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Prochnow v. Fidelity Mortgage Company, Inc.

United States District Court, D. Colorado

September 25, 2014

JARED PROCHNOW, and MATTHEW FOSTER, Plaintiffs,
v.
FIDELITY MORTGAGE COMPANY, INC., Defendant.

ORDER

RAYMOND P. MOORE, District Judge.

This matter is before the Court on the Magistrate Judge's Recommendation on Defendant's Motion to Dismiss ("Recommendation") (ECF No. 30) and Defendant Fidelity Mortgage Company, Inc.'s ("Fidelity") Objection to the Recommendation (ECF No. 31). Both the Recommendation and the objection pertain to Defendant's Motion to Dismiss (ECF No. 25) Plaintiffs Jared Prochnow and Matthew Foster's Second Amended Verified Complaint (ECF No. 23) alleging Defendant violated the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. ยงยง 1961-1968, and committed state-law fraud.

For the reasons stated below, the Court AFFIRMS and ADOPTS the Recommendation, OVERRULES Defendant's objection, and GRANTS Defendant's Motion to Dismiss as to Plaintiffs' RICO claim and REMANDS Plaintiffs' state-law fraud claim.

I. LEGAL STANDARDS

A. Review of the Magistrate Judge's Recommendation

When a magistrate judge issues a recommendation on a dispositive matter, Fed.R.Civ.P. 72(b)(3) requires that the district court judge "determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to." In conducting its review, "[t]he district court judge may accept, reject, or modify the recommendation; receive further evidence; or return the matter to the magistrate judge with instructions." Id.

An objection is proper if it is filed timely in accordance with the Federal Rules of Civil Procedure and specific enough to enable the "district judge to focus attention on those issues - factual and legal - that are at the heart of the parties' dispute." United States v. One Parcel of Real Property, 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). In the absence of a timely and specific objection, "the district court may review a magistrate's report under any standard it deems appropriate." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citations omitted); see also Fed.R.Civ.P. 72 Advisory Committee's Note ("When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.").

B. Pro Se Status

A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The Court, however, cannot serve as a pro se litigant's advocate and make arguments for him. Walters v. Wal-Mart Stores, Inc., 703 F.3d 1167, 1173 (10th Cir. 2013); Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). The Court cannot "supply additional factual allegations to round out [a pro se litigant's] complaint...." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citation omitted). And pro se litigants are not excused from following the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (citations omitted).

C. Rule 12(b)(6) Motion

The purpose of a motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is to test "the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (internal quotation marks and citation omitted).

To survive a Rule 12(b)(6) motion, "[t]he complaint must plead sufficient facts... to provide plausible grounds that discovery will reveal evidence to support the plaintiff's allegations." Shero v. City of Grove, Okl., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility in this context "must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible." Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008) (internal quotation marks and citation omitted). The "allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief." Id. This requirement of plausibility "serves not only to weed out claims that do not have a reasonable prospect of success, [but also to] provide fair notice to defendants of the actual grounds of the claim against them." Id. at 1248; accord Twombly, 550 U.S. at 582.

"A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Ashcroft v. Iqbal, 556 ...


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