Kerr v. Cryogenic Industrial Solutions (CIS)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 1:24-cv-03037-CNS-TPO
HAQIKAH KERR,
Plaintiff,
v.
CRYOGENIC INDUSTRIAL SOLUTIONS,
Defendant.
ORDER
Before the Court are Plaintiff’s Objections, see ECF No. 144, to the Magistrate
Judge’s Report and Recommendation, ECF No. 133, as well as Defendant’s Response
to Plaintiff’s Objections, ECF No. 149.1 For the following reasons, the Court OVERRULES
Plaintiff’s Objections, and AFFIRMS and ADOPTS the United States Magistrate Judge’s
Report and Recommendation as an Order of this Court. Accordingly, Defendant’s Motion
to Dismiss Plaintiff’s Fourth Amended Complaint, ECF No. 53, is GRANTED. Plaintiff’s
Title VII claim is DISMISSED WITH PREJUDICE. Plaintiff’s 42 U.S.C. § 1981 claim is
DISMISSED WITHOUT PREJUDICE. Plaintiff’s Motion for Leave to File Fifth Amended
Complaint, ECF No. 122, is DENIED.
1 Plaintiff sought leave to file her Objections out of time. See ECF No. 144. The Court granted Plaintiff’s
request to file her Objections out of time and accepted her Objections for filing. Defendants timely filed its
Response to Plaintiff’s Objections. ECF No. 149.
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In light of the above ruling, the Court DENIES AS MOOT the following motions:
Plaintiff’s Motion for Summary Judgment, ECF No. 142; Plaintiff’s Motion to Determine
Sufficiency of Answers and to Deem Certain RFAs Admitted, ECF No. 143; Plaintiff’s
Motion for Leave to Reopen Discovery for Limited Purpose to Determine Sufficiency of
RFAs, ECF No. 145; and Plaintiff’s Motion for Leave to Supplement Objections to
Magistrate Judge’s Report and Recommendation, ECF No. 147. The Court DENIES
Plaintiff’s Motions for Sanctions Pursuant to Fed. R. Civ. P. 37. ECF No. 141.
I. 	SUMMARY FOR PRO SE PLAINTIFF
The 	magistrate 	judge 	recommended 	dismissing 	your 	two 	claims. 	First, 	he
recommended dismissing your Title VII claim with prejudice because it is untimely.
Because your objection to this recommendation is too general, and because the Court
agrees with the magistrate judge that your claim is untimely, the Court adopts the
recommendation to dismiss this claim with prejudice.
Second, the magistrate judge recommended dismissing your claim under Section
1981 without prejudice. You also did not object to this recommendation with enough
specificity. But the Court agrees with the magistrate judge that dismissal of this claim is
proper. However, as explained below, the Court will let you file an amended complaint,
but only as to your Section 1981 claim. If you cannot correct the problems with this claim
that the magistrate judge identified and discussed in his recommendation, the Court may
dismiss any amended complaint you file with prejudice, since an amended complaint
would be your fifth opportunity to plead a plausible claim for discrimination under the
statute.
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The Court also denies as moot many of your other motions, since it dismisses your
claims based on the magistrate judge’s recommendation and your inadequate objections.
The Court notes that, in denying your motion for sanctions, you have failed to show any
behavior on Defendant’s part that is sanctionable. In its response to your sanctions
motion, Defendant asked the Court to restrict your filing abilities. The Court declines to
do so at this time, but could do so in the future if it becomes clear you are filing motions
solely to harass Defendant, delay this proceeding, or waste Defendant’s time or the
Court’s time.
II. 	DISCUSSION
Consistent with governing law, the magistrate judge apprised the parties in his
recommendation that an objecting party “must specifically identify those findings or
recommendations to which the objections are being made.” ECF No. 133 at 15 n.10. See
also 	United States 	v. 	One Parcel 	of 	Real 	Prop., 	With 	Buildings, 	Appurtenances,
Improvements, & Contents, Known as: 2121 E. 30th St., Tulsa, Oklahoma, 73 F.3d 1057,
1060 (10th Cir. 1996) (“[A] party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review
by the district court or for appellate review.”) The magistrate judge further cautioned that
the “District Court need not consider frivolous, conclusive, or general objections.” ECF
No. 133 at 15 n.10. See also Schupper v. Cafasso, 708 F. App’x 943, 946 (10th Cir. 2017)
(“[A] generalized objection . . . is insufficient.” (citation modified)).
The Court agrees with Defendant that Plaintiff’s Objections are, despite the
magistrate judge’s clear precautionary remarks, efforts to essentially allege new factual
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content, ECF No. 149 at 1, and more fundamentally are improperly “conclusory and
general,” id. at 6. See also id. (arguing that Plaintiff’s objections to magistrate judge’s Title
VII analysis are “unsupported by facts, by citations to authority, by argument or even with
a rudimentary explanation”); id. at 7 (arguing that Plaintiff’s § 1981 objections cite “no
case law and advance no argument for why [the] recommendation was incorrect” (citation
modified)).
Indeed, Plaintiff argues that the magistrate judge erred because “the claims are
timely, the facts make the claims plausible under Twombly/Iqbal, and good cause exists
for amendment.” ECF No. 144 at 3. See also id. (“The facts show a plausible claim for
discrimination and retaliation, not just a ‘bad employer.’”). Simply arguing that her claims
are timely in one sentence is too general to present a proper objection to the magistrate
judge’s thorough and comprehensive Title VII timeliness analysis. Compare ECF No. 144
at 3, with ECF No. 133 at 6–9; and Zumwalt v. Astrue, 220 F. App’x 770, 777 (10th Cir.
