DeAtley v. Stuart et al

Filing 43

ORDER denying 20 Motion to Stay; granting 24 Motion for Bond. Supplemental certificate of review to be filed under restricted level 2 by 11/12/13. by Magistrate Judge Boyd N. Boland on 10/28/13.(bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 13-cv-01140-REB-BNB
ALAN DEATLEY,
Plaintiff,
v.
MARTIN STUART, an individual, and
JOLIE MASTERSON, an individual,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on the following:
(1)

Plaintiff DeAtley’s Motion for Stay [Doc. # 20, filed 7/22/2013] (the “Motion to

(2)

Defendants’ Motion for Cost Bond [Doc. # 24, filed 8/7/2013]; and (the

Stay”);

“Motion for Cost Bond”); and
(3)

Defendants’ Motion to Dismiss for Failure to File Certificate of Review [Doc.

# 30, filed 8/14/2013] (the “Motion to Dismiss”).
The Motion to Stay [Doc. # 20] is DENIED. The Motion for Cost Bond [Doc. # 24] is
GRANTED, and the plaintiff is required to post a cost bond in the amount of $100,000.00.
Finally, pursuant to section 13-20-602(3)(b), C.R.S., I will require that Mr. DeAtley identify the
licensed professional he consulted, certify the professional’s expertise in the area of the alleged
professional negligence, and provide the analysis of the professional consulted resulting in the
professional’s conclusion that the defendants were negligent--that they owed Mr. DeAtley a

