Myers v. Hummel

Filing 140

ORDER denying 135 Plaintiff's Motion for Summary Judgment; denying as moot 137 Defendant's Motion to Strike Plaintiff's 135 Motion for Summary Judgment, by Magistrate Judge Kathleen M. Tafoya on 01/31/2012.(wjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 11–cv–00400–KMT–KLM

BERNARD KENNETH MYERS,
Plaintiff,
v.
DORWIN DWAYNE HUMMEL,
Defendant.

ORDER

This matter is before the court on Plaintiff’s “Motion for Summary Judgement” (Doc.
No. 135, filed Jan. 12, 2012) and Defendant’s “Motion to Strike Plaintiff’s Motion for Summary
Judgment” (Doc. No. 137, filed Jan. 17, 2012 [Mot. Summ. J.]). The court previously denied
Plaintiff’s two prior motions for summary judgment because Plaintiff had failed to demonstrate
that there is no genuine dispute of material fact that Defendant owed Plaintiff a fiduciary duty
and breached that duty. (See Doc. No. 124, filed Dec. 15, 2011 & Doc. No. 132, filed Jan. 4,
2011.)
Nevertheless, in an abundance of caution, the court granted the parties additional time to
file dispositive motions based on Plaintiff’s pro se status and his representation that “he now
understands what he needs to do to set forth a prima facial [sic] case.” The court finds that
Plaintiff once again fails to sustain his heavy burden of demonstrating that “there is no genuine

dispute as to any material fact and that [he] is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a).
The relevant legal standard governing summary judgment is recited in this court’s prior
order denying Plaintiff’s first motion for summary judgment, and is incorporated herein by
reference. (Doc. No. 124 at 2-4.) In his present motion, Plaintiff is primarily preoccupied with
demonstrating that the documents and instruments that allegedly resulted in him being “unjustly
cheated out of his rightful and legal inheritance from his late father’s estate” were forged. (See
Mot.) Even if Plaintiff were able to demonstrate there is no genuine issue of material fact as to
whether these documents are forged—a matter that Defendant clearly disputes1 (see Doc. No. 76,
filed June 3, 2011, ¶¶ 23-24, 26, 29-30, 34, 36, 38-39)—Plaintiff misses the point. In this case,
Plaintiff is suing Defendant for breach of fiduciary duty. (Doc. No. 49, filed Apr. 26, 2011, at
2.) Thus, Plaintiff must demonstrate that there is no genuine dispute of material fact that
Defendant owed him a fiduciary duty, breached that fiduciary duty, and that Plaintiff suffered
damages as a result of that breach. Graphic Directions, Inc. v. Bush, 862 P.2d 1020, 1022 (Colo.
App. 1993).

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In arguing that there is no genuine dispute of material fact that the documents and
instruments relating to his father’s estate were forged, Plaintiff seizes on a single sentence in
Defendant’s “Amended Motion to Strike Plaintiff’s Motion for Summary Judgment” (Doc. No.
95, filed July 12, 2011, at 3-4). That sentence reads as follows: “In fact, Plaintiff fails to make
any logical argument at all which would impute liability on the part of the Defendant for the
actions of a previous generation now deceased.” (Id.) ) Even assuming that statement somehow
constituted a judicial admission binding on Defendant, see Guidry v. Sheet Metal Workers
Intern. Ass’n, Local 9, 10 F.3d 700, 716 (10th Cir. 1993)—and the court explicitly finds that it is
not—this sentence entirely fails to indicate that Defendant concedes that the documents and
instruments relating to his father’s estate were forgeries.
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Plaintiff admits that he cannot “offer the court documentation necessary to show the
defendant did in fact owe him a fiduciary duty” (Mot. Summ. J. at 15), and it is otherwise clear
to the court that Plaintiff has not done so. It is not enough for purposes of summary judgment
for Plaintiff to show that “Defendants [sic] sole piece of evidence he presented to the court to
show that he did not owe [Plaintiff a fiduciary duty] was and is, by Defendants [sic] own
admission, a forged instrument committed by a previous generation.” (Id.) Again, it is
Plaintiff’s burden to demonstrate that there is no dispute of fact as to whether a fiduciary duty
existed; it is not Defendant’s burden to show that a fiduciary duty did not exist. See Fed. R. Civ.
P. 56(a).
Accordingly, the court finds that Plaintiff’s “Motion for Summary Judgement” is
properly denied for substantially the same reasons outlined in this court’s prior orders denying
his first and second motions for summary judgment. (See Doc. Nos. 124 & 132.) Additionally,
because Plaintiff has failed to sustain his burden under Rule 56, it is unnecessary to address the
technical arguments raised in Defendant’s motion to strike. Fresquez v. Baldwin, 08-cv-01233CMA-CBS, 2010 WL 5934891, at *26 (D. Colo. Dec. 15, 2010). That motion is now moot.
THEREFORE, for the foregoing reasons, it is
ORDERED that Plaintiff’s “Motion for Summary Judgement” (Doc. No. 135) is

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DENIED and that Defendant’s “Motion to Strike Plaintiff’s Motion for Summary Judgment”
(Doc. No. 137) is DENIED as moot.
Dated this 31st day of January, 2012.

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