Opinion
Civil Action No. 04-cv-02616-ZLW-KLM.
August 22, 2007
ORDER
The Court has received two e-mail letters, one from Defendant Daniel C. Cadle's counsel on August 14, 2007, and one from the remaining Defendants' counsel on August 15, 2007. Parties may not send letters or other communications directly to a judicial officer; all matters submitted to a judicial officer's attention must be filed with the Clerk's Office. Accordingly, it is
See D.C.COLO.LCivR 77.2.
ORDERED that the Court Clerk shall file the e-mail letters dated August 14 and 15, 2007, and their attachments, as exhibits to this Order. Further, it is
ORDERED that, in the future, all submissions to the Court, with the exception of proposed orders, shall be filed, not e-mailed or mailed to Chambers, in accordance with the Local Rules of this Court.
Ex. A
ARMSTRONG LAW FIRM
1324 DARTMOUTH ROAD FLOSSMOOR, ILLINOIS 60422 E-MAIL: 708/798-1599 DINO@DINOLAW.COM (FAX) 708/798-1597 August 14, 2007 Hon. Zita Weinshienk United States District Court for the District of Colorado Room A841 901 19th Street Denver, Colorado 80294-3589 Re: Hicks v. Cadle, et al.; No. 04-cv-02626-ZLW-CBS Dear Judge Weinshienk:I enclose a proposed form of order reflecting the Court's rulings at the July 24, 2007 hearing on Plaintiff's Motion for Preliminary Injunction (159).
Unfortunately, the proposed form of order prepared by Plaintiff's counsel (copy attached) does not accurately reflect the Court's rulings at the July 24th hearing, and contains a number of proposed findings that were not made by the Court at that time. We have objected to the proposed form of order submitted by Plaintiff's counsel, but Plaintiff's counsel refuses to make corrections to the proposed form of order so as to accurately reflect the Court's rulings.
I apologize to the Court for not being able to convince Plaintiff's counsel to conform his proposed order to the Court's actual rulings.
Very truly yours, /s/ F. Dean ArmstrongORDER DENYING IN PART PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION AND GRANTING PLAINTIFF'S MOTION FOR ALTERNATIVE RELIEF
On July 24, 2007 the Court considered Plaintiff's Motion for Preliminary Injunction to Preclude Further Defamation or, Alternatively, to Require Mandatory Disclosure (159).After considering the pleadings, the law, and the arguments and authorities of counsel, the Court is of the opinion that (1) Plaintiff's Motion for Preliminary Injunction is DENIED to the extent that it requests an injunction prohibiting the Cadle Defendants and others from engaging in future alleged defamatory speech, due to concerns of prior restraint under Near v. State of Minnesota, 283 U.S. 697 (1931); and (2) Plaintiff's Alternative Motion to Require Mandatory Disclosures is GRANTED such that Daniel Cadle, The Cadle Company and Buckeye Retirement's officers, agents, servants, employees, attorneys, and all other persons in active concert or participation with them, shall attach a copy of Judge Dubofsky's arbitration award and a copy of this Court's Order to any communications accusing Mr. Hicks of having committed bank fraud, perjury or any other criminal act.
At the July 24, 2007 hearing Plaintiff made an oral motion for leave to submit other authorities on the appropriateness of injunctive relief. The Court denied Plaintiff's Motion for Leave to Submit Additional Authorities, but noted that Plaintiff was always free to file a motion for reconsideration, and could submit such additional authorities in connection with any such motion.
Further, upon Motion by Plaintiff, the Court agreed to keep in effect the Court's July 10, 2007 Order that there shall be no further incidents of conduct by Mr. Cadle substantially similar to those set forth on pages 19-20 of Judge Dubofsky's arbitration order
IT IS SO ORDERED.
ORDER ENTERING PRELIMINARY INJUNCTION AGAINST DEFENDANTS DANIEL C. CADLE, THE CADLE COMPANY AND BUCKEYE RETIREMENT CO., LLC, LTD.
THE COURT, having reviewed Plaintiff's Motion for Preliminary Injunction to Preclude Further Defamation or, Alternatively, to Require Mandatory Disclosure, the response thereto and the reply in support, and otherwise being fully advised in the premises, hereby makes the following findings:
Plaintiff Kerry R. Hicks has satisfied the elements necessary for the entry of a preliminary injunction, as set forth by the Court in SCFC ILC, Inc. v. Visa USA. Inc., 936 F.2d 1096, 1098 (10th Cir. 1991). In the May 14, 2007, Award entered by Judge Dubofsky in the arbitration proceeding, he found that Mr. Hicks had not committed bank fraud, and that Mr. Hicks had not committed perjury. He also found that Mr. Cadle stated an intent to continue to make such allegations even after the arbitration proceeding was concluded. The evidence presented to me establishes that Mr. Cadle has in fact continued to make such allegations to numerous governmental authorities since the entry of Judge Dubofsky's Award. In making such allegations, Defendant Cadle and the corporations he controls continue to commit defamation by falsely reporting that Mr. Hicks has committed bank fraud and/or perjury, or claiming that such acts occurred, when Judge Dubofsky found that he has not committed bank fraud or perjury.
Mr. Hicks has thus established a probability of success on the merits in connection with his alternative request for entry of a mandatory injunction because requiring the corporate defendants to attach copies of this Court's Orders and Judge Dubofsky's Award will ensure that any speech made by these Defendants is tempered by the findings made against them and lets the governmental authorities involved know of the vexatious nature of the past actions taken by these Defendants. The Court has the inherent power to curtail governmental filings by abusive litigants. Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1295 n. 15 (11th Cir. 2002); Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir. 1986).
Relief concerning Daniel C. Cadle individually was addressed in this Court's July 10, 2007, Order from the bench.
The Court notes that on July 20, 2007, Plaintiff filed Plaintiff's Motion for Leave to File Second Amended Complaint and to Refer Claims to Arbitration (Doc. No. 187). The Second Amended Complaint alleges tortious conduct by the Defendants, except Mr. Shaulis, based upon future governmental filings making similar allegations against Mr. Hicks. Nothing in this Order suggests or implies that such future filings are not tortious. In fact, Defendants may be held civilly liable for such conduct should it continue.
WHEREFORE, this Court enters a preliminary injunction requiring that:
The Cadle Company, and Buckeye Retirement Co. LLC, Ltd., and their officers, agents, servants, employees, and attorneys, and all those persons in active concert or participation with them, must attach a copy of all confirmation Orders from this Court, Judge Dubofsky's Arbitration Award, and this Order to any reports the subject parties make to any governmental entity, including any administrative, law enforcement, or judicial entity, and/or any private third party, accusing Kerry R. Hicks of having committed bank fraud, perjury or any other criminal act; or suggesting that he has done so; or suggesting that the conduct in which he engaged was criminal.