Green et al v. U-Haul International, Incorporated, et al.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-02893-PAB-NRN
KELLY GREEN,
MALUS & DIESEL CORP., a limited liability company of Texas,
Plaintiffs,
v.
U-HAUL INTERNATIONAL, INCORPORATED,
CITY AND COUNTY OF DENVER, COLORADO, et al.,
Defendants.
RECOMMENDATION REGARDING ADMINISTRATIVE CLOSURE
N. REID NEUREITER
United States Magistrate Judge
This case is before the Court pursuant to an Order of Reference to United States
Magistrate Judge issued Chief Judge Philip A. Brimmer on October 21, 2024. ECF No.
4. That day, this Court entered an Order setting a Status Conference for December 19,
2024. ECF No. 5. At the Status Conference, Plaintiff Kelly Green appeared by
telephone and the Court advised him of his obligations as a pro se party. ECF No. 11. A
further Status Conference was set for February 19, 2025. Plaintiff failed to appear at the
February 19, 2025 Status Conference, and the Court’s attempts to contact him were
unsuccessful. Moreover, in the interim, Defendant City and County of Denver, Colorado
(“Denver”) moved to stay these proceedings because Plaintiff was found incompetent to
proceed in a related state court criminal matter, and Defendant U-Haul International
Incorporated moved to dismiss. ECF Nos. 14 & 16.
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The Court issued an Order to Show Cause and set a Show Cause Hearing for
March 25, 2025 at 11:30 a.m. ECF No. 21. Plaintiff did not appear at the Show Cause
Hearing and did not otherwise respond to the Order to Show Cause. Mail sent to
Plaintiff has been returned as undeliverable. See ECF Nos. 23–25.
In most circumstances, the Court would recommend that the case be dismissed
for failure to prosecute. However, as mentioned above, Plaintiff was adjudged
incompetent in the state court criminal proceedings arising out of the same events
which give rise to this lawsuit.
Federal Rule of Civil Procedure 17 provides that “[t]he court must appoint a
guardian ad litem—or issue another appropriate order—to protect a minor
or incompetent person who is unrepresented in an action.” Fed. R. Civ. P.
17(c)(2) (emphasis added). The Tenth Circuit has recently emphasized the
duty of a district court to “invoke Rule 17 sua sponte and consider whether
to appoint a representative for an incompetent person when there is
verifiable evidence of incompetence.” Tunson-Harrington v. Adams County
Sheriff, Nos. 23-1103 and 23-1105, 2023 WL 5927132, at *2 n.6 (10th Cir.
Sept. 12, 2023) (cleaned up) (quoting Mondelli v. Berkeley Heights Nursing
& Rehab. Ctr., 1 F.4th 145, 149 (3d Cir. 2021)). Critically, if a person “is an
incompetent person entitled to the protection of Rule 17(c)(2) of the Federal
Rules of Civil Procedure,” this “court cannot dispose of any of his claims on
the merits.” Wodiuk v. Graziano, No. 14-cv-02931-WJM-CBS, 2017 WL
2438993, at *14 (D. Colo. June 6, 2017) (cleaned up).
Eberhardt v. City of Greeley, Co, No. 1:22-cv-03032-WJM-SBP, 2024 WL 3416626, at
*4 (D. Colo. May 28, 2024), report and recommendation adopted, 2024 WL 4227653 (D.
Colo. Sept. 18, 2024).
Thus, the Court is required to conduct a competency inquiry pursuant to Rule 17
in light of Plaintiff having been adjudicated incompetent in a criminal proceeding. In
some circumstances, the Court could simply rely on the state court competency
evaluation. See id. at *5. However, in Eberhardt, the state court record confirmed “that
the intervening year has seen no change in Plaintiff’s competency.” Id. That is not the
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case here; there is no evidence in the record regarding Plaintiff’s current competency or
lack thereof except for a register of action from October 2024. Moreover, the court in
Eberhardt found that “Plaintiff would be able to work directly with a single individual in a
guardian ad litem role/pro bono counsel role, and that this procedure would most
efficaciously facilitate the resolution of this matter.” Id. Here, Plaintiff’s failure to update
his address or appear and participate in this lawsuit makes such a determination
impossible, and appointing a guardian ad litem is inefficient and impractical when
Plaintiff cannot be reached by the Court or Defendants.
