL DIXON, official capacity, CYNTHIA COFFMAN, official capacity, 19TH JUDICIAL CIRCUIT COURT, LAKE CO., IL, 2ND DISTRICT COURT, DENVER COUNTY, CO, DENVER DEPARTMENT OF HUMAN SERVICES, COLORADO DEPARTMENT OF HUMAN SERVICES, CITY AND COUNTY OF DENVER, and COLORADO DIVISION OF MOTOR VEHICLES, Defendants.

          ORDER

          Scott T. Varholak United States Magistrate Judge

         This matter is before the Court on Plaintiff's Complaint re: ECF #103 Pursuant to Fed.R.Civ.P. 11(b)(1), (b)(3) and (b)(4) and Motion for Sanctions (the “Motion”) [#151], [1] which was referred to this Court [#152]. Through the Motion, Plaintiff seeks Rule 11 sanctions against Defendants City and County of Denver, Denver Department of Human Services, Monica Jackson, Lara Delka, Christian Maddy, Jennifer Adelmann, and Don Mares (collectively, “Denver Defendants”) and their attorney Robert A. Wolf based upon arguments raised in Denver Defendants' Motion to Dismiss (the “Motion to Dismiss”) [#103]. The Motion also argues that a motion for extension of time filed on behalf of Denver Defendants and Colorado Defendants[2] (the “Motion for Extension of Time”) [#130] was frivolous and vexatious and thus violated Rule 11(b)(1). This Court has carefully considered the Motion, the entire case file, the applicable case law, and has determined that neither additional briefing nor oral argument would materially assist in the disposition of the instant Motion.[3] For the following reasons, the Court DENIES the Motion.

         I. LEGAL STANDARD

         Federal Rule of Civil Procedure 11(b) provides:

By presenting to the court a pleading, written motion, or other paper--whether by signing, filing, submitting, or later advocating it-an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

         If the Court determines that Rule 11(b) has been violated, “the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.” Fed.R.Civ.P. 11(c)(1). “In deciding whether to impose Rule 11 sanctions, a district court must apply an objective standard; it must determine whether a reasonable and competent attorney would believe in the merit of an argument.” Dodd Ins. Servs., Inc. v. Royal Ins. Co. of Am., 935 F.2d 1152, 1155 (10th Cir. 1991). “Rule 11 sanctions are an extraordinary remedy . . . intended to discourage frivolous litigation, not to punish litigants.” Greeley Pub. Co. v. Hergert, 233 F.R.D. 607, 611 (D. Colo. 2006).

         II. ANALYSIS

         The Motion asserts the following alleged violations of Rule 11: (1) Denver Defendants' assertion of a “domestic relations exception defense” in their Motion to Dismiss is frivolous and vexatious and thus violates Rule 11(b)(1); (2) Denver Defendants' assertion of res judicata in their Motion to Dismiss is frivolous and vexatious and thus violates Rule 11(b)(1); (3) the motion for extension of time filed by Denver Defendants and Colorado Defendants was vexatious and thus violated Rule 11(b)(1); and (4) statements in Denver Defendants' Motion to Dismiss purportedly “characterizing [ ] Plaintiff as a ‘deadbeat' refusing to support his minor child” are patently false and violate Rule 11(b)(3) and 11(b)(4). The Court addresses each argument in turn.[4]

         A. Denver Defendants' Assertion of the Domestic Relations Exception

         In their Motion to Dismiss, Denver Defendants argue that the Court “should not exercise jurisdiction over the purely state issue [raised by Plaintiff's complaint involving] whether Plaintiff owes and should pay child support, ” because Federal Courts “lack subject matter jurisdiction over all domestic relations matters.” [#103 at 6 (citing In re Burrus, 136 U.S. 586, 593-94 (1890))] Plaintiff contends that this argument is frivolous and vexatious, because Denver Defendants raised this same argument in a related case Plaintiff filed against Denver Defendants, Tso v. Murray, No. 16-cv-02480-WJM- STV, (the “16-2480 Action”) and “the issue of the ‘domestic relations exception' had virtually no weight or affect whatsoever on the ruling and judgment” of dismissal in that case. [#151 at 8] Plaintiff contends that Denver Defendants' domestic relations exception argument thus is “issue precluded.” [Id. at 9] Plaintiff, however, fails to provide any citation to, or discussion of, the Court's purported consideration of the applicability of the domestic relations exception in the 16-2480 Action. Based upon this Court's review of the order of dismissal in the 16-2480 Action, it appears that the Court there did not directly address the domestic relations exception or the authority related thereto cited in the Motion to Dismiss filed in this action. Nor has Plaintiff cited any other authority establishing that Denver Defendants' invocation of the domestic relations exception is patently frivolous.

         Accordingly, the Motion is DENIED to the extent it seeks the imposition of sanctions based upon Denver Defendants' assertion of the domestic relations exception to the ...


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