Berg v. United Airlines et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-01766-NYW-SBP
NONNIE BERG,
Plaintiff,
v.
UNITED AIRLINES, INC.,
Defendants.
MINUTE ORDER
Entered by Judge Nina Y. Wang
This matter is before the Court on Plaintiff’s (1) Motion for Reconsideration of the
Court’s Order Denying Plaintiff’s Motion to Compel (“Motion for Reconsideration”), [Doc.
215]; and (2) Motion for Extension of Time (or Stay) and Formal Response to the
Magistrate Judge’s Procedural Warnings; Request for Accommodations (“Motion for
Extension”) (together, “Motions”), [Doc. 216]. Pursuant to Local Rule 7.1(d), the Court
rules on these Motions without waiting for a response. D.C.COLO.LCivR 7.1(d). For the
reasons set forth below, Plaintiff’s Motions are respectfully DENIED.
I. Background
Plaintiff Nonnie Berg (“Plaintiff” or “Ms. Berg”) initiated this employment
discrimination lawsuit in July 2023. [Doc. 1]. Ms. Berg filed her operative Second
Amended Complaint through counsel, [Doc. 37], but she has proceeded pro se since
October 2024, [Doc. 62; Doc. 64]. Discovery in this case closed on March 14, 2025.
[Doc. 61]. On April 21, 2025, Defendant United Airlines, Inc. (“Defendant” or “United”)
moved for summary judgment on all claims. [Doc. 76]. Under this District’s Local Rules,
Ms. Berg’s deadline to respond was 21 days later, or May 12, 2025. D.C.COLO.LCivR
7.1(d). On May 13 and 14, 2025, Ms. Berg filed two responses to United’s summary-
judgment motion. [Doc. 85; Doc. 87]. The Court struck those responses for, among other
things, failure to comply with the Court’s Civil Practice Standards. [Doc. 118; Doc. 137].
Both Judge Prose and this Court also warned Ms. Berg that her filings contained
erroneous and hallucinated citations consistent with misuse of generative artificial
intelligence (“AI”), and that a failure to properly check her citations could result in the
striking of Ms. Berg’s filings, a filing restriction, or other sanctions. [Doc. 118 at 6–7; Doc.
137 at 5–6]. Judge Prose ordered Ms. Berg to file a corrected response by September
29, 2025. [Doc. 118 at 8].
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Ms. Berg then filed four successive motions to extend the deadline for her
response. [Doc. 123; Doc. 126; Doc. 132; Doc. 135]. Judge Prose granted all four
motions. [Doc. 125; Doc. 128; Doc. 134; Doc. 138]. In doing so, Judge Prose repeatedly
advised Plaintiff that her pro se status did not exempt her from the duty to confer under
Local Civil Rule 7.1(a). But Judge Prose nevertheless granted the requested
extensions—despite Plaintiff’s multiple failures to include a certificate of conferral
describing adequate good-faith conferral efforts—out of “deference to Plaintiff’s pro se
status.” [Doc. 138]; see also [Doc. 126; Doc. 132]. Judge Prose set a final deadline of
November 10, 2025 for Plaintiff to respond to United’s motion for summary judgment and
warned Plaintiff that “[n]o further extensions will be granted.” [Doc. 138].
Ms. Berg did not meet the November 10, 2025 deadline. Instead, she filed her
response two days later and asked the Court to overlook both her failure to meet the
deadline and her failure to comply with the Court’s page limits for response briefs. [Doc.
140; Doc. 141; Doc. 142]. Judge Prose granted both requests. [Doc. 144]. Plaintiff then
filed a series of motions seeking to amend and/or supplement her response brief. [Doc.
145; Doc. 146; Doc. 152; Doc. 153; Doc. 156]. Judge Prose generally denied these
motions, again advising Ms. Berg that she is required to include a certificate of conferral
and an AI certification in each motion. [Doc. 151; Doc. 155; Doc. 158].
