Prkic v. Sezzle Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-02624-PAB-NRN
MARIA J. PRKIC,
Plaintiff,
v.
SEZZLE, INC.,
Defendant.
ORDER ON PLAINTIFF MARIA J. PRKIC’S MOTION TO COMPEL DISCOVERY AND
FOR RELIEF ON PENDING ISSUES FROM JANUARY 5, 2026 HEARING (ECF No.
150) AND MOTION FOR JURY TRIAL UNDER THE FIFTH AND SEVENTH
AMENDMENTS (ECF No. 154)1
N. REID NEUREITER
United States Magistrate Judge
This matter comes before the Court on two motions by Plaintiff. First is Plaintiff’s
motion, filed February 6, 2026, “To Compel Discovery and for Relief from Pending
Issues from January 5, 2026 Hearing,” ECF No. 150. The motion was referred to the
undersigned by Judge Philip A. Brimmer on the date it was filed. ECF No. 151. Second
1 Rule 72(a) of the Federal Rules of Civil Procedure provides that when a pretrial
matter not dispositive of a party’s claim or defense is referred to a Magistrate Judge to
hear and decide, the Magistrate Judge must issue a written order stating the decision.
Within fourteen (14) days after service of a copy of this Minute Order, any party may
serve and file written objections 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(a). Failure to make any
such objection will result in a waiver of the right to appeal the non-dispositive order. See
Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd. 989 F.3d 747, 782 (10th Cir. 2021) (firm
waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418
F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the
interests of justice require review, such as when a “pro se litigant has not been informed
of the time period for objecting and the consequences of failing to object”).
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is the Motion for Jury Trial under the Fifth and Seventh Amendments, filed March 9,
2026, ECF No. 154. This motion was referred to the undersigned the same day it was
filed. ECF No. 155.
Both motions complain that, among other things, the case is not moving quickly
enough. Plaintiff asks that the case promptly be set for trial. ECF No. 150 at 3 (“Plaintiff
respectfully inquires why, more than 16 months after filing, core remaining claims.
including EPEWA and wrongful termination, continue without resolution or meaningful
progress under the scheduling order from February 5, 2025.”); ECF No. 154 at 1
(describing “Fifth Amendment due process violations from the over 17 months of delay
without trial or resolution”).
The Court will take a moment to educate the parties on the reality of litigating a
case to conclusion in the District of Colorado. There are seven active district judges who
serve this Court. There are between 3,500 and 4,000 civil cases filed annually in this
Court. Plaintiff’s case was civil matter number 2,624 in the year 2024. There are also
between 250 and 400 felony criminal cases filed in this District every year. Unless a civil
case is assigned to one of the senior district judges (who take a reduced caseload), or
the parties have consented to magistrate judge jurisdiction, any civil case that goes to
trial must be tried before one of the seven active district judges. Every felony criminal
case must be tried before an active district judge. If a criminal defendant decides not to
waive his or her speedy trial rights, the criminal matter will take precedence over the
civil matter. Because of the growing caseload in Colorado, and the associated delays
from having too many cases and not enough judges, the Judicial Conference of the
United States has recommended that Colorado be authorized to have two additional
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judgeships. See Judiciary Seeks 71 Judgeships to Meet Growing Caseloads (published
March 11, 2025), found at https://www.uscourts.gov/data-news/judiciary-
news/2025/03/11/judiciary-seeks-71-judgeships-meet-growing-caseloads. But the bill to
authorize those additional judgeships has not become law.
All of this—the paucity of judges and the mushrooming number of case filings—
means that in 2024, the average time from filing to trial for a civil case in this Court
before an active district judge was 39 months. See 2024 Statistics Report found at
http://www.cod.uscourts.gov/AbouttheDistrict/DistrictStatistics.aspx. For a civil rights or
an employment case, the average time from filing to trial was 29 months. Id. Thus, the
fact that this case has gone 17 plus months without trial is neither remarkable nor could
it be considered a violation of Plaintiff’s rights.
