Berg v. United Airlines, Inc (2026)

Case details
Full caption
D. Colorado. NONNIE BERG v. UNITED AIRLINES, INC
Country
United States
Jurisdiction
Colorado (CO)
Court
Colorado Supreme Court
Decided
2026
NONNIE BERG, Plaintiff, v. UNITED AIRLINES, INC., Defendants., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 318959Only the Westlaw citation is currently available.United States District Court, D. Colorado.NONNIE BERG, Plaintiff,v.UNITED AIRLINES, INC., Defendants.Civil Action No. 23-cv-01766-NYW-SBP|02/06/2026Editor's Note: This decision contains discussion of citationreferences that are incorrect or do not actually exist. Theseinvalid citations appeared in the original court opinion andhave been preserved as written since they are part of theofficial record. Any links to these invalid citations have beenremoved.MINUTE ORDEREntered by Judge Nina Y. Wang*1 This matter is before the Court on Plaintiff's (1) Motionfor Reconsideration of the Court's Order Denying Plaintiff'sMotion to Compel (“Motion for Reconsideration”), [Doc.215]; and (2) Motion for Extension of Time (or Stay)and Formal Response to the Magistrate Judge's ProceduralWarnings; Request for Accommodations (“Motion forExtension”) (together, “Motions”), [Doc. 216]. Pursuant toLocal Rule 7.1(d), the Court rules on these Motions withoutwaiting for a response. D.C.COLO.LCivR 7.1(d). For thereasons set forth below, Plaintiff's Motions are respectfullyDENIED.I. BackgroundPlaintiff Nonnie Berg (“Plaintiff” or “Ms. Berg”) initiatedthis employment discrimination lawsuit in July 2023. [Doc.1]. Ms. Berg filed her operative Second Amended Complaintthrough counsel, [Doc. 37], but she has proceeded pro se sinceOctober 2024, [Doc. 62; Doc. 64]. Discovery in this caseclosed on March 14, 2025. [Doc. 61]. On April 21, 2025,Defendant United Airlines, Inc. (“Defendant” or “United”)moved for summary judgment on all claims. [Doc. 76]. Underthis District's Local Rules, Ms. Berg's deadline to respond was21 days later, or May 12, 2025. D.C.COLO.LCivR 7.1(d).On May 13 and 14, 2025, Ms. Berg filed two responsesto United's summary-judgment motion. [Doc. 85; Doc. 87].The Court struck those responses for, among other things,failure to comply with the Court's Civil Practice Standards.[Doc. 118; Doc. 137]. Both Judge Prose and this Court alsowarned Ms. Berg that her filings contained erroneous andhallucinated citations consistent with misuse of generativeartificial intelligence (“AI”), and that a failure to properlycheck her citations could result in the striking of Ms. Berg'sfilings, a filing restriction, or other sanctions. [Doc. 118 at 6–7; Doc. 137 at 5–6]. Judge Prose ordered Ms. Berg to file acorrected response by September 29, 2025. [Doc. 118 at 8].Ms. Berg then filed four successive motions to extend thedeadline for her response. [Doc. 123; Doc. 126; Doc. 132;Doc. 135]. Judge Prose granted all four motions. [Doc.125; Doc. 128; Doc. 134; Doc. 138]. In doing so, JudgeProse repeatedly advised Plaintiff that her pro se statusdid not exempt her from the duty to confer under LocalCivil Rule 7.1(a). But Judge Prose nevertheless granted therequested extensions—despite Plaintiff's multiple failures toinclude a certificate of conferral describing adequate good-faith conferral efforts—out of “deference to Plaintiff's prose status.” [Doc. 138]; see also [Doc. 126; Doc. 132].Judge Prose set a final deadline of November 10, 2025 forPlaintiff to respond to United's motion for summary judgmentand warned Plaintiff that “[n]o further extensions will begranted.” [Doc. 138].Ms. Berg did not meet the November 10, 2025 deadline.Instead, she filed her response two days later and asked theCourt to overlook both her failure to meet the deadline andher failure to comply with the Court's page limits for responsebriefs. [Doc. 140; Doc. 141; Doc. 142]. Judge Prose grantedboth requests. [Doc. 144]. Plaintiff then filed a series ofmotions seeking to amend and/or supplement her responsebrief. [Doc. 145; Doc. 146; Doc. 152; Doc. 153; Doc. 156].Judge Prose generally denied these motions, again advisingMs. Berg that she is required to include a certificate ofconferral and an AI certification in each motion. [Doc. 151;Doc. 155; Doc. 158].*2 In December 2025, Ms. Berg filed two motions raisingseveral new discovery-related issues. [Doc. 171; Doc. 174].At a Status Conference on December 16, 2025, Judge Prosedenied those motions for lack of conferral. [Doc. 177]. JudgeProse noted that discovery had long since closed but indicatedthat she would permit Plaintiff to file a motion to compeldiscovery no later than December 31, 2025, provided thatPlaintiff adequately conferred with United beforehand. [Id. at