In December 2025, Ms. Berg filed two motions raising several new discovery-
related issues. [Doc. 171; Doc. 174]. At a Status Conference on December 16, 2025,
Judge Prose denied those motions for lack of conferral. [Doc. 177]. Judge Prose noted
that discovery had long since closed but indicated that she would permit Plaintiff to file a
motion to compel discovery no later than December 31, 2025, provided that Plaintiff
adequately conferred with United beforehand. [Id. at 2]. Judge Prose specifically warned
Ms. Berg that she would not “entertain any requests to extend this deadline” and would
only consider such a motion if it complied with the Court’s rules regarding AI use. [Id.].
Judge Prose further warned Ms. Berg that she would recommend filing restrictions if Ms.
Berg “continue[d] to file frivolous and repetitive motions.” [Id. at 1].
Ms. Berg did not meet the December 31, 2025 deadline. On January 2, 2026, she
filed what the Court construed as a Motion to Compel Discovery, [Doc. 185], and a Motion
for Leave to File Supplemental Brief, [Doc. 191]; see also [Doc. 208]. Ms. Berg later filed
an additional Motion for Relief from Order Pursuant to Federal Rule of Civil Procedure
§ 60(b) (“Motion for Relief from Order”). [Doc. 209]. Judge Prose denied all three
motions. [Doc. 214]. With respect to the Motion to Compel Discovery, Judge Prose found
that the motion lacked adequate conferral, was untimely, and reflected a continued
misuse of generative AI. See [id.].
Ms. Berg now seeks reconsideration of Judge Prose’s Order denying the Motion
to Compel Discovery. [Doc. 215 at 2]. Ms. Berg argues that she did engage in adequate
conferral and that her failure to timely file the motion is excusable based on technical
difficulties and a medical event experienced by her husband. [Id. at 2–3]. In her Motion
for Extension, Ms. Berg also claims that Judge Prose’s Order required her to file an
unspecified pleading within 30 days, or else the case would be dismissed for failure to
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prosecute. [Doc. 216 at 1, 7]. Ms. Berg asks the Court to extend this purported deadline
and grant her several other accommodations for her medical conditions. [Id. at 4–5, 7].
The Motion for Reconsideration includes neither a certificate of conferral nor a certificate
regarding AI use. [Doc. 215]. The Motion for Extension does not include a certificate of
conferral but does include an “AI disclosure,” stating that Ms. Berg used AI but reviewed
her filing for “accuracy and completeness.” [Doc. 216 at 7].
II. Legal Standard
A. Motions for Reconsideration
The Federal Rules of Civil Procedure do not expressly contemplate motions for
reconsideration. See Hatfield v. Bd. of Cnty. Comm’rs, 52 F.3d 858, 861 (10th Cir. 1995).
As a general principle, courts grant motions to reconsider where there is “(1) an
intervening change in the controlling law, (2) new evidence previously unavailable, [or]
(3) the need to correct clear error or prevent manifest injustice.” Servants of the Paraclete
v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). However, “[a] motion to reconsider is not
a second chance for the losing party to make its strongest case or to dress up arguments
that previously failed.” United States v. Huff, 782 F.3d 1221, 1224 (10th Cir. 2015)
(quotation omitted). “[T]he decision to grant reconsideration is committed to the sound
discretion of the district court.” Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 944
(10th Cir. 1995).
B. Pro Se Filings
In reviewing the Motion, the Court is mindful that Ms. Berg proceeds pro se. The
Court thus affords her papers and filings a liberal construction. Haines v. Kerner, 404
U.S. 519, 520–21 (1972) (per curiam). But the Court cannot and does not act as a pro
se litigant’s advocate, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), and applies
the same procedural rules and substantive law to pro se parties as to represented parties,
see Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.3 (10th Cir. 2002); Dodson v.
Bd. of Cnty. Comm’rs, 878 F. Supp. 2d 1227, 1236 (D. Colo. 2012).
