Myers v. Hummel

Filing 65

MINUTE ORDER. Plaintiffs Motion for Summary Judgment 60 is DENIED without prejudice. By Magistrate Judge Kristen L. Mix on 5/26/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00400-REB-KLM
BERNARD KENNETH MYERS,
Plaintiff,
v.
DORWIN DWAYNE HUMMEL,
Defendant.
_____________________________________________________________________
MINUTE ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion for Summary Judgment
[Docket No. 60; Filed May 24, 2011] (the “Motion”). When considering Plaintiff’s Motion,
the Court is mindful that it must construe the filings of a pro se litigant liberally. See Haines
v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). However, the Court should not be a pro se litigant’s advocate, nor should it
“construct a legal theory on [his] behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74
(10th Cir. 1997) (citing Hall, 935 F.2d at 1110). In addition, pro se litigants must follow the
same procedural rules that govern other litigants. Nielson v. Price, 17 F.3d 1276, 1277
(10th Cir. 1994).
Here, Plaintiff has failed to comply with a procedural rule, Fed. R. Civ. P. 56(c)(1)(A),
which requires that a party asserting in a motion for summary judgment that a fact cannot
be disputed must support the assertion by citing to particular parts of materials in the record
or other materials attached to the motion. In the Motion, Plaintiff does not cite to any
materials in the record. Plaintiff also did not attach any materials to the Motion.
Accordingly, the Motion is facially insufficient and subject to summary denial without
prejudice pursuant to Fed. R. Civ. P. 56(e).
Moreover, because Plaintiff bears the ultimate burden of persuasion at trial, he is
entitled to summary judgment only if he demonstrates each element of his claim “by
sufficient, competent evidence to set forth a prima facie case.” In re Ribozyme Pharm., Inc.
Sec. Litig., 209 F. Supp. 2d 1106, 1111 (D. Colo. 2002). Here, Plaintiff has put forth no
evidence that Defendant owed him a fiduciary duty under Colorado law. Further, Plaintiff
acknowledges that there is an unresolved dispute about the authenticity of a Will [Docket
-1-

No. 51-1] submitted by Defendant. See Recommendation of United States Magistrate
Judge [Docket No. 57] at 4 (explaining Defendant’s position that if the Will is valid, it
establishes that Defendant was not the executor of Plaintiff’s father’s estate and therefore
did not owe Plaintiff a fiduciary duty). It is clear from the face of the Motion that Plaintiff has
not set forth a prima facie case.
For the reasons set forth above,
IT IS HEREBY ORDERED that the Motion [#60] is DENIED without prejudice.
Dated: May 26, 2011

-2-