Regalado By and Through Regalado v. City of Commerce City, Colo.

• Decision Date: 06 April 1994
• Docket Number: No. 92-1260,92-1260
• Citation: 20 F.3d 1104
• Parties: Richard REGALADO; Richard Jude Regalado; Sarina Regalado; Sara Regalado; Teresa Regalado; Michelle Regalado, Minor Children By and Through their Father, co-plaintiff Richard Jude REGALADO, Plaintiffs-Appellants, v. The CITY OF COMMERCE CITY, COLORADO; Roland Cole; Marjorie Christensen; Sherri Szymanski; Mr. Tate; Jack Haggerman, individually and in their official capacity as Members of the City of Commerce City, Colorado City Council; James G. Sanderson, individually and in his official capacity as Chief of Police, City of Commerce City, Colorado; April Bren; Fidel Ortega; Chris Solano; Rich Blea; Mark Morgan; Tom Abbott; Mark Elliot; Tom Poe; Sergeant James Grady; Sergeant James Greene; Detective Jan Brace, individually and in their official capacity as Police Officers for the City of Commerce City, Colorado; City of Commerce City Police Officers, individually and in official capacity; John Does, I through X, individually and in their official capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1104

20 F.3d 1104

Richard REGALADO; Richard Jude Regalado; Sarina Regalado;

Sara Regalado; Teresa Regalado; Michelle Regalado, Minor

Children By and Through their Father, co-plaintiff Richard

Jude REGALADO, Plaintiffs-Appellants, v. The CITY OF COMMERCE CITY, COLORADO; Roland Cole; Marjorie

Christensen; Sherri Szymanski; Mr. Tate; Jack Haggerman,

individually and in their official capacity as Members of

the City of Commerce City, Colorado City Council; James G.

Sanderson, individually and in his official capacity as

Chief of Police, City of Commerce City, Colorado; April

Bren; Fidel Ortega; Chris Solano; Rich Blea; Mark

Morgan; Tom Abbott; Mark Elliot; Tom Poe; Sergeant James

Grady; Sergeant James Greene; Detective Jan Brace,

individually and in their official capacity as Police

Officers for the City of Commerce City, Colorado; City of

Commerce City Police Officers, individually and in official

capacity; John Does, I through X, individually and in their

official capacity, Defendants-Appellees.

No. 92-1260.

United States Court of Appeals, Tenth Circuit.

April 6, 1994.

Debi Cisneros of Debi Cisneros, P.C., Denver, CO, for plaintiffs-appellants.

Theodore S. Halaby (Robert M. Liechty and Joseph M. Timmins of Halaby, McCrea & Cross with him on the brief), Denver, CO, for defendants-appellees.

Before BALDOCK, Circuit Judge, and McWILLIAMS, Senior Circuit Judge, and SAFFELS, Senior District Judge. ^*

McWILLIAMS, Senior Circuit Judge.

Richard Regalado and his son, Richard Jude Regalado, along with Sarina Regalado, Sara Regalado, Teresa Regalado and Michelle Regalado, minor children by and through their father, Richard Jude Regalado, brought suit in the United States District Court for the District of Colorado against The City of Commerce City, Colorado, and various officials and police officers of Commerce City, alleging that the Defendants had violated their civil rights. The Plaintiffs sought compensatory damages in the amount of $1,000,000.00 and punitive damages for an additional $1,000,000.00.

The complaint set forth ten claims for relief based on violations of federal law and two pendent claims for assault and battery and extreme and outrageous conduct, respectively. Without going into great detail, the gist of the complaint was that from October 31, 1990, to the date the complaint was filed, i.e., October 30, 1991, the Defendants harassed the Plaintiffs without justification and on one occasion unlawfully arrested Richard Regalado, and on another occasion unlawfully arrested his son, Richard Jude Regalado. By answer the Defendants denied liability and affirmatively alleged, inter alia, qualified immunity. As will be developed, the district court eventually entered summary judgment in favor of all Defendants on all claims and judgment to that effect was duly entered.