III. Discussion
A. Motion for Reconsideration
Beginning with the Motion for Reconsideration, the Court is respectfully
unpersuaded that Ms. Berg has established that there has been an intervening change in
the controlling law, new evidence was previously unavailable, or that there is a need to
correct Judge Prose’s ruling on Ms. Berg’s Motion to Compel Discovery to correct clear
error or prevent manifest injustice.
No Change in Controlling Law. As an initial matter, Ms. Berg does not argue,
see [Doc. 215]—nor does the Court find—that there is any intervening change in
controlling law.
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No New Evidence Previously Unavailable. Nor is this Court persuaded that
there is new evidence that was previously unavailable that justifies reconsideration. To
the extent Ms. Berg relies on her caretaking responsibilities or her technical difficulties to
excuse her noncompliant conduct, [Doc. 215 at 3], the Court concludes that neither
justifies reconsideration based on the record as a whole. With respect to her husband’s
medical care, Ms. Berg’s assertion that a flare-up from her husband’s prior stroke
occurred on December 29 differs from her previous assertion that her husband “required
an urgent medical appointment” on January 2, 2026. [Doc. 209 at 2]. Ms. Berg has
submitted exhibits reflecting that her husband visited a doctor on January 2, 2026 and
was “placed off work” from January 2 to January 4. [Doc. 215 at 23].
The Court does not doubt that Ms. Berg’s caregiving responsibilities take time. But
the Court has repeatedly accommodated Ms. Berg, see, e.g., [Doc. 78 at 2 (Ms. Berg
requesting an extension in April 2025 based on her husband’s medical needs); Doc. 81
(Judge Prose granting the request in part)], and Judge Prose had expressly warned her
that the December 31 deadline would not be extended, [Doc. 177]. As for Ms. Berg’s
technical difficulties, the Court concurs with Judge Prose’s finding that, having been
warned that the deadline was firm, Ms. Berg “should have taken special care to make
sure that her motion was timely filed.” [Doc. 214 at 2]. Despite Judge Prose’s warning,
Ms. Berg apparently waited until late afternoon on the day of the deadline to file her
motion. See [Doc. 215 at 27–28]. By failing to take adequate precautions to ensure she
complied with an expressly firm deadline, Ms. Berg failed to exercise reasonable
diligence. Thus, the Court cannot find that any new evidence justifies reconsidering the
Order denying the Motion to Compel Discovery. [Doc. 214].
Nor is there any evidence that was previously unavailable to demonstrate that Ms.
Berg properly conferred with opposing counsel prior to filing her voluminous motions.
Local Rule 7.1(a) requires parties to confer with opposing counsel before filing a motion
and to describe the “specific efforts to fulfill this duty” in the motion or an attached
certificate. D.C.COLO.LCivR 7.1(a). In her Motion to Compel Discovery, Ms. Berg
claimed that she conferred with United’s counsel on December 10, 2025 and “sent a
follow-up email” on December 29, 2025. [Doc. 185 at 10]. Judge Prose found that the
December 10 conferral could not satisfy her instruction at the December 16, 2025 Status
Conference that the Parties confer further, and that a single follow-up email is insufficient
to satisfy Local Rule 7.1(a). [Doc. 214 at 1–2]. Ms. Berg now references other
communications with United between December 16 and December 31 that she says
satisfied her duty to confer. [Doc. 215 at 5, 15, 17]. Even assuming that these emails do
reflect adequate conferral, Ms. Berg does not explain why she omitted these
communications from her “Sworn Declaration” that functioned as a certificate of conferral
in the Motion to Compel Discovery. See [Doc. 185 at 10]. At a minimum, Ms. Berg failed
to properly describe her “specific efforts” to confer. Judge Prose has repeatedly and
expressly advised Ms. Berg that the conferral and corresponding certification required by
Local Rule 7.1(a) are not optional. See, e.g., [Doc. 138; Doc. 151; Doc. 177]. As
exemplified by the lack of conferral certificates in the Motion for Reconsideration and
Motion for Extension, these warnings have not been heeded.
