Opinion
Civil Action No. 20-cv-00176-PAB-NYW
07-10-2020
MARINA ANDREWS, Plaintiff, v. EATON METAL PRODUCTS, LLC, and TIM TRAVIS, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the court on Plaintiff Marina Andrews's ("Plaintiff" or "Ms. Andrews") "Petition to Amend Claim Due to Excusable Negligence" (the "Motion" or "Motion to Amend") [#48, filed May 26, 2020]. The undersigned considers the Motion pursuant to 28 U.S.C. § 636(b) and the Memorandum dated May 27, 2020 [#49]. This court concludes that oral argument will not materially assist in the resolution of this matter. Accordingly, having carefully reviewed the Motion and associated briefing, the docket, and applicable law, this court respectfully RECOMMENDS that the Motion to Amend be DENIED.
Because Local Rule of Civil Practice 72.3 defines "[d]ispositive motions" to include motions to amend, see D.C.COLO.LCivR 72.3(a), this court addresses the pending Motion in a Recommendation rather than in an Order.
BACKGROUND
Ms. Andrews, proceeding pro se, initiated this case on January 21, 2020, filing an Employment Discrimination Complaint against Defendants Eaton Metal Products, LLC ("Eaton Metal") and Tim Travis (collectively with Eaton Metal, "Defendants") alleging discrimination based on sex and disability related to her termination from employment with Eaton Metal. See generally [#1]. Specifically, Plaintiff alleges,
Because Ms. Andrews proceeds pro se, this court affords her papers and filings a liberal construction. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). But the court cannot and does not act as her advocate, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), and applies the same procedural rules and substantive law to Plaintiff as to a represented party, see Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir. 2008); Dodson v. Bd. of Cty. Comm'rs, 878 F. Supp. 2d 1227, 1236 (D. Colo. 2012).
I was fired after I did not disclose my pregnancy in the interview. They did not make accommodations for me [and] fired me due to 'accessive [sic] absences' related to pregnancy [and] car accident. I was not given paid time off or FMLA. I was given a b[a]d review and can not find work because of it.[Id. at 3]. She continues that Defendants "retaliated against my sons dad [sic] who also worked for company [and] fired him because of me." [Id. at 4].
On January 22, 2020, the Honorable Gordon P. Gallagher granted Ms. Andrews leave to proceed pursuant to 28 U.S.C. § 1915, and ordered the case drawn to a presiding judge. [#4]. Upon the filing of a Consent/Non-consent Form indicating all parties did not consent to magistrate judge jurisdiction, this case was reassigned to the Honorable Philip A. Brimmer, [#8], who referred the case to the undersigned Magistrate Judge. [#9]. On March 4, 2020, Defendants filed an Answer and Motion to Dismiss that is currently pending before the undersigned for a Recommendation. [#15; #18; #20]. The court held a Telephonic Status Conference in this matter on April 16, 2020, at which it set May 15, 2020 as the deadline for Plaintiff to respond to the pending Motion to Dismiss. [#28].
On May 8, 2020, Plaintiff sent the court an unsolicited e-mail message with the subject "Fwd: PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS." [#30-1]. The court advised Ms. Andrews that ex parte communications with the court are strictly prohibited, unless otherwise ordered, and directed the Clerk of the Court docket the email as Plaintiff's Response to the Motion to Dismiss. [#30]. Approximately two weeks later, on May 26, 2020, Plaintiff sent another unsolicited e-mail message, this time to the chambers of Magistrate Judge Gallagher, with an attachment titled "Petition to amend claim due to excusable negligence." [#44; #44-1]. Because this court had previously advised Ms. Andrews that she was not permitted to communicate directly with the court, see [#30], this court admonished Ms. Andrews for engaging in repeated ex parte communications and explained any request to the court must be made by motion. [#45].
