United States District Court, D. Colorado
BENJAMIN S. CARSON, Secretary of Housing and Urban Development, Plaintiff,
ESTATE OF VERNA MAE GOLZ, WILLIAM J. GOLZ, MARCUS J. GOLZ, MATTHEW J. GOLZ, and UNKNOWN HEIRS AND CLAIMAINTS OF THE ESTATE OF VERNA MAE GOLZ, Defendants.
BROOKE JACKSON UNITED STATES DISTRICT JUDGE
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.
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).
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. This pleading also signaled
his intent to file counterclaims and to add an intervenor by
May 1, 2019. Id.
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.
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.
Defendant Golz's Motion for Leave to
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.
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.
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
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. 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).
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 ...