United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
KATHLEEN M. TAFOYA, UNITED STATES MAGISTRATE JUDGE
case comes before the court on Defendants CBRE, Inc.,
Sotffers, and Ludeman's “Revised Motion to Dismiss
Complaint and Compel Arbitration” (Doc. No. 32 [Mot.],
filed August 31, 2017). Plaintiff did not file a response
OF THE CASE
proceeding pro se, asserts claims for defamation
against his former employer, CBRE, Inc. (“CBRE”),
employees of CBRE, and CBRE advisory board members.
(See Doc. No. 15 [Am. Compl.].) Plaintiff also
asserts claims for intentional infliction of emotional
distress. (See id.)
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). See
also Haines v. Kerner, 404 U.S. 519, 520-21 (1972)
(holding allegations of a pro se complaint “to
less stringent standards than formal pleadings drafted by
lawyers”). 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 application of different rules. See Montoya v.
Chao, 296 F.3d 952, 957 (10th Cir. 2002).
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) (2007). “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.”
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th
Cir. 2003) (citations and quotation marks omitted).
court reviewing the sufficiency of a complaint presumes all
of plaintiff's factual allegations are true and construes
them in the light most favorable to the plaintiff.”
Hall v. Bellmon, 935 F.2d 1106, 1198 (10th Cir.
1991). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Plausibility, in the context of a
motion to dismiss, means that the plaintiff pleaded facts
which allow “the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Id. The Iqbal evaluation
requires two prongs of analysis. First, the court identifies
“the allegations in the complaint that are not entitled
to the assumption of truth, ” that is, those
allegations which are legal conclusion, bare assertions, or
merely conclusory. Id. at 679-81. Second, the Court
considers the factual allegations “to determine if they
plausibly suggest an entitlement to relief.”
Id. at 681. If the allegations state a plausible
claim for relief, such claim survives the motion to dismiss.
Id. at 679.
the court need not accept conclusory allegations without
supporting factual averments. Southern Disposal, Inc., v.
Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998).
“[T]he tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to
legal conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S at 678. Moreover,
“[a] pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.' Nor does the
complaint suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Id. (citation omitted).
“Where a complaint pleads facts that are ‘merely
consistent with' a defendant's liability, it
‘stops short of the line between possibility and
plausibility of ‘entitlement to relief ”
Id. (citation omitted).
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 cause 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); see also Frederiksen v. City of Lockport, 384
F.3d 437, 438 (7th Cir. 2004) (noting that dismissals for
lack of jurisdiction should be without prejudice because a
dismissal with prejudice is a disposition on the merits which
a court lacking jurisdiction may not render).
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.
argue Plaintiffs claims are subject to a binding and
mandatory arbitration agreement. (Mot. at 9-12.) Defendants
also argue that Plaintiffs claims are barred by claim
preclusion. (Id. at 6-9.) Finally, Defendants argue
that Plaintiff fails to state claims upon which relief can be
granted. (Id. 12-14.)
Applicability of 28 U.S.C § 636(b)(1) to Motion to
court recognizes that the law in the Tenth Circuit is unclear
as to whether motions to compel arbitration are dispositive
for purposes of 28 U.S.C. § 636(b)(1). Compare
Vernon v. Qwest Commc'ns Int'l, Inc., 925
F.Supp.2d 1185, 1189 (D. Colo. 2013) (electing to assume that
motion to compel was dispositive, giving consideration to the
fact that the court would apply a de novo review to
the magistrate judge's application of state contract law)
with Adetomiwa v. College, No. 15-cv-01413-PAB-NYW,
2015 WL 9500787, at *1 (D. Colo. Dec. 31, 2015) (conducting
de novo review of recommendation that motion to compel be
granted, but suggesting that the motion was not dispositive
and the court could apply a “clearly erroneous or
contrary to law” standard of review). Two courts of
appeal have considered the issue and held that motions to
compel arbitration are not dispositive. See PowerShare,
Inc. v. Syntel, Inc.,597 F.3d 10 (1st Cir. 2010)
(holding that a motion to compel arbitration is not
dispositive because a district court retains authority to
dissolve stay or review arbitration award); Virgin
Islands Water& Power Auth. v. Gen. Elec.
Int'l Inc., ...