Everett v. Barnes et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-00936-CNS-KAS
ANDREW DEREK EVERETT,
Plaintiff,
v.
MICHELLE BARNES, in her individual capacity,
NATALIE VIMONT, in her individual capacity,
TAMARA KRIEGER, in her individual capacity,
ELIZABETH BARR, in her individual capacity,
SHANTEL R. RODRIGUEZ, in her individual capacity,
PHILIP J. MCNULTY, Judge, in his individual capacity,
DIANA L. COFFEY, Clerk of Court, in her individual capacity, and
RUSSELL MURRAY, III, PC, in his individual capacity,
Defendants.
_____________________________________________________________________
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on several motions to dismiss filed by the
Defendants, including the Motion to Dismiss Plaintiff’s Complaint [ECF No. 1] [#8],
filed by Defendants Natalie Vimont, Elizabeth Barr, and Shantell R. Rodriguez (the
“County Employees”); the State Defendants’ Amended Motion to Dismiss [#15], filed
by Defendants Michelle Barnes and Philip J. McNulty (the “State Defendants”); Defendant
Diana Coffey’s Motion to Dismiss [#35]; Defendant Russel Murray III’s Motion to
Dismiss Pursuant to Rule 12(b)(1, 2, and 6), Federal Rules of Civil Procedure [#37];
and Defendant Tamara Krieger’s Notice of Joinder in County Employees’ Motion to
Dismiss [ECF No. 8] [#60] (together, the “Motions to Dismiss”). Plaintiff, who proceeds
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in this matter pro se,1 filed Responses [#21, #41, #45] in opposition to the motions to
dismiss, and Defendants filed Reply briefs [#24, #25, #48, #50]. Finally, Plaintiff filed a
Surreply [#33] without leave of Court in response to the State Defendants’ Reply [#24]
and the Defendant County Employees’ Reply [#25]. The Motions to Dismiss (“Motions”)
[#8, #15, #35, #37, #60] have been referred to the undersigned for Recommendation.
See Memoranda [#9, #17, #38, #61].
The Court also considers the Defendant County Employees’ Motion to Strike
Response [#34], which asks the Court to strike Plaintiff’s Surreply [#33], and Defendant
Murray’s Motion for Sanctions [#49], which requests sanctions against Plaintiff. These
two motions have also been referred to the undersigned. See Memoranda [#38, #51].
The Court has reviewed the briefing, the entire case file, and the applicable law.
For the following reasons, the Court RECOMMENDS that the Motions to Dismiss [#8,
#15, #35, #37, #60] be GRANTED, that Plaintiff’s claims be DISMISSED WITHOUT
PREJUDICE for lack of subject matter jurisdiction, and that the Motion for Sanctions [#49]
be DENIED AS MOOT. The Court ORDERS that the Motion to Strike Response [#34] is
DENIED.
I. Background
A. 	The Complaint [#1]
Plaintiff’s allegations arise from an ongoing child support matter in state family
court, which stems from a dissolution of marriage order in that same case to which he is
1 The Court must liberally construe a pro se litigant’s filings. See Haines v. Kerner, 404 U.S. 519,
520-521 (1972). In doing so, the Court should not be the pro se litigant’s advocate nor “supply
additional factual allegations to round out a plaintiff’s complaint or construct a legal theory on a
plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1174 (10th Cir. 1997) (citing Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
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a party, Case No. 21DR30874 (Colo. Dist. Ct., Jefferson Cnty.). Compl. [#1] ¶ 14; see
also County Employees’ Motion [#8] at 5; Ex. A, Register of Action [#8-1].2 	He asserts
that “[t]his action is about State and County elected officials, employees and private
counsel conspiring together against [his] rights guaranteed by the Constitution of the
United States of America, using intimidation, threats and coercion to force [him to] comply
with a contract of the STATE OF COLORADO called APPLICATION FOR MARRIAGE
LICENSE, MARRIAGE LICENSE, F1768420,” which he contends he signed as a result
of “misrepresentation” and certain “concealed” terms and conditions. Id. ¶ 1. Defendant
Barnes is the Executive Director of the Colorado Department of Human Services. Id. at
5, ¶ 5. Defendants Vimont, Krieger, Barr, and Rodriquez are or were employees of the
Jefferson County Department of Human Services. Id. at 6, ¶¶ 6-9. Defendant McNulty is
a judge in Jefferson County. Id., ¶ 10. Defendant Coffey is a clerk of court in Jefferson
County. Id., ¶ 11. Finally, Defendant Murray is an attorney who represented Plaintiff’s
then-wife in the underlying divorce proceedings. Id., ¶ 12.
