Faircloth v. Timme et al
ORDER Addressing 194 Tenth Circuit's Limited Remand and Granting 180 Motion to Reopen Time to Appeal. Subject to a contrary order of the appellate court, the putative Notice of Appeal of the plaintiff 186 , is accepted effective May 11, 2016. By Judge Robert E. Blackburn on 11/14/2016. (cmira)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-03317-REB-KLM
LT. TOM BENEZE, in his official and individual capacity, and
CORRECTIONAL OFFICER MARQUEZ, in his official and individual capacity,
ORDER ADDRESSING TENTH CIRCUIT’S LIMITED REMAND
AND GRANTING MOTION TO REOPEN TIME TO APPEAL
This matter is before the court on the Tenth Circuit’s Order [#194],1 filed June 21,
2016, remanding this case for the limited purpose of determining whether any of plaintiff
James Faircloth’s post-judgment pleadings might be construed as requesting leave to
reopen the time to file an appeal under Fed. R. App. P. 4(a)(6) and, if so, whether that
request should be granted. I find and conclude that Mr. Faircloth both requested such
relief and is entitled to it.
A recitation of the relevant facts, albeit lengthy, is necessary for context. On
September 3, 2015, the magistrate judge granted attorney Elizabeth Owen’s Motion for
Leave to Provide Limited Scope Representation Pursuant to D.COLO.LAttyR 2(a)
[#150], filed August 31, 2015, and permitted Ms. Owen to appear for the limited purpose
“[#194]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
of attempting to negotiate a settlement of this and several other lawsuits filed by Mr.
Faircloth in state and federal court against these same (or related) defendants. (See
Minute Order [#153], filed September 3, 2016.) The court also extended the thenexisting stay until November 27, 2015, and ordered that “[i]f a Notice of Settlement or
dismissal papers have not been filed by that date, Mr. Faircloth shall file a Status Report
on or before November 27, 2015 informing the Court of the status of this case.” (Id.)
On November 16, 2015, Ms. Owen filed a motion seeking court-mediated
alternative dispute resolution. (Motion for Order Referring Case to Alternative
Dispute Resolution Pursuant to D.C.COLO.LCivR 16.6 and for Stay [#157], filed
November 16, 2015.) The court granted that request, but denied the concomitant
request to continue the stay, noting the age of this case and the imminent trial date.
(Order Re: Motion for Order Referring Case to Alternative Dispute Resolution
[#158], filed November 18, 2015.) Accordingly, the court lifted the stay and established
deadlines for the submission of motions for summary judgment. (Amended Order
Lifting Stay and Directing Submission of Dispositive Motions [#160], filed
November 19, 2015.)
In accordance with that order, defendants’ filed their summary judgment motion
([#164], filed November 25, 2015). Mr. Faircloth failed to file a response in the time
established by the court’s order. Meanwhile, the magistrate judge conducted a
settlement conference on January 7, 2016. (See Minute Order [#165], filed November
27, 2015.) Although neither of the parties in this case apprised the court of the outcome
of those discussions, defense counsel in one of the related cases also assigned to this
court, Faircloth v. Schwartz, Civil Action No. 12-cv-02764-REB-KLM, in seeking an
extension of the deadline to file summary judgment motions in that case, illuminated the
On January 7, 2016, undersigned counsel participated in a
court-ordered settlement conference that was held in this
case, as well as Faircloth’s two other federal suits: Faircloth
v. Marquez, et al., No. 12-cv-03317, and Faircloth v. Colo.
Corp. of Am., No. 14-cv-00464. At the conference’s
conclusion, all parties in the three lawsuits reached a
preliminary agreement on settlement terms.
Though the substance of the agreement is confidential, the
parties have agreed to execute fully the draft preliminary
settlement agreement by 5 p.m. M.S.T. on January 14, 2016.
