Warner v. Ed Bozarth Chevrolet ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
October 8, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
MICHELLE WARNER,
Plaintiff - Appellant,
No. 13-1297
v. (D.C. No. 1:13-CV-01211-LTB)
(D. Colo.)
ED BOZARTH CHEVROLET,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.
Michelle Warner brought a suit in the District of Colorado alleging gender
discrimination against her former employer. Her original complaint, however,
contained no factual allegations at all and was deficient in a number of other
regards. Her motion for leave to proceed in forma pauperis was similarly
incomplete. The magistrate judge ordered Ms. Warner to correct her complaint
and motion by June 7, 2013. The district court never received any correction.
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
order and judgment is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
And so on June 10, 2013 it dismissed her complaint without prejudice and
certified that any appeal would not be taken in good faith.
Ms. Warner argues that she submitted an amended complaint on June 7,
2013, via facsimile and should not be responsible if the district court never
received her transmission. The District of Colorado provides that “[a] pleading or
paper . . . may be filed with the clerk by means of facsimile.” D. C. Colo. L. Civ.
R. 5.1(B). But generally speaking when it comes to facsimiles, “actual receipt by
the district court is necessary to constitute filing.” Snyder v. Snyder, 1998 WL
58175, at *3 (10th Cir. 1998) (unpublished).
While we allow exceptions for incarcerated prisoners from the general rule
that the district court must receive a pleading for it to be filed, Ms. Warner is free
and had several methods to ensure that the district court received and filed her
pleadings. And even if she could benefit from the mailbox rule, Ms. Warner still
fails to demonstrate that she submitted her facsimile properly. Cf. Sorrentino v.
I.R.S., 383 F.3d 1187, 1188-89 (10th Cir. 2004) (mailbox rule requires proof of
mailing of a properly addressed communication); see also Cress v. Shinseki, 2013
WL 4482611, at *1 (Vet. App. Aug. 22, 2013) (unpublished) (“It is not at all clear
that documents submitted via facsimile or other modern means of transference are
subject to a modified version of the mailbox rule. Even assuming that they are,
however, the presumption created by the mailbox rule does not attach unless
evidence is submitted that demonstrates proof of mailing, such as an independent
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proof of a postmark, a dated receipt, or evidence of mailing apart from a party’s
own self-serving testimony.”) (internal quotations omitted). In choosing to fax in
her pleadings at the last minute — without any cover sheet, time stamp, or
certificate of service — Ms. Warner “assumed the risk of an untimely delivery
and filing.” Bad Bubba Racing Prods., Inc. v. Huenefeld (In re Bad Bubba
Racing Prods., Inc.), 609 F.2d 815, 816 (5th Cir. 1980).
Ms. Warner’s motion to proceed in forma pauperis is denied and the
judgment of the district court is affirmed. Ms. Warner is reminded of her
obligation to pay the filing fee in full.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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