United States District Court, D. Colorado
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION
TO DISMISS (DOCKET NO. 13)
Michael J. Watanabe United States Magistrate Judge
case is before the Court pursuant to an Order (Docket No. 15)
referring the subject motion (Docket No. 13) issued by Judge
Christine M. Arguello on August 29, 2017. Now before the
Court is Defendant Arapahoe County's
(“Defendant”) Motion to Dismiss. (Docket No. 13.)
The Court has carefully considered the motion, the Response
(Docket No. 19), the Reply (Docket No. 21), and the Sur-reply
(filed without leave of Court) (Docket No. 23). The Court has
taken judicial notice of the Court's file and has
considered the applicable Federal Rules of Civil Procedure
and case law. The Court now being fully informed makes the
following findings of fact, conclusions of law, and
Reed Kirk McDonald's (“Plaintiff”) Complaint
for Declaratory Judgment (the “Complaint”)
(Docket 1) is another in a series of lawsuits Plaintiff has
filed stemming from the foreclosure and sale of his house and
the subsequent forcible entry and detainer lawsuit
(“FED”) that ultimately led to his eviction from
the property. The Complaint and Plaintiff's Response
(Docket No. 19) to the Motion to Dismiss suffer from similar
deficiencies in that both are vague, scattershot, and replete
with irrelevant tangents. However, construing the pleadings
liberally, and reviewing the state court filings attached to
Plaintiff's Complaint, Plaintiff's claims can be
summarized as follows.
alleges that “national banks” conspired to
foreclose on Plaintiff's property in retaliation for
Plaintiff exposing instances of securities fraud and tax
evasion. (Docket No. 1 at ¶¶ 9-11.) In 2012,
Citibank, NA (“Citibank”) initiated foreclosure
proceedings (Arapahoe County District Court No. 2012CV202099)
and the property was sold by the Arapahoe County Public
Trustee. Plaintiff continued to reside on the property and in
2014, Citibank brought an FED action (Arapahoe County
District Court No. 2014CV200074) against Plaintiff, which
eventually resulted in judgment for possession being entered
in favor of Citibank and against Plaintiff. Plaintiff
appealed the FED judgment. While the case was on appeal,
Citibank sought and was granted a Writ of Restitution.
(Docket No. 1-3 at pp. 57-63.) The Colorado Court of Appeals
affirmed the district court's judgment on October 15,
2015. See Citibank, N.A. v. McDonald, No. 14CA0759,
2015 WL 6121749, at *1 (Colo.App. Oct. 15, 2015)
(unpublished). On September 16, 2016, and again on January 5,
2017, Citibank moved for the reissuance of the expired Writ
of Restitution. (Docket No. 1-3 at pp. 66-67, 69-75.) The
last motion was presumably granted, given that Plaintiff was
finally evicted in January 2017.
alleges that the Arapahoe County District Court unlawfully
issued the Writs of Restitution while the FED case was on
appeal. Plaintiff argues that his constitutional due process
rights were violated, and that this was especially unfair
because Citibank filed the motions without conferring with
him and without personally serving him. (Docket No. 1 at
¶¶ 55-71.) Plaintiff also agues that the state
court should not have ordered the foreclosure and eviction
based on a forged “conveyance instrument.”
Finally, he apparently argues that Arapahoe County is liable
for executing the state court's writs and evicting him
from the property.
Pro Se Plaintiff
is proceeding pro se. The Court, therefore,
“review[s] his pleadings and other papers liberally and
hold[s] them to a less stringent standard than those drafted
by attorneys.” Trackwell v. United States, 472
F.3d 1242, 1243 (10th Cir. 2007) (citations omitted).
However, a pro se litigant's “conclusory
allegations without supporting factual averments are
insufficient to state a claim upon which relief can be
based.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). A court may not assume that a plaintiff can
prove facts that have not been alleged, or that a defendant
has violated laws in ways that a plaintiff has not alleged.
Associated Gen. Contractors of Cal., Inc. v. Cal. State
Council of Carpenters, 459 U.S. 519, 526 (1983). See
also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th
Cir. 1997) (court may not “supply additional factual
allegations to round out a plaintiff's complaint”);
Drake v. City of Fort Collins, 927 F.2d 1156, 1159
(10th Cir. 1991) (the court may not “construct
arguments or theories for the plaintiff in the absence of any
discussion of those issues”). The plaintiff's
pro se status does not entitle him to an application
of different rules. See Montoya v. Chao, 296 F.3d
952, 957 (10th Cir. 2002).
Lack of Subject Matter Jurisdiction
Rule of Civil Procedure Rule 12(b)(1) empowers a court to
dismiss a complaint for lack of subject matter jurisdiction.
Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a
judgment on the merits of a plaintiff's case. Rather, it
calls for a determination that the court lacks authority to
adjudicate the matter, attacking the existence of
jurisdiction rather than the allegations of the complaint.
See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir.
1994) (recognizing federal courts are courts of limited
jurisdiction and may only exercise jurisdiction when
specifically authorized to do so). The burden of establishing
subject matter jurisdiction is on the party asserting
jurisdiction. Basso v. Utah Power & Light Co.,
495 F.2d 906, 909 (10th Cir. 1974). A court lacking
jurisdiction “must dismiss the case at any stage of the
proceedings in which it becomes apparent that jurisdiction is
lacking.” See Basso, 495 F.2d at 909. The
dismissal is without prejudice. Brereton v. Bountiful
City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006)
12(b)(1) motion to dismiss “must be determined from the
allegations of fact in the complaint, without regard to mere
conclusionary allegations of jurisdiction.”
Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir.
1971). When considering a Rule 12(b)(1) motion, however, the
Court may consider matters outside the pleadings without
transforming the motion into one for summary judgment.
Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.
1995). Where a party challenges the facts upon which subject
matter jurisdiction depends, a district court may not presume
the truthfulness of the complaint's “factual
allegations . . . [and] has wide discretion to allow
affidavits, other documents, and [may even hold] a limited
evidentiary hearing to resolve disputed jurisdictional facts
under Rule 12(b)(1).” Id.
Failure to State a Claim Upon Which Relief Can Be
Rule of Civil Procedure 12(b)(6) provides that a defendant
may move to dismiss a claim for “failure to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). “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 ...