Palmer North America LLC v. Wanzek Construction Inc. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 22–cv–03290–CNS–MDB
PALMER NORTH AMERICA LLC, a Delaware limited liability company,
Plaintiff,
v.
WANZEK CONSTRUCTION INC., a North Dakota corporation,
MASTEC, INC., a Florida corporation,
Defendants.
WANZEK CONSTRUCTION INC., a North Dakota corporation,
Counterclaim-Plaintiff,
v.
PALMER NORTH AMERICA LLC, a Delaware limited liability company,
Counterclaim-Defendant.
WANZEK CONSTRUCTION INC., a North Dakota corporation,
Third-Party Plaintiff,
v.
EVRAZ NORTH AMERICA PLC,
Third-Party Defendant,
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
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Magistrate Judge Maritza Dominguez Braswell
This matter is before the Court on Plaintiff’s Motion to Dissolve Mechanics’ Lien.
([“Motion”], Doc. No. 127.) Defendant Wanzek Construction (“Wanzek”) has responded in
opposition to the Motion ([“Response”], Doc. No. 128) to which Plaintiff has replied ([“Reply”],
Doc. No. 131). After reviewing the Motion, briefing, and relevant law, the Court respectfully
RECOMMENDS that the Motion be DENIED without prejudice.
BACKGROUND
This action concerns a $300 million contract wherein Wanzek agreed to act as the general
contractor for the expansion of Plamer North America LLC’s (“PNA”) rail production facility.
(Doc. No. 76 at ¶ 1.) As is relevant to the instant Motion, Wanzek issued a $64,222,425
mechanics’ lien against PNA for funds allegedly owed to Wanzek in connection with alleged
contract violations. (Doc. No. 76 at ¶¶ 31–32.) PNA’s sixth claim for relief seeks a declaratory
judgment that this lien is invalid. (Id. at ¶¶ 66–71; see also id. at ¶ 31 (claiming the lien was
issued as retaliation for PNA filing this lawsuit).) Wanzek’s fifth counterclaim seeks the
foreclosure of the lien. (Doc. No. 78 at ¶¶ 167–180.)
In the instant Motion, PNA asks the Court to “dissolve” or reduce the lien pursuant to
C.R.S. § 38-22-128 “and controlling case law.” (Doc. No. 127.) According to Plaintiff, the lien is
excessive and contemplates fees unearned by Wanzek. (Id. at 10–16.) PNA also seeks attorneys’
fees pursuant to C.R.S. § 38-22-128 for the cost of bringing this Motion. (Id. at 17.)
In response, Wanzek expresses confusion over the procedural mechanism by which PNA
brings the Motion. (Doc. No. 128 at 7–8.) Wanzek concludes that because the Motion would be
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dispositive of its fifth counterclaim1 and because the deadline for PNA to file a motion to dismiss
Wanzek’s counterclaims has long since run, the relief PNA seeks must be procured through a
summary judgment motion under Federal Rule of Civil Procedure 56. (Id.) Wanzek also argues
the Motion is procedurally improper as it fails to comply with the presiding judge’s practice
standards regarding summary judgment motions, which require a statement of undisputed
material facts. (Id. at 7) Wanzek further argues the Motion is premature because “C.R.S. § 38-
22-128 merely sets forth the consequences if a person can prove during a ‘proceeding’” that a
lien is unduly excessive, but does not provide a mechanism for seeking the dissolution of a lien
during the course of a proceeding. (Id. at 8.) Wanzek also argues the lien is not excessive under
C.R.S. § 38-22-128, but in any event, the material facts necessary for making such a
determination are in dispute. (Id. at 8–15.)
In its reply, PNA acknowledges the Motion is “bespoke,” but contends it is “decidedly
not a motion for partial summary judgment” and does not attempt to “summarily adjudicate” any
claims in this suit. (Doc. No. 131 at 1, 2.) PNA says the Motion is “procedurally proper under
both this Court’s inherent authority to oversee the litigation and control the disposition of the
case.” (Id. at 1; 2–4.) PNA re-ups its arguments that Waznek’s lien is excessive under the law.
(Id. at 4–7.) PNA also contends Wanzek’s argument that material facts are in dispute is “self-
serving” because PNA used Wanzek’s “own sworn interrogatory responses” to support its
Motion. (Id. at 7–10.)
ANALYSIS
1 The Motion also seems to be dispositive of PNA’s sixth claim. (See Doc. No. 76 at ¶¶ 66–71.)
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After careful review of the arguments and applicable rules and law, the Court concludes
the instant Motion is indeed the functional equivalent of a premature motion for partial summary
judgment. See Fed. R. Civ. P. 56. PNA’s sixth claim seeks to invalidate Wanzek’s lien, and
Wanzek’s fifth counterclaim seeks foreclosure on the lien. (Doc. No. 76 at ¶¶ 66–71; Doc. No.