NONNIE BERG, Plaintiff, v. UNITED AIRLINES, INC., Defendants., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.22]. Judge Prose specifically warned Ms. Berg that she wouldnot “entertain any requests to extend this deadline” and wouldonly consider such a motion if it complied with the Court'srules regarding AI use. [Id.]. Judge Prose further warned Ms.Berg that she would recommend filing restrictions if Ms. Berg“continue[d] to file frivolous and repetitive motions.” [Id. at1].Ms. Berg did not meet the December 31, 2025 deadline. OnJanuary 2, 2026, she filed what the Court construed as aMotion to Compel Discovery, [Doc. 185], and a Motion forLeave to File Supplemental Brief, [Doc. 191]; see also [Doc.208]. Ms. Berg later filed an additional Motion for Relieffrom Order Pursuant to Federal Rule of Civil Procedure §60(b) (“Motion for Relief from Order”). [Doc. 209]. JudgeProse denied all three motions. [Doc. 214]. With respect tothe Motion to Compel Discovery, Judge Prose found that themotion lacked adequate conferral, was untimely, and reflecteda continued misuse of generative AI. See [id.].Ms. Berg now seeks reconsideration of Judge Prose's Orderdenying the Motion to Compel Discovery. [Doc. 215 at 2].Ms. Berg argues that she did engage in adequate conferral andthat her failure to timely file the motion is excusable based ontechnical difficulties and a medical event experienced by herhusband. [Id. at 2–3]. In her Motion for Extension, Ms. Bergalso claims that Judge Prose's Order required her to file anunspecified pleading within 30 days, or else the case would bedismissed for failure to prosecute. [Doc. 216 at 1, 7]. Ms. Bergasks the Court to extend this purported deadline and grant herseveral other accommodations for her medical conditions. [Id.at 4–5, 7]. The Motion for Reconsideration includes neithera certificate of conferral nor a certificate regarding AI use.[Doc. 215]. The Motion for Extension does not include acertificate of conferral but does include an “AI disclosure,”stating that Ms. Berg used AI but reviewed her filing for“accuracy and completeness.” [Doc. 216 at 7].II. Legal StandardA. Motions for ReconsiderationThe Federal Rules of Civil Procedure do not expresslycontemplate motions for reconsideration. See Hatfield v. Bd.of Cnty. Comm'rs, 52 F.3d 858, 861 (10th Cir. 1995). As ageneral principle, courts grant motions to reconsider wherethere is “(1) an intervening change in the controlling law,(2) new evidence previously unavailable, [or] (3) the need tocorrect clear error or prevent manifest injustice.” Servants ofthe Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).However, “[a] motion to reconsider is not a second chancefor the losing party to make its strongest case or to dress uparguments that previously failed.” United States v. Huff, 782F.3d 1221, 1224 (10th Cir. 2015) (quotation omitted). “[T]hedecision to grant reconsideration is committed to the sounddiscretion of the district court.” Brumark Corp. v. Samson Res.Corp., 57 F.3d 941, 944 (10th Cir. 1995).B. Pro Se FilingsIn reviewing the Motion, the Court is mindful that Ms. Bergproceeds pro se. The Court thus affords her papers and filingsa liberal construction. Haines v. Kerner, 404 U.S. 519, 520–21 (1972) (per curiam). But the Court cannot and does notact as a pro se litigant's advocate, Hall v. Bellmon, 935 F.2d1106, 1110 (10th Cir. 1991), and applies the same proceduralrules and substantive law to pro se parties as to representedparties, see Murray v. City of Tahlequah, 312 F.3d 1196, 1199n.3 (10th Cir. 2002); Dodson v. Bd. of Cnty. Comm'rs, 878 F.Supp. 2d 1227, 1236 (D. Colo. 2012).III. DiscussionA. Motion