The same day, May 26, 2020, Ms. Andrews filed the instant Motion to Amend, [#48], the first three pages of which had been attached to the e-mail message sent to Judge Gallagher. Compare [#44] with [#48 at 1-3]. At a Telephonic Status/Discovery Hearing held the next day, on May 27, 2020, the Parties agreed to stay discovery in this matter until a Recommendation is issued regarding Defendants' Motion to Dismiss and the court ordered Defendants respond to the Motion to Amend on a normal briefing schedule. [#50; #51]. Defendants filed a timely Response to the Motion to Amend on June 16, 2020, [#53], and Plaintiff did not Reply within the time contemplated by this District's Local Rules. See D.C.COLO.LCivR 7.1(d). The Motion is ripe for Recommendation and the court considers the Parties' arguments below.
ANALYSIS
This court has not yet held a Scheduling Conference in this matter and, thus, the undersigned has not entered a Scheduling Order specifying a deadline by which to amend pleadings. Indeed, the Parties agreed that the court should not set a schedule or hold a Scheduling Conference until after a Recommendation is issued regarding Defendants' Motion to Dismiss. [#28 at 2]. In the absence of such deadline, the court examines the Motion to Amend within the confines of Federal Rule of Civil Procedure 15(a) only. Baldwin v. Pelican Reef Mgmt., LLC, No. 18-cv-00586-PAB-NYW, 2018 WL 4372941, at *1 (D. Colo. May 10, 2018), report and recommendation adopted, 2018 WL 4368679 (D. Colo. May 29, 2018); see also Fernandez v. Bridgestone/Firestone, Inc., 105 F. Supp. 2d 1194, 1195 (D. Colo. 2000) (applying only Rule 15 when the deadline set for amendment in the Scheduling Order has not yet passed). Rule 15(a)provides that leave to amend "shall be freely given when justice so requires," Fed. R. Civ. P. 15(a), and whether to allow amendment is within the trial court's discretion. Burks v. Oklahoma Publ'g Co., 81 F.3d 975, 978-79 (10th Cir. 1996). The court may refuse leave to amend upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment. Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).
The instant Motion to Amend first seeks leave to amend the operative Complaint because "it appears that the section for relief was left blank, but that is not the case" and it appears so due to "a clerical mistake, as well as a mistake on the filer's behalf." [#48 at 1]. The Motion continues that "[a]lso, information that was later discovered such as acts of retaliation. Eaton has attempted to send a letter to intimidate witness and also has lost important documents in the employee's file that supported the Plaintiff's claim." [Id.]. Next, the Motion quotes, in full, Rule 60 of the Federal Rules of Civil Procedure. [Id. at 2-3]. It continues with text from what appears to be an e-mail message to the address COD_ProSe_Filing@cod.uscourts.gov, alleging "Eaton Metal has illegally obtained my medical records against my consent." [Id. at 4]. Plaintiff then states
Please accept this petition to amend claim due to excusable negligence. I would like to submit these claims in addition to the initial claim that was submitted on 1/21/2020. My request for monitary [sic] damages and relief is also below. . .[Id.]. The Motion concludes with seventeen pages of captured cell phone screen images or photographs of e-mail messages, written narratives, webpages, and various other documents. See [#48 at 4-21]. These images are not labeled, and Plaintiff provides no description or context for them. [Id.].
Remedies for relief:
Reinstatement, compelled hiring, or compelled promotion, ability to obtain employment
False imprisonment
Criminal behavior / stalking / harassing / intimidation
Burglary / Tresspassing [sic]
Web hosting and tracking emails
Back pay
Front pay
Retroactive seniority and benefits
Compensatory and punitive damages (punitive damages not available against government employers)
Attorneys' fees
Estimated total in damages : $900,000
Defendants respond that the Motion to Amend should be denied "because [it] is based upon [Plaintiff's] misrepresentation that she has submitted documentation substantiating her testimony that a filing error is the reason why her additional claims were not included in her Complaint" and "granting leave to amend would constitute undue prejudice towards Defendants, the Motion is untimely, and Plaintiff's amendments would be futile." [#53 at 5].
