Holbert v. City of Colorado Springs et al
Filing
68
ORDER striking 37 Motion for Order; striking 39 Motion for Default Judgment; striking 40 Motion for Default Judgment; striking 42 Motion for Default Judgment; striking 43 Motion for Default Judgment; striking 31 Motion for Default Judgment; striking 34 Motion for Default Judgment by Magistrate Judge Boyd N. Boland on 7/9/12.(bnbcd, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 12-cv-00174-MSK-BNB
LINDA JOYCE HOLBERT,
Plaintiff,
v.
THE CITY OF COLORADO SPRINGS,
FIRST TRANSIT, INC., and
JOHN DOE,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on the following papers (the “Papers”) filed by the plaintiff:
1. Motion Requesting a Judgement by Default Be Entered Against John Doe
Defendant [Doc. #31];
2. Motion Requesting a Judgement by Default Be Entered Against First Transit,
Inc. Defendant [Doc. #34];
3. Motion Requesting the Defendant’s Motion to Withdraw Refence [sic] of Legal
Argument be Denied [Doc. #37];
4. Motion for Default Judgement (against John Doe) [Doc. #39];
5. Motion for Default Judgement (against First Transit, Inc.) [Doc. #40];
6. Motion for Default Judgement (against the City of Colorado Springs) [Doc. #42];
7. Motion for Default Judgement (against John Doe) [Doc. #43];
8. Application for Entry of Default and Supporting Affidavit (against the City of
Colorado) [Doc. #44];
9. Application for Entry of Default and Supporting Affidavit (against John Doe)
[Doc. #45];
10. Application for Entry of Default and Supporting Affidavit (against First Transit,
Inc.) [Doc. #46];
11. Default Judgement (against John Doe) [Doc. #47];
12. Default Judgement (against the City of Colorado Springs) [Doc. #48];
13. Default Judgement (against First Transit, Inc.) [Doc. #49];
14. Default Judgement (against John Doe) [Doc. #56];
15. Default Judgement (against First Transit, Inc.) [Doc. #57];
16. Entry of Default (against First Transit) [Doc. #58];
17. Entry of Default (against John Doe) [Doc. #59];
18. Entry of Default (against John Doe) [Doc. #60];
19. Entry of Default (against the City of Colorado Springs) [Doc. #61];
20. Application for Entry of Default and Supporting Affidavit (against the City of
Colorado Springs) [Doc. #62]; and
21. Entry of Default (against John Doe) [Doc. #64].
All of the Papers are STRICKEN.
The Papers are improper for many reasons. On June 14, 2012, I entered and Order [Doc.
#30] striking several of the plaintiff’s motions. In doing so, I stated:
Copies of papers filed in this court must be served on counsel for
all other parties (or directly on any party acting pro se) in
2
compliance with Fed. R. Civ. P. 5. Rule 5 provides that all
pleadings filed after the original complaint and all written motions,
notices, demands, or any similar paper must be served on every
party. Fed. R. Civ. P. 5(a). “If a party is represented by an
attorney, service under this rule must be made on the attorney . . .
.” Fed. R. Civ. P. 5(b). Service upon other parties may be by mail.
Id. Proof that service has been made is provided by a certificate of
service. Id. at 5(d). This certificate should be filed along with the
original papers and should show the day and manner of service.
Id.
Despite my clear directive to serve counsel for defendants and to certify service, with the
exception of Documents #44 and #62, the plaintiff certifies that she “faxed” the Papers to this
court for service on the defendants. The plaintiff has failed certify proper service of the Papers
on the defendants in compliance with Rule 5, Fed.R.Civ.P., and my order.
In addition, I have admonished the plaintiff that “[r]edundant motions are a waste of the
court’s time and resources,” and I have ordered her to cease filing redundant and unnecessary
motions [Docs. #29 and #30]. The plaintiff’s multiple requests for entry of default and default
judgment are redundant and unnecessary. A request for entry of default and default judgment for
one or more defendants can easily be made in one motion.1
Moreover, the plaintiff’s requests for default judgment against defendant John Doe is
frivolous. She has not identified John Doe, nor has she provided any proof of service on John
Doe.2 Until a defendant is properly identified and served, a defendant has no duty to answer or
otherwise respond to a complaint. See Fed.R.Civ.P. 12(a)(1)(A) (defendant must serve answer
"within 20 days after being served with the summons and complaint"). Because defendant John
1
The Clerk of the Court has informed the plaintiff that it will not enter default for any of
the defendants [Docs. #26, #33, #35]. I caution the plaintiff that any future motions for entry of
default and for default judgment may be found frivolous.
2
The plaintiff is not proceeding in forma pauperis pursuant to 28 U.S.C. § 1915.
3
Doe does not have a duty to plead until he is properly identified and served, entry of default
judgment against him prior to service is improper. See Fed.R.Civ.P. 55(a) (clerk shall enter
default when party against whom judgment is sought has failed to plead).
I find that the plaintiff is engaged in abusive litigation conduct.3 She was previously
cautioned against filing redundant and unnecessary motions [Doc. #35]. As the Tenth Circuit
Court of Appeals has made clear:
[T]he right of access to the courts is neither absolute nor
unconditional, and there is no constitutional right of access to the
courts to prosecute an action that is frivolous or malicious. No
one, rich or poor, is entitled to abuse the judicial system.
Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir. 1989).
The plaintiff’s failure to comply with the rules and my order regarding service, as well as
her frivolous and redundant filings, are unnecessarily burdening the court. Consequently, the
plaintiff shall cease making inappropriate filings.
IT IS ORDERED:
1. The Papers are STRICKEN;
2. The plaintiff shall cease filing frivolous, unnecessary, and redundant papers;
3. All future papers shall be served on the defendants in accordance with Rule 5 and my
orders; and
3. Failure to comply with the Federal Rules of Civil Procedure and my orders will result
in sanctions, including dismissal of this action with prejudice.
3
I am aware that the plaintiff is proceeding pro se, and I must liberally construe her
pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). I cannot act as advocate for a pro se
litigant, however, who must comply with the fundamental requirements of the Federal Rules of
Civil Procedure. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
4
Dated July 9, 2012.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?