United States District Court, D. Colorado
JOAN C. LIPIN, Plaintiff,
ARTHUR DODSON WISEHART, ERIN JAMESON, ELLEN E. WISEHART, and RICHARD [RHJAKOB KREYCIK, Defendants.
Brooke Jackson, United States District Judge
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
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.
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.
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,
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.
Magistrate Judge Recommendation.
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).
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)).
Pro Se Party.
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 ...