Fedynich et al v. Inn Between of Longmont, The et al

Filing 42

ORDER granting in part and denying in part 35 Defendants Motion to Strike Plaintiffs Answer to Defendants Motion to Dismiss under Fed. R. Civ. P. 12(b)(6) ; denying without prejudice 37 Plaintiffs Motion for Appointment of Counsel; denying without prejudice 38 Plaintiffs Motion for Extension of Time to Add Defendants and Amend Claim, and Motion for Appointment of Counsel for Pro Se Litigants, by Magistrate Judge Scott T. Varholak on 5/3/2018. (jgonz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 17-cv-01952-WJM-STV

ELIZABETH FEDYNICH and
NICOLE FEDYNICH,
Plaintiffs,
v.
THE INN BETWEEN OF LONGMONT,
Defendant.

ORDER
Entered By Magistrate Judge Scott T. Varholak
This matter is before the Court on (1) Defendant’s Motion to Strike Plaintiffs’
Answer to Defendant’s Motion to Dismiss under Fed. R. Civ. P. 12(b)(6) [#35]
(“Defendant’s Motion to Strike”); (2) Plaintiffs’ Motion for Appointment of Counsel [#37]
(“Plaintiffs’ Motion for Counsel”); and (3) Plaintiffs’ Motion for Extension of Time to Add
Defendants and Amend Claim, and Motion for Appointment of Counsel for Pro Se
Litigants [#38] (“Plaintiffs’ Motion for Extension”). All three motions have been referred
to this Court. [#36, 39, 40]
I.

Defendant’s Motion to Strike
Defendant’s Motion to Strike seeks to strike Plaintiffs’ Response to Defendant’s

Motion to Dismiss [#34] (“Plaintiffs’ Response”), arguing that (1) Plaintiffs’ Response

was not timely filed; and (2) Plaintiffs’ Response failed to comply with the page
limitations set forth in Judge Martinez’s Practice Standards.
At the March 15, 2018 Scheduling Conference [#32], the Court granted Plaintiffs
an extension until April 16, 2018 to file their response to Defendant’s Motion to Dismiss
[#23]. As reflected by both the docket entry and the Clerk of Court’s stamp applied to
Plaintiffs’ Response, Plaintiffs’ Response was filed with the Clerk of Court on April 16,
2018.

In arguing that Plaintiffs’ Response was filed one day after the deadline,

Defendant appears to refer to the date that Plaintiffs’ Response was docketed by the
Clerk of Court. Plaintiffs’ Response thus was timely filed.
Judge Martinez’s Practice Standards establish a 15-page limitation for motions to
dismiss and responses to motions to dismiss.

The Practice Standards state that

exceptions to this limitation will be made “only in exceptional circumstances” and
advises that “[p]ermission to file such papers of greater length shall be sought by way of
an appropriate motion filed in advance of the deadline for filing the brief.” Pursuant to
D.C.COLO.LCivR 10.1(e), all pleadings and documents filed in the District of Colorado
shall be double-spaced.

Here, Plaintiffs’ Response is 36 pages in length and a

significant portion of Plaintiffs’ Response is single-spaced. The Court thus agrees with
Defendant that Plaintiffs’ Response constitutes a significant violation of both the Local
Rules and Judge Martinez’s Practice Standards. The Court notes that the violation is
somewhat mitigated by Plaintiffs’ inclusion of long quotations from documents. It is also
worth noting that, as Defendant acknowledges, Defendant’s Motion to Dismiss also

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violated Judge Martinez’s page limitations [#35 at 4 n.1], though admittedly not to the
same extent as Plaintiffs’ Response.
Under the circumstances and particularly given Plaintiffs’ pro se status, the Court
finds that striking Plaintiffs’ Response is too harsh a sanction for their violation of the
formatting requirements and would needlessly delay resolution of Defendant’s pending
Motion to Dismiss.

Perhaps recognizing this, Defendant’s Motion to Strike, in the

alternative, requests an extension of time to file its reply.

The Court finds that an

extension coupled with leave to file a reply in excess of the normal page limitation
provides Defendant an adequate remedy for Plaintiffs’ failure to comply with Judge
Martinez’s page limitations and D.C.COLO.LCivR 10.1.
Accordingly, the Motion to Strike [#35] is DENIED to the extent it seeks to strike
Plaintiffs’ Response, but is GRANTED to the extent it seeks an extension of time for
Defendant to file its reply in support of the Motion to Dismiss.

