United States District Court, D. Colorado
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE
KRISTEN L. MIX, Magistrate Judge.
matter is before the Court on Defendants Arapahoe County and
Sheriff David C. Walcher's (together, "County
Defendants") Motion to Dismiss Plaintiff's Complaint
[#5] ("Motion") and Defendants
Deutsche Bank National Trust Company ("Deutsche"),
Barrett Frappier & Weisserman, LLP, and Lauren Tew,
Esq.'s (together, "BFW Defendants") Motion to
Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) [#8]
("Motion"). Plaintiffs, who proceed pro se,
did not initially file a response to Defendants' motions,
and on May 22, 2015, the Court sua sponte extended the
deadline for the filing of a Response and ordered that
Plaintiffs respond no later than June 12, 2015. Minute
Order [#17]. Plaintiffs did not respond until July 6,
2015, see Response [#18], and Defendants
subsequently filed Motions to Strike [##23, 25].
to 28 U.S.C. Â§ 636(b)(1) and D.C.COLO.LCivR 72.1(c), these
four pending Motions have been referred to the undersigned.
See Orders Referring Motions [##6, 9, 24, 26]. The
Court has reviewed the Motions [##5, 8, 23, 25], the Response
[#18], relevant law, and the entire case file, and is advised
in the premises. For the reasons stated below, the Court
RECOMMENDS that Defendants' Motions to Dismiss [##5, 8]
be GRANTED. Further, given the Court's recommendation,
the Court DENIES the Motions to Strike [##23, 25] as moot.
action arises out of the foreclosure on and subsequent sale
of property located at 5836 South Genoa Court, Aurora,
Colorado (the "Property"). Compl. [#1] at
Â¶ 1. Plaintiffs Valencia McCoy and Sean McCoy allege that
they were tenants of the Property and had been residing there
since June 17, 2014. Id. at Â¶ 2. Plaintiffs claim
that they were gone from the Property from October 7 to
October 21, 2014, and that, upon their return, they
discovered that the locks had been changed and that all of
their belongings had been removed from the Property.
Id. at Â¶Â¶ 4-5. Plaintiffs claim that they were not
served in a state foreclosure case involving the Property,
not served with a Writ of Restitution, and that a Writ of
Restitution was never signed by the Court Clerk or Judge in
the County Court in Arapahoe County. Id. at Â¶Â¶ 7-9.
on March 25, 2015, Plaintiffs filed a complaint against
Defendants alleging the following causes of action: (1)
violation of the Fourteenth Amendment; (2) violation of the
Fair Debt Collection Practices Act ("FDCPA"), 15
U.S.C. Â§ 1692f, against Defendant Deutsche and the BFW
Defendants only; (3) replevin of personal property against
Defendant Deutsche and the BFW Defendants only; (4)
injunctive relief; and (5) violation of the Protecting
Tenants at Foreclosure Act ("PTFA"), 12 U.S.C. Â§
5220 note, against Defendant Deutsche and the BFW Defendants
only. Compl. [#1] Â¶Â¶ 10-39.
relief, Plaintiffs request injunctive relief to "remain
living on the property in their home for the remainder of the
lease" as well as permanent injunctions against
"any further enforcement of the challenged law"
and, finally, "compensatory relief based upon the
Defendants removal and confiscation of all of the
Plaintiffs' personal property[.]" Id. at
14. Plaintiffs clarify that they "are not seeking
damages from the Arapahoe County Sheriff David C. Walcher or
the COUNTY OF ARAPAHOE AKA ARAPAHOE COUNTY, but we are only
seeking injunctive relief from these County Defendants."
Id. (emphasis in original). It appears that shortly
after Plaintiffs filed the Complaint, Plaintiffs were evicted
from the Property. See Motion [#8] at 6.
responded to Plaintiffs' Complaint by filing the present
motions to dismiss. Motions [##5, 8]. The County
Defendants argue that the Court should dismiss
Plaintiffs' claims because the Court lacks personal
jurisdiction over Arapahoe County, Plaintiffs' claims are
barred by absolute and sovereign immunity, and because
Plaintiffs fail to state claims upon which relief can be
granted. Motion [#5] at 3-9. Similarly, the BFW
Defendants and Defendant Deutsche contend that Plaintiffs
have failed to allege any valid causes of action under
federal or state law. Motion [#8] at 9.
subsequently filed an untimely Response [#18] on July 6,
2015, and, in addition, an affidavit in support of their
Response [#19] on July 7, 2015, and Defendants subsequently
filed motions to strike these submissions. Motions to
Strike [##23, 25]. Plaintiffs, in their Response,
argue that Defendants have violated 42 U.S.C. Â§ 1983, the
Fourth Amendment, and the Fourteenth Amendment by seizing
their property "without any of the prior judicial
notices that are required under Colorado law[.]"