2007) (concluding “one-sentence objection [was] a conclusory assertion, not a reasoned
argument”). Even considering Plaintiff’s additional arguments, see Schupper, 708 F.
App’x 943 at 946, by providing the Objections with a liberal construction—for instance,
that she is part of a “protected class” and that comparators existed who were treated more
favorably—such arguments are likewise too general, and do not focus on the specific
reasons the magistrate judge provided for recommending dismissal of her claims, or why
those reasons were wrong. Compare ECF No. 144 at 3, with ECF No. 133 at 9–11.
Regardless, and more fundamentally, they could not provide such focus, as such specific
“comparators” do not appear in the operative complaint at all, and thus constitute an
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impermissible effort to supplement the operative complaint’s factual allegations. See ECF
No. 149 at 6; Runkle v. Colorado, No. 1:22–cv–03252–WJM–SBP, 2023 WL 9799116, at
*2 n.2 (D. Colo. Aug. 29, 2023), report and recommendation adopted sub nom. Runkle v.
State of Colorado, No. 22–cv–3252–WJM–SBP, 2024 WL 810024 (D. Colo. Feb. 27,
2024).
In sum: Plaintiff’s objections to the Recommendation’s analyses are too conclusory
and not specific. See Zumwalt, 220 F. App’x at 777. And the remainder of Plaintiff’s
arguments are essentially improper efforts to supplement her allegations. See Runkle,
2023 WL 9799116, at *2 n.2. For these reasons, the Court agrees with Defendant that
Plaintiff has failed to present adequate objections and show why the magistrate judge
erred. 	Regardless, 	the 	Court 	agrees 	with 	the 	magistrate 	judge’s 	well-reasoned
recommendation that dismissal of Plaintiff’s claims is proper. See, e.g., David v. Crow,
No. CIV–21–534–SLP, 2024 WL 3470645, at *2 (W.D. Okla. July 19, 2024) (concluding
that “based on the conclusory nature” of a plaintiff’s objection that plaintiff “waived any
objection” to magistrate judge’s recommendation and “alternatively . . . wholly concur[ring]
with” the magistrate judge’s “conclusions” (citation modified)); Frederickson v. Kenneth,
No. 1:22–cv–00262–CNS–MDB, 2023 WL 2674421, at *2 (D. Colo. Mar. 29, 2023).
Especially where it is clear on the face of the record that Plaintiff’s Title VII claims are
untimely, and there is no reason to excuse this tardiness. See ECF No. 133 at 7 n.5, 7–
8.
The Court noted above that it denies Plaintiff’s sanctions motion. See ECF No.
141. It does so because Plaintiff’s motion is two-pages long and makes no effort to explain
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why or how Defendant’s conduct has risen to the level of being sanctionable under Rule
37. See id. Indeed, much of the motion appears written in sentence fragments that are
unrelated to Rule 37’s sanctions standard. See id. at 2 (“Prejudice: Henders proving
plausible 	claim 	under 	Twombly/Iqbal—burden 	shifts, 	their 	zero 	evidence 	fails.”).
Accordingly, Plaintiff has failed to meet her burden of showing that sanctions under Rule
37, or sanctions under any standard, are warranted. See, e.g., Lieberenz v. Bd. of Cnty.
Commissioners of Cnty. of Saguache Colorado, No. 1:21–cv–00628–NYW–NRN, 2023
WL 4748667, at *7 (D. Colo. Jan. 6, 2023) (“The party seeking sanctions has the burden
of proof to show that the requirements for imposing them have been met.”) That said,
even after reviewing the docket and Plaintiff’s numerous filings, the Court declines at this
time to impose upon Plaintiff a filing restriction. Cf. ECF No. 150 at 3. Despite the Court’s
rejection of Defendant’s request for such a restriction at this time, see id., it reserves the
right to revisit such a request should Plaintiff in the future file any documents, motions, or
pleadings whose purpose is clearly intended to unduly delay this proceeding, waste
Defendant’s or the Court’s time, or harass Defendant.
* * *
Consistent with the above analysis, the Court OVERRULES Plaintiff’s Objections,
ECF No. 144, and AFFIRMS AND ADOPTS the United States Magistrate Judge’s Report
and Recommendation, ECF No. 133, as an Order of this Court. Accordingly, Defendant’s
Motion to Dismiss Plaintiff’s Fourth Amended Complaint, ECF No. 53, is GRANTED.
Plaintiff’s Title VII claim is DISMISSED WITH PREJUDICE. Plaintiff’s 42 U.S.C. § 1981
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claim is DISMISSED WITHOUT PREJUDICE. Plaintiff’s Motion for Leave to File Fifth
Amended Complaint, ECF No. 122, is DENIED.
Plaintiff may, should she choose to do so, and believes she can correct the
problems with her allegations identified by the magistrate judge in his Recommendation,
file an amended complaint within 14 days of this order, but only as to her § 1981 claim.
The Court further DENIES AS MOOT the following motions: Plaintiff’s Motion for
Summary Judgment, ECF No. 142; Plaintiff’s Motion to Determine Sufficiency of Answers
and to Deem Certain RFAs Admitted, ECF No. 143; Plaintiff’s Motion for Leave to Reopen
Discovery for Limited Purpose to Determine Sufficiency of RFAs, ECF No. 145; and
Plaintiff’s Motion for Leave to Supplement Objections to Magistrate Judge’s Report and
Recommendation, ECF No. 147. The Court DENIES Plaintiff’s Motions for Sanctions
Pursuant to Fed. R. Civ. P. 37. ECF No. 141.
DATED this 25th day of March 2026.
BY THE COURT:
________________________________
Charlotte N. Sweeney
United States District Judge
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