USA v. Berryman et al

Filing 64

ORDER. ORDERED that Defendant Berryman's proposed counterclaims are not accepted for filing with the Court. FURTHER ORDERED that the Clerk of the Court shall remove each Counter Claimant and each Counter Defendant from the electronic docket. FURTHER ORDERED that the Response 58 is accepted only as a Response to Plaintiff's Motion 52 and not as an amendment of the pleadings. FURTHER ORDERED that, due to the confusion regarding the Response filed by Defendant Berryman, Plaintiff may, if it so desires, file a Supplemental Reply of no more than five pages on or before 3/8/13, by Magistrate Judge Kristen L. Mix on 2/22/13. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02708-WYD-KLM
USA,
Plaintiff,
v.
NANCY D. BERRYMAN,
THE TEMPLE OF THE UNVEILED GOD, and
THE OFFICE OF THE OVERSEER OF DEDICATION TO ENLIGHTENMENT, and her
successors, a corporation sole,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant’s Answer to United States’ Motion
for Summary Judgment Against Nancy D. Berryman and for Default Judg Judgment
Against the Temple of the Unveiled God and the Office of the Overseer of Dedication
to Enlightenment, and Her Successors, a Corporation Sole, and for Sanctions
Pursuant to FRCP 37, by Means of a Compulsory Counterclaim Pursuant to FRCP
13(a) and Addition of Parties FRCP, Rule 20(2)(A) [sic] [Docket No. 58; Filed November
21, 2013] (the “Response”). On October 15, 2012, Plaintiff filed the Motion for Summary
Judgment Against Nancy D. Berryman and for Default Judgment Against the Temple of the
Unveiled God and the Office of the Overseer of Dedication to Enlightenment, and Her
Successors, a Corporation Sole, and for Sanctions Pursuant to FRCP 37 (the “Motion”).
On November 21, 2013, Defendant Nancy D. Berryman (“Berryman”) filed the Response
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[#58]. On December 5, 2013, Plaintiff filed a Reply [#59], although it is titled Response to
Defendant Nancy D. Berryman’s Motion for Enlargement of Time to Object to United
States’ Summary Judgment Motion, the same title as Docket No. 55. In spite of the
erroneous title, the accompanying text to the Reply [#59] does address the issues raised
by Defendant Berryman in the Response [#58].
However, there appears to be some confusion over whether Defendant Berryman’s
Response is merely a Response to the Motion or also an assertion of counterclaims against
the United States of America, Lee Routledge, and Ginger L. Wray, the latter two of whom
are not Plaintiffs in this case. Examining the Response, the Court notes that the vast
majority of the twelve “claims” Defendant Berryman asserts are merely arguments against
Plaintiff’s Motion and cannot be fairly read to assert a claim against any person or entity.
The remaining claims, although also mainly arguments against imposition of summary
judgment against her, appear to rely on conclusory allegations of fraud on the part of
Plaintiff and the other proposed counter defendants.
The deadline for joinder of parties and amendment of pleadings passed on February
29, 2012.

Scheduling Order [#39] at 16.

This deadline included the assertion of

counterclaims and addition of counter defendants. The vast majority of issues raised by
Defendant Berryman as “claims” are items that could have been raised long ago in this
rapidly-aging case. The discovery period is closed and the dispositive motions deadline
has passed. In order to amend her pleadings at this late stage, Defendant Berryman must
follow Fed. R. Civ. P. 16(b) and 15. See Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir.
1994) (stating that pro se litigants must follow the same procedural rules that govern other
litigants). In the Response, Defendant Berryman simply (and erroneously) presumes that
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she can raise counterclaims and add counter defendants at this stage of the proceedings
without permission of the Court.
Accordingly,
IT IS HEREBY ORDERED that Defendant Berryman’s proposed counterclaims are
not accepted for filing with the Court.
IT IS FURTHER ORDERED that the Clerk of the Court shall remove each Counter
Claimant and each Counter Defendant from the electronic docket.
IT IS FURTHER ORDERED that the Response [#58] is accepted only as a
Response to Plaintiff’s Motion [#52] and not as an amendment of the pleadings.
IT IS FURTHER ORDERED that, due to the confusion regarding the Response filed
by Defendant Berryman, Plaintiff may, if it so desires, file a Supplemental Reply of no more
than five pages on or before March 8, 2013.

Dated: February 22, 2013

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