DeAtley et al v. Keybank National Association et al

Filing 105

ORDER. ORDERED that Keybank's Motion for Summary Judgment 101 is GRANTED. ORDERED that, within 14 days of the entry of judgment, defendant may have itscosts by filing a bill of costs with the Clerk of the Court. ORDERED that this case is dismissed in its entirety, by Judge Philip A. Brimmer on 12/29/2014.(agarc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-02973-PAB-BNB
ALAN DEATLEY,
NAPI (COLORADO) LLC, a Washington limited liability company,
15 CORPORATIONS, INC., a Washington corporation,
Plaintiffs,
v.
KEYBANK NATIONAL ASSOCIATION, an Ohio corporation,
Defendant.

ORDER

This matter is before the Court on the Motion for Summary Judgment [Docket
No. 101] filed by defendant Keybank National Association (“Keybank”). This Court has
subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and § 1367.
I. BACKGROUND1
On October 6, 2010, a Denver grand jury returned an indictment against plaintiff
Alan DeAtley, charging him with several counts of criminal conduct in connection with
the State of Colorado’s conservation easement tax credit program. Docket No. 29-1.
On July 3, 2012, plaintiffs filed this case in the United States District Court for the
Western District of Washington and, on November 11, 2012, the case was transferred

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The following facts are undisputed unless otherwise indicated. Plaintiffs’
allegations in this case have been set forth elsewhere and will not be restated here
except as relevant to resolving the present motion. See Docket No. 65 at 2-6; Docket
No. 104 at 1-6.

