Sieverding, et al v. Colorado Bar Assn, et al

Filing 1138

USCA ORDER re: 1136 Letter re petition for writ of mandamus. We will not accept any further filings, including appeal and original proceedings from Kay or David Sieverding related to district court case 02-cv-1950 unless the filings rise out of criminal contempt proceedings. The Sieverdings have 10 days to fil written objections to these proposed sanctions. The petition for writ of mandamus is dismissed as frivolous. USCA case no. 11-1257. (bjrsl, )

FILED
Appellate Case: 11-1257

Document: 01018659326

United States Court of Appeals
Date Filed: 06/16/2011 Page: 1
Tenth Circuit

June 16, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT

In re: KAY SIEVERDING; DAVID
SIEVERDING,
Petitioners.

Clerk of Court

No. 11-1257
(D.C. No. 1:02-CV-01950-CMA-OES)
(D. Colo.)

ORDER

Before MURPHY, O’BRIEN, and GORSUCH, Circuit Judges.

This matter comes before the court on the petition for writ of mandamus or,
alternatively, writ of prohibition filed by Kay and David Sieverding. The
Sieverdings seek mandamus relief with respect to three rulings of the United
States District Court for the District of Colorado in case No. 1:02-CV-01950:
(1) the district court’s dismissal of their complaint with prejudice; (2) its
imposition of attorney fees and costs as a sanction under Rule 11 of the Federal
Rules of Civil Procedure; and (3) its imposition of filing restrictions. The
Sieverdings have previously challenged each of these rulings on appeal. See
Sieverding v. Colo. Bar Ass’n, 126 F. App’x 457, 459 (10th Cir. 2005) (upholding
dismissal of complaint with prejudice); Sieverding v. Colo. Bar Ass’n, 469 F.3d
1340, 1344-45 (10th Cir. 2006) (upholding imposition of filing restrictions as
modified to narrow scope); Sieverding v. Colo. Bar Ass’n, 237 F. App’x 355,

Appellate Case: 11-1257

Document: 01018659326

Date Filed: 06/16/2011

Page: 2

358-59 (10th Cir. 2007) (upholding award of attorney fees and costs under Fed.
R. Civ. P. 11); Sieverding v. Colo. Bar Ass’n, 310 F. App’x 229, 231-32
(10th Cir. 2009) (upholding denial of Fed. R. Civ. P. 60(b)(4) motion challenging
award of attorney fees and costs). And only a few weeks ago, the Sieverdings
filed a petition for writ of prohibition challenging the district court’s imposition
of attorney fees and costs on a ground similar to that raised here; we dismissed
the petition as frivolous.
“[M]andamus is not a substitute for an appeal”; it is “a drastic remedy, and
is to be invoked only in extraordinary circumstances.” In re Cooper Tire &
Rubber Co., 568 F.3d 1180, 1186 (10th Cir. 2009) (internal quotation marks
omitted). To obtain mandamus relief, the Sieverdings must show they have no
other avenue for relief and their right to the writ is clear and indisputable. Id. at
1187. We in turn, must conclude in the exercise of our discretion that mandamus
relief is warranted under the circumstances. Id.
The Sieverdings utterly fail to meet the standard for mandamus relief.
Their mandamus petition is frivolous and should be dismissed. The petition is
also another example of the Seiverdings’ continued frivolous and abusive filings
in this court. In 2009, we told the Sieverdings “[t]here is nothing left to be
reviewed from this district court case,” and we warned them that “if they file
another appeal or special proceeding arising out of this district court case then we
will seek to impose sanctions against them in the form of appellate filing
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Appellate Case: 11-1257

Document: 01018659326

Date Filed: 06/16/2011

Page: 3

restrictions.” Sieverding, 310 F. App’x at 232 (citing Winslow v. Hunter (In re
Winslow), 17 F.3d 314, 315-16 (10th Cir. 1994)). It is time to put our warning
into effect.
“Federal courts have the inherent power to regulate the activities of abusive
litigants by imposing carefully tailored restrictions in appropriate circumstances.”
Andrews v. Heaton, 483 F.3d 1070, 1077 (10th Cir. 2007). One or both of the
Sieverdings have filed ten appeals, numerous requests for mandamus relief, and
countless motions arising out of a single District of Colorado case. 1 The
Sieverdings were denied relief in all but appeal No. 06-1038, where they obtained
partial relief when this court narrowed the scope of the district court’s filing
restrictions, which it otherwise affirmed. Many of their filings not only lacked
merit, but were frivolous and abusive.
Accordingly, subject to Rule 35 of the Federal Rules of Appellate
Procedure and Tenth Circuit Rule 35.1, we will not accept any further filings,
1

The relevant filings in this court are: No. 04-1108 (appeal: judgment
affirmed & rehearing en banc denied); No. 04-1143 (appeal: judgment affirmed &
rehearing en banc denied); No. 04-1152 (appeal: judgment affirmed & rehearing
en banc denied); No. 05-1569 (mandamus petition: relief denied &
reconsideration denied); No. 06-1023 (mandamus petition: relief denied);
No. 06-1038 (appeal: judgment affirmed as modified & rehearing denied;
2 mandamus petitions: relief denied); No. 06-1072 (appeal: procedurally
terminated); No. 06-1439 (appeal: judgment affirmed & panel rehearing and
motions to recall mandate denied); No. 06-1465 (appeal: dismissed as moot;
mandamus petition: relief denied as frivolous); No. 06-1466 (appeal: dismissed
for lack of standing); No. 06-1524 (appeal: dismissed as moot); No. 08-1297
(appeal: judgment affirmed & panel and en banc rehearing denied); and
No. 11-1227 (writ of prohibition: dismissed as frivolous).
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Appellate Case: 11-1257

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including appeals and original proceedings, from Kay or David Sieverding related
to District of Colorado case No. 1:02-CV-01950 or its subject matter, unless the
filings arise out of criminal contempt proceedings. The Clerk of this court shall
return any prohibited filings, unfiled, to Kay or David Sieverding.
Kay and David Sieverding shall have ten days from the date of this order to
file written objections, limited to fifteen pages, to these proposed sanctions. See
Andrews, 483 F.3d at 1078. If neither Kay nor David Sieverding files an
objection, the sanctions shall take effect twenty days from the date of this order.
If either Kay or David Sieverding does file a timely objection, these sanctions
shall not take effect as to the objecting party until after this court has ruled on the
objection; the filing restrictions shall apply to any matter filed after that time.
The petition for a writ of mandamus is DISMISSED as frivolous. Except as
noted herein, Kay and David Sieverding are ENJOINED from additional filings,
including appeals and original proceedings, relating to District of Colorado case
No. 1:02-CV-01950 or its subject matter, unless the filings arise out of criminal
contempt proceedings.

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk

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