(Defendant’s Motion for an Extension of Time To File Summary Judgment Motion
To Allow for Settlement at 2 [#194], filed January 13, 2016, in Civil Action No. 12-cv02764-REB-KLM.) Despite the hopeful tone of this advisement, the January 14
deadline passed without any further notice, in any of the cases before this court, as to
the status of the settlement.
Thus concluding that settlement negotiations ultimately had failed, the court
proceeded to consider the pending motion for summary judgment. It found both
remaining defendants entitled to qualified immunity and directed entry of judgment
against Mr. Faircloth as to all claims in the case. (Order Granting Motion for
Summary Judgment [#168], filed January 26, 2016.) Judgment was entered that
same day ([#169], filed January 26, 2016).
It is not disputed that from the time Ms. Owen was granted leave to appear in this
case in early September 2015 until she properly withdrew on April 22, 2016, and despite
the limited nature of her representation, the court did not serve notice of any filings
docketed in this case, including particularly defendants’ motion for summary judgment,
the order granting that motion, or the judgment, on Mr. Faircloth personally. Instead, all
such documents were served electronically on Ms. Owen as Mr. Faircloth’s attorney of
The Tenth Circuit concluded that Mr. Faircloth was not properly served with the
court’s order granting summary judgment or the judgment. (See Order at 1 [#194], filed
June 21, 2016). Because Mr. Faircloth filed his notice of appeal more than 30 days
after the court denied his first Rule 59 motion on March 17, 2016 ([#176])2 see FED. R.
APP. P. 4(a)(1)(a),3 the Tenth Circuit is concerned that it might lack jurisdiction over Mr.
Faircloth’s appeal. It therefore has remanded to this court to determine whether Mr.
Faircloth requested leave to reopen the time to appeal and, if so, whether that request
should be granted.
The court first is asked to consider whether any of Mr. Faircloth’s post-judgment
filings adequately raised a request to reopen the time to appeal as contemplated by
Fed. R. App. P. 4(a)(6). On April 11, 2016, Mr. Faircloth filed a Motion for Court
Docket To Be Sent to Mr. Faircloth By Clerk [#180], requesting information regarding
As the court explained in its order, Mr. Faircloth’s motion was untimely under Rule 59(e).
Nevertheless, the court considered the motion substantively under Rule 60(b).
Mr. Faircloth later filed a a second Rule 60 motion on May 11, 2016 ([#185]), concurrently with
the filing of his notice of appeal ([#186]). That motion was filed more than 30 days after the court denied
the first such motion, but before the expiration of the additional 30-day period contemplated by Fed. R.
App. P. 4(a)(5)(A). Because the Tenth Circuit has limited the issues to be considered on remand,
however, the court does not address whether Mr. Faircloth’s successive Rule 60 motion might be
considered a request to extend the time to appeal under Rule 4(a)(5)(A).
the status of his case.4 Therein, Mr. Faircloth stated, “I’d hate to file an appeal to a
mere ghost or speculative determination of something has been dismissed.” (Id. at 34.) Giving this statement the most lenient, liberal construction, see Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991), the court finds it can be construed reasonably as
a request to reopen the time for appeal.5
This determination brings the court to consider whether the request to reopen
should be granted. Under Fed. R. App. P. 4(a)(6), the court may reopen the time to file
an appeal “but only if all the following conditions are satisfied:”
(A) the court finds that the moving party did not receive
notice under Federal Rule of Civil Procedure 77(d) of the
entry of the judgment or order sought to be appealed within
21 days after entry;
(B) the motion is filed within 180 days after the judgment or
order is entered or within 14 days after the moving party
receives notice under Federal Rule of Civil Procedure 77(d)
of the entry, whichever is earlier; and
(C) the court finds that no party would be prejudiced.
FED. R. APP. P. 4(a)(6). See also Shepard v. Rangel, – Fed. Appx. –, 2016 WL
4069945 at *1 (10th Cir. July 29, 2016).
The first question is whether Mr. Faircloth failed to receive notice under Fed. R.
