United States District Court, D. Colorado
DELMART E.J.M. VREELAND, II, Plaintiff,
v.
DESIREE VIGIL, THEODORE L. LAURENCE, and JAMMIE FELLHAUER Defendants.
ORDER DENYING PLAINTIFF'S MOTION FOR IMMEDIATE
REASSIGNMENT AND CHANGE OF VENUE [#61]
[1]
S.
KATO CREWS, U.S. MAGISTRATE JUDGE
This
order addresses Plaintiff Delmart E.J.M Vreeland's
(“Vreeland”) Motion for Immediate Reassignment
and Change of Venue (“Motion”) [#61]. The Motion
was referred to me by Chief Judge Philip A. Brimmer. [#62.]
Defendants filed no response to the Motion.[2] For the following
reasons, the Motion is DENIED.
A.
BACKGROUND
Vreeland
moves the Court to reassign and change the venue of this
matter based on what Vreeland characterizes as an admission
by attorneys from the Colorado Attorney General's Office
(“AG”) that they engaged in an illegal ex
parte communication with this Court in a separate
lawsuit in which Vreeland is the plaintiff and is represented
by counsel. [#61 at p. 1.] See Vreeland v. Tiona et
al., No. 17-cv-01580-PAB-SKC
(“Tiona”). Vreeland alleges that on
September 12, 2019, an AG attorney in Tiona
“admitted to illegal, ex parte
communications” with the undersigned magistrate judge
“in an effort to gain a benefit for their
clients[.]” [#61 at ¶¶5 and 9]
In
Tiona, this Court issued an order setting a
discovery conference stating: “[h]aving been alerted to
a Discovery Dispute between Plaintiff and CDOC Defendants, a
Discovery Conference is set for 8/19/2019.”
[Id. at ¶9 (citing Tiona at ECF.
#320).] Vreeland argues that, in Tiona, this Court
did not allow “the standard 14 days['] notice [of
hearing] to [Plaintiff's] counsel in [Tiona],
” and that “said counsel moved for an enlargement
of time as he was not able to appear as he had other matters
scheduled for that specific date in the U.S. Court of
Appeals, Tenth Circuit.”[3] [Id. at ¶11 (citing
Tiona at ECF. #322.] This Court denied defense
counsel's motion to enlarge time because he failed to
confer with opposing counsel (as required) prior to filing
the motion, and further because the “purpose of this
conference is to discuss the lack of communication between
the parties regarding discovery, and therefore, the Court
does not believe any preparation to be necessary.”
[Tiona, #325.] Despite the Court's denial of
this Motion, Vreeland's attorney failed to appear for the
discovery conference anyway, and the Court held the
conference in his absence after the Courtroom Deputy's
calls to counsel's office went unanswered.
After
the Discovery Conference in Tiona, this Court issued
an Order to Show Cause on Vreeland's attorney as to
“why he should not be sanctioned for his failure to
appear at today's discovery hearing and failure to
diligently respond and cooperate in conferrals over the
parties' discovery dispute. Mr. Tondre should also show
cause why this case should not be dismissed for failure to
prosecute in light of this conduct.” [Tiona,
#327.]
Vreeland
argues that his counsel in Tiona “communicated
with a member of the [AG]” regarding the setting of the
Discovery Conference, and “said State lawyer admitted
that he, and others had been having illegal ex parte
communications with various courts, and specifically
with” this Court. [Id. at ¶14.] He goes
on to assert that these “ex parte
communications” show corruption in each of
Vreeland's cases pending before this Court, states
concern over a biased court, and requests, “[a]t a
minimum, . . . an immediate order of recusal and
reassignment” of cases in which the undersigned is the
referral magistrate judge. [Id. at ¶¶17,
19-22.]
B.
DISCUSSION
Vreeland's
concern about illicit ex parte communication appears
to be a by-product of this Court's Civil Practice
Standards that apply when both parties are represented by
counsel, as they are in Tiona.[4] Those standards
require counsel to call my chambers when a discovery dispute
arises before filing any disputed discovery motions.
See SKC Civ. Prac. Standards § E.3.c (stating
standard for presenting discovery disputes to the Court when
all parties in a case are represented by counsel). The Court
clarifies the events below.
