Conry v. Barker

Filing 86

MINUTE ORDER by Magistrate Judge Kristen L. Mix on 7/20/15. IT IS HEREBY ORDERED that the Motion for Sanctions # 41 is DENIED in part and DENIED as moot in part. IT IS FURTHER ORDERED that the Motion to Strike Response # 56 is DENIED. (lgale, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02672-CMA-KLM
SUZANNE CONRY, an individual
Plaintiff,
v.
EUGENE H. BAKER, an individual,
BERNARD C. MAYNES, an individual,
B&B 2ND MORTGAGE, LLC, a Colorado limited liability company,
B&B VENTURES, LLC, a Colorado limited liability company,
HIGH POINTE, LLC, a Colorado limited liability company,
TERRY D. HAMILTON, an individual,
CHEM-AWAY, INC., a Colorado corporation,
SHARON M. HAMILTON, an individual, and
CHEM-AWAY, INC., a California corporation,
Defendants.
_____________________________________________________________________
MINUTE ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant Terry D. Hamilton’s (“Hamilton”)
Motion to Strike “Defendants’ Motion to Set Aside Defaults Pursuant to F.R.C.P.
55(c)”; Or in the Alternative, Request the Court to Enter Order to Show Cause Why
Robert E. Ray Should Not Be Sanctioned for Violating Fed. R. of Civ. Proc. 11(b);
COLO.RPC 3.3; COLO.RPC 8.4(c)(h); DCCOLO. L Civ R 7.1 [sic] [#41]1 (the “Motion for
Sanctions”), to which Defendants Eugene H. Barker, Bernard C. Maynes, B&B 2nd

1

“[#41]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.

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Mortgage, LLC, B&B Ventures, LLC, and High Pointe, LLC (collectively, the “Barker
Defendants”) filed a Response [#51], and on Defendant Hamilton’s Separate Rule 12(f)(2)
Motion to Strike Defendants’ Response to Motion to Strike by Terry Hamilton, Doc
41 [#56] (the “Motion to Strike Response”), to which the Barker Defendants filed a
Response [#71] and Defendant Hamilton filed a Reply [#77]. Defendant Hamilton proceeds
in this matter as a pro se litigant.
As an initial matter, the Court does not consider any request for relief by any party
that is made solely in a Response [#51, #71] or a Reply [#77] and not in the Motions [#41,
#56]. See D.C.COLO.LCivR 7.1(a) (“A motion shall not be included in a response or reply
to the original motion. A motion shall be filed as a separate document.”)
Regarding the Motion to Strike Response [#56], Defendant Hamilton invokes Fed.
R. Civ. P. 12(f)(2) in order to strike the Barker Defendants’ Response [#51] to the Motion
for Sanctions [#41]. Rule 12(f) permits the Court to “strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.” Pleadings, as
defined by Rule 7(a), are different from “motions and other papers.” Pleadings include a
complaint, an answer to a complaint, an answer to a counterclaim designated as a
counterclaim, an answer to a counterclaim, a third-party complaint, an answer to a thirdparty complaint, and, if court-ordered, a reply to an answer. Fed. R. Civ. P. 7(a). “[T]here
is no provision in the Federal Rules of Civil Procedure for motions to strike motions and
memoranda.” Searcy v. Soc. Sec. Admin., No. 91-4181, 1992 WL 43490, at *2 (10th Cir.
Mar. 2, 1992); see also 2 James Wm. Moore et. al., Moore's Federal Practice § 12.37[2]
(3d ed. 2004) (“Only material included in a ‘pleading’ may be the subject of a motion to

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strike, and courts have been unwilling to construe the term broadly. Motions, briefs, or
memoranda, objections, or affidavits may not be attacked by the motion to strike.”). The
document to which Defendant Hamilton’s Motion is directed is not a “pleading” as defined
by Rule 7(a) of the Federal Rules of Civil Procedure. The Court finds that Defendant
Hamilton’s Motion is therefore inappropriate. See Trujillo v. Bd. of Educ. of Albuquerque
Pub. Schs., 230 F.R.D. 657, 660 (D.N.M. 2005). Accordingly, the Motion to Strike
Response [#56] is denied.
Regarding the Motion for Sanctions [#41], Defendant Hamilton makes two requests
for relief. First, Defendant Hamilton invokes Fed. R. Civ. P. 12(f)(2) to request that the
Barker Defendants’ Motion to Set Aside Defaults Pursuant to F.R.C.P. 55(c) [#36] be
stricken. Although this request may be denied on the basis explained above, the Court
finds that this request is moot because the District Judge ruled on the Motion to Set Aside
Defaults Pursuant to F.R.C.P. 55(c) [#36] on March 10, 2015, the day before Defendant
Hamilton’s Motion for Sanctions [#41] was filed. Accordingly, this portion of the Motion for
Sanctions [#41] is denied as moot.
Second, Defendant Hamilton seeks the imposition of sanctions against the Barker
Defendants for violations of various federal and state rules regarding professional conduct.
However, given the District Judge’s ruling on the Motion to Set Aside Defaults Pursuant to
F.R.C.P. 55(c) [#36], the Court fails to see how Defendant Hamilton has been prejudiced
or irreparably harmed even if every allegation contained in the Motion for Sanctions [#41]
were true. The Court declines to construe Defendant Hamilton’s request for sanctions as
a motion for reconsideration of the District Judge’s ruling on the Motion to Set Aside

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Defaults Pursuant to F.R.C.P. 55(c) [#36], and given that the District Judge found that the
motion had merit, there is even less reason for the Court to consider imposing sanctions
on the Barker Defendants. See also Fed. R. Civ. P. 11(c)(1) (noting that the imposition of
sanctions under Rule 11 is discretionary, not mandatory). Finally, the Court notes that the
Motion for Sanctions violates Fed. R. Civ. P. 11(c)(2), which states that “[a] motion for
sanctions must be made separately from any other motion.” Defendant Hamilton has failed
to file his request for sanctions under Rule 11 separately from his other request for relief.
Accordingly, this portion of the Motion for Sanctions [#41] is denied.
Based on the foregoing,
IT IS HEREBY ORDERED that the Motion for Sanctions [#41] is DENIED in part
and DENIED as moot in part.
IT IS FURTHER ORDERED that the Motion to Strike Response [#56] is DENIED.

Dated: July 20, 2015

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