McGann v. German - Bankruptcy Opinion
Summary
The US Bankruptcy Court for the District of Colorado issued an opinion in McGann v. German. The case involves a pro se debtor's complaint against her former bankruptcy counsel and trustee. The court addressed motions to strike and stay discovery.
What changed
This document is a court opinion from the United States Bankruptcy Court for the District of Colorado in the case of Sherry Ann McGann v. Elizabeth German. The opinion details the procedural background, including the debtor's pro se complaint filed on July 17, 2025, naming her former bankruptcy counsel and the trustee as defendants. It also notes the debtor's subsequent notice of dismissal for two of the defendants and the remaining defendant's motion to dismiss the complaint.
The practical implications for legal professionals involve understanding the court's handling of pro se litigants, dismissals, and motions to dismiss in bankruptcy adversary proceedings. While this specific opinion does not impose new regulatory requirements or deadlines, it serves as a case study for attorneys practicing in bankruptcy court regarding procedural filings and potential challenges from debtors acting without legal representation.
Source document (simplified)
Jump To
Top Caption Trial Court Document The text of this document was obtained by analyzing a scanned document and may have typos.
Support FLP
CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.
Please become a member today.
March 18, 2026 Get Citation Alerts Download PDF Add Note
Sherry Ann McGann v. Elizabeth German
United States Bankruptcy Court, D. Colorado
- Citations: None known
- Docket Number: 25-01199
Precedential Status: Unknown Status
Trial Court Document
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLORADO
Bankruptcy Judge Thomas B. McNamara
In re:
Bankruptcy Case No. 20-18118 TBM
SHERRY ANN MCGANN, Chapter 7
Debtor.
SHERRY ANN MCGANN,
Plaintiffs, Adv. Pro. No. 25-1199 TBM
v.
ELIZABETH GERMAN,
Defendant.
ORDER REGARDING MOTON TO STRIKE AND MOTION TO STAY DISCOVERY
I. Procedural Background.
A. The Complaint
On July 17, 2025, acting pro se, Sherry Ann McGann (the “Debtor”), individually,
and purportedly on behalf of Celestial Properties, LLC (“Celestial Properties”), filed a
“Complaint for Damages, Equitable Relief, and Declaratory Release of Estate Interests”
(Docket No. 1, the “Complaint”), naming as defendants her former bankruptcy counsel,
Elizabeth German (“Ms. German”), Jeanne Y. Jagow (the “Trustee”), and David Miller
(“Mr. Miller”).
B. Dismissal of Various Parties and Claims
On August 8, 2025, the Debtor (again on her own behalf and purportedly on
behalf of Celestial Properties) subsequently filed a “Notice of Dismissal without
Prejudice of Defendants Jeanne Y. Jagow and David M. Miller” (Docket No. 15), thereby
dismissing both from the Adversary Proceeding.
On August 25, 2025, Ms. German responded to the Complaint by filing a “Motion
to Dismiss” (Docket No. 25, the “Motion to Dismiss”), asserting that the Complaint must
be dismissed pursuant to Fed. R. Bankr. P. 7012 and Fed. R. Civ. P. 12(b)(6).
On November 18, 2025, while the Motion to Dismiss was pending and following
abandonment of Celestial Properties by the Chapter 7 Trustee in the Debtor’s main
bankruptcy case, the Court determined that the Debtor could not represent Celestial
Properties, a corporate entity, in the Adversary Proceeding, and further determined that
since licensed counsel had not entered an appearance on behalf of Celestial Properties,
Celestial Properties could not proceed as a plaintiff in the Adversary Proceeding. The
Court, therefore, dismissed Celestial Properties as a plaintiff from the Adversary
Proceeding. (Docket No. 38). Thereafter, the case proceeded with respect to only
those claims brought by the Debtor, individually, against Ms. German.
In the Complaint, the Debtor characterized her claims for relief as:
(1) “Legal Malpractice/Breach of Fiduciary Duty” (the “First Claim”),
against Ms. German;
(2) Breach of Fiduciary Duty” (the “Second Claim”), against the Trustee
and Mr. Miller;
(3) “Declaratory Relief – Abandonment of Celestial Properties LLC and
Improper Retention of Estate Claims” (the “Third Claim”),
presumably against the Trustee; and
(4) “Aiding and Abetting Breach of Fiduciary Duty” (the “Fourth Claim”)
against Mr. Miller and Ms. German.
