Mosch et al v. Henry et al
Filing
95
ORDER. The 59 Recommendation of United States Magistrate Judge is accepted in part and the Order therein is affirmed. The 48 motion to set aside default filed by defendant John Henry is granted and the default entered against Mr. Henry is set as ide. Plaintiffs' 46 motion for default judgment is denied in part and denied without prejudice as premature in part. Plaintiff's December 6, 2011 47 filing has been construed as his answer and should not appear in the docket as a motion to dismiss. Pursuant to the 49 order of referral in this case, the magistrate judge may issue an order to show cause and conduct a hearing pursuant to Colo. Rev. Stat. § 38-35-204. By Judge Philip A. Brimmer on 8/27/12.(mnfsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-02438-PAB-BNB
ALVIN MOSCH,
PATRICIA C. MOSCH,
DAVID K. MOSCH,
Each Individually and dba Mosch Mining Company,
Plaintiffs,
v.
JOHN HENRY, aka John T. Henry, aka John L. Henry,
UNITED STATES REAL ESTATE CORPORATION, and
any one claiming by or through any of the named persons,
Defendants.
ORDER
This matter is before the Court on the Recommendation of United States
Magistrate Judge and Order (the “Recommendation”) [Docket No. 59] filed on July 20,
2012.1 The magistrate judge recommends that the Court grant in part and deny in part
plaintiffs’ motion for default judgment [Docket No. 46] and grant defendant John
Henry’s motion to set aside entry of default [Docket No. 48]. The magistrate judge
further recommends that the Court issue an order to show cause and hold a hearing
pursuant to Colo. Rev. Stat. § 38-35-204. The magistrate judge also denied plaintiffs’
motion to strike [Docket No. 51] and construed plaintiff’s December 6, 2011 filing
[Docket No. 47] as his answer rather than as a motion to dismiss.
1
The document is actually entitled Recommendation of United States Magistrate
Judge and Order. Plaintiffs, however, have not filed an objection to the magistrate
judge’s order denying plaintiffs’ motion to strike [Docket No. 51].
In the weeks since the filing of the Recommendation, Mr. Henry has filed
numerous documents, many of which appear to be objections to the Recommendation.
The Court notes that many, if not all of these documents, violate the Local Rules of this
District. See D.C.COLO.LCivR 10.1G (“All papers and signatures shall be legible.”);
10.1J (outlining the requirements for captions); 10.1K (informing parties of the
requirements for signature blocks). Furthermore, many of the documents were
untimely, see Fed. R. Civ. P. 72(b),2 and cumulatively violated the page limitations
imposed by this Court’s Practice Standards. See Practice Standards (Civil cases),
Judge Philip A. Brimmer § III.A. Finally, to the extent the documents seek to have the
entry of default against Mr. Henry set aside, they do not appear to acknowledge that the
magistrate judge recommended exactly that. The Court, however, liberally construes
the documents Mr. Henry filed in a timely manner and which do not cumulatively violate
the page limitations imposed by this Court’s Practice Standards as objections to the
magistrate judge’s order construing Mr. Henry’s December 6, 2011 filing as his answer.3
See Docket No. 64 at 3 (“Again I make a motion to have the suit stricken and dismissed
with prejud[ice].”). The Court identifies nothing that is “clearly erroneous or is contrary
to law,” Fed. R. Civ. P. 72(a), in regard to that order.
There have been no other objections filed regarding the magistrate judge’s
2
See Practice Standards (Civil cases), Judge Philip A. Brimmer § III.C.2.
(“Untimely or noncomplying objections, responses, or replies may be denied without
prejudice, stricken, or ignored.”).
3
Mr. Henry is not represented by an attorney. Therefore, the Court will construe
his filings liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate
for a pro se litigant. See Hall, 935 F.2d at 1110.
2
recommended disposition of this matter.4 In the absence of an objection, the district
court may review a magistrate judge’s recommendation under any standard it deems
appropriate. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also
Thomas v. Arn, 474 U.S. 140, 150 (1985) (“[i]t does not appear that Congress intended
to require district court review of a magistrate’s factual or legal conclusions, under a de
novo or any other standard, when neither party objects to those findings”). The
magistrate judge recommends that the Court set aside the entry of default as to Mr.
Henry and that plaintiffs’ motion for default judgment be denied as to Mr. Henry. The
magistrate judge further recommends that the Court issue an order to show cause and
conduct a hearing pursuant to Colo. Rev. Stat. § 38-35-204. The Court has reviewed
the Recommendation and has satisfied itself that there is “no clear error on the face of
the record” in regard to these matters.5 Fed. R. Civ. P. 72(b), Advisory Committee
Notes.
In this case, the magistrate judge has been designated to, inter alia, “[c]onduct
hearings, including evidentiary hearings, and submit proposed findings of fact and
recommendations for rulings on dispositive motions.” Docket No. 49 at 1. The Court
will therefore refer to the magistrate judge the tasks of issuing an order to show cause
4
To the extent Mr. Henry seeks to represent the interests of defendant United
States Real Estate Corporation, he is not entitled to do so. See D.C.COLO.LCivR
11.1A (“Only pro se individual parties and members of this court’s bar may appear or
sign pleadings, motions, or other papers. Any pleading, motion, or paper listing in a
signature block, or purporting to enter an appearance by, any other person, partnership,
professional corporation, limited liability company, or other entity may be stricken.”).
5
This standard of review is something less than a “clearly erroneous or contrary
to law” standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo
review. Fed. R. Civ. P. 72(b).
3
and conducting a hearing pursuant to § 38-35-204.
Because Mr. Henry will be afforded the opportunity to present defenses at the
hearing which may go the merits of plaintiffs’ allegations against both defendants,
however, the Court believes that it is premature to grant plaintiffs’ motion for default
judgment as to defendant United States Real Estate Corporation (“USREC”).6 The
Court, therefore, will not accept that aspect of the Recommendation. Nevertheless, the
entry of default against USREC, which has not participated in this action, remains in
place.
For the foregoing reasons, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 59] is ACCEPTED in part and the Order therein is AFFIRMED. It is further
ORDERED that the motion to set aside default [Docket No. 48] filed by
defendant John Henry is GRANTED and the default entered against Mr. Henry is set
aside. It is further
ORDERED that plaintiffs’ motion for default judgment [Docket No. 46] is DENIED
in part and DENIED without prejudice as premature in part. It is further
ORDERED that plaintiff’s December 6, 2011 filing [Docket No. 47] has been
construed as his answer and should not appear in the docket as a motion to dismiss. It
is further
6
The decision to enter default judgment is “‘committed to the district court’s
sound discretion . . . .’” Olcott v. Del. Flood Co., 327 F.3d 1115, 1124 (10th Cir. 2003)
(quoting Dennis Garberg & Assocs. v. Pack-Tech Int’l Corp., 115 F.3d 767, 771 (10th
Cir. 1997)). When exercising that discretion, the Court considers that “[s]trong policies
favor resolution of disputes on their merits.” Ruplinger v. Rains, 946 F.2d 731, 732
(10th Cir. 1991) (quotations marks and citations omitted).
4
ORDERED that, pursuant to the order of referral in this case [Docket No. 49], the
magistrate judge may issue an order to show cause and conduct a hearing pursuant to
Colo. Rev. Stat. § 38-35-204.
DATED August 27, 2012.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
5
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