A notice of appeal was timely filed with the district court in which the Plaintiffs were designated as "Richard Regalado, et al." By order of this Court the parties were directed to submit memorandum briefs addressing the question of whether this Court had jurisdiction over any of the Plaintiffs in the district court except for the one Plaintiff who was designated by name in the notice of appeal, namely Richard Regalado, the father of Richard Jude Regalado and the grandfather of the latter's four children. Delgado Oil Co. v. Torres, 785 F.2d 857, 859 (10th Cir.1986) ("although the parties never challenged jurisdiction, we must sua sponte raise the issue to assure our proper jurisdiction"). The appeal also has been briefed on the merits of the matters in controversy.

We hold that the only Plaintiff in the district court who is before this Court on appeal is Richard Regalado. The "et al." designation used in the notice of appeal is insufficient to confer jurisdiction on this Court to hear the ineffective efforts of Richard Jude Regalado and his four children to appeal the summary judgment entered by the district court in favor of all defendants on all of their claims. That judgment, not having been appealed, is now final. See Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988); Laidley v. McClain, 914 F.2d 1386 (10th Cir.1990). ¹

We shall now consider on the merits the appeal of the one Plaintiff, Richard Regalado. To understand our disposition of his appeal, a chronology of dates and events is necessary. The record before us shows the following:

1. The complaint was filed on October 30, 1991, and an answer thereto was filed on December 17, 1991.

2. On or about January 31, 1992, the Defendants filed a two-page motion for summary judgment and stay of discovery, alleging that the Defendants were entitled to qualified immunity. This motion was accompanied by a sixteen-page brief to which were attached some fifty-five pages of exhibits, consisting of transcripts of proceedings involving Richard Regalado and the others in state court, along with various affidavits.

3. On February 24, 1992, the Plaintiffs filed a two-page response to Defendants' motion for summary judgment and stay of discovery, supported by a fourteen-page brief, to which were attached forty-one pages of affidavits and the like.

4. On March 4, 1992, the Defendants filed a five-page reply to Plaintiff's response.

5. On April 16, 1992, the district court, in a twenty-four page order, granted the Defendants' motion for summary judgment in part and denied it in part. Specifically, the district court granted the motion as to Plaintiffs' third claim, and dismissed that claim as to all Defendants. However, the district court denied Defendants' motion as it related to all of Plaintiffs' other claims, and ordered discovery to proceed expeditiously.

6. On July 22, 1992, the Defendants filed a renewed motion for summary judgment, accompanied by a sixty-six page brief to which were attached over 1,000 pages of so-called exhibits.

7. On the same day the renewed motion for summary judgment was filed, the district court, by minute order, found the brief and exhibits to be "excessive" and accordingly denied the renewed motion for summary judgment "without prejudice." Further, by that order the parties were permitted until noon of the following day, July 23, 1992, to file any "dispositive motions," to which responses could be filed on or before noon July 28, 1992. Dispositive motions, under the court's order, could not be longer than ten pages and could be accompanied by no more than twenty pages of exhibits.

8. On July 23, 1992, the Defendants filed a two-page motion asking the district court to reconsider its order of the prior day, which motion was supported by a ten-page amended brief.

9. On July 27, 1992, the Plaintiffs filed a three-page response to Defendants' renewed motion for summary judgment, and the amended brief in support thereof.

10. On July 28, 1992, the Defendants filed a motion for leave to file five days out of time forty-seven pages of exhibits in support of their amended brief.

11. And on July 31, 1992, the district court, in a twenty-three-page order, granted Defendants' renewed motion for summary judgment and dismissed all of Plaintiffs' remaining claims against all Defendants.

The starting point in our discussion is the district court's order of April 16, 1992, wherein the district court granted the Defendants' motion for summary judgment in part, and denied it in part. Specifically, in that order, the district court granted summary...