Opinion
Civil Action No. 99-D-2196
November 29, 2001
EDWARD G. NOVOTNY, defendant, Pro se, Cortez, OC USA.
ETTA B. NOVOTNY, defendnat, Pro se, Cortez, CO, USA.
For COLORADO DEPARTMENT OF REVENUE, cross-claimant: Robert D. Clark, Attorney General's Office, Denver, CO U.S.A.
For MIDWEST LIMITED, SUNRISE INVESTMENTS, cross-claimants: William Allan Cohan, William A. Cohan, P.C., San Diego, CA, USA.
EDWARD G. NOVOTNY, cross-defendant, Pro se, Cortez, CO USA.
ETTA B. NOVOTNY, cross-defendant, Pro se, Cortez, CO USA.
For MIDWEST LIMITED, SUNRISE INVESTMENTS, cross-defendants: William Allan Cohan, William A. Cohan, P.C., San Diego, CA, USA.
For COLORADO DEPARTMENT OF REVENUE, cross-defendant: Robert D. Clark, Attorney General's Office, Denver, CO U.S.A.
For MIDWEST LIMITED, SUNRISE INVESTMENTS, counter-claimants: William Allan Cohan, William A. Cohan, P.C., San Diego, CA, USA.
ETTA B. NOVOTNY, counter-defendant, Pro se, Cortez, CO USA.
For USA, counter-defendant: Philip Blondin, August A. Imholtz, III, U.S. Department of Justice, Washington, DC U.S.A.
ORDER
THIS MATTER is before the Court on the Magistrate Judge's Recommendation of October 3, 2001, and on Defendant Edward George Novotny's ("Novotny") Motion to Void Order of September 17, 2001. I first note that this case was referred to Magistrate Judge Coan to handle all pretrial mailers and dispositive motions by Amended Order of Reference dated February 27, 2001. Dispositive motions were referred to Magistrate Judge Coan after the parties voluntarily consented to have her decide such motions at the Pretrial Conference held on June 11, 2001, and by the written Consent to the Exercise of Jurisdiction by a United States Magistrate Judge filed by the parties that same date.
I first address the Magistrate Judge's Recommendation of October 3, 2001. In doing so, I first note that Magistrate Judge Coan issued a Memorandum Opinion and Order dated September 14, 2001, whereby she denied the United States' Motion for Summary Judgment originally filed on December 22, 2000, and Defendants Midwest Limited and Sunrise Investments' Motion for Summary Judgment filed September 28, 2000. This Memorandum Opinion and Order was issued pursuant to the authority given her by the parties and this Court to decide these motions. Thereafter, on September 24, 2001, Defendant Novotny filed a motion entitled, "Respondent Appears Specially and not Generally by Special Visitation to Move This Court to Dismiss this action Pursuant to Rule 12(b)(6) F.R.Civ. P. or in the Alternative, Order that a True, Correct and Complete Copy of the Contract/Nexum be Produced that Respondent is a Party to, that Plaintiff Relies On for Its Cause of Action." Magistrate Judge Coan then issued the October 3, 2001, Recommendation wherein she recommends that Novotny's Motion, which she notes is largely unintelligible, be DENIED for the same reasons set forth in the September 14, 2001, Memorandum Opinion and Order.
The Recommendation advised that "[w]ithin ten days after being sewed with a copy of the proposed findings and recommendation, any party may serve and file written objections." Id., p. 2. On October 18, 2001, Novotny filed a "Response to Recommendation of United States Magistrate Judge" which I will construe as objections. These objections necessitate a de novo determination as to those specified proposed findings or recommendations to which objection is made since the nature of the matter is dispositive. Fed.R.Civ.P. 72(b); 28 U.S.C. § 636 (b)(1).
In his objections, Novotny asserts that a magistrate judge "is a person without a presidential appointment who is commissioned without tenure by a chief judge of a district court." Further, Novotny states, "apparently without deference to 28 U.S.C. § 631 (a)(2) and 632(a), the latter related to a noticeable partiality; one who will proceed in a civil cause for which no jurisdiction exists under the laws of the United States, and do so for the financial advantage of one party, the United States of America, at the expense of its free citizens recommending one of said citizens be held to the lawlessness must be seeking to hold the said citizen to that anomaly; and thereby implement a condition of involuntary servitude unconstitutionally in support of that asymmetry." Response at pp. 1-2. Finally, Novotny argues that the Magistrate Judge openly confessed to being incapable of understanding a Rule 12(b)(6) pleading, that she failed to seek clarification from Novotny as to his pleading that she claimed was unintelligible or to specify what portions of the pleading were unintelligible, and that she acted incompetently in making a dispositive recommendation with no support.
I find Novotny's objections to be utterly baseless and without merit. First, as to the issue of the Magistrate Judge's authority in this case, Magistrate Judge Coan was given authority by me as the District Judge and by the the parties in this case, including Novotny, to decide dispositive motions in this case. The Magistrate Judge thus had jurisdiction over the dispositive motions and properly exercised her authority in deciding them in connection with her September 14, 2001, Memorandum Opinion and Order pursuant to 28 U.S.C. § 636 (c); Fed.R.Civ.P. 73; and D.C.COLO.LR 72.6.