Request for Relief. Defendants' argument regarding Plaintiff's "misrepresentations" center on an exchange from the May 27, 2020, Telephonic Status/Discovery Conference. See [id. at 5-6]. At that conference, while clarifying her Motion to Amend, Ms. Andrews stated that although Defendants' Motion to Dismiss argued that she had not provided a claim for relief, "there is an additional section" and in her original documents "that claim for relief [was] actually included in there." [#51 at 8:9-10, 6:6-8]. See generally [Id. at 6:24-8:25]. Defendants contend that in this colloquy with the court Ms. Andrews was asserting that she previously submitted additional claims, there was a clerical error in her filings, and she should thus be permitted to amend. [#51 at 5]. They continue that she provides no court documents substantiating her testimony and she misrepresents that a clerical error was made. [Id.].
Upon review of the Motion to Amend, the court understands Ms. Andrews' statements during the May 27, 2020, Telephonic Status/Discovery Conference as specifically addressing the "Request for Relief" section of her Complaint, rather than additional, unidentified claims. In the Motion to Amend, Ms. Andrews states
On Jan[uary] 21st, 2020, a complaint was filed and it appears that the section for relief was left blank, but that is not the case. This must have been a clerical mistake, as well as a mistake on the filer's behalf. The section instructs the filer to attach the demand for relief on a separate piece of paper and to write the letter F to indicate additional paper is attached.[#48 at 1].
Please accept this motion to petition for relief due to excusable negligence. This was merely a mistake that the attached paperwork did not get attached when it was scanned into the courts system.
The court interprets Ms. Andrews' statements from the Conference, such as "[s]o the motion to dismiss is that there was no claim for relief," [#51 at 6:25-7:1], as expressing a misunderstanding of Defendants' argument. Whereas Defendants contend in their Motion to Dismiss that Plaintiff fails to state a claim for which relief can be granted, Ms. Andrews seems to interpret that argument as she failed to include a requested relief section for her claims. The court also notes that page six of the Motion to Amend is a screen capture of page six of Plaintiff's Complaint, her Request for Relief section, presumably offered in support of the argument that the section had not been left blank when originally filed. [#48 at 6]; compare [#48 at 6] with [#1 at 6].
Despite Plaintiff's concerns, there is no evidence to support her contention that the Complaint filed January 21, 2020, contained a blank Request for Relief section. The operative Complaint, filed on that date, includes the following Request for Relief: "Filing fees, other court fees be waived due to being unemployed[,] [a]warded any loss damages, and punitive damages (lost my home, my vehicle, my family, my career) became depressed." [#1 at 6]. Defendants also acknowledge this request in their Motion to Dismiss, stating "Plaintiff's request for relief includes 'loss [sic] damages, and punitive damages' because she 'lost her home, vehicle, family, career, and became depressed.'" [#18 at 3]. Further, the court independently verified that the original document received by the Clerk of the Court from the Plaintiff by hand is identical to the electronic copy on the docket. Because there is no evidence indicating Plaintiff's original Complaint contains a blank Request for Relief section, this court finds that this basis does not justify amendment. The court further notes that a number of Plaintiff's requests for relief are simply not available pursuant to the law. For instance, "false imprisonment; Criminal behavior / stalking / harassing / intimidation; Burglary / Tresspassing [sic]" are not cognizable forms of relief, but civil causes of action or criminal charges. Moreover, "web hosting and tracking emails" are not appropriate forms of injunctive relief for Ms. Andrews' discrimination claims asserted in this instant action. And to the extent that Ms. Andrews wishes to clarify that she seeks back pay, front pay, or punitive damages, her original Complaint may be liberally read to already include such requests.
Amendment to Add Additional Claims. In addition to arguing for a need to amend the Request for Relief, Ms. Andrews also appears to request leave to assert new and additional claims against Defendants. As previously noted, the Motion states "information [] was later discovered such as acts of retaliation. Eaton has attempted to send a letter to intimidate witness and also has lost important documents in the employee's file that supported the Plaintiff's claim," [#48 at 1], "Eaton Metal has illegally obtained my medical records against my consent," [id. at 3], and "I would like to submit these claims in addition to the initial claim that was submitted on 1/21/2020. . . False imprisonment Criminal behavior / stalking / harassing / intimidation Burglary / Tresspassing [sic] Web hosting and tracking emails . . .," [id. at 4].
