Chytka v. Wright Tree Service, Inc.

Filing 439

ORDER denying the following motions: 373 , 375 , 376 , 383 , 384 , 386 , 394 , 398 , 403 , 405 , 408 , 409 , 416 , 417 , 418 , 419 , 430 , 347 , by Judge Robert E. Blackburn on 8/25/2014.(trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 11-cv-00968-REB-KLM
KATHLEEN CHYTKA,
Plaintiff,
v.
WRIGHT TREE SERVICE, INC.,
Defendant.

ORDER DENYING MOTIONS
FOR SUMMARY JUDGMENT & OTHER RELIEF
Blackburn, J.
This matter is before me on the filings of the plaintiff captioned as: (1) Motion To
the Court for a Decision of I the Pro Se Plaintiffs Summery [sic] of Judgement . .
[#347]1 filed December 27, 2013; (2) Motion to Chief Judge Krieger or what Ever
Chief Judge . . . [#373] filed March 10, 2014; (3) Motion to Chief Judge Krieger
Judge Blackburn has no Subject Jurisdiction . . . [#375] field March 10, 2014; (4)
Motion in an Order to Chief Judge Krieger to Up Hold The Order . . . [#376] filed
March 11, 2014; (5) Motion to Chief Judge Krieger for action . . . [#383] filed April 3,
2014; (6) Motion for action to Chief Judge Krieger in opposition . . . [#384] filed
April 3, 2014; (7) Motion to Chief Judge Krieger for action . . . [#386] filed April 10,
2014; (8) Motion To Chief Judge Krieger in Opposition . . . [#394] filed May 22,

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“[#347]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

2014; (9) Motion for Order to Chief Judge Krieger in Response . . . [#398] filed June
3, 2014; (10) Motion for Action to Chief Judge Krieger . . . [#401] filed June 11, 2014;
(11) Motion To Chief Judge Krieger in Opposition . . . [#403] filed June 18, 2014;
(12) Motion To Chief Judge Krieger for Order . . . [#405] field June 19, 2014; (13)
Petition to the court in Motion . . . [#408] filed July 2, 2014; (14) Petition to the Court
and Chief Judge Krieger . . . [#409] filed July 2, 2014; (15) Motion for Action To the
Court . . . [#416] filed August 4, 2014; (16) Motion for Action To the Court Judges . .
. [#417] filed August 5, 2014; (17) Motion for Action for Injunction . . . [#418] filed
August 5, 2014; (18) Motion To the Court for an Injunction . . . [#419] filed August 5,
2014; and (19) Motion To the Court in Objection . . . [#430] filed August 14, 2014.
The defendant filed responses to the motions, and the plaintiff filed some replies in
support of some motions. Because the plaintiff repeatedly seeks the same forms of
relief in this group of motions, I address these motions as a group. I deny each of the
motions on procedural and substantive grounds.
The plaintiff is proceeding pro se. Thus, I have construed her pleadings and
papers with the judicial munificence due a pro se litigant. See Erickson v. Pardus, 551
U.S. 89, 94 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519,
520-21 (1972)).
The plaintiff, Kathleen Chytka, has one claim remaining in this case. That claim
is a claim of gender discrimination in employment based on the contention of Ms.
Chytka that the defendant failed to train Ms. Chytka while she was employed by the
defendant. This case is set to commence trial by jury on September 8, 2014.
Procedurally, Ms. Chytka fails to show compliance with the requirement of
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D.C.COLO.LCivR 7.1(a) obligating her to confer – or attempt to confer – with opposing
counsel before filing a motion. Notably, this requirement is not applicable to a motion
for summary judgment and failure to confer is not a basis for denial of a motion for
summary judgment. However, Ms. Chytka seeks in her motions a variety of other relief
which is subject to the requirements of local rule 7.1(a). Except to the extent Ms.
Chytka seeks summary judgment, her motions are denied based on her non compliance
with D.C.COLO.LCivR 7.1(a).
In many of her motions, Ms. Chytka, asserts that the defendant has the burden of
showing why this case must go forward and proceed to trial. She appears to assert that
the evidence she has placed in the record of this case establishes her claim, and it is
now the burden of the defendant to refute this evidence. This assertion is not correct.
At trial, Ms. Chytka, as the plaintiff, has the burden to present evidence to establish
each of the essential elements of her claim by a preponderance of the evidence. If she
fails to meet this burden, she is not entitled to relief on her claim. Given the procedural
history of this case, the defendant does not have the burden to refute or respond to any
evidence placed in the record by Ms. Chytka or to refute the claim of Ms. Chytka. At
trial, the defendant may present a general defense to the claim of Ms. Chytka, but in
presenting a general defense, the defendant does not have the burden of proof.
Rather, a general defense is a challenge to the competency and sufficiency of evidence
presented by Ms. Chytka as proof of her claim.2
In several of her motions, Ms. Chytka demands essentially that the court answers
a litany of questions about this case. In other motions not addressed in this order, Ms.

