Harris v. Take-Two Interactive Software, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 24-cv-01508-PAB-MDB
COLTON JOHN HARRIS,
Plaintiff,
v.
TAKE-TWO INTERACTIVE SOFTWARE, INC., a Delaware corporation,
Defendant.
ORDER
This matter comes before the Court on plaintiff Colton John Harris’s Motion to
Vacate Referrals to Magistrate Judge [Docket No. 142], Motion to Expedite Ruling on
Plaintiff’s Motion to Vacate Referrals to Magistrate Judge (Docket 142) [Docket
No. 144], and Motion to Vacate and for Relief from Procedural Impropriety in the
December 17, 2024 Hearing [Docket No. 145]. Take-Two did not file responses to the
motions.
I. 	BACKGROUND
On September 16, 2024, Mr. Harris filed his third amended complaint 1 against
Take-Two Interactive Software, Inc. (“Take-Two”). Docket No. 73. Mr. Harris brings
claims under the Computer Fraud and Abuse Act, the Colorado Consumer Protection
Act, the Sherman Act, and the Clayton Act, and also claims for common law breach of
1 On September 9, 2024, the magistrate judge granted Mr. Harris leave to file a
third amended complaint. Docket No. 72 at 1.
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privacy and unjust enrichment. Id. at 10–20, ¶¶ 23–68. Mr. Harris had an account on
Take-Two’s platform, CFX.re. Id. at 10, ¶¶ 24–27. Mr. Harris alleges that a Take-Two
employee accessed the data associated with his CFX.re account without authorization
and terminated his account. Id., ¶ 26.
Mr. Harris filed a motion for sanctions against Take-Two on November 12, 2024.
Docket No. 96. On November 30, 2024, Mr. Harris filed a motion to lift a stay on the
proceedings, Docket No. 98, that had taken effect on September 9, 2024. Docket
No. 72. On December 3, 2024, Mr. Harris filed a second motion for sanctions against
Take-Two. Docket No. 100. That same day, Mr. Harris filed a motion for an emergency
order for preservation of evidence, Docket No. 101, and a motion for default judgment.
Docket No. 102. Under D.C.COLO.LCivR 7.1(d), Take-Two had until December 3,
2024 to respond to Mr. Harris’s November 12 motion for sanctions. However, on
December 3, 2024, Magistrate Judge Maritza Dominguez Braswell ordered Take-Two to
respond to the motions for sanctions, the motion for emergency preservation order, and
the motion for default judgment (collectively, the “November/December motions”) no
later than January 8, 2025. Docket No. 105. Judge Dominguez Braswell scheduled a
hearing on these motions for January 27, 2025. Id. Judge Dominguez Braswell also
denied Mr. Harris’s motion to lift the stay as moot because granting the motion was
unnecessary for her consideration of the motions. Id.
On December 10, 2024, Mr. Harris filed a motion for entry of default against
Take-Two. Docket No. 110. The Clerk of Court declined to enter default against Take-
Two because the deadline for Take-Two to respond to Mr. Harris’s motion for sanctions
had not yet passed. Docket No. 111.
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On December 17, 2024, Judge Dominguez Braswell held a status conference,
Docket No. 129, to better understand Mr. Harris’s filings. Docket No. 148 at 2:5–3:20.
Judge Dominguez Braswell explained that she understood Mr. Harris’s filings to be
addressing the following: 1) Take-Two’s inclusion of a screenshot in its reply in support
of its motion to dismiss; 2) the need to preserve evidence from a previous version of
Take-Two’s platform; and 3) Take-Two’s failure to respond to Mr. Harris’s first motion
for sanctions by December 3, 2024 and Judge Dominguez Braswell moving the
response deadline for all the November/December motions, including the motion for
sanctions, to January 8, 2025. Id. at 3:23–5:9.
