John Watson Lungstrum
How Judge Lungstrum decides
Patterns drawn from this judge's own signed orders. Every observation links to the order it came from.
What persuades
Applies the 'single publication rule' to defamation: a document (here a FINRA Form U-5) is published once, and later transmittals/re-distributions do not create new causes of action or restart the limitations clock. Defamation plaintiffs should plead a genuinely distinct republication, not mere re-transmission, to avoid a limitations bar.
“subsequent transmissions of the Form U-5 do not constitute new publications sufficient to restart the running of the statute of limitations.”
Procedural preferences
Treats dismissal as a litigation sanction as a last resort, applying the Tenth Circuit's Ehrenhaus factors (prejudice, interference, culpability, advance warning, efficacy of lesser sanctions). A party seeking case-ending sanctions must show willfulness or bad faith and a prior warning that dismissal was likely.
“dismissal as a sanction for the conduct of a party's counsel is so “harsh” that it is appropriate only in cases of willfulness, bad faith or some fault of the party to be sanctioned.”
Cautions
Will not consider merits arguments raised for the first time in a reply brief (deemed waived), though he may reach them anyway when the non-movant had a chance to respond. Put every dispositive argument in the opening brief.
“argument raised for the first time in reply brief is waived”
A prisoner-plaintiff cannot escape the consequences of a § 1915A screening dismissal (a with-prejudice ruling and a § 1915(g) 'strike') by filing a Rule 41(a) voluntary dismissal after the complaint has been screened and found meritless.
“Plaintiff cannot use voluntary dismissal under Rule 41(a) to avoid dismissal with prejudice and the effect of a strike under 28 U.S.C. § 1915(g).”
Motion outcomes
Counted from classified signed orders only. Percentages are shown only where the sample is large enough to be meaningful; smaller samples are reported as raw counts.
| Motion to reconsider N = 2 |
Denied: 2 | counts only |
| Motions to dismiss N = 1 |
Granted: 1 | counts only |
| Motion for entry of judgment N = 1 |
Denied: 1 | counts only |
| Motions to strike N = 1 |
Denied: 1 | counts only |
| Motion to seal N = 1 |
Moot / procedural: 1 | counts only |
A "1 of 1" is one ruling, not a tendency. Treat small samples as illustrative, not predictive.
Signed rulings
A grounded sample of orders signed by this judge, with the verbatim dispositive language.
“IT IS THEREFORE ORDERED BY THE COURT THAT defendants' motion to dismiss plaintiff's defamation claim (doc. 18) is granted and, because that claim was the only claim asserted against defendant Holleran, defendant Holleran is dismissed as a party to this action.”
“IT IS THEREFORE ORDERED BY THE COURT THAT defendant's motion for entry of judgment dismissing complaint with prejudice (doc. 10) is denied and defendant's motion to strike plaintiff's response for failure to comply with the court's order (doc. 13) is denied.”
“IT IS THEREFORE ORDERED BY THE COURT THAT defendant's motion for entry of judgment dismissing complaint with prejudice (doc. 10) is denied and defendant's motion to strike plaintiff's response for failure to comply with the court's order (doc. 13) is denied.”
“IT IS THEREFORE ORDERED that Plaintiff's Motion to Reconsider and Reopen Case Based on Voluntary Dismissal without Prejudice (Doc. 111) is denied. This case remains closed.”
“IT IS FURTHER ORDERED that Plaintiff's Motion to Reconsider under Local Rule 7.3, Correct Misquotation, Correct Record and Seek Clarification Regarding Pro Se Access to Sealed Records via PACER (Doc. 112) is denied.”
“IT IS FURTHER ORDERED that Plaintiff's Motion to Reseal Document (Doc. 110) is denied.”