Civ. P. 77(d) within 21 days after entry of the judgment. FED. R. APP. P. 4(a)(6)(A).
The court struck that motion, which Mr. Faircloth filed pro se, on the basis that he still was
represented by counsel at that time. (See Order [#182], filed April 13, 2016.)
None of the three other post-judgment motions Mr. Faircloth filed contains any language which,
even liberally construed, can be read to constitute a request for such relief. (See Motion for Declaration
of Status of Case [#181], filed April 11, 2016; Plaintiff’s Motion To Alter, Amend & Vacate Judgment
Pursuant to FRCP 59(e) [#172], filed February 24, 2016; Plaintiff’s Motion To Vacate February 22,
2016 Jury Trial and Related Deadlines [#170], filed February 22, 2016.)
Rule 77(d) provides that the clerk of the court, “[i]mmediately after entering an order or
judgment,” must serve notice of the entry as provided by Fed. R. Civ. P. 5(b) on all
parties who are not in default for failing to appear. FED. R. CIV. P. 77(d)(1).6 Under
Rule 5(b) “[i]f a party is represented by an attorney, service under this rule must be
made on the attorney unless the court orders service on the party.” FED. R. CIV.
It is undisputed, and the docket plainly reflects, that the clerk of the court
electronically served notice on Ms. Owen, as Mr. Faircloth’s attorney of record, of the
order granting summary judgment and the entry of judgment on the day they were
docketed, January 26, 2016. Nevertheless, the Tenth Circuit’s remand order includes
an affirmative finding that Mr. Faircloth in fact was not properly served with the order
and judgment.7 (See Order at 1 [#194], filed June 21, 2016.) The court thus must
conclude that Mr. Faircloth did not receive notice of the entry of judgment as
contemplated by Rule 4(a)(6)(A).
In addition, “[a] party may also serve notice of the entry as provided by Rule 5(b).” FED. R. CIV.
P. 77(d)(1). There is no suggestion on this record that defendants took it upon themselves to send notice
to Mr. Faircloth of the entry of judgment as contemplated by this rule..
Defendants point out, and Mr. Faircloth acknowledges, that he learned of the entry of judgment
against him after speaking to Ms. Owen on February 19, 2016. (See Motion for Court Docket To Be
Sent to Mr. Faircloth by Clerk ¶ 3 at 1-2 [#180], filed April 11, 2016 (“When I spoke to Lisi Owens [sic] on
February 19, 2016, she explained to me that Case No. 12cv3317 REB KLM was dismissed due to
Summary Judgment.”); Mr. Faircloth’s Motion To Alter, Amend & Vacate Judgment Pursuant to
FRCP 59(e) ¶1 at 1 [#172], filed February 24, 2016 (“On or about February 19th 2016, I spoke with Lisi
Owens [sic] . . . and she explained to me on the telephone that a summary judgment was entered against
me in this case[.]”).) Although the Tenth Circuit appears not to have addressed the issue, most federal
court’s hold that formal written notice is required; oral notice is ineffectual under Rules 77(d) and 5(b).
See Nguyen v. Southwest Leasing and Rental, Inc., 282 F.3d 1061, 1065 (9th Cir. 2002) (citing cases).
But see Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 464 (8th Cir. 2000) (“actual notice” sufficient
to trigger Rule 4(a)(6)(A)).
As to whether Mr. Faircloth filed his motion for appeal within 180 days after the
judgment was entered or within 14 days after he received notice under Federal Rule of
Civil Procedure 77(d) of the entry of judgment, FED. R. APP. P. 4(a)(6)(B), defendants
insist this condition is not met because Mr. Faircloth did not file a notice of appeal within
fourteen days of April 11, 2016, the date on which he acknowledged in his Notice of
Appeal ([#186], filed May 11, 2016) that he was “officially notified” of the judgment.8
The court cannot agree. Under the appellate rule, effective notice is that which
complies with Fed. R. Civ. P. 77(d) and 5(b), which requirement is satisfied only by
written notice served by the clerk of the court or another party. See Nguyen v.