The court notes these assertions are similar to those Ms. Andrews levied in the Amended Complaint she filed on June 10, 2020 [#52] and her June 15, 2020, Motion for Subpoena of Satellite Data ("Motion for Subpoena") [#54], as well as those Defendants expressed concern over in their June 22, 2020, Motion for Status Conference [#56]. On June 24, 2020, the court ordered that Amended Complaint be stricken from the docket, the Motion for Subpoena and the Motion for Status Conference be denied. See [#58]. The court further notes that Ms. Andrews has initiated a second lawsuit against these Defendants, Civil Action No. 20-cv-1782-GPG (D. Colo. 2020), that includes some of the same supporting documentation that has been filed in this action. See Civil Action No. 20-cv-1782-GPG, ECF No. 1-2].
Defendants first argue they would be unduly prejudiced if Plaintiff were granted leave to amend to add these claims because the amendment allege causes of action not related to this litigation. [#53 at 6]. They contend claims for false imprisonment, criminal behavior, stalking, harassment, intimidation, burglary, trespassing, webhosting, and tracking emails are serious allegations of criminal misconduct that do not relate to Plaintiff's original discrimination and retaliation claims, are ambiguous and conclusory with no supporting documentation, and are not properly brought before this court. [Id. at 6-8]. Second, they argue the Motion to Amend is unduly delayed because Plaintiff's attempts to add claims based upon information that was known to her before filing her Complaint and her only explanation for delay is that there was a clerical error in her filings, a contention, as explained above, directed at one subsection of the Complaint. [Id. at 8-10]. Finally, Defendants argue the Motion to Amend should be denied as the amendments would be futile because the newly asserted claims could not survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6) and Fed. R. Civ. P. 12(b)(1). [Id. at 11-14].
Although Ms. Andrews proceeds in this matter pro se, she is obligated to comply with the same procedural rules and substantive law as represented parties. See Dodson v. Bd. of Cty. Comm'rs, 878 F. Supp. 2d 1227, 1235 (D. Colo. 2012) ("Pro se status does not relieve Plaintiff of the duty to comply with various rules and procedures governing litigants and counsel, or the requirements of the substantive law and, in these regards, the Court will treat Plaintiff according to the same standard as counsel licensed to practice law before the bar of this Court."); see also Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir. 2008) (observing that a party's pro se status does not relieve him of the obligation to comply with procedural rules). The court finds that both the form and substance of Ms. Andrews' contentions lead to a Recommendation that the Motion be denied.
As to the form of the Motion to Amend, under this District's Local Rules of Civil Practice, "[a] party who files an opposed motion for leave to amend or supplement a pleasing shall attach as an exhibit a copy of the proposed amended or supplemental pleading." D.C.COLO.LCivR 15.1(b). In this case, Ms. Andrews fails to provide a proposed amended pleading. In addition, the length of the Motion and supporting documentation far exceeds Chief Judge Brimmer's Civil Practice Standards regarding motions practice. See C.J. BRIMMER CIVIL PRACTICE STANDARD III.A. ("All motions, objections (including objections to the recommendations or orders of United States Magistrate Judges), responses, and briefs shall not exceed fifteen pages." (emphasis in original)). "Motions that are . . . noncomplying . . . may be denied without prejudice or stricken sua sponte." Id. at III.C.
On June 10, 2020, Ms. Andrews filed an Amended Complaint [#52] against Inco Property, "Xcell Energy," Denver Police, and Eaton Metal claiming "harassment, retaliation, landlord negligence, Xcell false reporting, not detecting toxic gas" and "Denver police ignoring my reports for burglary." [Id. at 3]. Because the Amended Complaint was filed over two weeks after the instant Motion to Amend and the Amended Complaint alleged claims and named defendants not mentioned in the Motion to Amend, the court did not consider the document to be a proposed pleading accompanying the Motion to Amend. See [#58]. Therefore, the court ordered this filing be stricken from the docket as Plaintiff filed it without an accompanying motion for leave; leave of the court; or consent of the Defendants. [Id.].