Plaintiff purportedly “rescinded [his] signature from the STATE OF COLORADO
marriage license application and marriage license contract” because he claims that the
State “did not disclose to [him] that this contract is a legally binding contract in which
Power of Attorney is granted to the STATE, ownership of any children produced, or that
this would force [him] to be subject to the STATE’s family law statutes.” Id. ¶ 14. He
alleges that the Jefferson County District Court has refused to acknowledge his “right to
rescind [his] signature” from his marriage certificate. Id. ¶ 15.
2 Plaintiff does not dispute that the child support matter remains ongoing. See, e.g., Response
[#21], ¶ 5 (“the fraud upon the [family] court is in the ongoing proceedings”) (emphasis added).
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Plaintiff also alleges that the Defendant County Employees engaged in various
efforts at “establishing, enforcing, [and] modifying child and medical support payments
and establishing and enforcing reimbursement of public assistance payments,” which
included threatened reports to credit agencies and threats to suspend Plaintiff’s driver’s
license. Id. ¶¶ 16-37. Separately, Plaintiff complains that Defendant Murray filed several
documents on Plaintiff’s ex-wife’s behalf in the underlying divorce proceedings, that
Defendant Coffey docketed those filings, and that Defendant McNulty signed proposed
orders submitted with those filings. Id. ¶¶ 38-42, 44-49.
Plaintiff invokes jurisdiction under 28 U.S.C. §§ 1331, 1333, and 1339. Id. ¶ 2. He
asserts eight causes of action: (1) “Fraudulent Inducement” against all Defendants; (2)
“Slavery, Involuntary Servitude, Forced compliance to contracts not held” against all
Defendants; (3) “Breach of Fiduciary Duty” against Defendants except Defendant Murray;
(4) “Fraud Upon the Court” against Defendants Murray, Coffey, and McNulty; (5)
“Violation of oath of office” against Defendants Coffey and McNulty; (6) “Conspiracy
against rights” against all Defendants; (7) “Deprivation of rights under color of law” against
all Defendants; and (8) “Refusal to Provide Evidence of an Obligation of Contract,
Verification of an alleged debt, and Refusal to Send a Bill” against Defendant Barnes and
the Defendant County Employees. Id. at 16-23, ¶¶ 52-75.
Plaintiff seeks various forms of injunctive and monetary relief, including liquidation
of various insurance bonds and payment of the proceeds to him totaling $2,640,000;
ordering compliance with State contract law; extending Plaintiff credit from certain
accounts in his name; and ordering Defendants Coffey and McNulty to vacate their
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positions. Id. ¶¶ 77-82, 84. Defendants seek dismissal of the claims against them
pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). See Motions [#8, #15, #35, #37, #60].
B. 	Everett v. Bollinger-Everett
This is Plaintiff’s second federal case relating to his divorce proceedings. In his
other case, Plaintiff alleged that his now ex-wife “made defamatory statements against
him in attempts to deny his religious freedom and property rights, i.e., his children, arising
from his divorce proceedings in Jefferson County state court, Case No. 21DR30874.”
Everett v. Bollinger-Everett, No. 23-cv-01133-CNS-SKC, 2023 WL 1805566, *1 (D. Colo.
Jan. 19, 2023) (Everett I), report and recommendation adopted, 2023 WL 1801338 (D.
Colo. Feb. 7, 2023) (Everett II). Then-Magistrate Judge S. Kato Crews recommended
dismissing Plaintiff’s claims for lack of subject matter jurisdiction under the domestic
relations exception and the Younger abstention doctrine, because Plaintiff essentially
asked the Court to enter domestic relations orders and to interfere with ongoing state
court 	proceedings. 	Id. 	at 	*2. 	District 	Judge 	Charlotte 	N. 	Sweeney 	adopted 	the
recommendation and dismissed the case. Everett II, 2023 WL 1801338, at *1.
