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Lipin v. Wisehart

United States District Court, D. Colorado

March 2, 2017

JOAN C. LIPIN, Plaintiff,


          R. Brooke Jackson, United States District Judge

         This matter is before the Court on defendants' motion for cost bond [ECF No. 14], defendants' motion to dismiss or stay [ECF No. 15], and Magistrate Judge Scott T. Varholak's recommendations [ECF No. 39]. Judge Varholak recommends that this Court grant the motion to dismiss and deny the motion for cost bond as moot. ECF No. 39 at 1. His recommendations are incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). However, the Court cannot accept his recommendations due to events that took place after he issued his report. The motion to dismiss must be denied, and the motion for cost bond therefore may be granted.


         This diversity action concerns a dispute over the ownership of real property at 39508 Pitkin Road, Paonia, Colorado (the Property). ECF No. 1 ¶ 4. Plaintiff Joan C. Lipin claims to be the rightful owner of the Property because her husband, Arthur McKee Wisehart, conveyed the Property to her through four quitclaim deeds executed and recorded in January 2016. Id. ¶¶ 4-5. Defendants Arthur Dodson Wisehart-one of Arthur McKee Wisehart's sons-and Erin Jameson run a bed-and-breakfast called the Wisehart Springs Inn on the Property. Id. ¶¶ 17-22. Ms. Lipin alleges that all four defendants are trespassing on the Property by either operating the inn or holding events there without her permission. Id. ¶¶ 17-18, 22-24, 28-30, 37-39.

         On March 16, 2016 Arthur Dodson Wisehart brought a state court action concerning the Property in the District Court for Delta County, Colorado against his father and Ms. Lipin. ECF No. 15, Ex. A. The lawsuit alleges that a trust for his deceased grandmother, Dorothy R. Wisehart, acquired the Property in 1995. Id. ¶¶ 10, 14. The complaint further alleges that Arthur Dodson Wisehart and his father are co-trustees of this trust, so his father's purported conveyance of the Property to Ms. Lipin conveyed nothing. Id. ¶¶ 17, 40. Arthur Dodson Wisehart seeks declaratory relief to this end as well as monetary damages. Id. ¶¶ 48-61.

         Five days after the state court action was filed, Ms. Lipin responded by bringing this federal court case pro se. See ECF No. 1. Like the state court case, Ms. Lipin's complaint requires determining the rightful owner of the Property. She requests that this Court enjoin defendants and the Wisehart Springs Inn-a nonparty-from operating the Wisehart Springs Inn and holding events on the Property; eject defendants and the Wisehart Springs Inn from the Property; and award monetary damages. Id. at 16, ¶¶ 1-5.

         Defendants, who also appear pro se, have filed a motion for cost bond and a motion to dismiss. ECF Nos. 14-15. Judge Varholak's October 14, 2016 report recommends dismissing the case without prejudice under the Colorado River doctrine and denying the request for a cost bond as moot. ECF No. 39 at 8-9. Ms. Lipin objects to these recommendations. ECF No. 40.


         A. Magistrate Judge Recommendation.

         When a magistrate judge makes a recommendation on a dispositive motion, the district court “must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). An objection is sufficiently specific if it “focus[es] the district court's attention on the factual and legal issues that are truly in dispute.” United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). In the absence of 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).

         B. Rule 12(b)(6).

         To survive a 12(b)(6) motion to dismiss, the complaint must contain “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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While the Court must accept the well-pleaded allegations of the complaint as true and construe them in the light most favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210 (10th Cir. 2002), purely conclusory allegations are not entitled to be presumed true, Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). However, so long as the plaintiff offers sufficient factual allegations such that the right to relief is raised above the speculative level, he has met the threshold pleading standard. See Twombly, 550 U.S. at 556. “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 Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (quoting Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991)).

         C. Pro Se Party.

         When a case involves a pro se party, the court will “review his pleadings and other papers liberally and hold them to a less stringent standard than those drafted by attorneys.” Trackwell v. U.S. Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007). Nevertheless, it is not “the proper function of the district court to assume the role of advocate for the pro se litigant.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A “broad reading” of a pro se plaintiff's pleadings “does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be ...

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