At the Show Cause Hearing, the Court proposed that the case be
administratively closed until Plaintiff’s competency can be established. Defendants did
not object to this course of action, and the Court notes that Plaintiff did not object to
Denver’s motion to stay. See ECF No. 14 at 1 (“Plaintiff indicated he would like the
opportunity to present his position on competency to the Court. However, Plaintiff did
not object to the request for a stay pending a competency determination.”).1
Accordingly, for administrative purposes, the undersigned recommends that this case
be administratively closed pursuant to D.C.COLO.LCivR 41.2.
The Tenth Circuit has construed an administrative closure to be “the practical
equivalent of a stay.” Quinn v. CGR, 828 F.2d 1463, 1465 n.2 (10th Cir. 1987). In
Lehman v. Revolution Portfolio LLC, 166 F.3d 389 (1st Cir. 1999), the First Circuit
explained the nature of administrative closure: “Administrative closings comprise a
familiar, albeit essential ad hoc, way in which courts remove cases from their active files
without making any final adjudication. The method is used in various districts throughout
1 Ultimately, Plaintiff did not file a response to the motion to stay.
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the nation in order to shelve pending, but dormant, cases.” Id. at 392 (internal citations
and quotation marks omitted). The First Circuit further explained that “an administrative
closing has no effect other than to remove a case from the court’s active docket and
permit the transfer of records associated with the case to an appropriate storage
repository.” Id. Administrative closure “d[oes] not terminate the underlying case, but,
rather, place[s] it in inactive status until such time as the judge, in his discretion or at the
request of a party, cho[o]se[s] either to reactivate it or to dispose of it with finality.” Id.
This Court routinely administratively closes cases pursuant to D.C.COLO.LCivR
41.2 when a case would otherwise be stayed for an indefinite period of time. See, e.g.,
Atkins v. HCA-HealthONE, LLC, No. 15-cv-000374-WYD-KLM, 2015 WL 1298507, at *1
(D. Colo. March 19, 2015) (administratively closing case while plaintiff pursued second
EEOC claim); Mauchlin v. Zhon, No. 12-cv-01449-RM-BNB, 2015 WL 479042, at *1 (D.
Colo. Feb. 3, 2015) (administratively closing case “subject to reopening for good cause
subsequent to Plaintiff’s vision problems being addressed”); San Juan Cable LLC v.
DISH Network LLC, No. 14-mc-00261-RM-MJW, 2015 WL 500631, at *1 (D. Colo. Jan.
23, 2015) (administratively closing case “to be reopened only if the U.S. District Court
for the District of Puerto Rico refers a related enforcement matter to this Court”);
Workalemahu v. Heritage Club, No. 14-cv-02396-RM-MEH, 2015 WL 293261, at *1 (D.
Colo. Jan. 21, 2015) (administratively closing case pending arbitration).
In this case, it is unclear whether and when Plaintiff’s competency can be
evaluated under Rule 17. Accordingly, the undersigned RECOMMENDS that this case
be ADMINISTRATIVELY CLOSED pursuant to D.C.COLO.LCivR 41.2, subject to being
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reopened on motion of the parties, and that Defendants file a Status Report with the
Court on or before September 26, 2025.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2),
the parties have fourteen (14) days after service of this recommendation to serve
and file specific written objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy. The District Judge need
not consider frivolous, conclusive, or general objections. A party’s failure to file
and serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53
(1985), and also waives appellate review of both factual and legal questions.
Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse,
91 F.3d 1411, 1412-13 (10th Cir. 1996).
Dated: March 25, 2025
Denver, Colorado N. Reid Neureiter
United States Magistrate Judge
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