II. Legal Standard
A. 	Rule 12(b)(1)
“To survive a 12(b)(1) motion to dismiss, a plaintiff must demonstrate that the court
has subject-matter jurisdiction.” Audubon of Kan., Inc. v. U.S. Dep’t of Interior, 67 F.4th
1093, 1108 (10th Cir. 2023). In other words, “[a] Rule 12(b)(1) motion to dismiss only
requires the court to determine whether it has authority to adjudicate the matter.” Kenney
v. Helix TCS, Inc., 939 F.3d 1106, 1108 (10th Cir. 2019). Because federal courts are
tribunals of limited jurisdiction, the Court must establish a statutory basis to exercise
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jurisdiction. Fed. R. Civ. P. 12(b)(1); Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002).
The Court may only exercise jurisdiction “in the presence rather than the absence of
statutory authority.” Castaneda v. I.N.S., 23 F.3d 1576, 1580 (10th Cir. 1994) (quoting
Wyeth Lab’ys v. U.S. Dist. Ct., 851 F.2d 321, 324 (10th Cir. 1988)). “The party invoking
federal jurisdiction has the burden to establish that it is proper, and there is a presumption
against its existence.” Salzer v. SSM Health Care of Okla. Inc., 762 F.3d 1130, 1134 (10th
Cir. 2014) (internal quotation marks omitted).
“Rule 12(b)(1) challenges may take two different forms.” Graff v. Aberdeen
Enters., II, Inc., 65 F.4th 500, 507 (10th Cir. 2023). “The moving party may (1) facially
attack the complaint’s allegations as to the existence of subject matter jurisdiction, or (2)
go beyond allegations contained in the complaint by presenting evidence to challenge the
factual basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin. Servs.,
Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004). “When resolving a facial attack on
the allegations of subject matter jurisdiction, a court must accept the allegations in the
complaint as true.” Graff, 65 F.4th at 507 (citing Holt v. United States, 46 F.3d 1000, 1002
(10th Cir. 1995)). “When the moving party attacks the factual basis for subject matter
jurisdiction, on the other hand, a court ‘may not presume the truthfulness of the factual
allegations in the complaint, but may consider evidence to resolve disputed jurisdictional
facts.’” Id. (quoting SK Fin. SA v. La Plata Cnty., Bd. of Cnty. Comm’rs, 126 F.3d 1272,
1275 (10th Cir. 1997)). “Reference to evidence outside the pleadings does not convert
the motion to dismiss into a motion for summary judgment[.]” SK Fin. SA, 126 F.3d at
1275. “In such instances, a court has discretion to consider affidavits and other
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documents to resolve the jurisdictional question.” Graff, 65 F.4th at 507 (citing Holt, 46
F.3d at 1003).
III. Analysis
Defendants move to dismiss Plaintiff’s claims, raising both jurisdictional and
substantive arguments. However, because the Court finds that it lacks jurisdiction over
this action, it cannot consider the plausibility of Plaintiff’s claims under Rule 12(b)(6). Cf.
Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006) (explaining that a
court that lacks jurisdiction is “incapable of reaching a disposition on the merits of the
underlying claims”) (emphasis in original).
Under 	Rule 	12(b)(1), 	Defendants 	raise 	the 	Rooker-Feldman 	and 	Younger
abstention doctrines; Eleventh Amendment sovereign immunity; and the Colorado
Governmental Immunity Act. See County Employees’ Motion [#8] at 3-12; State Defs.’
Motion [#15] at 3-8; Coffey Motion [#35] at 2-6; but see Murray Motion [#37] at 3-4, 11-12
(arguing that Plaintiff’s claims are barred by res judicata or claim preclusion due to a prior
dismissal under the Rooker-Feldman doctrine); Krieger Motion [#60] at 2 (joining County
Employees’ jurisdictional arguments). The Court may address jurisdictional issues in
whatever order it deems appropriate. Cf. Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping
Corp., 549 U.S. 422, 431 (2007) (“[T]here is no mandatory sequencing of jurisdictional
issues.”) (internal quotation omitted). Here, the Court finds that the Younger abstention
doctrine and the domestic relations exception bar Plaintiff’s claims, so it need not resolve
the other jurisdictional arguments.
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A. 	Younger Abstention Doctrine
The Younger abstention doctrine requires federal district courts to “abstain from
exercising jurisdiction when three conditions are satisfied: (1) there are ongoing state
court proceedings; (2) the state court offers an adequate forum to hear the plaintiff’s
claims from the federal lawsuit; and (3) the state proceeding involves important state
interests.” Morkel v. Davis, 513 F. App’x 724, 727 (10th Cir. 2013); see also Younger v.