for Reconsideration*3 Beginning with the Motion for Reconsideration, theCourt is respectfully unpersuaded that Ms. Berg hasestablished that there has been an intervening change in thecontrolling law, new evidence was previously unavailable, orthat there is a need to correct Judge Prose's ruling on Ms.Berg's Motion to Compel Discovery to correct clear error orprevent manifest injustice.No Change in Controlling Law. As an initial matter, Ms.Berg does not argue, see [Doc. 215]—nor does the Court find—that there is any intervening change in controlling law.No New Evidence Previously Unavailable. Nor is this Courtpersuaded that there is new evidence that was previouslyunavailable that justifies reconsideration. To the extent Ms.Berg relies on her caretaking responsibilities or her technicaldifficulties to excuse her noncompliant conduct, [Doc. 215 at3], the Court concludes that neither justifies reconsiderationbased on the record as a whole. With respect to her husband'smedical care, Ms. Berg's assertion that a flare-up from herhusband's prior stroke occurred on December 29 differs fromher previous assertion that her husband “required an urgentmedical appointment” on January 2, 2026. [Doc. 209 at 2].Ms. Berg has submitted exhibits reflecting that her husband
NONNIE BERG, Plaintiff, v. UNITED AIRLINES, INC., Defendants., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.3visited a doctor on January 2, 2026 and was “placed off work”from January 2 to January 4. [Doc. 215 at 23].The Court does not doubt that Ms. Berg's caregivingresponsibilities take time. But the Court has repeatedlyaccommodated Ms. Berg, see, e.g., [Doc. 78 at 2 (Ms. Bergrequesting an extension in April 2025 based on her husband'smedical needs); Doc. 81 (Judge Prose granting the requestin part)], and Judge Prose had expressly warned her that theDecember 31 deadline would not be extended, [Doc. 177].As for Ms. Berg's technical difficulties, the Court concurswith Judge Prose's finding that, having been warned that thedeadline was firm, Ms. Berg “should have taken special careto make sure that her motion was timely filed.” [Doc. 214at 2]. Despite Judge Prose's warning, Ms. Berg apparentlywaited until late afternoon on the day of the deadline to file hermotion. See [Doc. 215 at 27–28]. By failing to take adequateprecautions to ensure she complied with an expressly firmdeadline, Ms. Berg failed to exercise reasonable diligence.Thus, the Court cannot find that any new evidence justifiesreconsidering the Order denying the Motion to CompelDiscovery. [Doc. 214].Nor is there any evidence that was previously unavailableto demonstrate that Ms. Berg properly conferred withopposing counsel prior to filing her voluminous motions.Local Rule 7.1(a) requires parties to confer with opposingcounsel before filing a motion and to describe the “specificefforts to fulfill this duty” in the motion or an attachedcertificate. D.C.COLO.LCivR 7.1(a). In her Motion toCompel Discovery, Ms. Berg claimed that she conferred withUnited's counsel on December 10, 2025 and “sent a follow-up email” on December 29, 2025. [Doc. 185 at 10]. JudgeProse found that the December 10 conferral could not satisfyher instruction at the December 16, 2025 Status Conferencethat the Parties confer further, and that a single follow-upemail is insufficient to satisfy Local Rule 7.1(a). [Doc. 214at 1–2]. Ms. Berg now references other communications withUnited between December 16 and December 31 that she sayssatisfied her duty to confer. [Doc. 215 at 5, 15, 17]. Evenassuming that these emails do reflect adequate conferral, Ms.Berg does not explain why she omitted these communicationsfrom her “Sworn Declaration” that functioned as a certificateof conferral in the Motion to Compel Discovery. See [Doc.185 at 10]. At a minimum, Ms. Berg failed to properlydescribe her “specific efforts” to confer. Judge Prose hasrepeatedly and expressly advised Ms. Berg that the conferraland corresponding certification required by Local Rule 7.1(a)are not optional. See, e.g., [Doc. 138; Doc. 151; Doc. 177].As exemplified by the lack of conferral certificates in theMotion for Reconsideration and Motion for Extension, thesewarnings have not been heeded.