Carson v. Estate of Golz

          ORDER

          R. BROOKE JACKSON UNITED STATES DISTRICT JUDGE

         This matter is before the Court on two recommendations of Magistrate Judge Michael E. Hegarty, ECF No. 156 and ECF No. 159. These recommendations are incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). The first recommendation addresses defendant William J. Golz's “Position Paper on Proceeding Pro Se and Motion to Dismiss the Estate as a Defendant, ” ECF No. 103. Judge Hegarty recommends that Dr. Golz's motion should be granted, and that the Estate of Verna Mae Golz (“Estate”) should be dismissed as a defendant. ECF No. 156. The second recommendation addresses plaintiff's motion for summary judgment, ECF No. 127, and recommends that plaintiff's motion should be granted. ECF No. 159. After the issuance of both recommendations, Dr. Golz filed a “Motion for Leave to Amend and to Declare Certain Motions and Recommendations Moot without Prejudice and Notice of Intent to File Counterclaims and Add an Intervenor by May 1, 2019.” ECF No. 166. For the reasons discussed in this motion, I DENY Dr. Golz's motion, ECF No. 166, and I ACCEPT and ADOPT both of Judge Hegarty's recommendations, ECF Nos. 156, 159 in full.

         STANDARD OF REVIEW

         When a magistrate judge makes a recommendation on a dispositive motion, the district court “must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). For an objection to be proper, it must be timely and “sufficiently specific to focus the district court's attention on the factual and legal issues that are truly in dispute.” United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). However, the district court need not consider frivolous, conclusive or general objections. Id. “In the absence of a timely objection, the district court may review a magistrate . . . [judge's] report under any standard it deems appropriate.” Summars v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991).

         Although the first recommendation was that Dr. Golz's motion to dismiss the Estate should be granted, Dr. Golz filed a timely objection to it. ECF No. 163. However, Dr. Golz did not file an objection as such to the second recommendation, ECF No. 159, which recommended that I grant plaintiff's motion for summary judgment. Instead, on the date an objection was due he filed a motion to amend his answer and to declare the recommendations moot. ECF No. 166.^[1] This pleading also signaled his intent to file counterclaims and to add an intervenor by May 1, 2019. Id.

         This Court takes into consideration that Dr. Golz proceeds pro se. “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). This rule applies to all proceedings involving a pro se litigant. Id. at 1110 n.3. At the same time, the Court cannot “assume the role of advocate for the pro se litigant.” Id. at 1110. Pro se litigants must follow the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).

         Without an objection to the recommendation on the motion for summary judgment, I am not required to conduct a de novo review of the motion. Nevertheless, in my discretion and because a pro se party's pleadings must be construed liberally, I have conducted a de novo review of both recommendations.

         ANALYSIS

         I. Defendant Golz's Motion for Leave to Amend

          I will begin with Dr. Golz's motion for leave to amend his amended answer. ECF No. 166. A motion for leave to amend is governed by Fed.R.Civ.P. 15. Fed.R.Civ.P. 15(a)(1) permits a party to amend its pleading once as a matter of course within 21 days after serving it. Dr. Golz amended his answer on November 28, 2017. ECF No. 62. He now moves to amend his answer a second time. Fed.R.Civ.P. 15(a)(1) states that “a party may amend its pleading only with the opposing party's written consent or the court's leave.” It further instructs that leave to amend should be freely granted when justice so requires. This Court freely permits parties to amend their pleadings absent “a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment.” Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). In this case, I find that Dr. Golz's proposed second amended complaint was filed with unjustified delay, with a dilatory or bad faith motive and would be futile. For these reasons I DENY his motion for leave to amend his amended answer. ECF No. 166.

         In his motion, Dr. Golz justifies his request by stating:

Defendant's Second Amended Answer is needed to address facts, including but not limited to, those learned from plaintiff's February 11, 2019 reply in support of its motion for summary judgment, ECF 147, from the period December 18, 2018 to January 23, 2019, and issues concomitant to the time-period relating to the District Judge's March-1, 2019 order. ECF N155.

ECF No. 166 at ¶7. First, I have reviewed plaintiff's February 11, 2019 reply in support of its motion for summary judgment and see no new facts or arguments introduced that are material to the resolution of the summary judgment motion. In this reply, in response to Dr. Golz asking for discovery on a disputed $750 of loan charges, HUD offers evidence of these loan charges in exhibits but also offers to deduct this disputed charge plus interest, $825, from the debt owed in the interest of resolving this case. ECF No. 147 at 1-2. Given this stipulation, this evidence is not material to the summary judgment motion, and no other new evidence or arguments are introduced in this reply.

         Second, it seems that Dr. Golz wishes to relitigate issues I have already ruled upon in my March 1, 2019 order, ECF No. 155. I issued this order denying Dr. Golz's motion to disqualify the magistrate judge, and I addressed a number of concerns that Dr. Golz raised about the magistrate judge's conduct of pre-trial proceedings in the period between December 18, 2018 to January 23, 2019, finding “absolutely nothing indicating any improper conduct by Magistrate Judge Hegarty.” Id. at 4. I have addressed Dr. Golz's complaints about the hearings conducted in this time period and have issued an order finding these complaints to be groundless. Relitigation of these issues is not a justifiable basis upon which to grant leave to file an amended answer.

         Moreover, this case has been pending for twenty-three months, and Dr. Golz offers no reasoned justification for expressing an intention to file new counterclaims for the first time on the day his objections to the recommendation on summary judgment are due.^[2] Dr. Golz has previously, and improperly, moved to amend his Amended Answer to add counterclaims in his response brief to the motion for summary judgment. ECF No. 144 at 9, 14. Magistrate Judge Hegarty addressed this issue in his recommendation on the motion for summary judgment. ECF No. 159 at 11. Judge Hegarty highlighted that to the extent Dr. Golz wishes to amend his answer to express “this defense as ‘unclean hands,' Judge Jackson struck this affirmative defense on October 4, 2018 for Dr. Golz's failure to plead the defense with particularity as required by Fed.R.Civ.P. 9(b). ECF No. 125. Dr. Golz took no action to attempt to amend the Amended Answer following Judge Jackson's order.” Id. Judge Hegarty also pointed out that “despite mentioning in a January 3, 2019 motion for extension of time that he intended to file a ‘motion for leave to amend his answer,' [Dr. Golz] has not done so.” ECF No. 159 at 11-12 (referring to ECF No. 129 at 2).

         Further, though Dr. Golz moved to amend his answer in his response brief, plaintiff stated in its February 11, 2019 reply brief that “Dr. Golz's request to amend has not been properly presented. The Local Rules require a separate motion to amend, accompanied by a redline.” EF No. 147 at 4. However, between this reply and Judge Hegarty's recommendation issued on March 13, 2019, Dr. Golz still filed no motion. In moving for leave to file once ...