Tso v. Murray et al

Filing 153

ORDER denying 151 Motion for Sanctions by Magistrate Judge Scott T. Varholak on 7/19/2018. (jgonz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-02523-PAB-STV
GILBERT T. TSO,
Plaintiff,
v.
REBECCA MURRAY, a/k/a Tso,
TANYA AKINS,
SHERR PUTTMANN AKINS LAMB PC,
JEANNIE RIDINGS,
KILILIS RIDINGS & VANAU PC,
RUSSELL MURRAY,
DENA MURRAY,
JOANNE JENSEN,
RICHARD F. SPIEGLE,
ELIZABETH A. STARRS,
DAVID P. BRODSKY,
CHARLES D. JOHNSON,
ROSS B.H. BUCHANAN,
DAVID H. GOLDBERG,
MONICA JACKSON, individual and official capacity,
LARA DELKA, individual and official capacity,
CHRISTIAN MADDY, individual and official capacity,
JENNIFER ADELMANN, individual and official capacity,
DON MARES, official capacity,
BARRY PARDUS, official capacity,
MICHAEL DIXON, official capacity,
CYNTHIA COFFMAN, official capacity,
19TH JUDICIAL CIRCUIT COURT, LAKE CO., IL,
2ND DISTRICT COURT, DENVER COUNTY, CO,
DENVER DEPARTMENT OF HUMAN SERVICES,
COLORADO DEPARTMENT OF HUMAN SERVICES,
CITY AND COUNTY OF DENVER, and
COLORADO DIVISION OF MOTOR VEHICLES,
Defendants.
ORDER

This matter is before the Court on Plaintiff’s Complaint re: ECF #103 Pursuant to
Fed. R. Civ. P. 11(b)(1), (b)(3) and (b)(4) and Motion for Sanctions (the “Motion”)
[#151], 1 which was referred to this Court [#152]. Through the Motion, Plaintiff seeks
Rule 11 sanctions against Defendants City and County of Denver, Denver Department
of Human Services, Monica Jackson, Lara Delka, Christian Maddy, Jennifer Adelmann,
and Don Mares (collectively, “Denver Defendants”) and their attorney Robert A. Wolf
based upon arguments raised in Denver Defendants’ Motion to Dismiss (the “Motion to
Dismiss”) [#103]. The Motion also argues that a motion for extension of time filed on
behalf of Denver Defendants and Colorado Defendants2 (the “Motion for Extension of
Time”) [#130] was frivolous and vexatious and thus violated Rule 11(b)(1). This Court
has carefully considered the Motion, the entire case file, the applicable case law, and
has determined that neither additional briefing nor oral argument would materially assist
in the disposition of the instant Motion. 3 For the following reasons, the Court DENIES
the Motion.
I.

LEGAL STANDARD
Federal Rule of Civil Procedure 11(b) provides:
By presenting to the court a pleading, written motion, or other paper-whether by signing, filing, submitting, or later advocating it—an attorney or

1

The Motion is styled, in part, as a “Complaint” and references potential claims for “the
torts of libel and defamation.” [#151 at ¶ 27] The relief requested, however, does not
seek leave to amend or supplement the operative complaint to add claims for libel and
defamation. [Id. at 13] In the instant Order, the Court thus addresses only the Motion’s
request for sanctions pursuant to Federal Rule of Civil Procedure 11.
2
As used herein, “Colorado Defendants” refers to Defendants Elizabeth Starrs, Ross
B.H. Buchanan, David Goldberg, Barry Pardus, Michael Dixon, and Cynthia Coffman.
3
Although Defendants have not yet filed their response to the Motion, “a judicial officer
[may] rul[e] on a motion at any time after it is filed.” D.C.COLO.LCivR 7.1.
2

unrepresented party certifies that to the best of the person's knowledge,
information, and belief, formed after an inquiry reasonable under the
circumstances:
(1)
it is not being presented for any improper purpose, such as
to harass, cause unnecessary delay, or needlessly increase the cost of
litigation;
(2)
the claims, defenses, and other legal contentions are
warranted by existing law or by a nonfrivolous argument for extending,
modifying, or reversing existing law or for establishing new law;
(3)
the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support after a
reasonable opportunity for further investigation or discovery; and
(4)
the denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably based on belief
or a lack of information.
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).

