Kriston et al v. USA et al

Filing 234

OPINION AND ORDER DENYING MOTION TO VACATE JUDGMENT: Motion to Vacate In Requesting a New Trial 233 is DENIED. by Judge Marcia S. Krieger on 10/3/11.(msksec, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 09-cv-00909-MSK-MEH
ZACHARY KRISTON,
Plaintiff,
v.
TONY PEROULIS,
HARRY PEROULIS, and
DARRYL ROSENBLATT,
Defendants.

OPINION AND ORDER DENYING MOTION TO VACATE JUDGMENT

THIS MATTER comes before the Court on the Motion to Vacate In Requesting a New
Trial (#233), filed by Plaintiff Zachary Kriston,1 to which no response has been filed. Having
considered the same, the Court FINDS and CONCLUDES the following.

I.

1

Background

The Court is mindful that Mr. Kriston is proceeding pro se and, therefore, the Court
construes Mr. Kriston’s pleadings liberally and holds Mr. Kriston to a “less stringent standard”
than pleadings drafted by lawyers in accordance with Haines v. Kerner, 404 U.S. 519, 520
(1972). Such liberal construction is intended merely to overlook technical formatting errors,
poor writing style, and other defects in the party’s use of legal terminology, citation, and
theories. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Court, however,
cannot act as a pro se litigant’s legal advocate, and a pro se plaintiff retains the burden to allege
sufficient facts to state a viable claim. Furthermore, pro se status does not relieve a party of the
duty to comply with the various rules and procedures governing litigants and counsel or the
requirements of the substantive law, and in these regards, the Court must apply the same
standard to counsel licensed to practice law and to a pro se party. See McNeil v. United States,
508 U.S. 106, 113 (1993); Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).

This case arises from loan transactions and business dealings between Mr. Kriston and
Defendant Tony Peroulis, which has resulted in extensive and contentious litigation between the
parties. Judgment entered in this case after the Court issued an Opinion and Order Dismissing
all Claims (#231) on the grounds that Mr. Kriston’s claims should have been asserted as
compulsory counterclaims in an earlier-filed case in the United States District Court for the
District of Nevada, Peroulis v. Kozak,2 Civil Action No. 2:07-CV-284 JCM (GWF) (the “2007
Nevada action”).
At the time of this Court’s order, the Nevada district court had entered final judgment in
favor of Mr. Peroulis, in part based on a motion for partial summary judgment resolved in favor
of Mr. Peroulis. This Court determined that Mr. Kriston’s claims in this action arose out of the
same transaction or occurrence as the 2007 Nevada action; therefore, his claims were
compulsory counterclaims that could not be asserted in a new and separate action. Among the
factors considered in whether a counterclaim is compulsory is whether res judicata would bar a
subsequent suit on the defendant’s claim.
Mr. Kriston now seeks to reopen this case, apparently on the grounds that the res judicata
element of the analysis should be reexamined. The decision in the 2007 Nevada action was
appealed to the Ninth Circuit; the appeal was thereafter dismissed based on the parties’
stipulation that the district court’s resolution of the motion for partial summary judgment was in
error because Mr. Kriston had not received notice of the motion and did not have a chance to
respond. See Peroulis v. Kozak, 378 Fed.Appx. 769 (9th Cir. May 13, 2010). The case was

2

Mr. Kriston is also known as Paul Kozak.

remanded to the Nevada district court.3 Mr. Kriston appears to argue that since there is now no
final judgment in the 2007 Nevada action, res judicata would not apply, and therefore his claims
are not compulsory counterclaims.
II.

Analysis

The Court relied on Driver Music Co. v. Commercial Union Ins. Cos., 94 F.3d 1428,
1435 (10th Cir. 1996) in its determination that Mr. Kriston’s claims were compulsory
counterclaims under Fed. R. Civ. P. 13(a). Under this authority, a counterclaim is compulsory if
(i) the issues of fact and law raised by the principal claim and the counterclaim are largely the
same; (ii) res judicata would bar a subsequent suit on the defendant’s claim; (iii) the same
evidence supports or refutes the principal claim and the counterclaim; and (iv) there is a logical
relationship between the claim and counterclaim. 94 F.3d at 1435 (emphasis added). The Court
analyzed these issues, including the factors that would be applied in a res judicata determination
under Nevada law.4 The Court stated, “Assuming the existence of a final judgment, the [res
judicata] doctrine would appear to apply to the claims asserted in this action.” Order, #231, at 5.
Mr. Kriston misapprehends the basis of the Court’s order. Mr. Kriston’s claims were not
deemed barred by res judicata, which would require a final judgment. Rather, the claims were
barred, and the case dismissed, because the claims should have been asserted in the 2007 Nevada
action as compulsory counterclaims. Part of the analysis requires examination of whether, upon

3

After remand, the district court considered Mr. Kriston’s response to Mr. Peroulis’s
renewed motion for partial summary judgment but again resolved the motion in favor of Mr.
Peroulis. Peroulis v. Kozak, Case No. 2:07-CV-284 JCM (GWF), 2011 WL 1869414 (D.Nev.
May 13, 2011).
4

These factors are: (i) are the parties or their privies are the same; (ii) is there a valid final
judgment; and (iii) is the subsequent action is based on the same claims or any part of them that
were or could have been brought in the first action. See Five Star Capital Corp. v. Ruby, 194
P.2d 709, 713 (Nev. 2008).

resolution of the earlier case, res judicata would bar re-litigation of the facts and legal issues
decided in that case. The Court determined that here, resolution of Mr. Peroulis’s claims against
Mr. Kriston in the 2007 Nevada action would preclude relitigation of Mr. Kriston’s claims
because they were based on the same facts and legal questions. The Court’s analysis did not rely
upon the existence of a final judgment in the Nevada action, only a consideration of the effect of
such judgment when it entered. Therefore, the fact that the Nevada action may still be pending
does not alter the Court’s determination that Mr. Kriston’s claims are barred in this action.
Whether, given remand of the Nevada action, they can be asserted there, is something for the
parties to address with the Court presiding over that action.
IT IS THEREFORE ORDERED
(1)

Motion to Vacate In Requesting a New Trial (#233) is DENIED.

Dated this 3rd day of October, 2011

BY THE COURT:

Marcia S. Krieger
United States District Judge