Robinette et al v. Schirard et al

Filing 134

ORDER denying 130 Motion to Strike, and accepting 129 Second Amended Complaint, by Magistrate Judge Kristen L. Mix on 8/1/13.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-02172-CMA-KLM
BONNER ROBINETTE, and
SHIRLEY ROBINETTE,
Plaintiffs,
v.
SYDNEY “DUKE” SCHIRARD, Sheriff, La Plata County Colorado, in his individual and
professional capacities,
BOBBIE FENDER, in his individual and professional capacities,
AMBER FENDER, in her individual and professional capacities,
STEVE SCHMIDT, in his individual and professional capacities,
MELVIN SCHAFF, in his individual and professional capacities,
CHARLES HAMBY, in his individual and professional capacities, and
SEAN SMITH, in his individual and professional capacities,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on Defendants’ Motion to Strike Second Filing of
Plaintiffs’ Proposed Second Amended Complaint and Jury Demand on All Counts,
and Request for Sanctions Against Plaintiffs [Docket No. 130; Filed June 28, 2013] (the
“Motion”). On July 22, 2013, Plaintiffs filed a Response [#132]. On August 1, 2013,
Defendants filed a Reply [#133]. The Motion is thus ripe for review.
Defendants seek to strike Plaintiffs’ recently-filed Second Amended Complaint
[#129] on the basis that it fails to comply with the Court’s Order Striking Second Amended
Complaint [#128], in which the Court explained to Plaintiffs in detail the requirements for
filing a new complaint in this matter. Motion [#130]. The Court addresses each of
-1-

Defendants’ arguments in turn.
First, Defendants argue that the Second Amended Complaint is not double-spaced
and uses a font size smaller than 12-point, in violation of the Court’s Order [#128]. Id. at
2-3. Plaintiffs respond that they did in fact double-space their Second Amended Complaint
and use 12-point font throughout. Response [#132] at 3. The Court agrees that the
document, as it appears on the electronic docket, appears to use a smaller-than-required
font. However, this is easily explained. Plaintiffs submitted two copies of the Second
Amended Complaint to the Court, one by fax and one by mail. The Clerk of the Court,
receiving the faxed copy first, docketed that version which, as happens with documents
transmitted by fax, appears slightly smaller than the original document. This conclusion is
confirmed by the second, otherwise identical copy of the Second Amended Complaint that
was received and reviewed by the Court. The Court is thus satisfied that Plaintiffs complied
with the portion of the Court Order [#128] requiring them to use 12-point font and to doublespace their document.
Second, Defendants argue that Plaintiffs have now styled the case as “Bonner
Robinette and Shirley Robinette, et al.” without indication of who the additional plaintiffs
would be. Motion [#130] at 3. The Court does not interpret Plaintiffs’ Second Amended
Complaint as seeking to add new Plaintiffs to this matter, for the following reasons. First,
no new plaintiffs are listed by name in the proposed case caption. See Second Amended
Complaint [#129] at 1. Second, no new plaintiffs are listed in the part of the Second
Amended Complaint that discusses the parties to this action. See id. at 2-3. Third, the
body of the Second Amended Complaint does not appear to refer to anyone as a plaintiff

-2-

other than the named Plaintiffs, Bonner and Shirley Robinette. See id. at 3-15. Fourth, the
Second Amended Complaint is only signed by Plaintiffs Bonner and Shirley Robinette. See
id. at 15. Fifth, Plaintiffs state that the “et al.” designation refers to “Plaintiffs’ family
members and other witnesses whom are involved in the case” [sic]. Response [#132] at
4. Thus, in the Court’s view, Plaintiffs clarify that they are referring to witnesses who will
assertedly support their case and not to new plaintiffs when they use the phrase “et al.”
The Court is therefore satisfied that Plaintiffs have complied with the Court’s prior Order
[#128]. Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion [#130] is DENIED.
IT IS FURTHER ORDERED that the Clerk of the Court shall accept Plaintiffs’
Proposed Second Amended Complaint [#129] for filing.
Service has previously been effected on some Defendants. Accordingly,
IT IS FURTHER ORDERED that those Defendants who have already been served
and entered their appearances in this case shall answer or otherwise respond to Plaintiffs’
Second Amended Complaint [#129] on or before August 29, 2013.
IT IS FURTHER ORDERED that, if appropriate, the Clerk of the Court shall attempt
to obtain a waiver of service from any as-yet-unserved Defendants.1 If unable to do so, the
United States Marshal shall serve a copy of the Second Amended Complaint, summons,
and this Order on the unserved Defendants. If appropriate, the Marshal shall first attempt
to obtain a waiver of service of these documents pursuant to Fed. R. Civ. P. 4(d). All costs

1

Plaintiffs were previously granted leave to proceed in forma pauperis in this matter. Order

[#10].

-3-

of service shall be advanced by the United States.

Dated: August 1, 2013

-4-