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At trial the defendant may also seek to establish one or more affirmative defenses. For any
affirmative defense, the defendant has the burden of proof by a preponderance of the evidence.

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Chytka has made similar requests and demands. The reasons for the decisions of the
court in this case, including the resolution of dispositive motions, are stated in the orders
resolving the motions filed by the parties and on the record of the hearings held in this
case. Through discovery and the evidence presented in support of certain motions filed
by the defendant, the plaintiff has had ample access to the evidence relevant to these
decisions. In addition, the parties have conducted discovery, with any disputes resolved
by Judge Mix. The statutes, case law, and rules applicable to her claim and this case
are readily available to her. Thus, to the extent Ms. Chytka seeks a further statement of
the reasons for the decisions of the court and additional access to the evidence, she
has been provided those things to the extent required by law. She has access to the
applicable law. Thus, her requests for additional information are denied.
In some of her motions, Ms. Chytka seeks a default judgment under FED. R. CIV.
P. 55. She claims to be entitled to a default judgment because the defendant has not
demonstrated the reason this case must go forward and proceed to trial. As discussed
above, the defendant need not make such a showing. The defendant has defended this
case survigrously. Thus, there is no basis in fact or law for the entry of default or default
judgment against the defendant.
In many of her motions, Ms. Chytka seeks summary judgment. The extant
deadline for the filing of dispositive motions was August 6, 2012. Minute Order [#85]
filed June 4, 2012. To the extent Ms. Chytka seeks summary judgment in the motions
addressed in this order, her motions are denied as untimely. Further, summary
judgment may be granted only when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a). Considered individually and collectively, Ms. Chytka has not
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made this showing in her motions.
Finally, in some of her motions, Ms. Chytka seeks injunctions requiring the court
and others to undertake certain actions. The requests for injunctions are denied
because Ms. Chytka has not established the factual or legal basis for the entry of an
injunction. See, e.g., FED. R. CIV. P. 65.
THEREFORE IT IS ORDERED that each of the following motions is DENIED:
1. The Motion To the Court for a Decision of I the Pro Se Plaintiffs
Summery of Judgement . . [#347] filed December 27, 2013;
2. The Motion to Chief Judge Krieger or what Ever Chief Judge . . . [#373]
filed March 10, 2014;
3. The Motion to Chief Judge Krieger Judge Blackburn has no Subject
Jurisdiction . . . [#375] field March 10, 2014;
4. The Motion in an Order to Chief Judge Krieger to Up Hold The Order . . .
[#376] filed March 11, 2014;
5. The Motion to Chief Judge Krieger for action . . . [#383] filed April 3, 2014;
6. The Motion for action to Chief Judge Krieger in opposition . . . [#384] filed
April 3, 2014;
7. The Motion to Chief Judge Krieger for action . . . [#386] filed April 10,
2014;
8. The Motion To Chief Judge Krieger in Opposition . . . [#394] filed May 22,
2014;
9. The Motion for Order to Chief Judge Krieger in Response . . . [#398] filed
June 3, 2014;
10. The Motion for Action to Chief Judge Krieger . . . [#401] filed June 11,
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2014;
11. The Motion To Chief Judge Krieger in Opposition . . . [#403] filed June
18, 2014;
12. The Motion To Chief Judge Krieger for Order . . . [#405] field June 19,
2014;
13. The Petition to the court in Motion . . . [#408] filed July 2, 2014;
14. The Petition to the Court and Chief Judge Krieger . . . [#409] filed July 2,
2014;
15. The Motion for Action To the Court . . . [#416] filed August 4, 2014;
16. The Motion for Action To the Court Judges . . . [#417] filed August 5,
2014;
17. The Motion for Action for Injunction . . . [#418] filed August 5, 2014;
18. The Motion To the Court for an Injunction . . . [#419] filed August 5, 2014;
and
19. The Motion To the Court in Objection . . . [#430] filed August 14, 2014.
Dated August 25, 2014, at Denver, Colorado.
BY THE COURT:

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