United States District Court, D. Colorado
RECOMMENDATION ON THE MOTION TO DISMISS, OR IN THE
ALTERNATIVE FOR MORE DIFINITE [SIC] STATEMENT, BY DEFENDANTS
AMINOKIT LABORATORIES, INC. AND TAMEA SISCO (Docket No.
MICHAEL J. WATANABE United States Magistrate Judge
case is before this Court pursuant to an Order Referring Case
entered by Judge Raymond P. Moore on June 28, 2017 (Docket
No. 22). Now before the Court is the Motion to Dismiss, or in
the Alternative for More Difinite (sic) Statement, by
Defendants Aminokit Laboratories, Inc. and Tamea Sisco
(Docket No. 27). Plaintiffs filed a response (Docket No. 29).
No reply was filed and the deadline to file a reply has
elapsed. Judge Moore referred the subject motion to the
undersigned magistrate judge (Docket No. 28). The Court has
reviewed the parties' filings (Docket Nos. 27 & 29),
taken judicial notice of the Court's entire file in this
case, and considered the applicable Federal Rules of Civil
Procedure, statutes, and case law. Now being fully informed,
the Court makes the following report and recommendation.
Defendants Aminokit Laboratories, Inc.
(“Aminokit”) and Sisco move for dismissal under
Fed.R.Civ.P. 12(b)(6), or in the alternative, for an order
requiring Plaintiffs to file a more definitive statement of
their claims under Fed.R.Civ.P. 12(e). The moving Defendants
also cite to Fed.R.Civ.P. 8 in their motion.
twin purposes of a complaint are to give the opposing parties
fair notice of the basis for the claims against them so that
they may respond and to allow the Court to conclude that the
allegations, if proven, show that the plaintiff is entitled
to relief. See Monument Builders of Greater Kansas City,
Inc. v. Am. Cemetery Ass'n of Kansas, 891 F.2d 1473,
1480 (10th Cir. 1989). The requirements of Rule 8 are
designed to meet these purposes. See TV Comm's
Network, Inc. v. ESPN, Inc., 767 F.Supp. 1062, 1069 (D.
Colo. 1991), aff'd, 964 F.2d 1022 (10th Cir.
1992). Rule 8(a) provides that a complaint “must
contain (1) a short and plain statement of the grounds for
the court's jurisdiction, . . . (2) a short and plain
statement of the claim showing that the pleader is entitled
to relief; and (3) a demand for the relief sought.” The
philosophy of Rule 8(a) is reinforced by Rule 8(d)(1), which
provides that “[e]ach allegation must be simple,
concise, and direct.” “At some point the factual
detail in a complaint may be so sketchy that the complaint
does not provide the type of notice of the claim to which the
defendant is entitled under Rule 8.” Airborne
Beepers & Video, Inc. v. AT & T Mobility L.L.C.,
499 F.3d 663, 667 (7th Cir. 2007).
Rule 12(b)(6), a party may move to dismiss a claim in a
complaint for “failure to state a claim upon which
relief can be granted.” The 12(b)(6) standard requires
the Court to “assume the truth of the plaintiff's
well-pleaded factual allegations and view them in the light
most favorable to the plaintiff.” Ridge at Red
Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.
2007). In ruling on such a motion, the dispositive inquiry is
“whether the complaint contains ‘enough facts to
state a claim to relief that is plausible on its
face.'” Id. (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). Granting a motion
to dismiss “is a harsh remedy which must be cautiously
studied, not only to effectuate the spirit of the liberal
rules of pleading but also to protect the interests of
justice.” Dias v. City & Cnty. of Denver,
567 F.3d 1169, 1178 (10th Cir. 2009) (internal quotation
marks omitted). “Thus, ‘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.'” Id. (quoting
Twombly, 550 U.S. at 556).
to Federal Rule of Civil Procedure 12(e), “[a] party
may move for a more definite statement of a pleading to which
a responsive pleading is allowed but which is so vague or
ambiguous that the party cannot reasonably prepare a
response.” “A motion pursuant to Fed.R.Civ.P.
