United States District Court, D. Colorado
DAVID MINDOCK and ASPEN GLADE LTD., a Colorado limited liability company, Plaintiffs,
CHRISTINA J. BRUFF DUMARS, and MATTHEW J. BRUFF, Defendants.
ORDER ON PENDING MOTIONS
BROOKE JACKSON UNITED STATES DISTRICT JUDGE.
matter is before the Court on three motions of defendant
Christina Bruff Dumars (“Christina”). First,
Christina moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(1)
and Fed.R.Civ.P. 12(b)(6), ECF No. 13. Plaintiffs Aspen
Glade, Ltd. (“Aspen Glade”) and David Mindock
(“David”) responded to this motion, ECF No. 17,
and Christina replied, ECF No. 24. Matthew J. Bruff
(“Matthew”) was a defendant when Christina filed
her motions but has since been realigned as a plaintiff upon
stipulation of the parties. ECF No. 40. Second, Christina
moved for judgment on the pleadings or dismissal with
prejudice based on plaintiffs' untimely responsive
pleadings, ECF No. 14, the same plaintiffs opposed this
motion, ECF No. 16, and Christina replied, ECF No. 22.
Christina also moved to strike the two untimely responses
filed by plaintiffs Aspen Glade and David to her motions, ECF
No. 17 and ECF No. 19. ECF No. 21. To the extent this motion
seeks to strike ECF No. 19, which is their response to a
motion that has since become moot, it is also now moot. For
the reasons explained herein all three motions, ECF Nos. 13,
14, 21 are DENIED.
case concerns a dispute among family members who inherited a
cabin in Summit County. The property at issue is located at
603 97 Circle, Blue River, CO 80424 and described as
“Site 379, The '97 Subdivision, Blue River Estates,
Inc., Blue River, Colorado” (the
“property”). In 1974, Stephen and June Mindock
(“Stephen and June”) purchased the property as
tenants in common. Complaint, ECF No. 2 at ¶ 12. Stephen
and June had three children, Peter J. Mindock
(“Peter”), David Mindock (“David”),
and Stephanie Mindock, now known as Stephanie Williams
(“Stephanie”). Id. Christina and Matthew
are the two children of Stephanie and accordingly, the
grandchildren of Stephen and June. Id. at ¶ 14.
In 1987, Stephen and June conveyed 15/64th of the property by
quitclaim deed to Peter and another 15/64th of the property
to David and reserved a life estate in the portion of the
Property that they conveyed. Id. at ¶ 13. Peter
and David owned this portion of the property as tenants in
common with their parents. Id.
2007, Stephen and June conveyed all their interest in the
property by warranty deed to Christina and Matthew (the
“2007 deed”). Id. at ¶ 15. The 2007
deed conveyed fee simple ownership in Christina and Matthew
as joint tenants with a right of survivorship with respect to
53.12% of the property. Id. at ¶ 21. This made
Christina and Matthew tenants-in-common with David and Peter
with respect to the remaining 46.88% of the property.
Id. The 2007 deed contains a restrictive condition
that has provoked disagreement among the parties and forms
the basis of this action:
This conveyance to Christina J. Bruff DuMars and Matthew J.
Bruff is a conveyance creating a Joint Tenancy in fee simple
title with title as Joint Tenants, with a right of
survivorship (“Joint Tenants”), and not as
tenants in common, subject to easements and covenants of
record. This conveyance is intended to maintain joint
ownership of the Property within the Mindock Family through
the grandchildren who are joint grantees under the Warranty
Deed, but in way no [sic] constitutes a restraint on
alienation by the remaining grantee-title holder if the below
described condition is effectuated by operation of law:
If either Joint Tenant, without the written consent of the
other, attempts to a) partition the property, or b) convert
this joint tenancy into a tenancy in common with respect to
any interest conveyed by this Warranty Deed or other interest
in the Property currently owned or subsequently acquired by
such Joint Tenant, then the Property shall, by operation of
law, revert to the other Joint Tenant in fee simple
immediately without requirement of judicial intervention or
further legal conveyance.