The issues with the Motion's form compound issues regarding its contents. Without a proposed amended pleading, the court attempts to discern the substance of an Amended Complaint by examining the Motion to Amend. Under the Federal Rules of Civil Procedure, a pleading that states a claim for relief must contain "a short plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). However, the Motion to Amend does not set forth, in a clear and plain fashion, the specific amendments sought or a factual basis for them. The Motion simply contains a long list of claims, criminal allegations, and forms of relief, with no explanation or supporting allegations. See [#48 at 3]. "Without some factual allegation . . ., it is hard to see how a claimant could satisfy the requirement of providing not only 'fair notice' of the nature of the claim, but also 'grounds' on which the claim rests." Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 n.3 (2007)). Accordingly, this court finds that to allow Ms. Andrews to amend in such a manner would be futile and prejudicial to Defendants.
In addition, to the extent Plaintiff wishes to prosecute criminal conduct of some kind, this court is not the proper setting because "[a] private citizen cannot bring a criminal action in a civil case." Grimes v. Dumas, No. 18-cv-02795-WJM-KMT, 2019 WL 8918744, at *4 (D. Colo. Apr. 4, 2019); see also Burns v. Huss, No. 10-cv-2691-WJM-CBS, 2013 WL 2295422, at *14 (D. Colo. May 24, 2013) ("criminal statutes do not provide a private right of action and are not enforceable by individuals through a civil action"); United States v. Goodman, No. 11-cv-00274- RBJ-MEH, 2012 WL 502807, at *5 (D. Colo. Jan. 4, 2012) (explaining the plaintiff could not bring a civil suit for criminal claims); Calvin v. Oklahoma, No. CIV-17-0610-HE, 2017 WL 4334236, at *2 (W.D. Okla. June 27, 2017) ("A plaintiff cannot bring a civil action to recover upon the alleged violation of criminal statutes or initiate criminal enforcement actions as a private citizen." (internal quotation omitted)). While discussing Ms. Andrews's allegations of criminal behavior, burglary, trespassing, web-posting and tracking e-mails during the May 27, 2020 Conference, the court advised her that "this litigation is not a venue in which you can raise any and all concerns you have with respect to Defendants." See [#51 at 14:3-11]. No additional factual assertions would convert these criminal charges from futile to viable in this action.
Because the Motion to Amend lacks sufficient factual assertions, this court cannot determine whether Ms. Andrews's Motion seeks to add claims based on information known to her at the time of filing her initial Complaint. Cf. Valles v. Gen-X Echo B, Inc., No. 13-cv-00201-RM-KLM, 2013 WL 5832782, at *5 (D. Colo. Sept. 27, 2013) (finding a motion to amend was unduly delayed where the plaintiff failed to provide an adequate explanation for the delay and she knew or should have known of the facts in the proposed amendment but did not include them in the original Complaint); see also 6 Charles Alan Wright et al., Federal Practice and Procedure § 1487, at 643-45, 651 (2d ed.1990) (noting that where a plaintiff has had sufficient opportunity to assert a claim, but failed to do so, and where she "knew the facts on which the claim . . . sought to be added were based at the time the original pleading was filed," leave to amend may be denied). Therefore, this court declines to pass substantively on this argument or recommend denial of the Motion to Amend on this basis.
CONCLUSION
For the reasons set forth herein, this court respectfully RECOMMENDS that:
(1) Plaintiff's "Petition to Amend Claim Due to Excusable Negligence" [#48] be DENIED.DATED: July 10, 2020
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of "firm waiver rule"); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).
BY THE COURT:
/s/_________
Nina Y. Wang
United States Magistrate Judge