Carbajal et al v. Morrissey et al

Filing 162

ORDER granting 158 Motion to Strike. Plaintiffs' Response [# 145 ] is STRICKEN. By Magistrate Judge Kristen L. Mix on 11/13/2013.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-03231-REB-KLM
VICTORIA CARBAJAL,
DEAN CARBAJAL, and
LUIS LEAL,
Plaintiffs,
v.
MITCHELL R. MORISSEY, District Attorney for the Second Judicial District, in his official
and individual capacities,
JEFFREY WATTS, Investigator for the Second Judicial District, in his official and individual
capacities,
ROBERT FULLER, Investigator for the Second Judicial District, in his official and individual
capacities,
REBEKAH MELNICK, Deputy District Attorney for the Second Judicial District, in her official
and individual capacities,
LARA MULLIN, Deputy District Attorney for the Second Judicial District, in her official and
individual capacities,
MILES FLESCHE, District Administrator and Clerk for the Second Judicial District, in his
official and individual capacities,
KEITH CRISWELL, Deputy Court Clerk for the Second Judicial District, in his official and
individual capacities,
ANNE MANSFIELD, District Court Judge for the Second Judicial District, in her official and
individual capacities,
KEEFER, Deputy Sheriff for the Denver Detention Center, in his official and individual
capacities,
MICHAEL SIMPSON, Detective for the Denver Police Department, in his official and
individual capacities,
JAY LOPEZ, Detective for the Denver Police Department, in his official and individual
capacities,
RICHARD HAGAN, Detective for the Denver Police Department, in his official and
individual capacities,
CAROL DWYER, a co-conspirator with the Second Judicial District Attorney’s Office, in her
official and individual capacities,
WELLS FARGO, a corporation,
BRIAN BERARDINI, a co-conspirator with the Second Judicial District Attorney’s Office,
in his individual capacity, and
JOHN SUTHERS, Attorney General for the State of Colorado, in his official and individual
capacities,
Defendants.
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_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on the Motion to Strike Plaintiffs’ Response [#145]
[#158] (the “Motion”), filed by Defendants Andrew Keefer, Michael Simpson, Jay Lopez,
and Gilbert Hagan (collectively, the “Denver Defendants”). In the Motion, the Denver
Defendants argue that Plaintiffs’ joint Response [#158] to the Denver Defendants’ Motion
to Dismiss [#123] and to the Denver Defendants’ Motion to Dismiss Defendant Andrew
Keefer and for Withdrawal of Counsel for Brandon Keefer [#135] (the “Motion to Dismiss
Keefer”) should be stricken on a variety of grounds. For the following reasons, the Court
agrees.1
As an initial matter, however, the Court notes that, in their attempt to comply with the
conferral requirement of Local Rule 7.1A., the Denver Defendants were unable to contact
Plaintiff Victoria Carbajal (“Mrs. Carbajal”) or Plaintiff Luis Leal (“Mr. Leal”) before filing the
present Motion. Motion [#158] at 2. They sent mail to these two Plaintiffs but received no
response. Id. The Denver Defendants tried to contact Mrs. Carbajal by telephone multiple
times over the course of several days, to no avail. Id. Mr. Leal does not have a telephone
number or contact information other than his mailing address listed on the docket, in
violation of Local Rules 10.1K. and 10.1M. While Defendants in this matter are not required
to confer with Plaintiff Dean Carbajal (“Mr. Carbajal”) before filing motions, and while it is
clear that Mr. Carbajal is the primary author of the documents that Plaintiffs file with the
Court, Mrs. Carbajal and Mr. Leal, as unincarcerated pro se parties, must comply with the

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The Court may rule on a motion at any time after it is filed. D.C.COLO.LCivR 7.1C.