to this District. Docket No. 1-1; Docket No. 1. Although his criminal case has been
pending since the present case was filed, Mr. DeAtley did not object to this case
proceeding or raise any Fifth Amendment concerns during the pleading stage, briefing
and resolution of a motion to dismiss, and into discovery. On June 21, 2013, Keybank
filed a motion for sanctions for Mr. DeAtley’s failure to appear at a deposition, which the
magistrate judge construed as a motion to compel (“motion to compel”). Docket No. 52.
After Keybank filed its motion to compel, on July 12, 2013, plaintiffs filed a motion to
stay, asserting, for the first time, that Mr. DeAtley’s Fifth Amendment rights could be
compromised if he were deposed. Docket No. 59 at 2. The magistrate judge denied
plaintiffs’ motion to stay and ordered that Mr. DeAtley’s deposition go forward. Docket
No. 67.
On December 10, 2013, plaintiffs filed a motion to dismiss without prejudice.
Docket No. 71. Plaintiffs argued that Mr. DeAtley’s inability to secure counsel in his
criminal case would compromise his assertion of his Fifth Amendment rights at his
deposition, “effectively denying him the benefit of a full and fair hearing on his rights in
the civil case.” Id. at 2. The Court denied plaintiffs’ motion, stating, in part,
plaintiffs fail to explain why Mr. DeAtley’s assertion of his Fifth
Amendment rights prevents plaintiffs from litigating this case. Plaintiffs do
not, for example, indicate why Mr. DeAtley’s assertion of his Fifth
Amendment rights during his deposition prevented plaintiffs from
conducting discovery or would otherwise affect the ability of NAPI and 15
Corporations, both corporate entities with no Fifth Amendment rights, to
fully litigate this case. Moreover, even if Mr. DeAtley’s invocation of his
Fifth Amendment privilege did interfere with plaintiffs’ ability to conduct
discovery, “[a] party who asserts the privilege against self-incrimination
must bear the consequence of lack of evidence.” United States v.
$148,840.00 in U.S. Currency, 521 F.3d 1268, 1274 (10th Cir. 2008)
(quotation marks omitted).
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Docket No. 104 at 10. On December 17, 2013, plaintiffs filed a motion for protective
order, seeking to prevent Keybank from taking Mr. DeAtley’s deposition. Docket No. 74
at 2. The magistrate judge denied plaintiffs’ motion. Docket No. 76.
Mr. DeAtley appeared for two depositions. Docket No. 101 at 5, ¶ 8. Mr.
DeAtley asserted his Fifth Amendment privilege as to certain questions, but answered
other questions. Id.; see, e.g., Docket No. 101-1 at 2, pp. 87:16-88:24. Plaintif fs
produced documents pursuant to Fed. R. Civ. P. 26(a)(1), responded to Keybank’s
requests for production, and responded to Keybank’s written interrogatories. Docket
No. 101 at 5, ¶¶ 5-7.
Plaintiffs did not serve written interrogatories or requests for production, take
depositions, or conduct any other discovery in the present case. Id. at 5, ¶ 3-4.
Plaintiffs claim that they were “unable to conduct discovery in order to avoid
jeopardizing DeAtley’s Fifth Amendment rights in his criminal proceedings,” a claim
which Keybank disputes. Docket No. 99 at 6. Moreover, plaintiffs’ counsel did not
appear at the final pretrial conference before the magistrate judge and did not otherwise
attempt to contact the Court to explain his absence. Docket No. 98 at 1. The final
pretrial order, which was signed by plaintiffs’ counsel, states that plaintiffs “have no
witnesses to call, having not engaged in discovery as a result of DeAtley’s alleged
inability to actively participate in discovery without potentially waiving his Fifth
Amendment privilege,” “do not intend to call any experts,” and “are not introducing any
exhibits as a result of DeAtley’s prior inability to actively participate in discovery without
potentially waiving his Fifth Amendment privilege.” Docket No. 99 at 5-6. Plaintiffs did
not submit a witness list or exhibit list. The special issues section of the final pretrial
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order indicates that plaintiffs intend to renew their motion to dismiss without prejudice at
trial. Id. at 6.
In light of the fact that plaintiffs do not intend to call witnesses or introduce
exhibits at trial, the magistrate judge granted Keybank leave to file a motion for
summary judgment. Docket No. 98 at 1. On August 12, 2014, Keybank filed the
present motion. Docket No. 101. Keybank seeks summary judgment on all claims,
arguing that, because plaintiffs will not present any evidence at trial as is their burden to
do, there are no disputed issues of fact regarding plaintiffs’ claims. Docket No. 101 at
6-7. Mr. DeAtley filed a response to Keybank’s motion, Docket No. 102, which the
Court struck as in violation of this Court’s Practice Standards. Docket No. 103. Nether
Mr. DeAtley nor the other plaintiffs attempted to refile a complying response and
plaintiffs have not otherwise moved to reopen discovery or amend the final pretrial
order.
II. STANDARD OF REVIEW
Summary judgment is warranted under Federal Rule of Civil Procedure 56 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); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed f act is “material” if
under the relevant substantive law it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary
judgment. Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An

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issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a
verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir.
1997).
However, “[w]hen, as in this case, the moving party does not bear the ultimate
burden of persuasion at trial, it may satisfy its burden at the summary judgment stage
by identifying a lack of evidence for the nonmovant on an essential element of the
nonmovant's claim.” Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th
Cir. 2001) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998))
(internal quotation marks omitted). “Once the moving party meets this burden, the
burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a
material matter.” Concrete Works of Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513,
1518 (10th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
By failing to file a response to defendants’ summary judgment motion, plaintiff
“waives the right to respond or to controvert the facts asserted in the summary
judgment motion.” Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). However,
the Court is nonetheless required to “make the specific determinations required by
[Rule 56 and] properly grants summary judgment pursuant to Rule 56 only if the motion
demonstrates no genuine issue of material fact exists and the movant is entitled to
judgment as a matter of law.” Id. at 1196.2