Id. at 14-15. Plaintiffs believe that Christina
drafted this deed, and that this clause is an unreasonable
restrain on alienation. Id. at ¶¶ 19, 23.
September 2014, Peter conveyed his interest in the property
by quitclaim deed to plaintiff Aspen Glade Ltd., a Colorado
limited liability company. Id. at ¶ 17. Aspen
Glade is comprised of two members: Matthew and his wife.
Id. Unable to resolve the disagreement about the
deed clause, David and Aspen Glade filed suit against
Christina Bruff Dumars and Matthew Bruff in the District
Court of Summit County, Colorado requesting a declaratory
judgment pursuant to Colo. Rev. Stat. §§ 13-51-101
et seq. and Colo. R. Civ. P. 57 on the enforceability of the
restrictive conditions contained in a 2007 deed. Christina
removed the action to this Court pursuant to 28 U.S.C.
§§ 1332(a), 1441(b) & 1446. Initially, there
was not complete diversity among the parties: David, Aspen
Glade and Matthew are residents of Colorado and Christina is
a resident of New Mexico. ECF No. 2 at ¶¶ 1-4.
Accordingly, Plaintiffs moved to remand. ECF No. 15. However,
given Matthew's relationship to Aspen Glade and his
apparent shared interests with David and Aspen Glade in
invalidating the restrictive conditions, Christina filed a
motion to dismiss Matthew or realign him as a plaintiff. ECF
No. 12. Both of these motions became moot upon the
parties' stipulation to realign Matthew as an involuntary
plaintiff. ECF Nos. 40, 44. This party realignment created
complete diversity, and this Court has jurisdiction pursuant
to 28 U.S.C. § 1332.
Defendant's Motions About Plaintiffs' Late
Filings: ECF No. 14, 21.
motion for judgment on the pleadings or an order of dismissal
with prejudice asserts that plaintiffs have failed to appear
in the case or to file timely responses to Christina's
motions. ECF No. 14 at 2. Plaintiffs respond that
they have appeared, and that they conferred with Christina
about resolving the issues of removal and remand prior to
their filing of a responsive pleading on the merits. ECF No.
16. Within days of Christina's motion for judgment on the
pleadings or dismissal, plaintiffs filed responsive
pleadings; and Christina identifies no prejudice from their
untimely filings. There is a “strong predisposition to
resolve cases on their merits, ” Ehrenhaus v.
Reynolds, 965 F.2d 916, 920 (10th Cir. 1992) (internal
quotations and citations omitted). Because dismissal with
prejudice defeats a litigant's right to access the
courts, it is “an extreme sanction.” Id.
A responsive filing that is untimely by one week does not
justify dismissal of this case with prejudice.
revisits this issue in a separate motion to strike
plaintiffs' response to her motion to dismiss as
untimely. ECF No. 21. Christina denies that plaintiffs
conferred with her about an extension of time to respond to
the motion to dismiss. Id. at 4. Given that the
parties were concurrently disputing removal and remand, it
seems that there was some sort of misunderstanding in the
conferral. Nevertheless, Christina does not identify any
prejudice resulting from a one-week delay in the filing of a
responsive pleading to her second motion. Thus, these motions
are denied. Moving forward, I advise defendant to focus her
motions, if any, on the substance of this case and to review
my practice standards regarding page limits. I advise
plaintiffs to file on time.
Motion to Dismiss for Lack of Standing.
moves to dismiss this lawsuit under Fed.R.Civ.P. 12(b)(1) and
12(b)(6). Under rule 12(b)(1) she argues that plaintiffs
Aspen Glade and David Mindock do not have standing to
challenge the 2007 deed because it does not affect their
legal rights. However, in this motion, Christina acknowledges
that Matthew's interests are affected by the challenged
deed clause. ECF No. 13 at 7. Given the parties'
stipulation to realign Matthew as a plaintiff, ECF No. 40, a
finding that Aspen Glade and David do not have standing would
no longer ...