The deadline for

Defendant to file a reply in support of the Motion to Dismiss is extended until May 16,
2018. Any reply filed by Defendant shall not exceed 15 pages in length.
The parties are advised that future failures to comply with the Federal
Rules of Civil Procedure, the Local Rules of the District of Colorado, or Judge
Martinez’s Practice Standards may result in filings being stricken.

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II.

Plaintiffs’ Motion for Counsel
Plaintiffs’ Motion for Counsel seeks the appointment of pro bono counsel. 1 [#37]

The determination of whether to appoint counsel in a civil case is left to the sound
discretion of the trial court. Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995).
In deciding whether to request counsel for a civil litigant, the district court should
evaluate “the merits of a [litigant’s] claims, the nature and complexity of the factual
issues, and the [litigant’s] ability to investigate the facts and present his claims.” Hill v.
Smithkline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (citations omitted).
Under Local Rule 15(f), the Court applies the following factors and considerations in
reviewing a motion for appointment of counsel in a civil action: 1) the nature and
complexity of the action; 2) the potential merit of the pro se party’s claims; 3) the
demonstrated inability of the unrepresented party to retain an attorney by other means;
and 4) the degree to which the interests of justice will be served by appointment of
counsel, including the benefit the Court may derive from the assistance of the appointed
counsel. D.C.COLO.LAttyR 15(f). “The burden is on the applicant to convince the court
that there is sufficient merit to his claim to warrant the appointment of counsel.” Hill,
393 F.3d at 1115 (citation omitted). “Only in those extreme cases where the lack of
counsel results in fundamental unfairness will the district court’s decision be
overturned.” Id. at 1115 (citation omitted).
1

Plaintiffs’ Motion for Extension also includes a request for the appointment of counsel.
[#38] The Court considers the arguments related to the appointment of counsel
contained in Plaintiffs’ Motion for Extension as part of its consideration of Plaintiffs’
Motion for Counsel. Plaintiffs filed two previous motions for the appointment of counsel
prior to this matter being drawn to a presiding judge; both were denied as premature.
[#6, 13]
4

This Court has considered Plaintiffs’ Motion for Counsel in light of the factors
identified in Hill and D.C.COLO.LAttyR 15(f).

The following three causes of action

asserted in Plaintiffs Amended Complaint remain in this case: (1) Failure to
Accommodate under the Fair Housing Act. (2) retaliation; and (3) breach of the parties’
lease agreement. 2 [#16, 17] The Court finds that the legal issues and facts presented
in the pleading are not uniquely complex. 3 The Court notes that, with respect to these
claims,

Plaintiffs—without

the

assistance

of

counsel—successfully

articulated

allegations sufficient to address the deficiencies identified in Magistrate Judge
Gallagher’s August 18, 2017 Order directing Plaintiffs to file an Amended Complaint.
[See #7, 17]
At this time, it is not clear whether the merits of Plaintiffs’ claims are sufficient for
the Court to request counsel to volunteer to represent them. Defendant has filed a
Motion to Dismiss [#23] that is not yet fully briefed. If the Motion to Dismiss is denied
and the case proceeds toward trial, the Court will at that point consider a renewed
motion for counsel.

2

The Court previously dismissed one of the causes of action asserted in the Amended
Complaint—a claim based upon Defendant’s alleged disclosure of private information—
as legally frivolous. [#17 at 3-5]
3
In the Motion for Extension, Plaintiffs argue that they “are attempting to add claims in a
joinder with a State counterclaim” and “seeking to add parties as Defendants which may
include the State of Colorado for violation [of] Plaintiffs’ 14th Amendment rights.” [#38 at
2] For purposes of the instant motion, the Court considers only those claims and
defendants who are presently part of the litigation. Moreover, as discussed in more
detail below in the context of Plaintiffs’ Motion for Extension, Plaintiffs’ statements are
too vague, speculative, and untethered to the current allegations in the Amended
Complaint to allow the Court to take them into consideration.
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With respect to Plaintiffs’ ability to obtain an attorney by other means, Plaintiffs
inform the Court that they have attempted to contact no less than twenty attorneys,
including “all legal clinics in the Denver/Boulder area” but have been unable to locate
counsel who will accept the case without the payment of a retainer. [#37 at 2] Although
this factor supports Plaintiffs’ request for counsel, it does not sufficiently outweigh the
other factors discussed herein which do not support the appointment of counsel at this
time.
With regard to their ability to litigate their claims pro se, Plaintiffs contend that, as
residents of a homeless shelter, they “are granted very little time to work on this case”
and “are required to use the public library which is not always convenient or hours
available.” [#38 at 2] While the Court is sympathetic to these challenges, they do not
distinguish Plaintiffs from most other pro se litigants who must litigate their claims while
incarcerated or while addressing the demands of work and family and who also
generally must rely upon public libraries or prison libraries for their legal research.
Moreover, Plaintiffs have demonstrated an ability to actively participate in the litigation,
by attending the Scheduling Conference and filing documents with the Court, including
motions for an extension of time and a response to Defendant’s Motion to Dismiss. The
Court’s ability to reconsider the appointment of counsel after the Motion to Dismiss
stage also mitigates Plaintiffs’ concern that counsel would be better suited to prosecute
their claims.