At the December 17, 2024 status conference, Judge Dominguez Braswell
indicated that Mr. Harris’s concerns regarding the screenshot would be addressed in the
court’s ruling on Take-Two’s motion to dismiss. Id. at 17:4–18. Regarding the
preservation motion, Take-Two confirmed that it would “continue to maintain backups in
the ordinary course of business,” which includes the previous version of Take-Two’s
platform. Id. at 22:16–18; 23:6–12. Judge Dominguez Braswell construed Mr. Harris’s
arguments as a motion for an order of preservation of evidence and granted that
motion. Id. at 25:5–10. The court ordered Take-Two to “preserve and maintain all
records and potential evidence in this litigation as described by Mr. Harris on the
record.” Id. at 25:10–13. Regarding the court’s extension of the response deadline,
Judge Dominguez Braswell explained that she extended the response deadline under
Fed. R. Civ. P. 6(b) because a court has the discretion to so do for good cause. Id. at
10:13–21. Judge Dominguez Braswell found that it was in the interest of judicial
economy for Take-Two to respond to all of Mr. Harris’s motion by January 8, 2025,
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rather than Take-Two filing individual responses to all of Mr. Harris’s motions. Id. at
10:22–11:13. The court explained that it “would be much more orderly to push this up,
give [Take-Two] an opportunity to respond to everything all at once rather than
peppering with responses, and then give [Mr. Harris] a reply deadline, and then also
give [Mr. Harris] a hearing.” Id. at 11:5–9.
II. 	ANALYSIS
The Court addresses the three motions noted on the first page of this order in
turn. Because Mr. Harris is proceeding pro se, the Court will construe his pleadings
liberally without serving as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991).
A. Motion to Vacate Referrals to Magistrate Judge
Mr. Harris moves to have this case “handled under the full control of the District
Judge.” Docket No. 142 at 2. Mr. Harris purports to “withdraw consent to the
magistrate judge’s jurisdiction” under Fed. R. Civ. P. 73(b)(2). Id. Although parties to a
civil case may consent to a magistrate judge having jurisdiction to conduct all
proceedings in the case, the parties did not do so here. Docket No. 33. However, Mr.
Harris’s consent is not required for the district court to refer non-dispositive motions to
Judge Dominguez Braswell. See Fed. R. Civ. P. 72(a); 28 U.S.C. §§ 636(b)(1)(B)-(C);
see also Matios v. City of Loveland, 2023 WL 4145905, at *3 (10th Cir. June 23, 2023).
Mr. Harris may object to any adverse rulings or recommendations by Judge Dominguez
Braswell and such objections will be decided by an Article III judge pursuant to Fed. R.
Civ. P. 72 and 28 U.S.C. § 636(b)(1). Accordingly, the Court denies Mr. Harris’s motion.
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B. Motion to Expedite Ruling on Motion to Vacate Referrals to
Magistrate Judge
Mr. Harris moves to expedite the Court’s ruling on Mr. Harris’s motion to vacate
referrals to the magistrate judge. Docket No. 144 at 1. Because the Court rules on Mr.
Harris’s motion through this order, the Court will deny Mr. Harris’s motion as moot.
C. Motion to Vacate and for Relief from Procedural Impropriety in the
December 17, 2024 Hearing
The Court construes Mr. Harris’s Motion to Vacate and for Relief from Procedural
Impropriety in the December 17, 2024 Hearing, Docket No. 145, as an objection
pursuant to 28 U.S.C. § 636(h)(1) because Mr. Harris asks for relief from the Court
based on Judge Dominguez Braswell’s “rulings” and “actions” during the December 17,
2024 status conference. Id. at 7. Specifically, Mr. Harris argues that the “preservation
order” Judge Dominguez Braswell issued “should not stand.” Id.
The district court reviews a magistrate judge’s order on a non-dispositive motion
under a “clearly erroneous or contrary to law” standard. 28 U.S.C. § 636(b)(1)(A); Fed.
R. Civ. P. 72(a). Under this standard of review, a magistrate judge’s finding should not
be rejected merely because the Court would have decided the matter differently. See
Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985). The clearly erroneous
standard requires a district court to affirm a magistrate judge's decision unless, “on the
entire evidence[, the district court] is left with the definite and firm conviction that a
mistake has been committed.” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464
(10th Cir. 1988) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948));
see also Allen v. Sybase, Inc., 468 F.3d 642, 658 (10th Cir. 2006). “Under the ‘contrary
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to law’ standard, the reviewing court sets aside the magistrate order only if it applied an
incorrect standard or applied the appropriate legal standard incorrectly.” Swan Glob.