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No Clear Error or Manifest Injustice. It is well-settled that “[n]on-compliance with
procedures required by a local rule is a proper basis for denying [a] motion.” Aguilera v.
City of Colorado Springs, No. 18-cv-02125-KMT, 2019 WL 3302168, at *9 (D. Colo. July
23, 2019) (collecting cases). And “[w]hile the federal rules do not impose specific timing
for filing a motion to compel [discovery], courts retain discretion to determine whether a
motion ‘is too tardy to be considered.’” King v. IC Grp., Inc., 743 F. Supp. 3d 1346, 1356
(D. Utah 2024) (quoting Centennial Archaeology, Inc. v. AECOM, Inc., 688 F.3d 673, 682
(10th Cir. 2012)). Upon review of the Order denying the Motion to Compel Discovery, this
Court finds no clear error or manifest injustice. Ms. Berg’s neglect in waiting until now to
pursue additional discovery—over nine months after discovery closed and beyond the
six-month period between the filing of the motion for summary judgment and the filing of
her corrected response—is prejudicial both to Defendant and the function of this Court.
United’s motion for summary judgment is fully briefed. See generally [Doc. 76].
Reopening discovery at this juncture would disrupt the Court’s ability to render a
summary-judgment ruling and would impose a delay of uncertain length. Such a result
contradicts Rule 1’s direction that courts and parties adhere to the Federal Rules of Civil
Procedure and conduct themselves in a manner “to secure the just, speedy, and
inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1.
Accordingly, Plaintiff’s Motion for Reconsideration is respectfully DENIED.
B. Motion for Extension
Ms. Berg’s Motion for Extension, [Doc. 216], is defective for multiple reasons. It
does not include a certificate of conferral. It seeks extension of a deadline—supposedly
a pleading deadline imposed in Judge Prose’s Order on the Motion to Compel
Discovery—that does not exist. [Id. at 1, 6–7]; see also [Doc. 214 at 3]. And although
Ms. Berg claims she reviewed the AI model’s output for “accuracy and completeness”
before filing, the Motion for Extension cites to two nonexistent cases and wholly
misrepresents another.1 [Doc. 216 at 5–7]. Ms. Berg also claims that Local Civil Rule
83.1 “expressly permits extensions and other accommodations for parties with
disabilities,” [id. at 6], whereas the actual rule regulates recording devices in federal
courthouses, see D.C.COLO.LCivR 83.1. As discussed above, Ms. Berg is bound by the
same procedural rules as represented parties—including representing such rules
accurately to the Court. And fundamentally, the record demonstrates that this Court has
repeatedly accommodated Ms. Berg’s requests for extensions and was clear that no
1 The fictitious cases cited in the Motion for Extension are “Kelley v. United States, 560
F.3d 1234 (9th Cir. 2019)” and “United States v. Miller, 2025 WL 3471341 (10th Cir. Dec.
3 2025).” See [Doc. 216 at 5–6]. The Motion for Extension also cites “Moore v. City of
Del City, 981 F.2d 470 (10th Cir. 1992)” as defining the “excusable neglect” standard. [Id.
at 5]. Moore v. City of Del City is a real case, but Plaintiff misstates the reporter
information, and Moore did not address “excusable neglect.” See Moore v. City of Del
City, No. 25-6002, 2025 WL 3471341, at *3 (10th Cir. Dec. 3, 2025).
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further extension would be provided beyond December 31 for any motion to compel
discovery.
For all these reasons, the Motion for Extension is respectfully DENIED. The
second, identical version of this motion, [Doc. 217], is STRICKEN as duplicative. To the
extent Ms. Berg believes that she needs accommodations in any proceedings after the
Court rules on United’s Motion for Summary Judgment, see [Doc. 216 at 4–5], the Court
will address those accommodations as appropriate in the future.