*4 No Clear Error or Manifest Injustice.It is well-settledthat “[n]on-compliance with procedures required by a localrule is a proper basis for denying [a] motion.” Aguilerav. City of Colorado Springs, No. 18-cv-02125-KMT, 2019WL 3302168, at *9 (D. Colo. July 23, 2019) (collectingcases). And “[w]hile the federal rules do not impose specifictiming for filing a motion to compel [discovery], courts retaindiscretion to determine whether a motion ‘is too tardy tobe considered.’ ” King v. IC Grp., Inc., 743 F. Supp. 3d1346, 1356 (D. Utah 2024) (quoting Centennial Archaeology,Inc. v. AECOM, Inc., 688 F.3d 673, 682 (10th Cir. 2012)).Upon review of the Order denying the Motion to CompelDiscovery, this Court finds no clear error or manifest injustice.Ms. Berg's neglect in waiting until now to pursue additionaldiscovery—over nine months after discovery closed andbeyond the six-month period between the filing of themotion for summary judgment and the filing of her correctedresponse—is prejudicial both to Defendant and the functionof this Court. United's motion for summary judgment isfully briefed. See generally [Doc. 76]. Reopening discoveryat this juncture would disrupt the Court's ability to rendera summary-judgment ruling and would impose a delay ofuncertain length. Such a result contradicts Rule 1's directionthat courts and parties adhere to the Federal Rules of CivilProcedure and conduct themselves in a manner “to secure thejust, speedy, and inexpensive determination of every actionand proceeding.” Fed. R. Civ. P. 1.Accordingly, Plaintiff's Motion for Reconsideration isrespectfully DENIED.B. Motion for ExtensionMs. Berg's Motion for Extension, [Doc. 216], is defectivefor multiple reasons. It does not include a certificate ofconferral. It seeks extension of a deadline—supposedly apleading deadline imposed in Judge Prose's Order on theMotion to Compel Discovery—that does not exist. [Id. at1, 6–7]; see also [Doc. 214 at 3]. And although Ms. Bergclaims she reviewed the AI model's output for “accuracyand completeness” before filing, the Motion for Extensioncites to two nonexistent cases and wholly misrepresentsanother.1 [Doc. 216 at 5–7]. Ms. Berg also claims thatLocal Civil Rule 83.1 “expressly permits extensions andother accommodations for parties with disabilities,” [id.
NONNIE BERG, Plaintiff, v. UNITED AIRLINES, INC., Defendants., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.4at 6], whereas the actual rule regulates recording devicesin federal courthouses, see D.C.COLO.LCivR 83.1. Asdiscussed above, Ms. Berg is bound by the same proceduralrules as represented parties—including representing suchrules accurately to the Court. And fundamentally, the recorddemonstrates that this Court has repeatedly accommodatedMs. Berg's requests for extensions and was clear that nofurther extension would be provided beyond December 31 forany motion to compel discovery.For all these reasons, the Motion for Extension is respectfullyDENIED. The second, identical version of this motion,[Doc. 217], is STRICKEN as duplicative. To the extentMs. Berg believes that she needs accommodations in anyproceedings after the Court rules on United's Motion forSummary Judgment, see [Doc. 216 at 4–5], the Court willaddress those accommodations as appropriate in the future.C. Filing RestrictionFinally, the Court recognizes that Ms. Berg is interested inpursuing her claims to their fullest extent. But the Courtmust resolve United's Motion for Summary Judgment beforethis case can proceed any further. And Ms. Berg's multitudeof filings—many of which are untimely, duplicative, andnoncompliant with the rules governing litigation before thisCourt—do not facilitate the just, speedy, and economicalresolution of this case. See, e.g., [Docs. 185–190; Docs. 196–204 (Ms. Berg filing fifteen versions of the document thatthe Court construed as the Motion to Compel Discovery)].Ms. Berg's pro se status does not excuse her from complyingwith this District's Local Rules, this Court's Civil PracticeStandards, and the Federal Rules of Civil Procedure. SeeHendrix v. Employer's Reinsurance Corp., 26 F. App'x 