Franks v. Flint McClung Capital, LLC et al

Filing 54

ORDER : striking 36 Application to Proceed in District Court Without Prepaying Fees or Costs. Denying without prejudice 38 Motion to Appoint Counsel. Denying without prejudice 39 Motion to Dismiss. denying without prejudice 30 Motion to Dismi ss. The Flint Affidavit [Doc. # 35] is STRICKEN for failure to include a certificate of service and as immaterial, see Fed. R. Civ. P. 12(f). The Arndt Response [Doc. # 46] is STRICKEN for failure to include a certificate of service and as immaterial , see Fed. R. Civ. P. 12(f). The Arndt Supplement is STRICKEN for failure to include a certificate of service, as redundant of her Motion to Dismiss, and as immaterial, see Fed. R. Civ. P. 12(f).Insofar as Ms. Arndt seeks an award of attorneys fees i f she is either dropped from said case or found not guilty, the Arndt Supplement is DENIED as premature. The parties are directed to comply with D.C.COLO.LCivR 77.2 and to refrain from improper ex parte communications with the court, by Magistrate Judge Boyd N. Boland on 6/6/11.(bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 11-cv-00407-PAB-BNB
JAMES FRANKS,
Plaintiff,
v.
FLINT-MCCLUNG CAPITAL, LLC,
SHAWON MCCLUNG and
BRYANT FLINT d/b/a, and
HEIDI ARNDT,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
In this action, the plaintiff alleges that the defendants engaged in a Ponzi scheme. He
alleges economic damages exceeding $100,000.
Defendant Shawon McClung is represented by counsel and has filed a Motion to Dismiss
the complaint [Doc. # 20].
Defendant Bryan Flint is proceeding pro se and has also filed a motion to dismiss [Doc. #
39, filed 5/27/2011]. In addition, Mr. Flint has filed:
(1)

Affidavit-Notice to the Court [Doc. # 35, filed 5/27/2011] (the “Flint

Affidavit”);
(2)

Application to Proceed in District Court Without Prepaying Fees or Costs

[Doc. # 36, filed 5/27/2011] (the “In Forma Pauperis Application”);

(3)

AO Application to Proceed in District Court Without Prepaying Fees or

Costs, Financial Affidavit--Supplement [Doc. # 37, filed 5/27/2011] (the “In Forma Pauperis
Supplement”); and
(4)

Motion for the Appointment of Counsel [Doc. # 38, filed 5/27/2011].

Mr. Flint also has caused copies of two emails to be sent directly to my chambers.
Defendant Heidi Arndt also is proceeding pro se, and has filed a motion to dismiss [Doc.
# 30, filed 5/26/2011]. In addition, Ms. Arndt has filed:
(1)

Response to the Submissions Made By Plaintiff on May 26th, 2011 and May

27th, 2011 [Doc. # 46, filed 5/31/2011] (the “Arndt Response”); and
(2)

Supplemental Information Concerning Above Titled Action; Petition to have

Heidi Arndt, Defendant, dismissed from case; and Request to have expenses associated
with defense of this suit paid for by Mr. Franks should Heidi Arndt be either dropped from
said case of found “not guilty” [Doc. # 53, filed 6/3/2011] (the “Arndt Supplement”).
Turning first to the filings of Mr. Flint, I note that none of the materials include
certificates of service evidencing that they were served on all other counsel or pro se parties.
Specifically, Rule 5(a), Fed. R. Civ. P., requires that all pleadings, written motions, written
notices, appearances, demands, and similar papers “must be served on every party; and
D.C.COLO.LCivR 5.1G requires generally that all papers filed with the court “be accompanied
by a certificate of service indicating the date it was served, the name and address of the person to
whom it was sent, and the manner of service.” The Flint Affidavit [Doc. # 35] does not request
any relief nor does it respond to any pending motion, and it is not appropriate for filing. Mr.
Flint is a defendant, not a plaintiff, and the In Forma Pauperis Application [Doc. # 36] and In

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Forma Pauperis Supplement [Doc. # 37] are inapplicable. Local rule of practice 77.2,
D.C.COLO.LCivR, prohibits ex parte communications, as follows:
In the absence of previous authorization, no attorney or party any
proceeding shall send letters, pleadings, or other papers or copies
directly to a judicial officer. Unless otherwise instructed, all
matters to be called to a judicial officer’s attention shall be
submitted through the clerk, with copies served on all other parties
or their attorneys. No attorney or party shall contact orally a
judicial officer regarding any case by telephone, in person, or
through any other means, unless all other parties in the matter, or
their attorneys, are present or on the telephone.
The filings by Ms. Arndt are similarly defective insofar as they do not include a
certificate of service evidencing that they were served on all other counsel of pro se parties and,
in some instances, are inappropriate for filing.
IT IS ORDERED:
(1)

Mr. Flint’s Motion to Dismiss [Doc. # 39] is DENIED WITHOUT PREJUDICE

for failure to include a certificate of service;
(2)

The Flint Affidavit [Doc. # 35] is STRICKEN for failure to include a certificate

of service and as immaterial, see Fed. R. Civ. P. 12(f);
(3)

The In Forma Pauperis Application [Doc. # 36] and In Forma Pauperis

Supplement [Doc. # 37] are STRICKEN for failure to include a certificate of service and as
immaterial, see Fed. R. Civ. P. 12(f);
(4)

The Motion for Appointment of Counsel is DENIED WITHOUT PREJUDICE

for failure to include a certificate of service;
(5)

Ms. Arndt’s Motion to Dismiss [Doc. # 30] is DENIED WITHOUT PREJUDICE

for failure to include a certificate of service;

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(6)

The Arndt Response [Doc. # 46] is STRICKEN for failure to include a certificate

of service and as immaterial, see Fed. R. Civ. P. 12(f);
(7)

The Arndt Supplement is STRICKEN for failure to include a certificate of

service, as redundant of her Motion to Dismiss, and as immaterial, see Fed. R. Civ. P. 12(f).
Insofar as Ms. Arndt seeks an award of attorneys fees if she is “either dropped from said case or
found ‘not guilty,’” the Arndt Supplement is DENIED as premature; and
(8)

The parties are directed to comply with D.C.COLO.LCivR 77.2 and to refrain

from improper ex parte communications with the court.
Dated June 6, 2011.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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