“Rule 11 sanctions are an extraordinary

remedy . . . intended to discourage frivolous litigation, not to punish litigants.”
Greeley Pub. Co. v. Hergert, 233 F.R.D. 607, 611 (D. Colo. 2006).
II.

ANALYSIS
The Motion asserts the following alleged violations of Rule 11:

(1) Denver

Defendants’ assertion of a “domestic relations exception defense” in their Motion to
Dismiss is frivolous and vexatious and thus violates Rule 11(b)(1); (2) Denver

3

Defendants’ assertion of res judicata in their Motion to Dismiss is frivolous and
vexatious and thus violates Rule 11(b)(1); (3) the motion for extension of time filed by
Denver Defendants and Colorado Defendants was vexatious and thus violated Rule
11(b)(1); and (4) statements in Denver Defendants’ Motion to Dismiss purportedly
“characterizing [ ] Plaintiff as a ‘deadbeat’ refusing to support his minor child” are
patently false and violate Rule 11(b)(3) and 11(b)(4).

The Court addresses each

argument in turn. 4
A. Denver Defendants’ Assertion of the Domestic Relations Exception
In their Motion to Dismiss, Denver Defendants argue that the Court “should not
exercise jurisdiction over the purely state issue [raised by Plaintiff’s complaint involving]
whether Plaintiff owes and should pay child support,” because Federal Courts “lack
subject matter jurisdiction over all domestic relations matters.” [#103 at 6 (citing In re
Burrus, 136 U.S. 586, 593-94 (1890))] Plaintiff contends that this argument is frivolous
and vexatious, because Denver Defendants raised this same argument in a related
case Plaintiff filed against Denver Defendants, Tso v. Murray, No. 16-cv-02480-WJM4

As a preliminary matter, the Court notes that Plaintiff’s Motion appears to be
procedurally deficient. Pursuant to Rule 11(c)(2), any motion seeking sanctions for
violations of Rule 11(b) “must be served under [Federal Rule of Civil Procedure] 5” and
“must not be filed or be presented to the court if the challenged paper, claim, defense,
contention, or denial is withdrawn or appropriately corrected within 21 days after
service.” There is no representation in the Motion that it was ever served upon Denver
Defendants and Colorado Defendants in a manner that complies with Rule 5. Instead,
the Motion states only that “[b]etween May 14 through 18, 2018, Plaintiff notified all
Defendants’ counsel of his intent to pursue Rule 11 sanctions for cause” and that he
“informed attorney Wolf via email and USPS certified mail, of a forthcoming Rule 11
Sanction.” [#151 at 4, 14] Because the Court finds that the Motion lacks substantive
merit, the Court finds it unnecessary to resolve this potential procedural defect. Plaintiff
is cautioned, however, that future failures to comply with procedural requirements may
result in filings being stricken or summarily denied.
4

STV, (the “16-2480 Action”) and “the issue of the ‘domestic relations exception’ had
virtually no weight or affect whatsoever on the ruling and judgment” of dismissal in that
case.

[#151 at 8]

Plaintiff contends that Denver Defendants’ domestic relations

exception argument thus is “issue precluded.” [Id. at 9] Plaintiff, however, fails to
provide any citation to, or discussion of, the Court’s purported consideration of the
applicability of the domestic relations exception in the 16-2480 Action. Based upon this
Court’s review of the order of dismissal in the 16-2480 Action, it appears that the Court
there did not directly address the domestic relations exception or the authority related
thereto cited in the Motion to Dismiss filed in this action. Nor has Plaintiff cited any
other authority establishing that Denver Defendants’ invocation of the domestic relations
exception is patently frivolous.
Accordingly, the Motion is DENIED to the extent it seeks the imposition of
sanctions based upon Denver Defendants’ assertion of the domestic relations exception
to the Court’s jurisdiction in their Motion to Dismiss. 5
B. Denver Defendants’ Assertion of Res Judicata
Plaintiff also contends that Denver Defendants’ assertion of res judicata with
respect to Plaintiff’s Fifth Amendment claim is frivolous and vexatious. [#151 at 9]
Specifically, Plaintiff contends that Federal Rule of Civil Procedure 41(b) “clearly
5