To assist in the processing of the large volume of cases, a district judge will
usually refer case scheduling and discovery issues to the magistrate judge assigned to
the case. Sometimes dipositive motions, too, are referred to the magistrate judge for a
recommendation. Each magistrate judge has a docket of approximately between 350
and 450 pending cases (either on consent or in a referral capacity), and in most of those
cases, motions of some kind are filed with regularity. As of the date of this Order, the
undersigned has 126 pending motions on his docket and no fewer than 20 pending
motions that have been fully argued by the parties and call for a written opinion or
recommendation. So, again, the fact that certain motions in this case have been
pending for several months is not remarkable and by no means a violation of Plaintiff’s
rights. See, e.g., In re Thomas, 438 Fed. App’x. 137 (3rd Cir. 2011) (holding that a
“short time” of about four months since an undecided motion was ready for disposition
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was not enough to warrant mandamus relief); Madden v. Myers, 102 F.3d 74, 79 (3rd
Cir. 1996) (describing delay of eight months in taking action on pending motions as not
yet rising “to the level of a denial of due process”). The undersigned (assisted by his two
very capable law clerks) attempts to get to pending motions with all deliberate speed,
taking into account the needs of the case, including the schedule and complexity of the
issues raised.
One tool the Court uses for effective and efficient case management is to
conduct live hearings or status conferences to address pending issues in a timely way
and allow for reasoned decisions from the bench without having to write a detailed
order. The instant case calls out for a status conference. There are outstanding
discovery requests; Plaintiff has been granted the right to take the deposition of the
CEO of Sezzle; and the original dipositive motion deadline and final pretrial conference
deadlines have been superseded due to certain developments (or lack of
developments) in the case. Hence, the Court has set a status conference for March 19,
2026. ECF No. 158. At that time, the Court will address issues related to the schedule
and any pending discovery disputes. See, e.g., ECF No. 159 (Defendant’s Motion for
Extension of Time to Fiel Dispositive Motion). If any party fails to appear at the status
conference, they risk sanctions, including the potential sanction of dismissal of the case
for failure to prosecute.
Plaintiff asks for a prompt trial setting. In terms of the timing of a trial setting,
what will happen in this case is that, after discovery is closed, the parties are entitled to
move for summary judgment. After full briefing on the summary judgment motions (if
any), this Court will conduct a final pretrial conference and issue a final pretrial order.
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Usually, the Court does not wait for a decision on summary judgment to conduct
the final pretrial conference, and the final pretrial order will reflect the case as it would
be tried with all pending claims in the case. On the date of the final pretrial order, Judge
Brimmer will typically provide a tentative trial date which, based on past experience,
may be set 6–8 months out, depending on Judge Brimmer’s schedule. If, between the
final pretrial conference and the trial setting, a summary judgment order dispenses with
certain claims in the case, the case will proceed to trial on the remaining claims, if any.
With these preliminary explanations out of the way, the Court turns to the
specifics of Plaintiff’s motions.
I. 	ECF No. 150—Motion to Compel Discovery and Relief on Pending Issues from
January 5, 2026 Hearing
1. 	Plaintiff requests production of a “complete unredacted 60-page Anti-
Financial Crimes (AFC) Policy authored by Plaintiff, including all drafts,
revisions, comments, tracked changes, internal circulation emails/Slack
threads regarding its development, approval and implementation, and all final
and interim versions from 2023 through Plaintiff’s termination.” The Court
reserves decision on this issue and will address it after hearing argument at
the March 19, 2026 status conference.
2. 	Plaintiff requests production of “All documents and communications
concerning the Serious Algorithm Investigation conducted in Summer 2023.”
The Court reserves decision on this issue and will address it after hearing
argument at the March 19, 2026 status conference.
3. 	Unedited Video Deposition. Plaintiff claims that there are portions of her
deposition which were video-taped but not produced to her. Specifically, she
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claims that there were portions when defense counsel “raised her voice and
yelled at Plaintiff.” Plaintiff says that “[t]hese omitted segments are relevant to
demonstrate counsel’s conduct and credibility issues for trial presentation to
the jury.” The Court will not require any additional production of any
deposition video. The Court presumes that the certified court reporter
produced to both sides whatever exists of what transpired on the record. To
the extent something happened that was not “on the record,” then it would not
have been recorded and would not have been part of the deposition
transcript. The Court also finds that whatever may have happened off the
record at the deposition is not relevant to the substantive issues in this case.
Also, this deposition occurred in the Court’s jury room, specifically because, in
advance, Plaintiff had raised fears of misconduct or intimidation by counsel.
The Court was available to provide immediate relief to the extent Plaintiff felt
something untoward was happening during the deposition. But no relief was
sought at the time of the deposition. To the extent Plaintiff now seeks an
order compelling production of additional deposition record or records, that
request is DENIED.
