USA v. Wilmer et al

Filing 64

ORDER granting 50 Motion to Strike: 46 Motion for Summary Judgment is stricken by Judge Christine M. Arguello on 11/30/12.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 11-cv-02244-CMA-MJW
UNITED STATES OF AMERICA,
Plaintiff,
v.
RICHARD WILMER, and
ROCK WEISS,
Defendants.

ORDER GRANTING MOTION TO STRIKE

This matter is before the Court on the United States’ “Motion to Strike Defendant
Weiss’ Motion for Summary Judgment.” (Doc. # 50.) On June 27, 2012, Defendant
filed a two-page “Motion for Summary Judgment.” (Doc. # 46.) In response, the United
States filed the instant motion, arguing that:
[D]efendant has failed to show ‘that there is no genuine dispute as to
any material fact [as alleged in the Complaint] and that he is entitled to
judgment as a matter of law.’ See Fed. R. Civ. P. 56(a). The defendant has not filed a “Statement of Undisputed Facts,” as required by
D.C.Colo.LCivR 56.1.A. and this Court’s Civil Practice Standard III.G.4.
Moreover, the defendant has not stated under which rule or subsection
his motion . . . is filed. Civil Practice Standard III.F.
(Doc. # 50 at 1.) The Court agrees with the Government’s argument – and with its
request to strike Defendant’s motion.

Although courts liberally construe pleadings filed by pro se litigants, it is not
“the proper function of the district court to assume the role of advocate . . . .” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). In the instant case, Defendant has
failed to present a motion to which the United States can properly respond or upon
which the Court can properly rule.
Moreover, assuming, as is apparently the case, that Defendant brought his
motion under Fed. R. Civ. P. 56(a), the Court would be required to deny it based on
Defendant’s contemporaneous assertions to the Court. Rule 56(a) states that “[t]he
court shall grant summary judgment if 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.” However, Defendant has asserted that “[t]here are significant genuine issues of
material fact . . . associated with and directly relevant to” the United States’ claims “as
well as Defendant Weiss’ defenses to the claims and allegations [the United States] has
asserted against him.” (Doc. # 41 at 10.) In fact, in another filing, submitted the same
day as his motion for summary judgment, Defendant reaffirmed his prior assertion that
“this matter will only be justly adjudicated by and through a process of continuing
litigation in which both parties have an opportunity to complete the discovery process,
present their fully-developed claims and defenses for proper consideration by the Court,
and avail themselves of the Court’s interpretation and application of key elements of the
laws that govern the issues that are at the heart of this case.” (Doc. # 45 at 6; see also
Doc. # 41 at 11.)
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Accordingly, it is ORDERED that the United States’ “Motion to Strike Defendant
Weiss’ Motion for Summary Judgment” (Doc. # 50) is GRANTED. As such, Defendant’s
“Motion for Summary Judgment” (Doc. # 46) is hereby STRICKEN.
DATED: November

30

, 2012
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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