Harris, 401 U.S. 37, 43 (1971). “Younger governs whenever the requested relief would
interfere with the state court’s ability to conduct proceedings, regardless of whether the
relief targets the conduct of a proceeding directly.” Joseph A. ex rel. Corrine Wolfe v.
Ingram, 275 F.3d 1253, 1272 (10th Cir. 2002).
Here, there is no dispute that the underlying child support proceedings are
ongoing. See, e.g., County Employees’ Motion [#8] at 5; Response [#21], ¶ 5. The
injunctive and monetary relief Plaintiff seeks—such as mandated compliance with
Colorado contract law and liquidation of various insurance bonds and payment of
proceeds 	to 	him—would 	interfere 	with 	the 	state 	family 	court’s 	ability 	to 	conduct
proceedings and resolve current and any future disputes about child support. See Gibson
v. Lopez, No. 21-cv-02610-WJM-NYW, 2022 WL 2158986, at *4 (D. Colo. June 15, 2022)
(noting that the doctrine applies to federal suits for injunctive, declaratory, or monetary
relief because a successful litigant “could take their federal judgment to the state court
and attempt to enjoin, interfere with, or use the judgment for its purported preclusive effect
in the state court proceedings.”) (citing D.L. v. Unified Sch. Dist. No. 497, 392 F.3d 1223,
1228 (10th Cir. 2004)). Additionally, domestic disputes, including child support disputes,
implicate important matters of state interest. Cf. Wideman v. Colorado, 242 F. App’x 611,
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614 (10th Cir. 2007) (applying Younger abstention doctrine to lawsuit arising from ongoing
custody proceedings which implicate important state interests); see also Johnson v.
Domestic Rel. Sec., No. 18-1294-JWB-GEB, 2019 WL 1915563, at *3 (D. Kan. Apr. 30,
2019) (noting that ongoing child support proceedings implicate important state interests).
Finally, Plaintiff does not adequately explain why the state proceedings are an
inadequate forum for him to assert his claims. While he contends that “fraud upon the
court exists in the divorce case” and that there is “extreme bias,” Response [#21] at 4, his
statements are conclusory and insufficient to defeat abstention. See, e.g., Knoche v.
Droege, No. 24-2150-JWB, 2024 WL 3890169, at *1 (D. Kan. Aug. 19, 2024) (rejecting
the plaintiff’s “conclusory statement that the forum is not sufficient because of judicial
bias”). Moreover, any allegations of fraud in state court proceedings “are matters of state
interest of the first magnitude.” Stauffer v. Hayes, No. 08-cv-00815-WYD-BNB (D. Colo.
Dec. 12, 2008) (applying Younger abstention in light of ongoing state proceedings that
could address allegations of fraud and official misconduct), recommendation adopted by
2009 WL 724050 (D. Colo. Mar. 19, 2009). Therefore, the three conditions for application
of the Younger abstention doctrine are met. Accordingly, the Court recommends that the
Motions [#8, #15, #35, #37, #60] be granted on this basis and Plaintiff’s claims be
dismissed without prejudice for lack of subject matter jurisdiction.
The Court pauses here to note the true nature of Plaintiff’s request for monetary
relief. 	Plaintiff 	asks 	the 	Court 	to 	order 	“liquidat[ion] 	[of] 	the 	insurance 	bonds” 	of
Defendants and “issu[e] full payments to [him],” in a total amount of $2,640,000.00.3
Compl. ¶¶ 78, 81-82, 84-85. This monetary demand appears to be the hallmark of
3 The $2,640,000 sum is derived as follows: (A) $250,000 x 8 (Compl., ¶ 78) + (B) $250,000 x 2
(id., ¶ 81) + (C) $10,000 x 7 (id., ¶ 82) + (D) $10,000 x 7 (id., ¶ 84) = (E) $2,640,000.