12(e) is generally disfavored by the Court.”
Shankar v. Wells Fargo Bank NA, No.
14-cv-02000-CMA-KLM, 2015 WL 870797, at *1 (D. Colo. Feb. 26,
2015). As such, Rule 12(e) motions are “rarely granted
unless the complaint is ‘so excessively vague and
ambiguous as to be unintelligible' or defendant would be
prejudiced in its attempt to answer it.” Id.
(quoting Greater N.Y. Auto. Dealers Ass'n v.
Env't Sys. Testing, Inc., 211 F.R.D. 71, 76
(E.D.N.Y. 2002)). Nonetheless, Rule 12(e) motions may be
granted where a complaint's structure and form make it
difficult or impossible for a defendant to “ascertain
the exact claims pleaded and their nature and scope.”
Green v. Potter, No. 10-cv-02201-LTB-KMT, 2011 WL
2693523, at *5 (D. Colo. July 12, 2011). The decision to
grant or deny a motion for more definite statement rests
within the trial court's sound discretion. Emp'rs
Mut. Cas. Co. v. Downey Excavation, Inc., No.
10-cv-02043-MSK-KMT, 2011 WL 1335839, at *1 (D. Colo. Apr. 7,
initial matter, the motion cites to Rule 12(b)(6) in its
first paragraph, but offers no legal analysis under that
rule. Accordingly, the Court recommends that the motion be
denied to the extent it purports to be brought under Rule
12(b)(6). While a violation of Rule 8 can form the basis for
a dismissal under Rule 12(b), Defendants Aminokit and Sisco
provide no legal argument or authority for such a dismissal
and it is not the Court's role to construct an argument
for them. See Cordova v. Aragon, 569 F.3d 1183, 1191
(10th Cir. 2009) (“It is not our role to sift through
the record to find evidence not cited by the parties to
support arguments they have not made.”); Adler v.
Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir.
1998) (“[D]istrict courts . . . have a limited and
neutral role in the adversarial process, and [ought to be]
wary of becoming advocates who comb the record . . . and make
a party's case for it.”); cf. United States v.
Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges
are not like pigs, hunting for truffles buried in
heart of the motion is a request for the Court to order
Plaintiffs to file an amended complaint that
“provide[s] a more definite statement of the
plaintiffs' claims and allegations.” (Docket No. 27
at 3). The Court construes this as a Rule 12(e) argument. The
moving Defendants state that the Complaint (Docket No. 1) is
“90 pages long and consists of 430 paragraphs . . .,
” which they argue “compromise[s] [their] ability
to properly ascertain and evaluate the bases for the
plaintiffs' various claims against them.” (Docket
No. 27 at 2). Plaintiffs note that because they assert claims
under the Racketeer Influenced and Corrupt Organizations Act
(“RICO”), they are required to describe the
alleged scheme in enough detail to meet the requirements of
Fed.R.Civ.P. 9(b). (Docket No. 29 at 2-3). The also explain
that they “are required to plead a pattern of wrongful
conduct in support of their RICO and Colorado Consumer
Protection Act, (“CCPA”) claims.”
(Id. at 3).
Court has reviewed the Complaint and found that it is not
“so excessively vague and ambiguous as to be
unintelligible” Greater N.Y. Auto. Dealers
Ass'n, 211 F.R.D. at 76. The Court also finds that
Defendants Aminokit and Sisco will not be prejudiced by being
required to respond to the Complaint. Shankar, 2015
WL 870797, at *1. Further, the structure of the Complaint is
not confusing so as to make it hard for a reader to
understand what claims are being asserted. Green,
2011 WL 2693523, at *5. For these reasons, the Court
recommends that the motion be denied to the extent it asks
the Court to order Plaintiffs to file an amended complaint
pursuant to Rule 12(e).
hereby RECOMMENDED that the Motion to
Dismiss, or in the Alternative for More Difinite (sic)
Statement, by Defendants Aminokit Laboratories, ...