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Weighing these factors, the Court cannot conclude, at this time, that the interests
of justice would be served by the appointment of pro bono counsel.

Accordingly,

Plaintiffs Motion for Counsel [#37] is DENIED WITHOUT PREJUDICE.
III.

Plaintiffs’ Motion for Extension
Plaintiffs’ Motion for Extension seeks “a 45 to 60 day extension on the filing of a

joinder, adding Defendants and amending this claim.”4 [#38 at 2] The Scheduling
Order set April 26, 2018 as the deadline for the joinder of parties and amendment of
pleadings.

[#33 at 6]

Pursuant to Federal Rule of Civil Procedure 16(b)(4), the

Scheduling Order “may be modified only for good cause and with the judge’s consent.”
“Demonstrating good cause under the rule ‘requires the moving party to show that it has
been diligent in attempting to meet the deadlines, which means it must provide an
adequate explanation for any delay.’” Strope v. Collins, 315 F. App’x 57, 61 (10th Cir.
2009) (quoting Minter v. Prime Equip. Co., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006));
see Lehman Bros. Holdings Inc. v. Universal Am. Mortg. Co., 300 F.R.D. 678, 681 (D.
Colo. 2014). “In practice, this standard requires the movant to show the scheduling
deadlines cannot be met despite [the movant’s] diligent efforts.” Gorsuch, Ltd., B.C. v.
Wells Fargo Nat. Bank Ass’n, 771 F.3d 1230, 1240 (10th Cir. 2014) (quotations
omitted). “Rule 16’s good cause requirement may be satisfied, for example, if a plaintiff
learns new information through discovery or if the underlying law has changed.” Id. On

4

To the extent the Motion for Extension also seeks the appointment of pro bono
counsel, it is DENIED WITHOUT PREJUDICE for the same reasons articulated above
with regard to Plaintiffs’ Motion for Counsel.
7

the other hand, “[i]f the plaintiff knew of the underlying conduct but simply failed to raise
[ ] claims, [ ] the claims are barred.” Id.
Here, Plaintiffs contend that they “are attempting to add claims in a joinder with a
State counterclaim” and “seeking to add parties as Defendants which may include the
State of Colorado for violation [of] Plaintiffs’ 14th Amendment rights.” [Id. at 2] Plaintiffs’
contentions are too vague and speculative, however, to allow the Court to meaningfully
consider them—e.g., Plaintiffs do not provide information regarding the specific
defendants or claims it seeks to add. More importantly, Plaintiffs offer no explanation
for why, despite diligent efforts, they were unable to comply with the deadline set in the
Scheduling Order—e.g., there is no indication of facts previously unknown to Plaintiffs
or a change in the law. Furthermore, based upon the limited information provided, it is
not clear that the proposed amendments are appropriate.

Plaintiffs cite to no

authority—and this Court is aware of none—that allows for the “joinder” of state and
federal cases. See Aparicio v. Wells Fargo Bank, N.A., No. 2:11-CV-00495, 2011 WL
5325578, at *7 (D. Utah Oct. 17, 2011), report and recommendation adopted, 2011 WL
5325523 (D. Utah Nov. 3, 2011) (“[T]he state court action is not an action before this
court and therefore the court has no authority to consolidate the state court action into
this federal action.”). Nor is it clear to the Court that Plaintiffs’ proposed claim(s) against
the State of Colorado “aris[e] out of the same transaction, occurrence, or series of
transactions or occurrences” such that joinder is appropriate under Federal Rule of Civil
Procedure 20.

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Accordingly, Plaintiffs’ Motion for Extension is DENIED without prejudice to
Plaintiffs filing a motion for leave to amend the complaint that complies with the
requirements of Federal Rules of Civil Procedure 15 and 16.

DATED: May 3, 2018

BY THE COURT:

s/Scott T. Varholak
s
United States Magistrate Judge

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