In
accord with these standards, on August 12, 2019, defense
counsel in Tiona, Cole Woodward, contacted my
chambers pursuant to this Court's practice standards
regarding discovery disputes. Those practice standards
instruct the parties to jointly contact chambers concerning a
discovery dispute to set the matter for a hearing or to
receive further instruction from my law clerks. Speaking only
to my law clerk, Mr. Woodward stated that there was a dispute
regarding Plaintiff's responses to written discovery and,
despite his several attempts, Mr. Woodward had not been able
to reach Plaintiff's counsel in Tiona, Brice
Tondre, to confer over the discovery dispute. The substance
and merits of the discovery dispute were not discussed during
the call, and the Court set the matter for a discovery
hearing the following week. [Tiona, #320.] See,
e.g., Kaufman v. Am. Family Mut. Ins. Co., 601 F.3d
1088, 1095 (10th Cir. 2010) (upholding a district court's
determination that a telephone call from a judge's law
clerk to counsel was harmless and warranted no further
investigation or sanctions); Knop v. Johnson, 977
F.2d 996, 1011 (6th Cir.1992) (concluding that a law
clerk's telephone call requesting that a witness file
supplemental documentation did not warrant a new trial);
United States v. Helmsley, 760 F.Supp. 338, 345
(S.D.N.Y.1991) (stating that a phone call between a law clerk
and counsel requesting that counsel submit a scheduling
proposal was not impermissible and did not suggest bias
because it did not involve discussion of the merits or of any
issue in the case).
The
Sunday before the Monday Discovery Conference, Mr. Tondre
filed a motion for extension of time requesting that the
conference be vacated because he “also has two Opening
Briefs due to be filed in the United States Court of Appeals
on August 19, 2019.” [Tiona, #322 at p. 1.] He
also indicated that he had not conferred with opposing
counsel regarding the motion to vacate. [Tiona,
#322.] Under the Colorado Local Rules, subject to exceptions
not applicable here, conferral with opposing counsel prior to
filing motions is mandatory and failure to do so is alone
grounds for denial. D.C.COLO.LCivR 7.1; Hoelzel v. First
Select Corp., 214 F.R.D. 634, 635-36 (D. Colo. 2003).
Further, when this Court serves in the referral role on civil
matters, it adheres to the practice standards of the
presiding district judge, in this case Chief Judge Brimmer.
See Magistrate Judge S. Kato Crews Civil Practice
Standards § A.3. Judge Brimmer's practice standards
are clear that motions for extension of time must be filed at
least three business days prior to the relevant deadline.
See Chief Judge Philip A. Brimmer's Civil
Practice Standards § I.G.2. The motion must also be
supported by good cause, which explicitly does not include
the press of other business or practice as a sole
practitioner. Id. at § I.G.1. Finally, one of
the purposes of the Discovery Conference was to discuss the
purported lack of communication from Mr. Tondre to Mr.
Woodward, and therefore, the Court concluded that no
preparation on the part of counsel was necessary for the
conference.[5]Accordingly, the motion for an extension of
time and to reset the Discovery Conference was denied.
[Tiona, #325.]
On
August 19, 2019, after delaying for twenty minutes waiting
for Mr. Tondre to appear and after the Courtroom Deputy's
calls to Mr. Tondre's office went unanswered, the Court
convened the Discovery Conference in his absence. All counsel
for Defendants were present, and the proceedings were
recorded, as are all proceedings held on the record.
[Tiona, #327.] Mr. Woodward generally appraised the
Court regarding the substance of the discovery dispute, and
the Court issued an Order to Show Cause why Mr. Tondre should
not be sanctioned for his failure to appear at the Discovery
Conference and for his failure to diligently respond and
confer over the pending discovery dispute. [Tiona,
#327.]
Based
on these circumstances, the Court finds no basis for recusal.
None of the facts set forth in Vreeland's Motion
establish that the undersigned has a personal bias or
prejudice concerning him or that there is any reasonable
basis to question the Court's impartiality in this case,
as required by 28 U.S.C. § 455(b)(1). Nor do the facts
support granting a change of venue for the convenience of
parties and witness, or in the interest of justice, as
required by 28 U.S.C. § 1404. The Court is well-aware of
the basis of Vreeland's claims in this and some of his
other pending matters deriving from his theories of
conspiracy or other plots among government actors against
him. Under these circumstances, the Court understands why he
might raise concern or suspicion over the circumstances
surrounding the Discovery Conference in Tiona in
which his attorney failed to appear despite
notice[6] of the conference and despite the Court
denying his attorney's motion to re-set that conference.
However, it appears that Mr. Tondre did not clearly inform
Vreeland about the procedures set forth in my practice
standards, or about Mr. Woodward's attempts at conferral,
or the basis or substance of Mr. Woodward's phone call
with my Chambers. As explained above, Mr. Woodward's
August 12, 2019 phone call with my clerk's to set a
discovery conference was not an improper ex parte
communication as a matter of law.
Finally,
the Court notes that on October 1, 2019, the Court issued an
Order re: Order to Show Cause in Tiona, making the
show cause order absolute and entering “an award of
attorney's fees against Mr. Tondre,
individually, based on his failure to appear at
the Discovery Conference and his direct violation of
this Court's Order.” [Tiona, #342, at p. 4
(emphasis added).] Vreeland himself was not
sanctioned in that matter because the Court did not attribute
the ...