Myers v. Myers et al

Filing 16

ORDER by Magistrate Judge Kathleen M. Tafoya on 05/01/15, that the Clerk of the Court is directed to redraw this matter to an Article III district judge, which will allow the court to raise the issue of claim preclusion at the earliest possible juncture. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 14–cv–03447–KMT
BERNARD KENNETH MYERS,
Plaintiff,
v.
ELDON LOWELL MYERS, JR., executor and personal representative of Eldon Lowell Myers,
Sr.,
DORWIN DWAYNE HUMMEL, executor and personal representative of Sally A. Myers,
ALICE JANE GARLAND, in her individual and official capacities,
ELIZABETH MARKHAM, in her individual and official capacities,
DEE ANN BEAMAN, in her individual and official capacities,
DANA D. WOODHAMS, in her individual and official capacities,
STEVEN FRANCIS, attorney at law,
RYAN CLEMENT, attorney at law,
PAUL GORDON, attorney at law, and
STEVEN MCWHIRTER, attorney at law,
Defendants.

ORDER

This matter comes before the court on review of the docket, as well as other cases
previously filed by Plaintiff Bernard Kenneth Myers.
This is now the fifth lawsuit Plaintiff has filed in this court concerning the disposition of
his late father’s estate. See Myers v. Hummel, No. 11-cv-00400-KMT (D. Colo. Mar. 26, 2012)
(diversity action dismissed with prejudice on summary judgment); Myers v. City of Loveland,
Colo., No. 12-cv-02317-REB-KLM (D. Colo. July 8, 2013) (civil rights action dismissed with
prejudice as time-barred and for failure to state a claim); Myers v. Estate of Sally Myers, No. 13-

cv-01909-LTB (D. Colo. Jan. 17, 2014) (diversity action dismissed without prejudice pursuant to
Rule 8 and 41(b) of the Federal Rules of Civil Procedure for failure to file a second amended
complaint as directed within the time allowed); Myers v. Hummel et al., No. 14-cv-00446-LTB
(D. Colo. Nov. 12, 2014) (diversity action dismissed under the probate exception to diversity
jurisdiction and the Rooker-Feldman doctrine).
Based on a review of these cases, the court finds a substantial likelihood that this case is
barred by the doctrine of res judicata - also known as claim preclusion. Under this doctrine, “a
final judgment on the merits of an action precludes the parties or their privies from relitigating
issues that were or could have been raised in the prior action.” Campbell v. City of Spencer, 777
F.3d 1073, 1077 (10th Cir. 2014) (emphasis in original). Claim preclusion is “intended to relieve
parties of the cost and vexation of multiple lawsuits, conserve judicial resources, prevent
inconsistent decisions, and encourage reliance on adjudication.” Satsky v. Paramount Comm’ns,
Inc., 7 F.3d 1464, 1467 (10th Cir. 1993).
Notably, “trial courts may in appropriate cases raise the res judicata bar on their own
motion.” Plaut v. Spendthrift Farms, Inc., 514 U.S. 211, 231 (1995). “While res judicata is a
defense which can be waived . . ., if a court is on notice that it has previously decided the issue
presented, the court may dismiss the action sua sponte, even though the defense has not been
raised.” United States v. Sioux Nation of Indians, 448 U.S. 371, 432 (1980).
This case has been directly assigned to the undersigned pursuant to the Pilot Program to
Implement the Direct Assignment of Civil Cases to Full Time Magistrate Judges. As such,
before the court can address any case-dispositive issues, including whether Plaintiff’s claims are

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barred by claim preclusion, the court must obtain the parties’ consent to the exercise of
jurisdiction by a magistrate judge.
Here, Plaintiff has named eleven separate individuals as defendants—only two of whom
have thus far responded to this action. The court finds that deferring the glaring and potentially
dispositive issue of claim preclusion until (1) Plaintiff serves each of the defendants and (2) each
party entering an appearance indicates either their consent to the exercise of jurisdiction by the
undersigned or that consent has been declined would substantially undermine the purposes
underlying the claim preclusion doctrine. See Satsky, 7 F.3d at 1467. As a consequence, the
court finds that the best approach for addressing the specific circumstances of this case is to have
this case redrawn to an Article III district judge. This will allow the court to raise the issue of
claim preclusion at the earliest possible juncture.
Therefore, it is
ORDERED that the Clerk of Court is directed to redraw this matter to an Article III
district judge.
Dated this 1st day of May, 2015.

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