4. 	“Delays in Core Claims.” To the extent Plaintiff asks why this case is taking so
long to decide, the answer is provided above.
5. 	CEO Subpoena. This issue has been addressed in the Court’s Order of
March 9, 2026, ECF No. 156.
6. 	Mitigation of Damages and Financial Hardship. Plaintiff asks that the Court
allow her to participate in any hearing remotely via telephone. This request is
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GRANTED and Plaintiff may participate in any future hearings before this
Judge by phone or video-teleconference. If hearings are set before Judge
Brimmer, Plaintiff will need to seek specific permission from Judge Brimmer to
appear remotely.
II. 	ECF No. 154—Motion for Jury trial under the fifth and Seventh Amendments
1. 	As to the new issues raised in ECF No. 154, Plaintiff first asks that the Court
take judicial notice of a decision by the Administrative Review Board of the
United States Department of Labor—Arb Case No. 2025-0074, issued March
6, 2026. See ECF No. 154-1. That decision was made at the administrative
appeals level and found that, while Plaintiff had not timely filed her complaint
with the Occupational Safety and Health Administration (“OSHA”) alleging
whistleblower retaliation under the Sarbanes-Oxley Act, she had met the
requirements for equitable tolling because she first had timely raised the
statutory claim at issue in this Court—which was the wrong forum. The Court
can certainly take judicial notice of the decision by the Administrative Review
Board, but it is not clear what the legal import of that decision is with respect
to this case. Thus, the request to take judicial notice is GRANTED. But the
Court will require additional briefing by the parties on whether Plaintiff has
exhausted her administrative remedies. The Administrative Review Board
found that equitable tolling should apply to find that Plaintiff claim should be
deemed timely filed at the OSHA level. It is not clear what that means from
the perspective of whether Plaintiff has exhausted her administrative
remedies for purposes of filing a case in this Court. As explained in Daly v.
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Citigroup, Inc., 939 F.3d 415 (2nd Cir. 2019), there are two ways to seek a
remedy for a SOX whistle-blower violation in federal court. By statute, when
OSHA fails to issue a final decision within 180 days of the filing of an
administrative complaint, and “there is no showing that such delay is due to
the bad faith of the claimant,” 18 U.S.C. § 1514A(b)(1)(B), a party may seek
relief by “bringing an action at law or equity for de novo review in the
appropriate district court of the United States.” Id. And second, review in
federal court is possible if the party seeks review of a final order from OSHA
within 60 days in “the United States Court of Appeals for the circuit in which
the violation allegedly occurred or the circuit in which the complainant resided
on the date of the violation,” in which case the federal court's review on
appeal is limited to the administrative record. Daly, 939 F.3d at 427. “In either
instance, however, for the federal court to have jurisdiction over the claim, the
claimant must first commence an action with an adjudicating administrative
agency. And the nature of a federal court's subsequent review, if any, is
expressly set forth by statute and agency regulation, including the standard of
review (de novo) and the substantive content that may be reviewed (the
administrative record).” Id. at 428. The Court will need further clarification
from the parties as to the impact of the Administrative Review Board’s
decision on this lawsuit.
2. 	Seventh Amendment Right to Jury Trial. Plaintiff “demands a jury trial now
without further delay.” This request is DENIED without prejudice. As
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explained above, Judge Brimmer will set the date for trial in this case when
the final pretrial order is issued.
3. 	Claim that 17-month delay violates due process. As described above, there is
nothing unusual about a 17-month passage of time between the filing of a civil
lawsuit in this Court and trial. Indeed, 24–36 months between filing and trial is
the norm.
4. 	Complaints about stalking and other alleged misbehavior. The Court has
observed no inappropriate conduct by Sezzle or its counsel in the defense of
this case. To the extent Plaintiff believes something untoward is going on
outside of court, she should feel free to contact local law enforcement, which
she apparently has.
5. 	Plaintiff asks for jury sequestration during trial to “prevent tampering given
documented retaliation.” This request is DENIED without prejudice. This is a
request more appropriately directed to Judge Brimmer at the trial preparation
conference, closer in time to the beginning of trial when there will be more
detailed discussion of the specific mechanics of how the trial will be
conducted. The request is premature at this time.
It is so ORDERED.
Dated at Denver, Colorado this 16th Day of March 2026
N. Reid Neureiter
United States Magistrate Judge
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