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McDonald v. Arapahoe County

United States District Court, D. Colorado

January 26, 2018

REED KIRK MCDONALD, Plaintiff,
v.
ARAPAHOE COUNTY, a quasimunicipal corporation and political subdivision of the State of Colorado, Defendant.

          REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS (DOCKET NO. 13)

          Michael J. Watanabe United States Magistrate Judge

         This 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 recommendation.

         I. BACKGROUND

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         II. LEGAL STANDARD

         a. Pro Se Plaintiff

         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).

         b. Lack of Subject Matter Jurisdiction

         Federal 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)

         A Rule 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.

         c. Failure to State a Claim Upon Which Relief Can Be Granted

         Federal 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 ...


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