(Docket No. 1 at 11-13.)
On December 30, 2025, the Court issued an Order Granting, in Part, and
Denying, in Part, Motion to Dismiss” (Docket No. 43, the “Order on Motion to Dismiss”)
in which it (1) dismissed the Fourth Claim and (2) determined that the claim for “Legal
Malpractice/Breach of Fiduciary Duty” was a single claim for malpractice predicated on
negligence – not a one claim for malpractice predicated on negligence and another
claim for malpractice predicated on a breach of fiduciary duty. In so doing, the Court
noted, with respect to the remaining claim for legal malpractice:
[T]he Debtor has not complied with COLO. REV. STAT.
§ 13-20-602 et seq. which requires a party asserting legal
malpractice to submit a certificate of review. Nevertheless,
the requirements of COLO. REV. STAT. § 13-20-602 et seq.
are not jurisdictional. Miller v. Rowtech, LLC, [3 P.3d 492,
495](https://www.courtlistener.com/opinion/2544861/miller-v-rowtech-llc/#495) (Colo. App. 2000).
(Docket No. 43 at 2 n.2.) The Court further ordered Ms. German to file an answer to the
Complaint. (Docket No. 43 at 25.)
C. The Answer and Affirmative Defenses.
On January 13, 2026, Ms. German filed an Answer to the Complaint (Docket No.
45). Therein, Ms. German invoked various affirmative defenses, including the defense
that: “Plaintiff has failed to file a mandatory certificate of review pursuant to C.R.S.
§ 13-20-602 and, therefore, her legal malpractice claim should be dismissed.”
D. The Certificate of Review
The next day, January 14, 2025, the Debtor filed a document entitled “Certificate
of Review” (Docket No. 46, the “Certificate”). Therein, the Debtor stated as follows:
1. Nature of Claim. Plaintiff asserts a claim sounding
in professional negligence / legal malpractice against
Defendant Elizabeth German arising from Defendant’s
representation of Plaintiff in bankruptcy proceedings
and related matters.
2. Review and Good-Faith Basis. Plaintiff certifies
that she has reviewed the factual and legal basis for
the claim and that the claim has substantial
justification within the meaning of C.R.S. § 13-20-602.
3. Expert Testimony. Plaintiff further certifies that,
based on the nature of the allegations and the issues
presented, expert testimony is not required to
establish a prima facie case of negligence at this
stage, as the matters at issue concern breaches of
duties and conduct that are within the common
knowledge and experience of laypersons and/or
involve purely factual determinations. Plaintiff does
not waive the right to rely on expert testimony at later
stages of these proceedings, if necessary.
This Certificate of Review is filed to comply with the
requirements identified by the Court and to preserve
the procedural record. Nothing herein is intended to
waive any argument regarding the scope, applicability,
or timing of C.R.S. § 13-20-602, nor to concede that
expert testimony will ultimately be required.
E. Pretrial Matters.
Thereafter, the Court issued an “Order Setting Pretrial Scheduling Conference”
(Docket No. 47, the “Scheduling Order”), requiring the parties to confer regarding
various pretrial matters and to submit a pretrial report to the Court. The Court also set a
pretrial scheduling conference.
Just prior to the pretrial scheduling conference, on February 11, 2026, Ms.
German filed a “Motion to Strike Plaintiff’s Certificate of Review (Pursuant to C.R.S.
§ 13-20-602)” (Docket No. 49, the “Motion to Strike”) wherein she moved to strike the
Certificate from the record on the ground that it was not compliant with COLO. REV. STAT.
§ 13-20-602(3)(a)(I) and (II). Thereafter, on February 12, 2026, as required by the
Scheduling Order and pursuant to Fed. R. Civ. P. 26(f)(3), Fed. R. Bankr. P. 7026 and
L.B.R. 7026-1(a), Ms. German and the Debtor filed a “Joint Report” (Docket No. 50, the
“Joint Report”).
In the Joint Report, the parties identified certain topics for discovery, stating:
The parties will conduct discovery concerning
Defendant’s standard of care, causation issues
related to Defendant’s representation of Plaintiff and
her claimed damages, and Defendant’s affirmative
defenses, including without limitation the issue of
comparative negligence, failure to mitigate,
assumption of the risk, the potential fault of
nonparties, and the statute of limitations.