2

For this reason, the Court need not decide if dismissal as a sanction is
appropriate. See Lopez-Bignotte v. Ontivero, 42 F. App’x 404, 407-08 (10th Cir. 2002)
(holding that district court did not abuse its discretion in dismissing plaintiff’s claims for
failure to file a proper response to motion for summary judgment).
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III. ANALYSIS
Keybank argues that no triable issue exists because, as a practical matter,
plaintiffs will not present any evidence with which to satisfy their burden of proof at trial.
Docket No. 101 at 6. Keybank contends that, were the case to proceed to trial,
plaintiffs will inform the Court that they will not present any evidence, at which point
Keybank will move to dismiss the case. Id. Keybank argues that proceeding to trial
under such circumstances “would be a waste of time for all involved, including members
of the jury. Id.
The inquiry performed at the summary judgment stage “is the threshold inquiry of
determining whether there is the need for a trial.” Anderson, 477 U.S. at 250. In other
words, the question at summary judgment is “‘whether there is any [evidence] upon
which a jury could properly proceed to find a verdict for the party producing it, upon
whom the onus of proof is imposed.’” See id. at 251 (quoting Improvement Co. v.
Munson, 81 U.S. 442, 448 (1872)). Here, plaintiffs’ intention to present no evidence at
trial is undisputed. Docket No. 101 at 6 (citing Docket No. 99 at 5-6, 8). Because
plaintiffs will present no evidence at trial, a jury could not find in favor of them. Keybank
has therefore identified a lack of genuine dispute of material fact in satisfaction of Fed.
R. Civ. P. 56(c). See Reed, 312 F.3d at 1194 (“the burden on the nonm ovant to
respond arises only if the summary judgment motion is properly supported as required
by Rule 56(c)”). The burden then shifts to plaintiffs to demonstrate a genuine issue for
trial, which plaintiffs fail to do. Because plaintiffs will present no evidence at trial and,
as a result, be unable to satisfy their burden of proof, there exists no need for a trial and

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Keybank is entitled to judgment as a matter of law.
Keybank’s summary judgment motion arises under unusual circumstances.
Arguments concerning a plaintiff’s inability to present sufficient evidence at trial are
typically considered in the context of a Fed. R. Civ. P. 50 motion at trial. However, the
Court finds no reason to proceed to trial for the sole purpose of considering Keybank’s
arguments in the context of a Rule 50 motion. The Supreme Court has recognized that
the standard for a directed verdict under Rule 50 mirrors the standard for summary
judgment. See Anderson, 477 U.S. at 250-51 (“‘The primary difference between the
two motions is procedural; summary judgment motions are usually made before trial
and decided on documentary evidence, while directed verdict motions are made at trial
and decided on the evidence that has been admitted.’ In essence, though, the inquiry
under each is the same . . . .” (citation omitted) (quoting Bill Johnson’s Restaurants, Inc.
v. NLRB, 461 U.S. 731, 745 n.11 (1983))); accord Browning v. Am. Family Mut. Ins.
Co., 396 F. App’x 496, 497 n.1 (10th Cir. 2010) (unpublished). Given the undisputed
fact that plaintiffs will not present evidence at trial, Keybank has established that it is
entitled to judgment in its favor under the relevant standard, regardless of whether
Keybank’s arguments are considered in the context of Rule 50 or Rule 56. 3 Thus,
3

The final pretrial order indicates that plaintiffs intend to renew their motion to
dismiss without prejudice. Docket No. 99 at 6. Even assuming that plaintiffs renewed
their motion to dismiss without prejudice at trial, plaintiffs’ motion would be denied for
the reasons stated in the Court’s prior order, which stated, in part,
the Court is mindful of Mr. DeAtley’s Fifth Amendment rights. It may indeed
be easier for plaintiffs to litigate their claims once Mr. DeAtley’s criminal case
has concluded. However, defendant litigated this case for more than a year
before plaintiffs filed the instant motion, and plaintiffs will not be permitted to
benefit from an untimely and insufficiently supported request for dismissal
without prejudice.
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Keybank’s motion for summary judgment will be granted.
For the foregoing reasons, it is
ORDERED that Keybank’s Motion for Summary Judgment [Docket No. 101] is
GRANTED. It is further
ORDERED that, within 14 days of the entry of judgment, defendant may have its
costs by filing a bill of costs with the Clerk of the Court. It is further
ORDERED that this case is dismissed in its entirety.

DATED December 29, 2014.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

Docket No. 104 at 11-12 (citation omitted).
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