duty, the manner in which they breached the duty, and an explanation of how the breach resulted
in an injury to Mr. DeAtley.
In this action brought, pro se, Mr. DeAtley alleges malpractice by his Colorado criminal
defense counsel in a Colorado state prosecution. This case was commenced in the United States
District Court for the Eastern District of Washington and transferred to this court based on a
finding that the exercise of jurisdiction by a Washington court would not be reasonable because
of “the complete lack of facts in the Complaint as to any conduct by Defendants in Washington.”
Order [Doc. # 1] at p. 5.
I. Motion to Stay [Doc. # 20]
Mr. DeAtley seeks to stay this action while the state prosecution is pending, arguing that
“there is no practical way to proceed . . . without waiving [his] Fifth Amendment privileges or
otherwise jeopardizing his rights for impliedly waiving the attorney-client privilege.” Motion to
Stay [Doc. # 20] at p. 6.
Mr. DeAtley has another civil action pending in this court where he has sued Keybank in
an attempt to prevent the foreclosure on real property located in Jackson County, Colorado.
DeAtley v. Keybank National Association, Case No. 12-cv-02973-PAB-BNB. Mr. DeAtley
sought to stay that action based on an argument similar to the one made here. I denied the
request for stay in the Keybank case, finding:
It is apparent to me that Mr. DeAtley is engaged in abusive
litigation tactics for the improper purpose of manipulating the
judicial system to delay both Keybank’s attempts to pursue its
foreclosure action and the state criminal prosecution. Mr. DeAtley
has refused to engage substitute defense counsel in the state
criminal prosecution, bringing that action to a stop. In the
meantime, he commenced this action alleging misconduct by
Keybank, which resulted in Keybank’s withdrawal of its
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foreclosure action. Now Mr. DeAtley seeks to postpone
indefinitely this action until resolution of the criminal case,
progress of which he has stymied. I do not intend to facilitate Mr.
DeAtley’s improper manipulation of the judicial system.
This action, alleging malpractice against his Colorado criminal defense counsel in the
state prosecution, is part-and-parcel of Mr. DeAtley’s abusive litigation strategy. Mr. DeAtley
refuses in the state prosecution to proceed pro se or to retain substitute counsel. Through this
malpractice action, he makes it impossible for his current criminal counsel to represent him in
the state prosecution. And now he seeks to postpone this malpractice action until the criminal
case he has stymied is resolved. Here, as in the Keybank case, I do not intend to facilitate Mr.
DeAtley’s improper manipulation of the judicial system.
II. Motion for Cost Bond
The defendants request an order requiring Mr. DeAtley to post a cost bond in the amount
of $100,000, arguing:
(1) substantial costs will be incurred by the defense to prepare for
this trial; (2) the claims brought against these Defendants lack true
merit; and (3) Plaintiff’s immersion in six other cases pending in
Colorado state and federal courts and Washington federal court are
clearly consuming significant amounts of Plaintiff’s financial
resources, which will likely leave Plaintiff without means to satisfy
the inevitable judgment for costs that will be imposed against him.
Motion for Cost Bond [Doc. # 24] at p. 2 (original emphasis).
There is no provision in the Federal Rules of Civil Procedure, any applicable federal
statute, or the local rules of this court requiring the posting of a cost bond. See Hartnett v.
Catholic Health Initiatives Mountain Region, 47 F. Supp. 2d 1255, 1256 (D. Colo. 1999). The
Colorado cost bond statute, section 13-16-102, C.R.S., is procedural in nature and does not apply
in this diversity action. Id. Consequently, the decision of whether to require a pre-judgment cost
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bond is within a federal trial court’s discretion. Id. (citing Paramount Film Dist. Corp. v. Civic
Center Theatre, 333 F.2d 358, 362 (10th Cir. 1964).) Factors to be considered include “(1) the
merits of [plaintiff’s] claim; (2) the ability or willingness of [plaintiff] to pay any costs which
might be assessed; and (3) substantial costs which might be incurred by defendant during
preparation for trial.” Hartnett, 47 F. Supp. 2d at 1256.
I am persuaded that the plaintiff, a resident of Washington State, should be required to
post a bond for pre-judgment costs. First, I have found that this action is part-and-parcel of Mr.
DeAtley’s abusive litigation strategy to postpone the state prosecution and foreclosure of his
property in Jackson County, Colorado. In addition, Mr. DeAtley concedes in his Response [Doc.
# 38] that he lacks sufficient resources to post a cost bond, id. at pp. 1-2, and therefore to pay any
costs which might be awarded against him. Finally, I agree with the defendants that there are
likely to be substantial costs incurred in connection with their defense of this case. The
defendants estimate those costs at $100,000, and Mr. DeAtley offers no argument to the
contrary.
III. Motion to Dismiss
Finally, the defendants move to dismiss this malpractice action based on Mr. DeAtley’s
failure to comply with the requirements of section 13-20-602, C.R.S., which provides:
(1)(a) In every action for damages or indemnity based upon the
alleged professional negligence of . . . a licensed professional, the
plaintiff’s . . . attorney shall file with the court a certificate of
review for each . . . licensed professional named as a party, as
specified in subsection (3) of this section, within sixty days after
the service of the complaint . . . unless the court determines that a
longer period is necessary for good cause.
* * *
(2) In the event of failure to file a certificate of review in
accordance with this section and if the . . . licensed professional
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defending the claim believes that an expert is necessary to prove
the claim of professional negligence, the defense may move the
court for an order requiring filing of such a certificate. The court
shall give priority to deciding such a motion, and in no event shall
the court allow the case to be set for trial without a decision on
such motion.
(3)(a) A certificate of review shall be executed by the attorney for
the plaintiff . . . declaring:
(I) That the attorney has consulted a person who has expertise in
the area of the alleged negligent conduct; and
(II) That the professional who has been consult pursuant to
subparagraph (I) of this paragraph (a) has reviewed the known
facts, including such records, documents, and other materials
which the professional has found to be relevant to the allegations
of negligent conduct and, based on the review of such facts, has
concluded that the filing of the claim . . . does not lack substantial
justification. . . .
(b) The court, in its discretion, may require the identity of the . . .
licensed professional who was consulted pursuant to subparagraph
(I) of paragraph (a) of this section (3) to be disclosed to the court
and may verify the content of such certificate of review. The
identity of the professional need not be identified to the opposing
party or parties in the civil action.
(c) In an action alleging professional negligence . . . against any
other professional [besides a physician], [the certificate of review
shall declare] that the person consulted can demonstrate by
competent evidence that, as a result of training, education,
knowledge, and experience, the consultant is competent to express
an opinion as to the negligent conduct alleged.
(4) The failure to file a certificate of review in accordance with this
section shall result in the dismissal of the complaint. . . .
The certificate of review statute applies in federal diversity cases. Trierweiler v. Croxton
and Trench Holding Corp., 90 F.3d 1523, 1541 (10th Cir. 1996). It applies in legal malpractice
cases. Kelton v. Ramsey, 961 P.2d 569, 571 (Colo. App. 1998). Although the statute speaks in