(Docket No. 50 ¶ 3.) In addition, the parties identified “Other Discovery Issues,” stating:
Plaintiff has filed a Certificate of Review pursuant to
C.R.S. § 13-20-602 and Plaintiff has filed a Motion to
Strike that filing. To the extent Plaintiff files an
amended certificate of review, Defendant anticipates
seeking the identity of the professional consulted.
(Docket No. 50 ¶ 6.)
The following day, February 13, 2026, Ms. German filed a “Motion to Stay
Discovery” (Docket No. 51, the “Motion to Stay”), asserting that the Debtor’s failure to
file a compliant Certificate shows that the Debtor’s remaining claim against her lacks
substantial justification and moving the Court for an order staying discovery in the
Adversary Proceeding in order to protect Ms. German from having to expend time and
resources defending such claim.
The Court held the pretrial scheduling conference on February 19, 2026. Just
prior to the pretrial conference, John Cimino, a licensed attorney and bankruptcy
practitioner, entered his appearance as counsel for the Debtor (Docket No. 52) and filed
a Response to the Motion to Stay (Docket No. 53).
At the pretrial conference, the Court noted the pendency of the Motion to Strike
and the Motion to Stay, but stated that it was not inclined to rule on either motion until
such time that they were fully briefed. Counsel for both parties agreed that the Court
should defer ruling until briefing was complete. In its discussion with the parties at the
pretrial conference, the Court noted that it had reviewed a recent opinion issued by the
Supreme Court, Berk v. Choy, 607 U.S. ---, 146 S. Ct. 546 (Jan. 20, 2026),1 which might
relate to matters raised in the Motion to Strike. The Court suggested that the parties
review and consider the Berk decision in connection with the Motion to Strike and
further suggested that the parties might wish to address the applicability of the Berk
ruling to the situation at bar in their further filings. (Docket No. 54).
On February 20, 2026, the Debtor filed “Plaintiff’s Response in Opposition to
Defendant’s Motion to Dismiss for Failure to File a Certificate of Review with
Memorandum Authority Incorporated Herein” (Docket No. 56). Ms. German followed up
on February 26 and 27, 2026, filing a “Reply in Support of Motion to Stay Discovery”
(Docket No. 59) and a “Reply in Support of Motion to Strike’ Plaintiff’s Certificate of
Review (Pursuant to C.R.S. § 13-20-602)” (Docket No. 60).
II. Discussion.
A. Issues Related to the Certificate.
1. Applicable Law.
When underlying rights and obligations arise from state law claims, federal courts
apply substantive state law in cases arising under 28 U.S.C. § 1334. See Mukamal v.
Bakes, 378 Fed. Appx. 890, 896 (11th Cir. Apr. 30, 2010) (applying Delaware
substantive law to claims involving fiduciary duty claims against company incorporated
in Delaware); Pearson v. Deutsche Bank AG, 2023 WL 5905958 (S.D. Fla. Sept. 11,
2023) (applying Florida law to determine availability and amount of prejudgment interest
based on claim of negligence and citing Mukamal); Foxwood Hills Prop. Owners Ass’n
v. 783-C, LLC (In re Foxwood Hills Prop. Owners Ass’n, Inc.), 625 B.R. 851, 859 (Bankr.
D.S.C. 2020) (“Even though this Court's jurisdiction is limited to proceedings arising in,
under, or related to a bankruptcy case, often times ‘bankruptcy cases involve federal
statutes and federal questions,’ and the ‘bankruptcy court may . . . face situations in
which the applicable federal law incorporates matters which are the subject of state law.
It is clear that a federal court in such cases must apply state law to the underlying
substantive state law questions.’”) (quoting In re Merritt Dredging Co., Inc., 839 F.2d
203, 205 (4th Cir. 1988)). In this case, the parties seem to agree that Colorado
substantive law governs the malpractice claim. See also Order on Motion to Dismiss
(Docket No. 43) (parties asked Court to apply Colorado Law; Court evaluated claims
under Colorado law).
1 As of the time of the pretrial conference, the Berk decision was not yet reported in the Supreme
Court reporter.
