Tso v. Murray

Filing 272

ORDER denying 268 Plaintiffs Complaint re: ECF #135 Pursuant to Fed. R. Civ. P. 11(b)(3) and 11(b)(4) and Motion for Sanctions and DENIES WITHOUT PREJUDICE Defendants request for their reasonable expenses, including attorneys fees and costs, incurred in responding to the Motion, by Magistrate Judge Scott T. Varholak on 2/1/2018. (jgonz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-02480-WJM-STV
GILBERT T. TSO,
Plaintiff,
v.
REBECCA MURRAY (a.k.a. TSO);
TANYA AKINS;
SHERR PUTTMANN AKINS LAMB P.C.;
JEANNIE RIDINGS;
KILILIS RIDINGS & VANAU, P.C.;
RUSSELL M. MURRAY;
DENA MURRAY;
JOANNE JENSEN;
RICHARD F. SPIEGLE, PSY.D;
DENVER DISTRICT COURT;
DENVER DEPARTMENT OF HUMAN SERVICES;
CITY AND COUNTY OF DENVER; and
COLORADO DEPARTMENT OF HUMAN SERVICES, a governmental unity or political
subdivision of the STATE OF COLORADO,
Defendants.

ORDER
Entered By Magistrate Judge Scott T. Varholak
This matter is before the Court on Plaintiff’s Complaint re: ECF #135 Pursuant to
Fed. R. Civ. P. 11(b)(3) and 11(b)(4) and Motion for Sanctions (the “Motion”) [#268], 1
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The Motion is styled, in part, as a “Complaint” and references potential claims for “the
torts of libel and defamation.” [#268 at ¶ 15] In Plaintiff’s Reply, however, he clarifies
that, through the Motion, “Plaintiff is now seeking redress and sanctions against
defendants [ ] solely for violations of Fed. R. Civ. P. 11(b)(3) and Rule 11(b)(4). [#271
at ¶ 6] In the instant Order, the Court thus only addresses the Motion’s request for
sanctions pursuant to Federal Rule of Civil Procedure 11.

which was referred to this Court [#269].

Defendants Rebecca Murray, Russell M.

Murray, Dena Murray, and Joanne Jensen (collectively, “Defendants”) responded to the
Motion [#270], and Plaintiff filed a reply in support of the Motion [#271]. This Court has
carefully considered the Motion and related briefing, the entire case file, the applicable
case law, and has determined that oral argument would not materially assist in the
disposition of the instant Motion. For the following reasons, the Court DENIES the
Motion and DENIES WITHOUT PREJUDICE Defendants’ request for their reasonable
expenses, including attorney’s fees and costs, incurred in responding to the Motion.
I.

Plaintiff’s Motion for Sanctions Pursuant to Rule 11
Through the Motion, Plaintiff “moves this Court to sanction and to strike

[Defendants’] July 7, 2017 Motion to Dismiss [ECF #135] pursuant to [alleged] violations
of Fed. R. Civ. P. 11(b)(3) and 11(b)(4).” [#268 at 1-2] More specifically, Plaintiff takes
issue with the following portion of Defendants’ Motion to Dismiss Plaintiff’s Amended
Complaint:
Plaintiff falsely alleges on or around May 26, 2011, Rebecca Murray,
“aided by Defendants R.M. Murray, D. Murray, and Jensen . . . absconded
with Plaintiff’s offspring . . . the minor child’s whereabouts unknown to
Plaintiff for at least three (3) consecutive days.” [#120] at ¶ 50.4
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This allegation is factually unsupported and harassing. If this allegation
had merit, then Rebecca Murray would not have been declared the
residential parent for child custody purposes in the Illinois domestic
relations proceedings, which has not been modified in the Colorado
domestic relations proceedings.

[#135 at 5] Plaintiff argues that Defendants’ contention that Plaintiff “falsely allege[d]”
this allegation is unsupported and amounts to an accusation that Plaintiff “is a liar and
has made a false representation to this Honorable Court.” [#268 at ¶¶ 12, 13] Plaintiff
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contends that resolution of his Motion turns on whether Defendants’ statement is
“backed and supported by facts and evidence the defendants can produce that would
disprove Plaintiff’s statements presented in ¶ 50 of his Verified Complaint [ECF #120].” 2
[#271 at ¶ 5]
As relevant here, Federal Rule of Civil Procedure 11(b) provides that, by
presenting a written paper to the Court, an attorney “certifies that to the best of the
person’s knowledge, information and belief, formed after an inquiry reasonable under
the circumstances” the factual contentions (and denials of factual contentions) made in
the written paper have evidentiary support. Fed. R. Civ. P. 11(b)(3)-(4). If the Court
determines that Rule 11(b) has been violated, “the court may impose an appropriate
sanction on any attorney, law firm, or party that violated the rule or is responsible for the
violation.” Fed. R. Civ. P. 11(c)(1). “In deciding whether to impose Rule 11 sanctions, a
district court must apply an objective standard; it must determine whether a reasonable
and competent attorney would believe in the merit of an argument.” Dodd Ins. Servs.,
Inc. v. Royal Ins. Co. of Am., 935 F.2d 1152, 1155 (10th Cir. 1991). In ruling on a
motion for sanctions pursuant to Rule 11(c), “the court may award to the prevailing party
the reasonable expenses, including attorney’s fees, incurred for the motion.” Fed. R.
Civ. P. 11(c)(2).
2