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conferral mandate of the Local Rules. Accordingly, Mrs. Carbajal and Mr. Leal are warned
that any future motions they file, even if jointly filed with Mr. Carbajal, that do not comply
with Local Rule 7.1A. will be denied as a matter of course as to the relief they request.2
See Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (stating that pro se parties must
“follow the same rules of procedure that govern other litigants”). Mrs. Carbajal and Mr. Leal
also must make themselves reasonably available to opposing counsel so that opposing
counsel may confer with them regarding motions filed by Defendants. This is the only
warning Mrs. Carbajal and Mr. Leal will receive regarding their conferral duty
pursuant to Local Rule 7.1A.
Turning to the merits of the present Motion, the Court first notes that Plaintiffs
combine their responses to two of the Denver Defendants’ Motions [#123, #135] into a
single Response [#145]. On August 6, 2013, the Court explicitly ordered Plaintiffs to file
a separate response to the Denver Defendants’ Motion to Dismiss [#123], along with a
separate response to each other pending Motion to Dismiss [#101, #103, #105, #119].
Minute Order [#133]. Plaintiffs have failed to comply with this Order by combining their
responses to the Motions to Dismiss [#123, #135]. The Response is subject to being
stricken on this basis alone. See Chambers v. Nasco, 501 U.S. 32, 43, 47-48 (1991).
Second, the Motion to Dismiss Keefer [#135] was filed by the Denver Defendants
on August 9, 2013. Plaintiffs did not file a Response or a request for an extension of time
to file a Response to the Motion to Dismiss Keefer. On September 20, 2013, the Court
provided them with one last opportunity to file a Response, warning them that, “no further

2

To be clear, if, for example, Plaintiffs jointly file a motion for extension of time and have
not conferred with Defendants, then the request will be denied as to Mrs. Carbajal and Mr. Leal.

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extensions of time will be granted absent a showing of exceptional cause.” Minute
Order [#138] at 2 (emphases in original). Plaintiffs’ Response was due on or before
October 10, 2013. Id. The Response [#145] to the Motion to Dismiss Keefer [#135] was
filed on October 17, 2013. Even allowing time for mailing, the Response was not timely
filed. Plaintiffs have provided no “exceptional cause” as to why the document could not be
timely filed. The Response is subject to being stricken on this basis alone. See Chambers,
501 U.S. at 43, 47-48.
Third, pursuant to the District Judge’s Civil Practice Standards, Plaintiffs are
permitted only fifteen pages to respond to a non-summary judgment motion. See REB Civ.
Practice Standard IV.B.1.3 The 15-page limit includes only “the motion, cover page,
jurisdictional statement, statement of facts, procedural history, argument, closing, signature
block, and all other matters, except for the certificate of service” and exhibits. REB Civ.
Practice Standard IV.B.1. Here, Plaintiffs have filed a 23-page combined Response to two
motions. As the Denver Defendants point out, even if the Response were divided into the
part that responds to the Motion to Dismiss [#123] and the part that responds to the Motion
to Dismiss Keefer [#135], the first Response would be 21-pages long, six pages longer than
allowed by the District Judge. The Response is subject to being stricken on this basis
alone. See REB Civ. Practice Standard IV.C.1. (stating that motions do not comply with
the District Judge’s Civil Practice Standards may be stricken sua sponte).
Based on the foregoing,4

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A copy of the District Judge’s Civil Practice Standards can be found and downloaded from:
http://www.cod.uscourts.gov/Portals/0/Documents/Judges/REB/REB_Civil_12-1-11_Final.pdf.
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The Court need not address other arguments raised by the Denver Defendants in the
present Motion.

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IT IS HEREBY ORDERED that the Motion [#158] is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ Response [#145] is STRICKEN.
IT IS FURTHER ORDERED, sua sponte, that Mrs. Carbajal and Mr. Leal shall
hereafter comply with Local Rule 10.1K., which requires that “[t]he name, current mailing
address, and telephone number of any . . . pro se party filing a paper” shall be included in
the signature block at the end of the paper. D.C.COLO.LCivR 10.1K. (emphasis added).

Dated: November 13, 2013

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