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terms of requiring a filing by “the attorney for the plaintiff,” section 13-20-602(3)(a), C.R.S.,
“the requirements of the certificate of review statute are applicable to civil actions alleging
negligence of licensed professionals filed by nonattorney pro se plaintiffs.” Yadon v.
Southward, 64 P.3d 909, 912 (Colo. 2002). The purpose of requiring a certificate of review is to
“prevent the filing of frivolous professional malpractice actions, to avoid unnecessary time and
costs in defending professional negligence claims, and to reduce the resulting costs to society. . .
.” Williams v. Boyle, 72 P.3d 392, 396 (Colo. App. 2003).
The Motion to Dismiss [Doc. # 30] was filed on August 14, 2013. The next day, Mr.
DeAtley filed a Certificate of Review [Doc. # 33] which states in its entirety:
Pursuant to C.R.S. § 13-20-602, the undersigned Plaintiff certifies
that he has consulted with professionals who have expertise in the
area of conduct alleged in this suit to be negligent, that the
professionals who were consulted reviewed the known facts,
including physical examination, records, documents and other
materials which the professionals found to be relevant to the
allegations of negligent conduct and, that based on the review of
the facts, the professionals concluded that the filing of the claim in
this civil action did not lack substantial justification within the
meaning of C.R.S. § 13-17-102(4).
Id.
The defendants are not satisfied, arguing:
Defendants have a good faith reason to believe that [Dan Bariault]
is the professional referenced in Plaintiff’s Certificate of Review
who reviewed the merits of Plaintiff’s claims against Defendants.
Therefore, Plaintiff’s Certificate of Review likely is insufficient to
satisfy the requirements of Colorado law because, as set forth in
more detail below, Mr. Bariault is Plaintiff’s counsel in numerous
other matters pending before various courts and has also provided
substantial assistance to Plaintiff in this case, although without
entering an appearance. Consequently, Mr. Bariault is unable to
provide an independent review and analysis of Plaintiff’s claims in
this case and, therefore, if Mr. Bariault is indeed Plaintiff’s
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reviewing professional, Plaintiff’s Complaint must be dismissed
for failure to file a Certificate of Review in compliance with
Colorado law.
Defendants’ Supplemental Brief [Doc. # 37] at pp. 1-2 (original emphasis). In addition, the
defendants argue that the Certificate of Review does not meet the requirements articulated in
Redden v. SCI Colorado Funeral Services, Inc., 38 P.3d 75, 82-83 (Colo. 2001), where the
Colorado Supreme Court instructed:
SCI’s first “Certificate of Review” was a mere one-paragraph
statement that precisely mirrored section 13-20-602(3)(a)(I)-(II), 5
C.R.S. (2001). It failed to declare the competency of the expert
consulted, as required by paragraph 602(3)(c). . . .
The statute requires that the certificate of review state the
competence of the expert to opine on the alleged negligent
conduct. §13-20-602(3)(c). Nowhere does the statute require the
consulted expert to be of precisely the same profession or specialty
as the licensed professional against whom the charge is leveled,
but paragraph 602(3)(c) does direct trial courts to examine the
certificate to assure that it identifies the necessary expertise. The
language, “competent to express an opinion as to the negligent
conduct alleged,” precludes the use of an expert with only general
knowledge in the field; rather, a proper expert has a firm grasp on
the appropriate standards, techniques and practices with the
profession or specialty about which he or she in opining.
* * *
Nonetheless, there is another problem with the submission.
Specifically, there is again a failure to show negligence or fault. . .
. While we observe that initially the statute requires counsel only
to “declare” that an expert has determined a negligence claim has
merit, once a court seeks verification, it is incumbent upon counsel
to substantiate the certificate by demonstrating that a duly
qualified expert does not consider the claim to be without
“substantial justification.” §13-20-602(3)(a)(II). . . . [I]t is not
enough that the other professional state that the [defendant] may
have had a causal relationship to the injury; rather, the other
professional must conclude that the [defendant] was at fault--that it
owed the plaintiff a duty, it breached that duty when compared to
the standard of care appropriate to the profession, and its breach
caused plaintiff’s alleged injury.
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(Original emphasis.)
I agree with the defendants that, under the facts and circumstances of this case and in
view of the summary nature of Mr. DeAtley’s Certificate of Review, I should exercise my
discretion and require that Mr. DeAtley disclose the identity of the licensed professional he
consulted and verify the content of the Certificate of Review.1
IT IS ORDERED:
(1)

The Motion to Stay [Doc. # 20] is DENIED.

(2)

The Motion for Cost Bond [Doc. # 24] is GRANTED. On or before November

12, 2013, Mr. DeAtley shall post a cost bond in the amount of $100,000.00 with the Clerk of the
Court.
(3)

Pursuant to section 13-20-602(3)(b), C.R.S., on or before November 12, 2013,

Mr. DeAtley shall file a supplemental certificate of review which identifies by name and address
the licensed professional consulted; certifies the professional’s expertise in the area of the
alleged professional negligence; and provides the professional’s analysis resulting in the
conclusion that the defendants owed Mr. DeAtley a duty, the manner in which they breached the
duty, and an explanation of how the breach resulted in an injury to Mr. DeAtley. The
supplemental certificate
of review shall be filed Restricted Level 2. See D.C.COLO.LCivR 7.2B(5). Failure to comply
with this requirement will result in my recommendation that the case be dismissed pursuant to

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The defendants also seek dismissal of the case because the Certificate of Review was
submitted more than 60 days after service of the Complaint. I find that Mr. DeAtley’s pro se
status constitutes good cause to conclude that extending the deadline is necessary. I decline to
recommend dismissal of the action because the Certificate of Review is untimely.
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section 13-20-602(4), C.R.S.
Dated October 28, 2013.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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