78 at ¶¶ 167–180.) Despite PNA’s conclusory and unexplained statement to the contrary (see
Doc. No. 131 at 1), there is no doubt that the dissolution of the lien—which is precisely the relief
PNA seeks in its Motion—would resolve both claims. Moreover, C.R.S. § 38-22-1282 does not
provide a procedural mechanism for dissolution before the close of discovery, and even
conditions relief on the showing of “fact[s]” that a lien is excessive—leading to the natural
inference that C.R.S. § 38-22-128 should be applied at the summary judgment, trial, or post-trial
stages of a proceeding.3 See Byerly v. Bank of Colorado, 411 P.3d 732, 738 (Colo. App. 2013)
(“Whether a lien is excessive is an issue of fact.” (citing LSV, Inc. v. Pinnacle Creek, LLC, 996
P.2d 188, 191 (Colo.App.1999); Tighe v. Kenyon, 681 P.2d 547, 552 (Colo.App.1984))).).
Additionally, PNA’s contention that the dissolution of the lien through this Motion is
consistent with the Court’s inherent authority to oversee and control litigation, is overstretched.
2 C.R.S. § 38-22-128 reads, “[a]ny person who files a lien under this article for an amount greater
than is due without a reasonable possibility that said amount claimed is due and with the
knowledge that said amount claimed is greater than that amount then due, and that fact is shown
in any proceeding under this article, shall forfeit all rights to such lien plus such person shall be
liable to the person against whom the lien was filed in an amount equal to the costs and all
attorney’s fees.
3 The Court has reviewed all 12 decisions on Westlaw by the Colorado Court of Appeals, District
of Colorado, and Tenth Circuit substantively applying C.R.S. § 38-22-128. Each was considered
in the context of a summary judgment, bench trial, or post trial order. Likewise, the decisions
cited by PNA in its Motion were made in the context of a summary judgment, bench trial, or post
trial order. (See Doc. No. 127 at 2.)
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The purportedly analogous cases cited by PNA (see Doc. No. 131 at 3–4 (collecting cases) all
dealt with a court’s power to control the administration of a lawsuit (e.g., to issue stays, order
discovery, file revised rulings, and allow parties to file corrective motions), not its power to
resolve claims, or otherwise affect the rights and obligations of parties, whenever it so pleases.
Accordingly, because the Motion is the functional equivalent of a partial summary
judgment motion, it fails to comply with the Uniform Civil Practice Standards, which require
summary judgment motions to include a statement of undisputed material facts.4 See Uniform
Civil Practice Standards 7.1D(b). The parties contest whether material facts are in dispute, and
lack of a clear statement of disputed and undisputed facts complicates the Court’s resolution of
the issue. (See Doc. No. 129 at 11–15; Doc. No. 131 at 7–10.) Additionally, to the extent PNA
intends to later file a summary judgment motion regarding other claims in this case, the Motion
also flies in the face of this District’s preference that a party only file multiple summary
judgment motions in “exceptional circumstances” and after obtaining the court’s leave. Uniform
Civil Practice Standards 7.1D(a); see Auguste v. Alderden, 2008 WL 4372676, at *1 (D. Colo.
Sept. 22, 2008) (“A party may not file multiple motions for summary judgment without
obtaining permission from the Court and such permission will only be given in exceptional
circumstances.”).
4 The Court also notes that, though not applicable at the time of the Motion’s filing, Judge
Sweeney’s Standing Order Regarding Federal Rule of Civil Procedure 56 Motions requires
parties to schedule a hearing before Judge Sweeney to “to discuss the material facts and to
determine whether there are disputes of any material facts” prior to filing a motion for summary
judgment. The parties must comply with the Standing Order when seeking to file any future
summary judgment motions in this case.
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The Motion’s failure to comply with the court’s practice standard is sufficient, in and of
itself, to deny the Motion without prejudice. See, e.g., Wilczek v. Rio Blanco Cnty., 2021 WL
3363038, at n.1 (D. Colo. Aug. 3, 2021); Lyall v. City of Denver, 2016 WL 7176716, at *3 (D.
Colo. Sept. 28, 2016). However, the premature nature of the Motion also counsels in favor of
denial. The Discovery cut-off is over two months away (see Doc. No. 144), and discovery should
be completed before any claim is resolved. See, e.g., Laughlin v. Norton, 2024 WL 4756955, at
*2 (E.D. Ark. Oct. 22, 2024) (“Discovery should run its course before summary judgment on the
merits, in either side’s favor, would be appropriate.”); Johnsen v. Wal-Mart Stores, Inc., 2013
WL 4402366, at *1 (D. Utah Aug. 15, 2013) (saying the court would “defer considering motions
for summary judgment until after the close of fact discovery”); Nieto-Vicenty v. Valledor, 984 F.
Supp. 2d 14, 17 (D.P.R. 2013) (the same).
CONCLUSION
For the foregoing reasons, the Court respectfully RECOMMENDS Plaintiff’s Motion to
Dissolve Mechanics’ Lien (Doc. No. 127) be DENIED without prejudice.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may
serve and file written objections to the Magistrate Judge’s proposed findings 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); 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
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review by the district court or for appellate review.” United States v. One Parcel of Real Prop.
Known As 2121 East 30th Street, Tulsa, Okla., 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 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 and recommendations of the
magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court’s
decision to review a magistrate judge’s recommendation de novo despite the lack of an objection
does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at
1059-60 (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); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir.
1995) (by failing to object to certain portions of the magistrate judge’s order, cross-claimant had
waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342,
1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal
the magistrate judge’s ruling). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th
Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
Dated this 18 th day of February, 2025.
BY THE COURT:
___________________________
Maritza Dominguez Braswell
United States Magistrate Judge
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