The Court reserves consideration of—and expresses no opinion here regarding—the
merits of Denver Defendants’ argument regarding the application of the domestic
relations exception, which will be considered as part of the Court’s resolution of Denver
Defendants’ Motion to Dismiss. See 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.”)
5

establishes that an involuntary dismissal for lack of jurisdiction is not an adjudication on
the merits” thereby purportedly “barring a res judicata defense by [Denver] Defendants
against [ ] Plaintiff’s new claims under the Fifth Amendment.” [Id.] Contrary to Plaintiff’s
contention, however, the Tenth Circuit has held that “[t]here is an important exception to
the general rule that a final adjudication on the merits is a prerequisite to issue
preclusion.” Park Lake Res. Ltd. Liab. Co. v. U.S. Dep't Of Agr., 378 F.3d 1132, 1136
(10th Cir. 2004). In particular, the Tenth Circuit recognized that “[i]t has long been
acknowledged that ‘[t]he principles of res judicata apply to questions of jurisdiction as
well as to other issues.’” Id. (quoting Am. Surety Co. v. Baldwin, 287 U.S. 156, 166
(1932)). As a result, “dismissals for lack of jurisdiction preclude relitigation of the issues
determined in ruling on the jurisdiction question.”

Id. (internal quotations omitted).

Dismissal based upon a lack of jurisdiction thus does not necessarily preclude the
assertion of a res judicata defense.
Accordingly, the Motion is DENIED to the extent it seeks the imposition of
sanctions based upon Denver Defendants’ assertion in this case of a res judicata
defense with regard to Plaintiff’s Fifth Amendment claim. 6
C. The Motion for Extension of Time
On June 7, 2018, Denver Defendants and Colorado Defendants jointly filed the
Motion for Extension of Time, which argued that the Court should resolve Plaintiff’s
motion to amend his complaint [#117] prior to requiring the defendants to file their
6

The Court reserves consideration of—and expresses no opinion here regarding—the
merits of Denver Defendants’ argument regarding the application of res judicata to
Plaintiff’s claims, which will be considered as part of the Court’s resolution of Denver
Defendants’ Motion to Dismiss.
6

replies in support of their motions to dismiss, because “[i]f the Defendants file reply
briefs and the Court later grants [Plaintiff’s] motion to amend, substantial legal
resources will have been wasted” as the amended complaint may moot the pending
motions to dismiss. [Id. at 3] The Court granted the Motion for Extension of Time in
part, providing Defendants an extension of time to file replies in support of their motions
to dismiss. [#134] At the June 19, 2018 Status Conference, the Court determined that
the briefing on the motions to dismiss should not be stayed indefinitely and ordered that
the motions to dismiss and motion to amend should be briefed concurrently. [#139 at
33]
Plaintiff now argues that the Motion for Extension of Time was vexatious and
violated Rule 11(b). [#151 at 9-11] The basis for Plaintiff’s contention is unclear, but he
appears to argue that the Motion for Extension of Time was not made in good faith
because Denver Defendants and Colorado Defendants (1) did not adequately confer in
advance of filing their motions to dismiss or the Motion for Extension of Time; (2)
incorrectly identified the deadline for their replies in support of their motions to dismiss
in the Motion for Extension of Time; (3) failed to provide good cause for their request to
delay briefing on the motions to dismiss until after a ruling on the motion to amend; and
(4) made an argument regarding the demands on their time required by the various
briefing schedules in this and the 16-2480 Action, even though they should have been
aware of the schedules and Plaintiff faced similar demands. [Id.] Plaintiff provides no
authority finding a Rule 11 violation based upon any of these grounds, and the Court
finds no justification to do so here, particularly given that the Motion for Extension of

7

Time was granted in part.

