Carbajal et al v. Morrissey et al

Filing 178

ORDER. ORDERED that the Motion [#135] is GRANTED in part and DENIED without prejudice in part. The Clerk of Court is instructed to terminate Mr. Hader as counsel of record for Brandon Keefer only. ORDERED that the Clerk of the Court shall terminate Brandon Keefer in both his official and individual capacities from this lawsuit by Magistrate Judge Kristen L. Mix on 01/15/14.(jjhsl, )

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] Dismiss Defendant Andrew
Keefer and for Withdrawal of Counsel for Brandon Keefer [#135] (the “Motion”), filed
by counsel for the Denver Defendants, Matthew Hader (“Hader”).

Plaintiffs filed a

Response [#145] that was later stricken by the Court. Order [#162]. Before the Response
was stricken, the Denver Defendants also filed a Reply [#159]. Plaintiffs filed a Surreply
[#163]. The Motion is ripe for review.
The Motion arises from the fact that there has been significant confusion in this case
over the identity of a Mr. Keefer, whether his first name is actually “Andrew” or “Brandon”
(or “Branden”), and whether the proper individual was served and is a party to this lawsuit.
On December 11, 2012, Plaintiffs filed this lawsuit and named “Deputy Sheriff Keefer,
Deputy Sheriff for the Denver Detention Center” as a defendant. Compl. [#1] at 1. The
Denver Defendants affirm that Andrew Keefer was served with the original summons and
Complaint on January 7, 2013. Motion [#135] at 2; Return of Service [#12] at 7. On
February 21, 2013, Plaintiffs filed their Amended Complaint and again named “Deputy
Sheriff Keefer, Deputy Sheriff for the Denver Detention Center” as a defendant. Am.
Compl. [#33] at 1. On March 29, 2013, Ms. Carbajal enlisted a private service company
to serve “Deputy Sheriff Branden Keefer” with a copy of the Amended Complaint. Return
of Service [#91]. On April 1, 2013, “Deputy Sheriff Andrew Keefer” was served with the
Summons and Amended Complaint by Deputy Sheriff Andrew Cross. Return of Service
[#70]. On April 17, 2013, the Second Amended Complaint was filed by Plaintiffs. Second

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Am. Compl. [#85]. Although it was later stricken by the Court, see Order [#89], the Second
Amended Complaint named “Andrew Keefer, Deputy Sheriff for the Denver Detention
Center” as a defendant. Id. at 1, 2. On May 6, 2013, the private company enlisted by Ms.
Carbajal on March 29, 2013, finally served Andrew Keefer with the summons and Amended
Complaint, although the Affidavit/Return of Service [#91] indicates that it was “Branden
Keefer” who was served. Motion [#135] at 3. On May 29, 2013, the Return of Service
[#91] on “Branden Keefer” was entered on the electronic docket. That same day, Plaintiffs
filed the Third Amended Complaint, which is now the live complaint, and named “Brandon
Keefer, Deputy Sheriff for the Denver Sheriff’s Department” as a defendant. No one by the
name of “Andrew Keefer” was named in the Third Amended Complaint. The Court has
been unable to find an occurrence of “Brandon” or “Branden” Keefer on the docket prior to
May 29, 2013.
A complaint submitted by pro se plaintiffs should be read liberally and held to a
looser standard than a complaint drafted by an attorney. Haines v. Kerner, 404 U.S. 519,
520 (1972). Fed. R. Civ. P. 10(a) states that the caption of a complaint shall include “the
names of all parties.” However, “in a pro se case when the plaintiff names the wrong
defendant in the caption or when the identity of the defendants is unclear from the caption,
courts may look to the body of the complaint to determine who the intended and proper
defendants are.” See Trackwell v. U.S. Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007).
Further, Fed. R. Civ. P. 21 states that “[o]n motion or on its own, the court may at any time,
on just terms, add or drop a party.”
The Denver Defendants assert in the Motion [#135] that: (1) “only the originally
named defendant, Andrew Keefer, has been served in this litigation;” (2) “‘Brandon Keefer’

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. . . was not served and does not appear to exist;” (3) “[n]o individual named ‘Branden
Keefer’ was ever served in this matter;” (4) when writing the Denver Defendants’ pending
Motion to Dismiss [#123], their counsel “was under the belief that the substitution of
‘Brandon Keefer’ in the Third Amended Complaint was an accident and that Plaintiffs
intended to maintain their litigation against Andrew Keefer;” (5) in filing the Motion to
Dismiss [#123], Mr. Hader “associated the motion and his representation with ‘Brandon
Keefer’ though believing Andrew Keefer was intended and simply misnamed;” and (6)
currently, the electronic “docket indicates that both Andrew Keefer and Brandon Keefer are
individual defendants in this matter.”
As far as the electronic docket can illuminate, it appears that the confusion between
Andrew Keefer and Brandon/Branden Keefer began with Ms. Carbajal’s request to the
private service company to serve Mr. Keefer on March 29, 2013. It is unclear whether this
was simply an error on her part or whether the information was mistakenly conveyed to her
from another person or entity. The Court notes that Plaintiffs have never in the same
complaint named two separate individuals with the name of “Keefer”—therefore, it is
apparent that they have only ever intended for one Mr. Keefer to be a party to this lawsuit,
which also appears in line with Plaintiffs’ comments in the Surreply [#163]. There is no
question that Andrew Keefer has been repeatedly served with notice of this lawsuit, the first
time on January 7, 2013, and that Mr. Hader entered an appearance on his behalf no later
than April 9, 2013. In short, it appears that the existence of an individual named Brandon
or Branden Keefer is a mistake that has been perpetuated by the errors of both parties and
that Andrew Keefer is the real party in interest. Accordingly,
IT IS HEREBY ORDERED that the Motion [#135] is GRANTED in part and DENIED

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without prejudice in part. The Motion is granted to the extent that Mr. Hader is relieved
of any further representation of Brandon Keefer in this case. The Clerk of Court is
instructed to terminate Mr. Hader as counsel of record for Brandon Keefer only.1 The
Motion is denied without prejudice to the extent that Mr. Hader seeks dismissal of
Andrew Keefer. The Court will consider in due course whether Andrew Keefer should be
dismissed from this lawsuit in the context of the Denver Defendants’ Motion to Dismiss
[#123].
IT IS FURTHER ORDERED that the Clerk of the Court shall terminate Brandon
Keefer in both his official and individual capacities from this lawsuit.2

Dated: January 15, 2014

1

Andrew Keefer remains listed on the electronic docket in both his official and individual
capacities. Mr. Hader continues to represent Andrew Keefer.
2

The Court notes that nothing in this Order shall be construed as impairing Plaintiffs’ rights
to pursue their lawsuit against a Brandon or Branden Keefer based on subsequent information, if
procedurally proper.

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