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sovereign citizen ideology and seeks to paralyze Defendants from performing their
governmental jobs, administering justice, and executing court orders.4 “Sovereign citizens
believe seizing [a governmental] official’s ‘bond’ prevents him/her from conducting any
activity on behalf of the government.” Hopper v. Chancey, No. 2:24-cv-02040-SOH-MEF,
2024 WL 4730596, at *3 n.3 (W.D. Ark. Oct. 21, 2024) (quoting FBI Domestic Terrorism
Unit, 	Sovereign 	Citizens: 	An 	Introduction 	for 	Law 	Enforcement, 	available
https://info.publicintelligence.net/FBI-SovereignCitizens.pdf 	(last 	accessed 	Oct. 	18,
2024)). Because this monetary demand is solely based on sovereign citizen ideology, it
is frivolous. See, e.g., Hopper, 2024 WL 4730596, at *5 (“It is well-established in the
Eighth Circuit that claims based on sovereign citizen ideology are inherently frivolous and
should be summarily dismissed as a waste of judicial resources.”) (collecting cases);
Mackey v. Bureau of Prisons, No. 15-cv-1934-LJO-BAM, 2016 WL 3254037, at *1 (E.D.
Cal. June 14, 2016) (noting that “[c]ourts across the country ‘have uniformly rejected
arguments’ 	based 	on 	the 	sovereign 	citizen 	ideology 	as 	frivolous, 	irrational, 	or
unintelligible”) (quoting United States v. Staten, No. 1:10-cr-00179, 2012 WL 2389871, at
*3 (M.D. Pa. June 25, 2012) (collecting cases); citing United States v. Studley, 783 F.2d
934, 937 n.3 (9th Cir. 1986)).
The Court acknowledges that under Younger, claims for monetary damages must
be stayed rather than dismissed. See Chapman v. Barcus, 372 F. App’x 899, 902 (10th
Cir 	2010) 	(applying 	Younger 	abstention 	and 	remanding 	to 	the 	district 	court 	with
4 Plaintiff’s invocation of jurisdiction under 28 U.S.C. § 1333 (granting district courts original
jurisdiction over admiralty and maritime cases), which has nothing to do with this case, is another
hallmark of sovereign citizen ideology. See, e.g., Nunez v. Atkinson, No. 4:13-2744-TMC-TER,
2014 WL 12526342, at *3 (D.S.C. Feb. 18, 214) (discussing the plaintiff’s sovereign citizen
theories and “frivolous arguments under admiralty law”).
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instructions “to stay proceedings on [the plaintiff’s] damages claims and dismiss without
prejudice his remaining claims.”); Bryant v. Mclean, No. 23-cv-00997-NYW-KAS, 2024
WL 1195326, at *10 (D. Colo. Mar. 20, 2024), appeal dismissed, No. 24-1123, 2024 WL
3963962 (10th Cir. May 10, 2024) (stating that, under Younger, “[c]ourts in this District
thus elect to stay proceedings on federal claims for money damages pending the
resolution of the state court case”). However, here, Plaintiff’s request for money damages
does not require a stay of proceedings because, as explained above, they are premised
on sovereign citizen ideology and are therefore frivolous.
B. 	The Domestic Relations Exception
Dismissal is also warranted under the domestic relations exception, a judicially
created exception to federal jurisdiction, which “divests the federal courts of power to
issue divorce, alimony, and child custody decrees.” Ankenbrandt v. Richards, 504 U.S.
689, 703 (1992); see also Ex parte Burrus, 136 U.S. 586, 593-94 (1890) (“The whole
subject of the domestic relations of husband and wife, parent and child, belongs to the
laws of the States and not to the laws of the United States.”). “[A] federal court cannot
‘reopen, reissue, correct, or modify’ an order in a domestic relations case.” Alfaro v.
Arapahoe County, 766 F. App’x 657, 659 (10th Cir. 2019) (quoting Leathers v. Leathers,
856 F.3d 729, 756 (10th Cir. 2017)). The inquiry focuses on what kind of determination
the federal court must make to resolve the claim, i.e., whether “the federal court is called
upon to decide those issues regularly decided in state court domestic relations actions
such as divorce, alimony, child custody, or the support obligations of a spouse or parent[.]”
Vaughan v. Smithson, 883 F.2d 63, 65 (10th Cir. 1989).