Southwest Leasing and Rental, Inc., 282 F.3d 1061, 1065 (9th Cir. 2002). (See also
supra n. 7.) So far as the docket and record reflect, Mr. Faircloth has never received
such formal written notice of the summary judgment order and judgment. This condition
therefore is satisfied as well.9
Finally, the court must consider whether any party would be prejudiced if the
motion to reopen is granted. FED. R. APP. P. 4(a)(6)(C). Prejudice in this context
means more than simply having to oppose the appeal and
risk reversal, as these are consequences that are present in
every appeal. In this context, prejudice requires more.
Prejudice might arise, for example, if the appellee had taken
some action in reliance on the expiration of the normal time
period for filing a notice of appeal.
In connection with that statement, Mr. Faircloth referenced Exhibit 2 to his contemporaneously
filed Motion for Relief from Judgement [sic] – FRCP 60 ([#185], filed May 11, 2016), which consists of
this court’s Order ([#179], filed April11, 2016) striking Ms. Owen’s Notice of Completion of Limited
Appearance ([#177], filed March 22, 2016) as insufficient to effectuate Ms. Owen’s withdrawal of her
limited appearance as contemplated by D.C.COLO.LAttyR 5(b).
Mr. Faircloth’s notice of appeal was filed well within the alternative 180-day limitation of Fed. R.
App. P. 4(a)(6), under which the deadline to appeal was July 25, 2016.
Shepard , 2016 WL 4069945 at *1 (citing TBG, Inc. v. Bendis, 36 F.3d 916, 921-22
(10th Cir. 1994), in which a ”party who settled claim because the time to appeal a
settlement had expired would be prejudiced by extending time to appeal”) (other internal
citations and quotation marks omitted). Because the burden of proof on this element
rests with the putative appellee, see id., 2016 WL 4069945 at *2, I directed the parties
to brief the issue (see Order for Briefing [#198], filed August 29, 2016).
In response, defendants claim they will be prejudiced by further prolonging this
already protracted lawsuit and by allowing Mr. Faircloth “to resurrect prior claims.”
(Defendants’ Brief Regarding Mr. Faircloth’s Untimely Appeal at 8 [#199], filed
September 23, 2016.) The first of these putative reasons does not distinguish this case
from the majority of pro se prisoner lawsuits filed in this district. What plaintiffs such as
Mr. Faircloth sometimes lack in legal experience and resources, they often make up for
by an abundance of time and zeal, a combination which tends to extend the normal
schedule for conducting civil litigation. As for defendants’ second proffered suggestion
of prejudice, it is simply another way of saying that any appeal bears some risk of
reversing the decision below, making it no reason at all. See Shepard, 2016 WL
4069945 at *1.
Although the court retains discretion whether to grant a motion to reopen the time
to appeal even when the requirements of Appellate Rule 4(a)(6) are satisfied, see id.,
2016 WL 4069945 at *2 (citing Clark v. Lavallie, 204 F.3d 1038, 1040 (10th Cir. 2000)),
the court finds no basis for exercising that discretion to deny Mr Faircloth an appeal in
Accordingly, the court finds and concludes that Mr. Faircloth filed a timely request
to reopen the time to appeal and that such request should be granted.
THEREFORE, IT IS ORDERED as follows:
1. That Mr. Faircloth’s Motion for Court Docket To Be Sent to Mr. Faircloth
By Clerk [#180], filed April 11, 2016, liberally construed, constitutes a request to reopen
the time to file a notice of appeal;
2. That Mr. Faircloth’s request to reopen the time to file a notice of appeal is
3. That subject to a contrary order of the appellate court, the putative Notice of
Appeal of the plaintiff [#186], is accepted effective May 11, 2016.
Dated November 14, 2016, at Denver, Colorado.
BY THE COURT:
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