Novotny tries to get around certain of the rulings in the September 14, 2001, by filing the Motion at issue on September 24, 2001. He then asserts in his objections to the Recommendation on that Motion that the Magistrate Judge showed "a realm of incompetent justiciability unworthy of recognition in any court of law in any civilized society" by making a dispositive recommendation with no support concerning a matter whereby Plaintiff "mythically assert[ed] an indebtedness for which contravening and valid evidence exists in the record proper . . . .
I find that Magistrate Judge Coan acted appropriately in her Recommendation in denying Novotny's Motion for the reasons stated in the September 14, 2001, Memorandum Opinion and Order. That Order addressed the alleged indebtedness claimed by the United States as well as certain defenses presented thereto. If Novotny does not agree with the Magistrate Judge's decision of September 14, 2001, and its substantive rulings therein as it affects the alleged indebtedness claimed by the Plaintiff, his appropriate recourse is to the United States Court of Appeals for the Tenth Circuit. See 28 U.S.C. § 636 (c); Fed.R.Civ.P. 73; and D.C.COLO.LR 72.6.
I also reject the arguments that Magistrate Judge Coan has shown any partiality in this case, or that she acted for the financial advantage of the United States at the expense of the Defendants. Novotny has presented no evidence in support of these arguments. Further, the argument that Magistrate Judge Coan's ruling "implement[ed] a condition of involuntary servitude" is frivolous. I also reject the argument that the Magistrate Judge openly confessed to being incapable of understanding a Rule 12 (b)(6) pleading, as this allegation is completely unsupported. Finally, I agree with Magistrate Judge Coan that the pleading of Novotny was largely unintelligible, and find that the Magistrate Judge acted appropriately in denying the motion for the same reasons as stated in her September 14, 2001, Memorandum Opinion and Order.
Accordingly, the Recommendation of October 3, 2001, is AFFIRMED AND ADOPTED. In accordance with that Recommendation, Novotny's Motion entitled, "Respondent Appears Specially and not Generally by Special Visitation to Move This Move This Court to Dismiss this action Pursuant to Rule 12(b)(6) F.R.Civ. P. or in the Alternative, Order that a True, Correct and Complete Copy of the Contract/Nexum be Produced that Respondent is a Party to, that Plaintiff Relies On for Its Cause of Action" filed September 24, 2001 is DENIED.
Turning to Defendant Novotny's Motion to Void Order of September 17, 2001, Novotny seeks a ruling that the September 17, 2001 Order of Magistrate Judge Coan concerning certain nondispositive matters is void pursuant to Fed.R.Civ.P. 60(b)(4). This Motion is DENIED. The Tenth Circuit holds that "[a] judgment is void for Rule 60(b)(4) purposes if the "rendering court was powerless to enter it."' Gschwind v. Cessna Aircraft Co., 232 F.3d 1342, 1346 (10th Cir. 2000) (quotation omitted),cert. denied, 121 S.Ct. 2520 (2001). "The moving party must show lack of jurisdiction or that the court acted in a manner inconsistent with the due process of law." Mehdipour v. Mehdipour, 173 F.3d 864 (Table), 1999 WL 114378, *1 (10th Cir. 1999). "Setting aside a judgment on voidness grounds is narrowly restricted." Id. "Even an erroneous judgment does not amount to a void one under Rule 60(b)(4)." Id.
In the case at hand, Novotny has not shown either that this Court or the Magistrate Judge lacked jurisdiction in this case. The Court has authority to decide this case generally because the case is brought under the laws of the United States. 28 U.S.C. § 1331. The Magistrate Judge had authority to enter this Order pursuant to 28 U.S.C. § 636; Fed.R.Civ.P. 73; and D.C.COLO.LR 72.6. Further, Novotny has not shown that there were any due process violations in connection with this Order. To the extent that Novotny argues that he is not subject to federal taxation, this type of argument has repeatedly been rejected by the Courts. See, Lonsdale v. United States, 919 F.2d 1440, 1448 (10th Cir. 1990). To the extent that Novotny complains that the Magistrate Judge improperly excluded the Defendant Trusts' proposed expert, this does not attack the jurisdiction of the Court as required under Rule 60(b)(4), and the Magistrate Judge was correct in her ruling that an expert may be stricken if he or she will testify only as to legal conclusions. See Specht v. Jensen, 853 F.2d 805, 808 (10th Cir. 1988), cert. denied, 488 U.S. 1008 (1989). To the extent that Novotny raises any other arguments in his motion, I find them to be without merit.
In conclusion, for the reasons stated above, it is
ORDERED that the Recommendation of October 3, 2001, is AFFIRMED AND ADOPTED. In accordance therewith, it is
FURTHER ORDERED that the Motion entitled, "Respondent Appears Specially and not Generally by Special Visitation to Move This Court to Dismiss this action Pursuant to Rule 12(b)(6) F.R.Civ. P. or in the Alternative, Order that a True, Correct and Complete Copy of theContract/Nexum be Produced that Respondent is a Party to, that Plaintiff Relies On for Its Cause of Action" filed September 24, 2001 is DENIED. It is
FURTHER ORDERED that Defendant Edward George Novotny's Motion to Void Order of September 17, 2001, is DENIED.
As of August 13, 2001, the Court's Hearing, Conference Trial Procedures have been updated and revised. The revised Procedures are available from the Clerk of the Court and at www.cod.uscourts.gov. Familiarize yourselves with these Procedures as they govern all proceedings in this Court.