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While some courts have limited the domestic relations exception to cases arising
in diversity jurisdiction, see 13E CHARLES ALAN WRIGHT & A RTHUR R. MILLER, FEDERAL
P RACTICE AND P ROCEDURE § 3609 nn.3-4 (3d ed., June 2024 update), the Tenth Circuit
has applied the exception to cases invoking federal question jurisdiction. See, e.g., Alfaro,
766 F. App’x 657, 659-60 (affirming district court finding that domestic-relations exception
barred plaintiff’s constitutional claims challenging state court divorce and custody orders);
Hunt v. Lamb, 427 F.3d 725, 726-27 (10th Cir. 2005) (holding that a child custody case
was not removable because, under the domestic relations exception, it could not have
originally been filed in federal court even though the defendant “sought removal to
vindicate his civil and constitutional rights”).
The Court finds that the domestic relations exception squarely fits this case. The
relief Plaintiff seeks would require the Court to decide issues that are regularly (and more
appropriately) handled in state court domestic relations actions. Vaughan, 883 F.2d at 65.
Plaintiff admits that “[t]his action arises out of a divorce case in JEFFERSON COUNTY,
COLORADO, case number: 2021DR030874.” Compl. [#1] ¶ 14 (emphasis in original). He
asks the Court to “void the STATE marriage contract and remove [him] from it”; to void
“all judgments and orders on and from case number: 2021DR30874,” i.e. the state court
divorce/child support action; and to impose monetary damages on the Defendants for
their conduct related to the state court divorce action. Id. ¶¶ 77-85 (emphasis in original).
The state court, with its relative expertise in domestic relations matters, is better
suited to address Plaintiff’s claims. Vaughan, 883 F.2d at 65. This remains true to the
extent Plaintiff attempts to assert federal civil rights violations. See, e.g., Landrith v.
Gariglietti, 505 F. App’x 701, 703 (10th Cir. 2012) (rejecting pro se plaintiff’s “attempts to
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‘disguise the true nature of’ [his] domestic relations action” as a civil rights claim “in order
to secure a federal forum”) (quoting McLaughlin v. Cotner, 193 F.3d 410, 413 (1992)));
Wiland v. Stitt, No. 24-cv-00443-GKF, 2024 WL 4271570, at *2 (N.D. Okla. Sept. 23,
2024) 	(holding 	that 	domestic 	relations 	exception 	barred 	plaintiff’s 	claims 	seeking
restoration of children to her custody despite her allegation of “constitutional necessity
because of the high trespass against a fundamental right by servants in government”).
What Plaintiff seeks is clear: nullification of a marriage license, modification of child
support obligations, and federal court scrutiny over an ongoing state court case. “Federal
courts, however, lack the power to do any of this.” Landrith, 505 F. App’x at 702. Once
again, the domestic relations exception bars Plaintiff’s claims. Cf. Everett I, 2023 WL
1805566, at *2.
Accordingly, the Court recommends that Plaintiff’s claims be dismissed without
prejudice for lack of subject matter jurisdiction. See, e.g., Eagar v. Drake, 829 F. App’x
878, 885 (10th Cir. 2020) (“Dismissals for lack of jurisdiction [are] without prejudice
because the court, having determined that it lacks jurisdiction over the action, is incapable
of reaching a disposition on the merits of the underlying claims.”) (alterations in original)
(quoting Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006)); Wiland,
2024 WL 4271570, at *2-3 (sua sponte dismissing action without prejudice pursuant to
the domestic relations exception and Younger abstention).
C. 	Motion to Strike [#34]
The Defendant County Employees ask the Court to strike Plaintiff’s Surreply [#33]
that was filed without leave of court because “(1) it is not permitted by right under the
Federal Rules of Civil Procedure, (2) Mr. Everett did not confer with counsel or move for
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or receive leave to file it, and (3) the sur-reply was filed beyond the time limit for any
further briefing on the Motion pursuant to D.C.Colo.LCivR 7.1(d).” Motion to Strike [#34]
at 3.
Whether to permit a surreply is within the district court’s discretion. See Green v.
New Mexico, 420 F.3d 1189, 1196 (10th Cir. 2005) (citing Beaird v. Seagate Tech., Inc.,
145 F.3d 1159, 1164 (10th Cir. 1998)). Generally, a party “should be given an opportunity
to respond to new material raised for the first time” in a reply. Id. “Material” includes new
evidence and new legal arguments. Id.
