Lucero v. Koncilja

          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 ...