Response [#18] at Â¶ 13. Plaintiffs also argue that
Defendant Deutsche and the BFW Defendants "effected a
seizure of the Plaintiffs home and personal property... in
violation of the Warrant Clause of the Fourth Amendment"
and accuse Defendants of the "theft of the
Plaintiff[s'] personal property[.]" Id. at
Â¶ 20. Plaintiffs then state that, after their property was
allegedly taken by Defendants Deutsche and the BFW
Defendants, in November 2014 these same Defendants
"recruit[ed]... the Courts and the Sheriff in the
eviction process in violation of the Fourth Amendment, FDCPA,
and the PTFA." Id. at Â¶ 21.
purpose of a motion to dismiss pursuant to Rule 12(b)(6) 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); Fed.R.Civ.P. 12(b)(6) (stating that a
complaint may be dismissed for "failure to state a claim
upon which relief can be granted"). "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)
(citation omitted). To withstand a motion to dismiss pursuant
to Rule 12(b)(6), "a complaint must contain enough
allegations of fact to state a claim to relief that is
plausible on its face.'" Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)); see also Shero v. City of Grove,
Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) ("The
complaint must plead sufficient facts, taken as true, to
provide plausible grounds' that discovery will reveal
evidence to support the plaintiff's allegations."
(quoting Twombly, 550 U.S. at 570)).
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). "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 assertion[s] devoid of further factual
enhancement." Id. (brackets in original;
internal quotation marks omitted).
survive a motion to dismiss pursuant to Rule 12(b)(6), the
factual allegations in the complaint "must be enough to
raise a right to relief above the speculative level."
Christy Sports, LLC v. Deer Valley Resort Co., 555
F.3d 1188, 1191 (10th Cir. 2009). "[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, " a factual
allegation has been stated, "but it has not show[n] that
the pleader is entitled to relief, " as required by
Fed.R.Civ.P. 8(a). Iqbal, 552 U.S. at 679 (second
brackets added; citation and internal quotation marks
Defendants Arapahoe County and Sheriff David C. Walcher
bases warrant dismissal of the claims against the County
Defendants. As a threshold matter, because Plaintiffs appear
to only seek injunctive relief against the County Defendants
to prevent them from interfering with Plaintiffs' alleged
"right to remain living on the property, "
Compl. [#1] at 14, the claims alleged against the
County Defendants have been mooted by the eviction of
Plaintiffs from the Property. See Response [#18] at
Â¶ 1; Motion [#8] at 6. Thus, because the Court
cannot grant the requested relief, there is no case in
controversy between Plaintiffs and the County Defendants.
See Genesis Healthcare Corp. v. Symczyk,
___ U.S. ___, 133 S.Ct. 1523, 1528 (2013) ("If an
intervening circumstance deprives the plaintiff of a personal
stake in the outcome of the lawsuit, at any point during
litigation, the action can no longer proceed and must be
dismissed as moot.") (internal quotation omitted).
Nonetheless, because the Complaint is not clear, the Court
also addresses Plaintiffs' other claims should the
Plaintiffs have intended the Complaint to request monetary
damages against the County Defendants.
County Defendants argue that the Court lacks personal
jurisdiction over the County of Arapahoe. Motion
[#5] at 3. The Court agrees. Colorado law provides that
"the name in which the county shall sue or be sued shall
be, The board of county commissioners of the county of
____'" Colo. Rev. Stat. Â§ 30-11-105. "This
statutory provision provides the exclusive method by which
jurisdiction over a county can be obtained. An action
attempted to be brought under any other designation is a
nullity, and no valid judgment can enter in such a
case." Gonzales v. Martinez,403 F.3d 1179,
1187 n.7 ...