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Trimarco v. Ergen

United States District Court, D. Colorado

January 9, 2019



          PHILIP A. BRIMMER United States District Judge

         This matter comes before the Court on the parties' Joint Stipulated Motions for Leave to Restrict [Docket Nos. 37, 41] and defendant's Motion for Sanctions Pursuant to Fed.R.Civ.P. 11 and 28 U.S.C. § 1927 [Docket No. 43]. Although plaintiff has voluntarily dismissed this case, the Court "retains the inherent authority to issue orders on matters collateral to the merits." Lundahl v. Halabi, 600 Fed.Appx. 596, 605 (10th Cir. 2014) (unpublished); see also Cooter&Gell v. Hartmarx Corp., 496 U.S. 384, 396 (1990) (stating that the determination of whether to impose sanctions under Fed.R.Civ.P. 11 "may be made after the principal suit has been terminated").

         I. BACKGROUND

         Plaintiff filed this lawsuit on January 22, 2018 seeking to collect on a $60 million loan that allegedly "matured and came due on May 1, 2017." Docket No. 1 at 1-2, ¶3. Plaintiff asserted that the Court had diversity jurisdiction because plaintiff "is an individual and resident of the State of New York" and defendant is, "upon information and belief, a resident of the State of Colorado." Id. at 1, ¶¶ 1-2. On April 16, 2018, the Court ordered plaintiff to show cause why the case should not be dismissed based on plaintiff's failure to establish the parties' domiciles for purposes of diversity jurisdiction. Docket No. 24 at 2-3. On April 20, 2018, plaintiff filed a response to the show cause order claiming that he "is a United States citizen and a citizen of New York" and that defendant renounced his United States citizenship in 2011 and became a citizen of the Federation of Saint Christopher and Nevis. Docket No. 25 at 2. Before the Court ruled on the sufficiency of these new allegations, plaintiff filed two supplemental responses to the Court's show cause order asserting that (1) defendant's United States citizenship was restored in 2016 and given retroactive effect to September 14, 2011, Docket No. 30 at 2, and (2) defendant has been residing at 5225 Bow Mar Drive, Littleton, Colorado, for the past several months with his "one-time" fiancee who recently gave birth to defendant's second child. Docket No. 33 at 2. Plaintiff argued that these facts demonstrated defendant's intent to remain domiciled in Colorado, his childhood home. Docket No. 30 at 3, Docket No. 33 at 3.

         On May 17, 2018, the Court entered a second order to show cause noting that plaintiff's new jurisdictional allegations were rebutted by evidence in the record and therefore insufficient to establish the Court's subject matter jurisdiction. See Docket No. 35 at 5.[1] The Court directed plaintiff to file a response addressing the impact of certain evidence on the Court's determination of domicile. Docket No. 35 at 1. Plaintiff filed his response to the Court's second show cause order on May 30, 2018. Docket No. 38.

         On May 30, 3018 and June 5, 2018, the parties filed joint stipulated motions to restrict access to documents bearing on defendant's domicile, specifically, the State Department letter of August 26, 2016 [Docket Nos. 38-5, 39] and certain exhibits filed by plaintiff in response to the Court's May 17, 2018 show cause order [Docket Nos. 38-3, 38-4, 38-6, 38-7, 38-8, 38-9, 38-10, 38-11, 38-12, 38-13]. See Docket Nos. 37, 41. On June 19, 2018, defendant also moved for sanctions pursuant to Fed.R.Civ.P. 11 and 28 U.S.C. § 1927, arguing that plaintiff and his attorney had provided the Court with false information concerning defendant's domicile. See Docket No. 43 at 4, 6-7. On August 22, 2018, plaintiff voluntarily dismissed the case pursuant to Fed.R.Civ.P. 41(a)(1), explaining that "in order to preserve certain claims under applicable statutes of limitations, and in light of the challenges asserted to this Court's jurisdiction, plaintiff [had] commenced an action in New York State Court Supreme Court, New York County." Docket No. 46 at 1. The parties' joint motions for leave to restrict and defendant's motion for sanctions are still pending.


         The parties request a court order restricting public access to certain documents filed in this case. See generally Docket Nos. 37, 41. Those documents include a letter from the U.S. State Department [Docket Nos. 38-5, 39], a declaration by plaintiff's private investigator, James Albee [Docket No. 38-6], the exhibits attached to Mr. Albee's declaration [Docket Nos. 38-7, 38-8, 38-9, 38-10, 38-11, 38-12, 38-13], and Exhibits B and C to plaintiff's May 30, 2018 declaration [Docket Nos. 38-2, 38-3]. The parties state that the State Department letter contains "personal medical information" of defendant, Docket No. 37 at 2, ¶ 5, and that the Albee declaration and exhibits "contain certain sensitive information including social security numbers, bank account numbers, and birthdates." Docket No. 41 at 2, ¶ 4.

         "Courts have long recognized a common-law right of access to judicial records." Mann v. Boathght, 477 F.3d 1140, 1149 (10th Cir. 2007) (citing Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978)). However, that presumption is not absolute and may be rebutted "if the public's right of access is outweighed by competing interests." JetAway Aviation, LLC v. Bd. of Cty. Comm'rs of Cty. of Montrose, Colo., 754 F.3d 824, 826 (10th Cir. 2014) (quoting Helm v. Kansas, 656 F.3d 1277, 1292 (10th Cir. 2011)). To overcome the presumption in favor of public access, "the party seeking to seal records must articulate a real and substantial interest that justifies depriving the public of access to the records that inform our decision-making process." Id. (internal quotation marks omitted). It is within the district court's discretion to determine whether a particular court document should be sealed. See Mann, 477 F.3d at 1149 ("Whether judicial records and other case-related information should be sealed or otherwise withheld from the public is a matter left to the sound discretion of the district court.").

         In furtherance of the common law right of access to court records, this District promulgated D.C.COLO.LCivR 7.2(c), which requires a party seeking to restrict public access to:

(1) identify the document or the proceeding for which restriction is sought;
(2) address the interest to be protected and why such interest outweighs the presumption of public access (stipulations between the parties or stipulated protective orders with regard to discovery, alone, are insufficient to justify restriction);
(3) identify a clearly defined and serious injury that would result if access is not restricted;
(4) explain why no alternative to restriction is practicable or why only restriction will adequately protect the interest in question (e.g., redaction, summarization, restricted ...

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