2. Colorado Law Regarding Certificates of Review.
COLO. REV. STAT. § 13-20-602(1)(a) provides, in relevant part:
In every action for damages or indemnity based upon the
alleged professional negligence of . . . a licensed
professional, the plaintiff’s attorney [or the pro se plaintiff]
shall file with the court a certificate of review for each . . .
licensed professional named as a party, as specified in
subsection (3) of this section, within sixty days after the
service of the complaint . . . against such person unless the
court determines that a longer period is necessary for good
cause shown.
COLO. REV. STAT. § 13-20-602(1)(a). 2 If the plaintiff does not file such a certificate, the
defendant can move the court to require compliance. Id. § 13-20-602(2). The
defendant can also move to dismiss the claim for lack of a certificate. Id. § 13-20-
602(4).
Pursuant to COLO. REV. STAT. § 13-20-602(3)(a)(I) and (II), the certificate of
review must be executed by the plaintiff’s attorney (or the plaintiff, if she is pro se), and
must declare that:
the attorney [or pro se plaintiff] has consulted a person who
has expertise in the area of the alleged negligent conduct;
and . . . [t]hat the professional . . . has reviewed the known
facts, including such records, documents, and other
materials which the professional has found to be relevant to
the allegations of negligent conduct, and, based on the
review of such facts, has concluded that the filing of the
claim . . . does not lack substantial justification within the
meaning of [COLO. REV. STAT. §] 13-17-102(4).
“The purpose of the certificate of review requirement is to demonstrate that the
plaintiff has consulted with a person who has expertise in the area and that the expert
consulted has concluded that the claim does not lack substantial justification.”
Baumgarten v. Coppage, 15 P.3d 304, 306 (Colo. Ct. App. 2000) (citing COLO. REV.
STAT. § 13-20-602; State v. Nieto, 993 P.2d 494 (Colo. 2000); and Shelton v.
Penrose/St. Francis Healthcare Sys., 984 P.3d 623 (Colo. 1999)). See also Giron v.
Koktavy, 124 P.3d 821, 825 (Colo. Ct. App. 2005) (“A certificate of review verifies that
the plaintiff has consulted with an expert in the relevant area who has concluded that
the plaintiff's claim does not lack substantial justification.”). Under the statute, “failure to
2 Pro se plaintiffs are not exempt from complying with the statute. See Yadon v. Southward, 64
P.3d 909, 912 (Colo. Ct. App. 2002). The Tenth Circuit has also explicitly held that the certificate of review
requirement applies to pro se parties. Cestnik v. Fed. Bureau of Prisons, 84 F. App'x 51, 54 (10th Cir.
2003) (unpublished op.).
file a certificate of review . . . shall result in the dismissal of the complaint, counterclaim,
or cross claim.” COLO. REV. STAT. § 13-20-602(4). See also, e.g., Baumgarten, 15 P.3d
at 306 (“Failure to file a certificate of review, when one is required, must result in the
dismissal of such claims.”). Where a plaintiff’s claim of malpractice does not involve “a
simple factual circumstance or a dereliction of duty so palpable as to be apparent
without the presentation of expert testimony on deviation from accepted professional
standards,” such that the “ordinary knowledge of laypersons could . . . be relied upon to
provide the requisite standard of care,” a certificate of review must be filed. Boigegrain
v. Gilbert, 784 P.2d 849, 850 (Colo. Ct. App. 1989). See also Woo v. Baez, 522 P.3d
739, 745-47 (Colo. Ct. App. 2002) (finding that court did not err in requiring certificate of
review for professional negligence and breach of fiduciary duty claims brought against
plaintiff’s former attorneys); Kelton v. Ramsey, 961 P.2d 569, 571 (Colo. Ct. App. 1998)
(holding that certificate of review was required where plaintiff alleged breach of
professional duty to provide effective assistance of counsel). Cf. Giron v. Koktavy, 124
P.3d 821 (certificate of review is not required where claim can be decided on the basis
of the statute of limitations or where the question is simply whether an attorney actually
represented a client at a specified time, as such matters can be determined without
expert evidence as to the standard of care and deviation therefrom).
COLO. REV. STAT. § 13-20-602(3)(b) states:
The court, in its discretion, may require the identity of the . . .
licensed professional who was consulted pursuant to
subparagraph (I) of paragraph (a) of this subsection (3) to be
disclosed to the court and may verify the content of such
certificate of review. . . .
Thus, the statute allows a court to require disclosure of a professional's identity
and may require that the contents of the certificate of review be verified by the
professional consulted by the plaintiff, including in the circumstance where the plaintiff is
a non-attorney pro se litigant. Yadon v. Southward, 64 P.3d 909, 913 (Colo. Ct. App.