C. Filing Restriction
Finally, the Court recognizes that Ms. Berg is interested in pursuing her claims to
their fullest extent. But the Court must resolve United’s Motion for Summary Judgment
before this case can proceed any further. And Ms. Berg’s multitude of filings—many of
which are untimely, duplicative, and noncompliant with the rules governing litigation
before this Court—do not facilitate the just, speedy, and economical resolution of this
case. See, e.g., [Docs. 185–190; Docs. 196–204 (Ms. Berg filing fifteen versions of the
document that the Court construed as the Motion to Compel Discovery)]. Ms. Berg’s pro
se status does not excuse her from complying with this District’s Local Rules, this Court’s
Civil Practice Standards, and the Federal Rules of Civil Procedure. See Hendrix v.
Employer’s Reinsurance Corp., 26 F. App’x 873, 874 (10th Cir. 2002) (“Pro se litigants
must follow the rules of procedure, including local rules.”). The Court also concurs with
Judge Prose that Ms. Berg’s filings reflect a continued misuse of generative AI, despite
the numerous warnings that Ms. Berg has received from both this Court and Judge Prose.
See [Doc. 214 at 2 (Judge Prose highlighting fictitious cases cited in Plaintiff’s Motion to
Compel Discovery and Motion for Relief from Order)]; see also [Doc. 212 at 3 (United
noting that Plaintiff’s Motion for Leave to File Supplemental Brief also cites to nonexistent
Tenth Circuit opinions)]. Given Ms. Berg’s misuse of artificial intelligence and violations
of court rules, the Court respectfully concludes that a filing restriction is appropriate.
“Federal courts have the inherent power to regulate the activities of abusive
litigants by imposing carefully tailored restrictions in appropriate circumstances.”
Andrews v. Heaton, 483 F.3d 1070, 1077 (10th Cir. 2007). A filing restriction is
appropriate where the Court has (1) described a litigant’s history of abusive filings,
(2) provided guidelines for what the litigant must do to obtain permission to submit
additional filings, and (3) given the litigant notice and an opportunity to respond. Id. A
district court’s decision to impose filing restrictions is reviewed for abuse of discretion.
Calvin v. Lyons, 770 F. App’x 433, 434 (10th Cir. 2019) (citing Tripati v. Beaman, 878
F.2d 351, 354 (10th Cir. 1989) (per curiam)).
Upon review, the Court concludes that the following filing restriction is appropriate:
Ms. Berg is restricted from filing any additional motion or document without
leave of court until this Court rules on United’s Motion for Summary
Judgment, or until this Court otherwise vacates this Order. The Court will
not grant leave to file any motion that lacks a certificate of conferral in
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compliance with D.C.COLO.LCivR 7.1(a) and/or a certificate regarding use
of artificial intelligence in compliance with this Court’s Standing Order
regarding AI use. Any document filed without leave will be stricken
automatically and without further explanation.
To the extent Ms. Berg wishes to object to this filing restriction, she may do so by
February 17, 2026. If no objection is received, the filing restriction will take effect
automatically on that date. And to the extent United asks the Court to impose further
sanctions, [Doc. 212 at 11–12], it may do so through an appropriate motion, see
D.C.COLO.LCivR 7.1(d) (“A motion shall be filed as a separate document.”).
For these reasons, IT IS ORDERED that:
(1) Plaintiff’s Motion for Reconsideration of the Court’s Order Denying Plaintiff’s
Motion to Compel (“Motion for Reconsideration”) [Doc. 215] is DENIED;
(2) Plaintiff’s Motion for Extension of Time (or Stay) and Formal Response to
the Magistrate Judge’s Procedural Warnings; Request for Accommodations
[Doc. 216] is DENIED;
(3) The second, identical version of the Motion for Extension, [Doc. 217], is
STRICKEN as duplicative;
(4) To the extent Plaintiff wishes to object to the filing restriction proposed
herein, she may do so by February 17, 2026; and
(5) The Clerk of Court is DIRECTED to mail a copy of this Minute Order to Ms.
Berg at the following address:
Nonnie Berg
545 West 41st Street
#1342
Sioux Falls, SD 57105
DATED: February 6, 2026
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