Invs., LLC v. Young, No. 18-cv-03124-CMA-NRN, 2019 WL 2171457, at *3 (D. Colo.
May 17, 2019) (internal quotations, alterations, and citations omitted).
Mr. Harris moves for “relief from all actions and rulings stemming from the
[December 17, 2024] hearing.” Docket No. 145 at 2. Mr. Harris argues that Judge
Dominguez Braswell violated his Fifth Amendment rights by proceeding with the
December 17, 2024 status conference despite not having ruled on Mr. Harris’s filing at
Docket No. 109. Id. Specifically, Mr. Harris argues that it was improper for Judge
Dominguez Braswell to grant the motion for evidence preservation, request a transcript,
and maintain the January 8, 2025 response deadline while Docket No. 109 was
pending. Id. at 3.
In Docket No. 109, which is called “Objection to Minute Order (Doc. 105) on
Procedural Handling of Motions,” Mr. Harris argues that it was improper for Judge
Dominguez Braswell to schedule a motions hearing on January 27, 2025 to consider all
of the November/December motions at one time. Docket No. 109 at 3. He also argues
that Judge Dominguez Braswell violated Fed. R. Civ. P. 6(b)(1) by extending the
response deadline to January 8, 2025. Id. Mr. Harris argues that it was improper for
Judge Dominguez Braswell to deny his motion to lift the stay as moot. Id. at 2. The
Court construes Docket No. 109 as a motion for reconsideration directed to Judge
Dominguez Braswell because Mr. Harris does not ask for relief from this Court. See id.
at 6–7. Rather, Mr. Harris asks for “clarification” of Judge Dominguez Braswell’s denial
of Mr. Harris’s motion to lift the stay and clarification on the “procedural basis for
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extending the deadline to January 27, 2025, without a request or justification from the
Defendant.” Id. at 6. Mr. Harris asks that the court “enforce compliance” with “Fed. R.
Civ. P. 6(d) deeming the Defendant’s failure to respond within 21 days a waiver of their
right to oppose [the] motion.” Id. at 7. Mr. Harris further asks for “expedited
consideration and separate rulings” on the November/December motions that are
before Judge Dominguez Braswell. Id.
In his motion to vacate, Mr. Harris does not explain why his pending motion for
reconsideration, Docket No. 109, “taint[ed]” all “rulings and actions stemming” from the
December 17, 2024 status conference. Docket No. 145 at 3. Mr. Harris appears to
argue that Judge Dominguez Braswell should have stayed the December 17, 2024
status conference until the court ruled on Mr. Harris’s motion for reconsideration. It is
within a magistrate judge’s discretion to hold a status conference. See United States v.
Mich., 422 F. Supp. 2d 808, 810 (E.D. Mich. 2006). Mr. Harris cites no authority for the
proposition that it was clearly erroneous or contrary to law for Judge Dominguez
Braswell to exercise her discretion to hold a status conference while a motion for
reconsideration was pending. Accordingly, the Court overrules Mr. Harris’s objections
and denies the Motion to Vacate and for Relief from Procedural Impropriety in the
December 17, 2024 Hearing [Docket No. 145].
III. 	CONCLUSION
Therefore, it is
ORDERED the Motion to Vacate Referrals to Magistrate Judge [Docket No. 142]
is DENIED. It is further
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ORDERED the Motion to Expedite Ruling on Plaintiff’s Motion to Vacate
Referrals to Magistrate Judge (Docket 142) [Docket No. 144] is DENIED. It is further
ORDERED the Motion to Vacate and for Relief from Procedural Impropriety in
the December 17, 2024 Hearing [Docket No. 145] is DENIED and the objections in the
motion are OVERRULED.
DATED January 24, 2025
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
__________________________
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