2002).
3. The Federal Rules and the Certificate of Review Requirement.
Though state law governs the substance of the malpractice claim, the procedures
for civil actions in the United States bankruptcy courts are governed by the Federal
Rules of Civil Procedure and the Federal Rules of Bankruptcy Procedure. See 28
U.S.C. § 2075 (a) (“The Supreme Court shall have the power to prescribe by general
rules, the forms of process, writs, pleadings, and motions, and the practice and
procedure in cases under title 11. Such rules shall not abridge, enlarge, or modify any
substantive right.”)
In Berk v. Choy, 607 U.S. ---, 146 S. Ct. 546 (Jan. 20, 2026), the United States
Supreme Court held that a valid Federal Rule of Civil Procedure trumps contrary state
law even if the state law qualifies as substantive3 (i.e., where the state law is
(1) outcome-determinative and (2) failing to apply it in federal court would promote
forum shopping and the inequitable administration). 146 S. Ct. at 552. This Court
determines that the same principle applies to the Rules of Bankruptcy Procedure
(which, after all, incorporate many of the Federal Rules of Civil Procedure).
In this case, Ms. German asserts that the Debtor’s malpractice claim should
ultimately be dismissed because she has failed to follow the Colorado law requiring her
to provide a certificate of review within 60 days after filing her Complaint. In the majority
opinion in Berk, the Justice Barrett explained:
Rule 8 gives the answer. It prescribes the information a
plaintiff must present about the merits of his claim at the
outset of litigation: “a short and plain statement of the claim
showing that [he] is entitled to relief.” Fed. Rule Civ. Proc.
8(a)(2). By requiring no more than a statement of the claim,
Rule 8 establishes “implicitly, but with unmistakable clarity,”
[Hanna v. Plumer, [380 U.S. 460, 470](https://www.courtlistener.com/opinion/107024/hanna-v-plumer/#470) (1965)], that evidence
of the claim is not required. Cf. Burlington Northern R. Co. v.
Woods, [[480 U.S. 1](https://www.courtlistener.com/opinion/111819/burlington-northern-railroad-v-woods/), 7–8 (1987)] (declining to apply a state
statute where a Federal Rule “occupies the statute's field of
operation”).
Rule 12 reinforces the point. It provides only one ground for
dismissal based on the merits: “failure to state a claim upon
which relief can be granted.” Fed. Rule Civ. Proc. 12(b)(6).
When evaluating whether a plaintiff has stated a claim, the
court cannot consider “matters outside the pleadings.” Rule
12(d). The court instead asks only whether the complaint's
factual allegations, if taken as true, “state a claim to relief
that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
[[550 U.S. 544, 570](https://www.courtlistener.com/opinion/145730/bell-atlantic-corp-v-twombly/#570), (2007)]. A complaint that satisfies this
standard is “well pleaded” and “may proceed even if it strikes
a savvy judge that actual proof of the facts alleged is
improbable.” [Id. at 556.]
146 S. Ct. at 553. In Berk, the Court found that a Delaware statute requiring a plaintiff
asserting professional malpractice to file an affidavit of merit (a type of prima facie
evidence), along with the complaint was at odds with Rule 8 because the Delaware
statute, procedurally, required more than the “short and plain statement of the claim.”
Id. at 554.
3 The Tenth Circuit Court of Appeals has ruled that Colorado's requirement that a plaintiff file a
certificate of review is a substantive, rather than procedural, rule of law. Trierweiler v. Croxton & Trench
Holding Corp., 90 F.3d 1523, 1541 (10th Cir. 1996); Cestnik, 84 F. App'x at 54.
Though Justice Jackson agreed with the Berk majority that a valid federal rule
will displace a state procedural requirement and reached the same conclusion as the
Court with respect to the outcome of the dispute, she reached her conclusion in a
different way. In her concurring opinion in Berk, Justice Jackson argued that the
Delaware affidavit requirement cannot apply in federal court because the Delaware
statute made clear that both a complaint and an affidavit of merit are required to start a
civil action for malpractice in Delaware; whereas in the federal courts, all that is required
under Rule 3 to commence a case is the filing of a complaint, and nothing more. Id. at
559.