873,874 (10th Cir. 2002) (“Pro se litigants must follow the rulesof procedure, including local rules.”). The Court also concurswith Judge Prose that Ms. Berg's filings reflect a continuedmisuse of generative AI, despite the numerous warnings thatMs. Berg has received from both this Court and Judge Prose.See [Doc. 214 at 2 (Judge Prose highlighting fictitious casescited in Plaintiff's Motion to Compel Discovery and Motionfor Relief from Order)]; see also [Doc. 212 at 3 (United notingthat Plaintiff's Motion for Leave to File Supplemental Briefalso cites to nonexistent Tenth Circuit opinions)]. Given Ms.Berg's misuse of artificial intelligence and violations of courtrules, the Court respectfully concludes that a filing restrictionis appropriate.*5 “Federal courts have the inherent power to regulatethe activities of abusive litigants by imposing carefullytailored restrictions in appropriate circumstances.” Andrewsv. Heaton, 483 F.3d 1070, 1077 (10th Cir. 2007). A filingrestriction is appropriate where the Court has (1) describeda litigant's history of abusive filings, (2) provided guidelinesfor what the litigant must do to obtain permission to submitadditional filings, and (3) given the litigant notice and anopportunity to respond. Id. A district court's decision toimpose filing restrictions is reviewed for abuse of discretion.Calvin v. Lyons, 770 F. App'x 433, 434 (10th Cir. 2019) (citingTripati v. Beaman, 878 F.2d 351, 354 (10th Cir. 1989) (percuriam)).Upon review, the Court concludes that the following filingrestriction is appropriate:Ms. Berg is restricted from filingany additional motion or documentwithout leave of court until this Courtrules on United's Motion for SummaryJudgment, or until this Court otherwisevacates this Order. The Court will notgrant leave to file any motion that lacksa certificate of conferral in compliancewith D.C.COLO.LCivR 7.1(a) and/ora certificate regarding use of artificialintelligence in compliance with thisCourt's Standing Order regarding AIuse. Any document filed without leavewill be stricken automatically andwithout further explanation.To the extent Ms. Berg wishes to object to this filingrestriction, she may do so by February 17, 2026. If noobjection is received, the filing restriction will take effectautomatically on that date. And to the extent United asks theCourt to impose further sanctions, [Doc. 212 at 11–12], it maydo so through an appropriate motion, see D.C.COLO.LCivR7.1(d) (“A motion shall be filed as a separate document.”).For these reasons, IT IS ORDERED that:(1) Plaintiff's Motion for Reconsideration of the Court'sOrder Denying Plaintiff's Motion to Compel (“Motion forReconsideration”) [Doc. 215] is DENIED;(2) Plaintiff's Motion for Extension of Time (or Stay)and Formal Response to the Magistrate Judge's Procedural
NONNIE BERG, Plaintiff, v. UNITED AIRLINES, INC., Defendants., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.5Warnings; Request for Accommodations [Doc. 216] isDENIED;(3) The second, identical version of the Motion forExtension, [Doc. 217], is STRICKEN as duplicative;(4) To the extent Plaintiff wishes to object to the filingrestriction proposed herein, she may do so by February17, 2026; and(5) The Clerk of Court is DIRECTED to mail a copy ofthis Minute Order to Ms. Berg at the following address:Nonnie Berg545 West 41st Street#1342Sioux Falls, SD 57105DATED: February 6, 2026All CitationsSlip Copy, 2026 WL 318959Footnotes1The fictitious cases cited in the Motion for Extension are “Kelley v. United States, 560 F.3d 1234 (9th Cir.2019)” and “United States v. Miller, 2025 WL 3471341 (10th Cir. Dec. 3 2025).” See [Doc. 216 at 5–6]. TheMotion for Extension also cites “Moore v. City of Del City, 981 F.2d 470 (10th Cir. 1992)” as defining the“excusable neglect” standard. [Id. at 5]. Moore v. City of Del City is a real case, but Plaintiff misstates thereporter information, and Moore did not address “excusable neglect.” See Moore v. City of Del City, No.25-6002, 2025 WL 3471341, at *3 (10th Cir. Dec. 3, 2025).End of Document© 2026 Thomson Reuters. No claim to original U.S. Government Works.
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