The Court agrees that Plaintiff’s Surreply [#33] was improperly filed. It does not
respond to any new material in either the State Defendants’ Reply [#24] or the Defendant
County Employees’ Reply [#25] but instead rehashes the same arguments Plaintiff raised
in 	his 	Response 	[#21]. 	Compare 	generally 	Surreply 	[#33] 	with 	Response 	[#21].
Additionally, Plaintiff neither sought nor received leave to file it. The Court would be well
within its discretion to strike the unauthorized filing on that basis. However, the Court has
reviewed the Surreply [#33] and finds that striking is unnecessary because it did not affect
the Court’s analysis or conclusions. Therefore, the Motion to Strike [#34] is DENIED.
D. 	Motion for Sanctions [#49]
Defendant Murray asks the Court to impose Rule 11 sanctions against Plaintiff for
bringing this action, because Plaintiff was warned in Everett I and II that the U.S. District
Court lacked jurisdiction to consider his efforts to challenge or undermine the state court
divorce proceedings. See Motion for Sanctions [#49] at 5. Defendant Murray asks that
the claims against him be stricken and that sanctions be imposed against the Plaintiff.
Motion for Sanctions [#49] at 5. Defendant Murray certifies that he served Plaintiff a copy
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of the Motion for Sanctions more than 21 days before he filed it with the Court. Id. at 6;
see also Roth v. Green, 466 F.3d 1179, 1192-93 (10th Cir. 2006) (noting that strict
compliance with Rule 11’s “safe harbor” period is mandatory before a district court can
impose sanctions).
While the Motion for Sanctions [#49] is procedurally proper, the Court notes that
Defendant Murray requested just one specific sanction: striking the claims against him.
See Motion for Sanctions [#49] at 5. He did not request attorney fees, filing restrictions,
or any other sanction, and due process concerns prevent the Court from considering any
sanctions that were not specifically requested. Cf. Hutchinson v. Pfeil, 208 F.3d 1180,
1185-86 (10th Cir. 2000) (reversing district court award of “sanctions beyond those sought
in defendants’ fee motion” because there had been no “notice and an opportunity to
respond before sanctions [were] imposed”) (citing Johnson v. Waddell & Reed, Inc., 74
F.3d 147, 151 (7th Cir. 1996)). Defendant Murray’s vague request for any other “sanctions
imposed against Plaintiff” is insufficient to put Plaintiff on notice of any sanctions other
than the striking of the claims against Defendant Murray.
As for Defendant Murray’s specific request to strike the claims against him as a
sanction, the Court is simultaneously recommending dismissal of Plaintiff’s claims. If
adopted, this would moot the Motion for Sanctions [#49] because none of his claims
against Defendant Murray would remain. Thus, the Court recommends that the Motion
for Sanctions [#49] be denied as moot upon dismissal of Plaintiff’s Complaint [#1] for
lack of subject matter jurisdiction.
Case No. 1:24-cv-00936-CNS-KAS Document 64 filed 02/21/25 USDC Colorado
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IV. Conclusion
Based on the foregoing,
IT IS HEREBY RECOMMENDED that the Motions to Dismiss [#8, #15, #35, #37,
#60] be GRANTED and that Plaintiff’s claims be DISMISSED WITHOUT PREJUDICE for
lack of subject matter jurisdiction, under the domestic relations exception.
IT IS FURTHER RECOMMENDED that the Motion for Sanctions [#49] be DENIED
AS MOOT.
IT IS FURTHER ORDERED that the Motion to Strike [#34] is DENIED.
IT IS FURTHER ORDERED that any party may file objections within 14 days of
service of this Recommendation. In relevant part, Fed. R. Civ. P. 72(b)(2) provides that,
“within 14 days after being served with a copy of the recommended disposition, a party
may 	serve 	and 	file 	specific 	written 	objections 	to 	the 	proposed 	findings 	and
recommendations. A party may respond to another party’s objections within 14 days after
being served with a copy.” “[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 E. 30th St., 73 F.3d
1057, 1060 (10th Cir. 1996). The objection must be “sufficiently specific to focus the
district court’s attention on the factual and legal issues that are truly in dispute.” Id. “[A]
party who fails to make a timely objection to the magistrate judge’s findings and
recommendations waives appellate review of both factual and legal questions.” Morales-
Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005).
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Dated: February 21, 2025 	BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
Case No. 1:24-cv-00936-CNS-KAS Document 64 filed 02/21/25 USDC Colorado
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