As Ms. German notes in the Reply filed in support of the Motion to Strike,
Colorado’s statute is different from Delaware’s4 in that, while the Delaware statute
requires a plaintiff to file an affidavit of merit (or a motion for extension of time to file
such affidavit) with the complaint, the Colorado statute allows for a plaintiff to file a
complaint without a certificate of review, and instead sets a deadline for filing a
certificate of review later in the case. Under the Delaware statute, if a plaintiff fails to file
an affidavit of merit with the complaint, the clerk of the court cannot file or docket the
complaint, while in Colorado, the statute allows for a complaint unaccompanied by an
certificate of review to be filed and docketed, but allows a defendant to seek dismissal
of a malpractice claim later if an affidavit is not filed and if the defendant believes that an
expert is necessary to prove the claim, COLO. REV. STAT. § 13-20-602(2). The Colorado
statutory scheme mandates the dismissal of a malpractice claim if the requirement to
file a certificate applies and the plaintiff fails to meet such requirement. COLO. REV.
STAT. § 13-20-602(4).,
In the majority opinion in Berk, Justice Barrett noted that, under Fed. R. Civ. P. 12
(which is made applicable to this proceeding by Fed. R. Bankr. P. 7012), courts cannot
consider matters outside the pleadings. Thus, as matter of federal procedure, a federal
court cannot evaluate whether the certificate requirement has, or has not been met, at
the pleading stage of the case, including when a defendant seeks dismissal pursuant to
Rule 12(b).
In Berk, Justice Barrett noted that “the Rules already prescribe a mechanism [in
Fed. R. Bankr. P. 56] for putting a plaintiff to his proof: a motion for summary judgment.”
However, she also noted that before ruling on a motion brought pursuant to Rule 56, the
court must allow the nonmovant ‘adequate time for discovery.’” 126 S. Ct. at 555 (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986), and Rule 12(d) as requiring a
“reasonable opportunity to present all the [pertinent] material” if motion to dismiss is
converted to motion for summary judgment). Justice Barrett concluded, “That
defendants cannot fit the affidavit requirement into the Federal Rules illustrates that it
has no place there.”
4 As described by Justice Barrett in Berk, 146 S. Ct. at 551.
4. The Motion to Strike.
Ms. German has moved to strike the Certificate on the ground that it is facially
insufficient. She argues in the Reply that, because COLO. REV. STAT. § 13-20-602(1)(a)
does not require that a plaintiff file a certificate of review with the complaint, the
Colorado statute “is not related to the pleading requirements of Rule 8 and is not
displaced by it.” But the issue is not whether the certification needs to be filed with the
complaint or after it, but rather when, under the Federal Rules of Civil Procedure, a
federal court can consider matters outside of the pleadings. Berk clearly instructs that
under the Federal Rules of Civil Procedure, the issue of whether the Debtor can meet
her burden of proof is not one that the Court can evaluate at an early, pre-discovery
stage of the case. Instead, under the Federal Rules such matter can be considered
only later in the proceedings, either at the summary judgment phase or at trial.5 Indeed,
as the Supreme Court in Berk makes clear, the Federal Rules of Civil Procedure require
that a plaintiff be afforded a “reasonable opportunity to present all the [pertinent]
material” before a federal court can consider anything more than whether the plaintiff
has stated a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6) and (d).
See also Berk, 126 S. Ct. at 555 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986), and Rule 12(d) as requiring a “reasonable opportunity to present all the
[pertinent] material” if motion to dismiss is converted to motion for summary judgment).
As such, the Court agrees with the Debtor that the state statute is contravened by a
valid rule of procedure such that the Colorado statute’s procedural requirement that a
plaintiff file a certificate of review in support of their claim at the outset of the case is not
one that can be enforced in federal court. See Dist. of Columbia Water & Sewer Auth.
v. Samaha Assocs., P.C., 2026 WL 654130, at *5 (D. Md. Mar. 9. 2026) (holding that
Fed. R. Civ. P. 8 “governs and displaces” Maryland statute requiring filing of “certificate
of qualified expert” assessing claim against licensed professionals within 90 days after
complaint); Aycock v. Malhi, 2026 WL 312724, at *6 (M.D. Penn. Feb. 5, 2026) (“Berk
forecloses the application of the [Pennsylvania certificate of merit] requirement with
respect to professional negligence claims); Redman v. Irwin, 2026 WL 693884, at *4
(W.D. Penn. Mar. 16, 2026) (holding that 60-day “certificate of merit requirement” under
Pennsylvania law “no longer applies in professional negligence and malpractice actions
in federal court”).
