United States District Court, D. Colorado
ORDER GRANTING MOTIONS TO DISMISS
ROBERT E. BLACKBURN, District Judge.
This matter is before me on the following: (1) Defendants Carriage Park Homeowners Association's and Dennis Houck, President of Carriage Park HOA's Motion to Dismiss Pursuant to F.R.C.P. 12(b)(1), 12(b)(5) and 12(b)(6) [#12] filed July 18, 2013; and (2) Aurora Defendants' Motion to Dismiss Pursuant to Fed.R.Civ.P. Rule 12 (b) (4) and (5) for Insufficiency of Process and of Service of Process [#14] filed August 5, 2013. The plaintiff filed responses [#29] and [#30] to both motions. I grant the motions and dismiss this case.
Shortly after they were filed, these motions were referred [#13 & #15] to the United States Magistrate Judge assigned to this case. After consultation with the magistrate judge, I withdraw the reference and issue this order.
I have subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal question).
II. STANDARD OF REVIEW
Four of the defendants contend they have not been served properly with a summons and the complaint and they seek dismissal of this case on that basis. "Effectuation of service is a precondition to suit." Jenkins v. City of Topeka, 136 F.3d 1274, 1275 (10th Cir.1998). The plaintiff has the burden of establishing the validity of service. See Fed-Deposit Ins. Corp. v. Oaklawn Apts., 959 F.2d 170, 174 (10th Cir.1992). When the plaintiff does not meet this burden, a court may dismiss for failure to properly serve. See Lasky v. Lansford, 76 Fed.Appx. 240, 240-41 (10th Cir.2003).
The Carriage Park Homeowners Association and Dennis Houck also seek dismissal for failure to state a claim unde FED. R. CIV. P. 12(b)(6). In considering a motion under Fed.R.Civ.P. 12(b)(6), I must determine whether the allegations in the complaint are sufficient to state a claim within the meaning of Fed.R.Civ.P. 8(a). I must accept all well-pleaded allegations of the complaint as true. McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 997 (10th Cir. 2002). "However, conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Fernandez-Montes v. Allied Pilots Association, 987 F.2d 278, 284 (5th Cir. 1993); see also Burnett v. Mortgage Elec. Registration Sys., Inc., ___ F.3d ___, ___, 2013 WL 386283, *2-*3 (10th Cir. 2013); Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002) ("All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true."), cert. denied, 538 U.S. 999 (2003). I review the challenged portion of a complaint to determine whether it "contains enough facts to state a claim to relief that is plausible on its face.'" Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662 (2009); Burnett., ___ F.3d ___, 2013 WL 386283, *2-*3. "Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Id. (emphases in original). Nevertheless, the standard remains a liberal one, and "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Dias v. City and County of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quoting Twombly, 550 U.S. at 556) (internal quotation marks omitted). I must assume the truth of all well-pleaded facts in the complaint, and I must draw all reasonable inferences therefrom in the light most favorable to the plaintiffs. Dias v. City & County of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009)
A. Service of Process
Defendants Dennis Houck, D. Cooley, J. Van Kamp, and the City of Aurora state in their motion that the plaintiff never has served them with a summons and the complaint. Although the plaintiff has filed several affidavits or proofs of service [#6, #22, #26, #28, #33], nothing in the record demonstrates that these defendants personally have been served with a summons and the complaint in compliance with FED. R. CIV. P. 4(e). Absent personal service, the court does not have jurisdiction over these parties. Under FED. R. CIV. P. 12(b)(5), lack of personal service is a basis for dismissal of the complaint.
Often, courts will allow a plaintiff to cure defects in service before dismissing a case on that basis. In this case, the plaintiff, Aaron Jordan, has been aware for several months that the defendants listed above have not been served properly. The motions to dismiss were filed in mid-July and early August 2013, about seven months ago. Nothing in the record indicates that Mr. Jordan has made or will make any effort to arrange for personal service on these defendants. Under Rule 4(m), a summons and the complaint must be served properly within 120 days of the filing of the complaint. Rule 4(m) requires the court to dismiss a complaint if timely service has not been demonstrated unless the plaintiff shows good cause for the failure to arrange for timely service. No good cause has been shown in this case and the complaint shall be dismissed as to defendants, Dennis Houck, D. Cooley, J. Van Kamp, and the City of Aurora.
B. Failure To State A Claim
It is difficult to understand fully the claims asserted by Mr. Jordan in his complaint [#1]. It is clear, however, that his claims are based on a confrontation between Mr. Jordan and certain Aurora police officers while Mr. Jordan was in his garage. Mr. Jordan apparently was arrested and jailed for some time following this confrontation. Under 28 ...