United States District Court, D. Colorado
ANTHONY J. LUCERO, Plaintiff,
v.
JAMES R. KONCILJA, and KONCILJA & KONCILJA, P.C., Defendants.
ORDER ADOPTING JULY 20, 2018 RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
William J. Martínez United States District Judge
Plaintiff
Anthony Lucero (“Plaintiff” or
“Lucero”), proceeding pro se, brings
Fourteenth Amendment claims against Defendants James R.
Koncilja (“Koncilja”) and Koncilja &
Koncilja, P.C. (jointly, “Defendants”). (ECF No.
5.) Defendants move to dismiss for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1). (ECF No. 14 (“Motion”).) Plaintiff
filed a Response to Defendants' Motion (ECF No. 37)
(“Response”) and Defendants filed a Reply in
support of their Motion (ECF No. 40).
United
States Magistrate Judge Kathleen M. Tafoya filed a Report and
Recommendation recommending that Defendants' Motion to
Dismiss be granted. (ECF No. 50
(“Recommendation”).) Plaintiff filed an Objection
to Judge Tafoya's Recommendation. (ECF No. 51-1
(“Objection”).) Upon review, the Court adopts
Judge Tafoya's recommended disposition, although for
reasons somewhat different than those relied upon by Judge
Tafoya. As a consequence, Defendants' Motion to Dismiss
is granted.
I.
BACKGROUND
On
November 18, 2006, Plaintiff was working as a maintenance
engineer a t Wyndham Hotels and Resorts in Colorado Springs
when he fell down an empty elevator shaft, injuring his ear,
kidney, spleen, arm, wrist, and knee. (ECF No. 5 at 2-3.)
Plaintiff hired James R. Koncilja and his law firm, Koncilja
& Koncilja, P.C. to represent him in his workers'
compensation settlement (“Settlement”) and in his
lawsuit against Kone, Inc., Strobel Construction Unlimited,
Inc., Sedlak Electric Company, Heating and Plumbing
Engineers, Inc., and John Doe Construction 1 through 5
(“Lawsuit”). (Id. at 3.)
Plaintiff
claims that “Koncilja committed gross legal malpractice
in every conceivable [res]pect and negligently violated
[Plaintiff's] Fourteenth Amendment rights that would have
insured a fair legal process.” (Id.) According
to Plaintiff, Defendants failed to even do the minimal amount
of legal work. (Id.) Specifically, Plaintiff alleges
that “Koncilja filed in the wrong county, did
absolutely no investigation of the scene, nor of the hotel
and their staff, no interviewing of culpable contractors.
Koncilja failed to do any interrogatories, no depositions, no
questioning or photographs of [Plaintiff's] injuries, no
medical discovery, and ultimately [Plaintiff's] legal
case was dismissed for [Plaintiff's] ‘failure
to prosecute'-even though James Koncilja said that
[Plaintiff] would make ‘big money' on that civil
suit against Wyndham Hotel[s]. He did nothing, and
[Plaintiff] was awarded nothing.”[1] (Id.
(emphasis in original).)
Plaintiff
then retained Attorney Paul Gordon to sue Defendants for
professional negligence and breach of contract stemming from
the dismissal of Plaintiff's Lawsuit (“Malpractice
Lawsuit”). (ECF No. 14 at 2.) Plaintiff's
Malpractice Lawsuit was dismissed by the Pueblo County
District Court on August 6, 2012 “for failing to file a
certificate of review because expert testimony would be
required.” (ECF No. 14-2 at 9.) This order of dismissal
was subsequently upheld by the Colorado Court of Appeals,
which “conclude[d that] the district court correctly
ruled that plaintiff's negligence and breach of contract
claims require expert analysis of the work performed by
defendants and the facts underlying plaintiff's
accident-related claims.” (ECF No. 14-3 at 7.) The
Colorado Court of Appeals “perceive[d] no abuse of
discretion in this ruling and in the court's conclusion
that plaintiff was, thus, required to file a certificate of
review as to his professional negligence claim.”
(Id.) The Colorado Supreme Court denied
Plaintiff's petition for writ of certiorari.
(ECF No. 14-4 at 1.)
On
October 17, 2013, Plaintiff, proceeding pro se filed
a second malpractice lawsuit against Defendants
(“Pro se Malpractice Lawsuit”) in the
Pueblo County District Court based on their actions, or lack
thereof, in Plaintiff's Settlement and Lawsuit. (ECF No.
14-5 at 1.) This time, the Pueblo County District Court found
that “the issues raised in the instant case are the
same issues that were or should have been raised in [the
Malpractice Lawsuit]. Therefore, they may not be raised again
in the instant case.” (Id. at 2.) The Pueblo
County District Court also noted that “the Court file
does not show a certificate of review filed by the Plaintiff.
The Plaintiff must have been aware from his prior cases that
a certificate of review would be required. Therefore, the
Court finds that there is no good cause shown to excuse the
Plaintiff and this case must be dismissed for failure to
comply with C.R.S. 13-2-602.” (Id. at 3.)
Instead
of appealing the court's dismissal of his Pro se
Malpractice Lawsuit, Plaintiff filed a 24 page Motion for
Relief from Order Granting Defendants' Motion to Dismiss
on November 4, 2014. (ECF No. 14-6.) The Pueblo County
District Court denied this motion because “[t]he
Plaintiff's remedy from Judge Crockenberg's Order was
to file a Notice of Appeal.” (ECF No. 14-7.) Plaintiff
appealed the denial of his Motion for Relief and the Colorado
Court of Appeals affirmed the trial court's order. (ECF
No. 14-8 at 14.) Plaintiff subsequently appealed to the
Colorado Supreme Court, which again denied Plaintiff's
petition for writ of certiorari. (ECF No. 14-9.)
II.
STANDARD OF REVIEW
When a
magistrate judge issues a recommendation on a dispositive
matter, Federal Rule of Civil Procedure 72(b)(3) requires
that the district court judge “determine de
novo any part of the magistrate judge's
[recommendation] that has been properly objected to.”
Fed.R.Civ.P. 72(b)(3). In conducting its review, “[t]he
district court judge may accept, reject, or modify the
recommendation; receive further evidence; or return the
matter to the magistrate judge with instructions.”
Id. An objection is proper if it is filed within
fourteen days of the magistrate judge's recommendations
and is specific enough to enable the “district judge to
focus attention on those issues-factual and legal-that are at
the heart of the parties' dispute.” United
States v. 2121 East 30th Street, 73 F.3d 1057, 1059
(10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S.
140, 147 (1985)). “When no timely objection is filed,
the court need only satisfy itself that there is no clear
error on the face of the record in order to accept the
recommendation.” Fed.R.Civ.P. 72(b) advisory
committee's note; see also Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991) (“In the absence of
timely objection, the district court may review a
magistrate's report under any standard it deems
appropriate.”).
Rule
12(b)(1) empowers a court to dismiss a complaint for
“lack of jurisdiction over the subject matter.”
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 proceeding in which it becomes apparent that jurisdiction
is lacking.” See id.
A Rule
12(b)(1) motion to dismiss “must be determined from the
allegations of fact in the complaint, without regard to mere
conclusory 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.
In
reviewing a Motion to Dismiss under Rule 12(b)(6) the Court
will “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). Thus the Court “must accept all allegations as
true and may not dismiss on the ground that it appears
unlikely the allegations can be proven.” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008).
“[A] well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is
...