This not to say that Ms. German’s contention that the Certificate is insufficient is
incorrect. To the contrary, the Court finds and agrees with Ms. German that the
Certificate is plainly insufficient under COLO. REV. STAT. § 13-20-602(3)(a) because it in
no way demonstrates that the Debtor “consulted a person who has expertise in the area
5 If the issue were to be raised in a motion for summary judgment, the Court could consider
whether a plaintiff’s failure to file a sufficient certificate of review or other evidence showing that an expert
had reviewed the “records, documents, and other materials” relevant to a plaintiff’s claims and had
“concluded that the filing of the claim . . . does not lack substantial justification” demonstrated the
absence of any genuine issue of material fact as to whether the defendant professional had, in fact,
violated the standard of care. See Fed. R. Civ. P. 56(a) (made applicable by Fed. R. Bankr. P. 7056). Or,
if the issue were raised at trial and no expert testimony were offered, the Court could consider whether, in
the absence of expert testimony, a plaintiff had met the burden of establishing that the professional had
not met the standard of care.
of the alleged negligent conduct” let alone than an person with expertise “concluded that
the filing of the claim . . . does not lack substantial justification” and in no way supports
the Debtor’s claim for malpractice predicated on negligence. However, because
“striking” the Certificate will do nothing to change the posture of the case, the Court
perceives of no purpose that will be served by granting the Motion to Strike. Instead, to
the extent that the filing of a certificate (or lack of doing so) is relevant to the Court’s
consideration of the merits of the Debtor’s claim, the Court will treat the Certificate as
providing no support for the Debtor’s claim.
5. The Motion to Stay.
In the Motion to Stay, Ms. German requests that the Court stay discovery,
arguing that requiring her to submit to discovery in the absence of a certificate
evidencing that the Debtor’s claim is substantially justified will waste time and
resources.
As Justice Barrett noted in Berk, the system of pleading established by the
Federal Rules of Civil Procedure “makes it relatively easy for plaintiffs to subject
defendants to discovery even for claims that are likely to fail.” Berk, 146 S. Ct. at 553.
While this may be frustrating to defendants, and while one may debate the merits of this
process, the Supreme Court has consistently rejected efforts to increase the bar by
requiring more information prior to discovery. Id. at 553-54 (discussing rules scheme
and noting that “[u]nless the Federal Rules single out a claim for special treatment . . .
Rule 8 sets a ceiling on the information plaintiffs can be required to provide about the
merits of their claims). Contrary to the Colorado scheme, which singles out professional
malpractice claims for special treatment:
[T]he Federal Rules already prescribe a mechanism for
putting a plaintiff to his proof: a motion for summary
judgment. See Fed. Rule Civ. Proc. 56. And that does not
offer defendants the protection they want, because before
ruling on the motion, the court must allow the nonmovant
“adequate time for discovery.” Celotex Corp. v. Catrett, [[477
U.S. 317, 322](https://www.courtlistener.com/opinion/111722/celotex-corp-v-catrett-administratrix-of-the-estate-of-catrett/#322) (1986)]; see also Rule 12(d) (requiring a
“reasonable opportunity to present all the [pertinent]
material” if motion to dismiss is converted to motion for
summary judgment).
The Federal Rules of Civil Procedure dictate that the Debtor, now represented by
counsel, must be given reasonable time to conduct discovery and present the material
pertinent to her claim before she is required to provide more information regarding the
merits of her claim. The Court cannot, therefore, truncate the discovery process set
forth in the Federal Rules based on the Colorado statute for the reasons requested by
Ms. German.
ll. Order.
For the foregoing reasons, it is
ORDERED that the Motion to Strike is DENIED. It is
FURTHER ORDERED that the Motion to Stay is DENIED.
Dated this 18th day of March, 2026.
BY THE COURT:
Thomas B. McNamara,
United States Bankruptcy Judge
12
Named provisions
Related changes
Source
Classification
Who this affects
Taxonomy
Browse Categories
Get Courts & Legal alerts
Weekly digest. AI-summarized, no noise.
Free. Unsubscribe anytime.
Get alerts for this source
We'll email you when CO Bankruptcy Court Opinions publishes new changes.