Paragraph 50 of the Second Amended Complaint states in full:
On or around May 26, 2011, without Plaintiff’s consent defendant Rebecca
[Murray], aided by defendants R.M. Murray, D. Murray and Jensen, and
presumably with the legal advice of defendants Ridings and KRV PC,
absconded with Plaintiff’s offspring (the couple’s minor child, then at the
age of 3 years and 10 months) from Wauconda, Illinois—the minor child’s
whereabouts unknown to Plaintiff for at least three (3) consecutive days.
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Here, Plaintiff’s Motion focuses on whether Defendants have a valid Rule 11
basis for their contention that Plaintiff “falsely allege[d]” that Defendant Rebecca Murray,
aided by Defendants R.M. Murray, D. Murray, and Jensen, “absconded with Plaintiff’s
offspring . . . the minor child’s whereabouts unknown to Plaintiff for at least three (3)
consecutive days.” [#135 at 5] In their opposition to the Motion, Defendants argue that
this contention is supported by the findings of the Circuit Court for the Nineteenth
Judicial Court for Lake County, Illinois (the “Illinois Court”) in its Judgment for
Dissolution of Marriage, entered in the marriage dissolution proceedings between
Plaintiff and Defendant Rebecca Murray. [#270 at 5-8 (citing #270-1)] In particular,
Defendants highlight the Illinois Court’s findings that:
•

“At the time Rebecca departed, no divorce case had been filed, and there
were no Court orders or automatic stays in effect preventing Rebecca
from taking [the child] with her to Colorado.” [#270-1 at ¶ 29]

•

“[T]he evidence is clear that Rebecca had no intention of concealing [the
child] from [Plaintiff], that [Plaintiff] knew where Rebecca and [the child]
were going, and that contact between [the child] and [Plaintiff] was
reestablished within a reasonable time.” [Id.]

•

“[Plaintiff’s] contention that Rebecca’s initial removal of [the child] was
kidnapping, abduction, or even improper, is unsupported.” [Id. at ¶ 31]

The Court agrees that the Illinois Court’s Judgment provided Defendants with an
objectively reasonable basis for their contention. The Illinois Court found that there was
no support for Plaintiff’s contention that Rebecca Murray’s removal of the child was
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improper and that Plaintiff knew where Rebecca Murray was taking the child when she
left. [Id. at ¶¶ 29, 31] Although Plaintiff cites to evidence in support of his version of
events [#268 at ¶ 6], a motion for Rule 11 sanctions is not the proper mechanism for
resolving factual disputes. See, e.g., Profita v. Puckett, No. 15-CV-01237-DME-CBS,
2017 WL 1491003, at *27 (D. Colo. Apr. 25, 2017), report and recommendation
adopted, 2017 WL 4225451 (D. Colo. June 6, 2017) (“Rule 11 is meant to penalize a
lawyer for irresponsible and abusive tactics; it is not an appropriate vehicle for resolving
legal or factual disputes.” (internal quotation omitted)); 5A Wright, Miller, et al., FED.
PRAC. & PROC. § 1335 (3d ed.) (“Rule 11 should not be used to raise issues as to the
legal sufficiency of a claim or defense that more appropriately can be disposed of by a
motion to dismiss, a motion for judgment on the pleadings, a motion for summary
judgment, or a trial on the merits.”) Thus, to the extent the Motion asks the Court to
resolve these factual disputes between the parties, the Court declines the invitation.
Moreover, Plaintiff’s argument largely relies upon semantics—arguing (1) that
Plaintiff’s allegation that Rebecca Murray “absconded” with the minor child is not
equivalent to an allegation that she “kidnapped” or “abducted” the child as Defendants
allegedly argue in their response to the Motion [#271 at ¶ 2]; and (2) that Defendants’
contention that the allegation was false amounts to an allegation that Plaintiff is a liar
[#268 at ¶ 12].

Plaintiff’s “dispute over semantics does not provide a basis for

sanctions” under Rule 11. McNeely v. Chappell, No. 2:12-CV-0931-EFB P, 2013 WL
4004526, at *2 (E.D. Cal. Aug. 5, 2013); see also Ringsred v. City of Duluth, 187 F.
Supp. 2d 1141, 1167 (D. Minn. 2001), aff'd, 39 F. App'x 480 (8th Cir. 2002) (denying

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motion for Rule 11 sanctions where the defendant’s arguments “besp[oke] of semantics,
and not of untruths”).
Plaintiff also complains that Defendants “refus[ed] to support their statements
with affidavits.” [#271 at ¶ 7; see also #268 at ¶ 12] As this Court previously explained,
Rule 11 does not require pleadings to be verified or accompanied by affidavits. [See
#254] To the contrary, Rule 11(a) expressly provides that “[u]nless a rule or statute
specifically states otherwise, a pleading need not be verified or accompanied by an
affidavit.”
For the foregoing reasons, Plaintiff’s Motion is DENIED.
II.

Defendants’ Request for Reasonable Expenses
In their response to the Motion, Defendants “request the Motion be denied and

that the Court award them their reasonable expenses, including attorneys’ fees and
costs, incurred for having to respond to the Motion.” [#270 at 11] As Defendants
acknowledge [id. at 12 n.4], pursuant to Judge Martinez’s Practice Standards, “[a]ll
requests for the Court to take any action, make any type of ruling, or provide any type of
relief must be contained in a separate, written motion.” Practice Standard III(B)
(emphasis in original). Defendants’ request for expenses—contained in its response—
“does not fulfill this Practice Standard.” Id. Given this procedural deficiency, the Court
does not address the merits of Defendants’ request and instead DENIES WITHOUT
PREJUDICE Defendants’ request for reasonable expenses, including attorneys’ fees
and costs.

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DATED: February 1, 2018

BY THE COURT:

s/Scott T. Varholak__________
United States Magistrate Judge

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