Although the Court ultimately determined that judicial

economy was best served by ordering concurrent briefing on the motions to dismiss and
Plaintiff’s motion to amend, there is merit to the concern expressed in the Motion for
Extension of Time that, if the motion to amend ultimately is granted, Defendants may
need to expend additional resources revising their motions to dismiss. There thus is no
indication that the Motion for Extension of Time was brought for “any improper purpose”
or to “unnecessarily delay” these proceedings.
Accordingly, the Motion is DENIED to the extent it seeks a finding that the Motion
for Extension of Time violated Rule 11(b)(1).
D. Denver Defendants’ Statements Regarding Child Support Obligations
In the operative complaint, Plaintiff alleges that Denver Defendants violated the
Takings Clause of the Fifth Amendment “by the taking of his property, in the form of
[garnishment of] wages and assets, without equitable compensation.”

[#96 at 26]

Plaintiff further alleges that Denver Defendants “seized for public use the federal
incentive payments made possible from the taking of Plaintiff’s property through the
alleged unlawfully and fraudulently obtained [child] support order.” [Id.]
As part of their argument for why Plaintiff’s Fifth Amendment Takings Clause
claim should be dismissed, Denver Defendants argue that “[t]he purpose of the Takings
Clause is to prevent the government from ‘forcing some people alone to bear public
burdens which, in all fairness and justice, should be borne by the public as a whole’”
and thus that the Takings Clause is inapplicable because this case “does not involve
Plaintiff bearing any public burden.” [#103 at 10] Denver Defendants further explain:

8

This case is about nothing more than Plaintiff being required, under state
law, to pay child support for the purpose of supporting his child. The
public, as a whole, should not be supporting his child, that is, there is no
public burden involved, no burden that should be borne by the public as a
whole. Consequently, the Fifth Amendment Takings Clause is not invoked
by a child support order or mechanisms put in place by states to enforce
such orders. Plaintiff, along with his family and his wife and his wife’s
family should be supporting his child.
[Id.]
Plaintiff interprets this passage as an allegation by Denver Defendants that
Plaintiff (and his family) are not “supporting his child” and that the child instead is being
supported by “[t]he public.” [#151 at 11]

Plaintiff thus contends that this passage

“characterize[es] [ ] Plaintiff as a ‘deadbeat’ refusing to support his minor child.” [Id.]
Plaintiff argues that such an allegation is wholly unsupported in fact and is directly
contradicted by Plaintiff’s allegation in the operative complaint that “Plaintiff is not
receiving public assistance or welfare for the care of the minor child, nor to the best
knowledge of Plaintiff is the child’s mother receiving any public assistance or welfare for
same.” [#96 at 88]
The Court interprets this passage from Denver Defendants’ Motion to Dismiss
differently. Denver Defendants do not explicitly state that Plaintiff’s child is currently
receiving public support, and the Court does not understand them to be implying that
either. Instead, in the context of Denver Defendants’ argument that there is no public
burden involved, the Court understands Denver Defendants to state only that the child’s
parents (and their family) “should” bear the responsibility for supporting the child and
thus that it “should not be” the responsibility of the public, as a whole, to support the

9

child. Denver Defendants argue that there thus is no “public burden” at stake and the
Fifth Amendment Takings Clause is not implicated. 7
Plaintiff’s request for sanctions based upon this passage of Denver Defendants’
Motion to Dismiss thus appears to be based upon a misunderstanding of the passage’s
intent, arguably resulting from Denver Defendants’ inartful drafting of the argument.
Rule 11, however, does not permit sanctions for "inartful pleading." Simpson v. Welch,
900 F.2d 33, 36 (4th Cir. 1990).
Accordingly, the Motion is DENIED to the extent it seeks the imposition of
sanctions based upon Denver Defendants’ argument regarding the applicability of the
Fifth Amendment Takings Clause.
III.

CONCLUSION

For the foregoing reasons, Plaintiff’s Motion is DENIED.

DATED: July 19, 2018

BY THE COURT:

s/Scott T. Varholak__________
United States Magistrate Judge

7

The Court reserves consideration of—and expresses no opinion here regarding—the
merits of Denver Defendants’ argument that the Fifth Amendment Takings Clause is not
implicated.
10