United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. WANG MAGISTRATE JUDGE
matter comes before the court on Defendant Judd Kyle
Shader's (“Defendant” or “Mr.
Shader”) Motion to Dismiss [#5, filed June 6, 2018]
under Rule 12(b)(6) for failure to state a claim
(“Motion to Dismiss”). The Motion to Dismiss is
before the court pursuant to the Order of Reference dated
July 10, 2018 [#13; #14] and 28 U.S.C. § 636(c). The
court has carefully considered the Motion and related
briefing, the entire case file, and the applicable case law.
For the following reasons, Defendant's Motion to Dismiss
Fatima Baayer (“Plaintiff” or “Ms.
Baayer”) filed this pro se case on May 17,
2018 against Judd Kyler Shader in both his individual
capacity and in his capacity as CEO of Leeds West Group. Ms.
Baayer is a Florida resident who owns three identical 2014
Dodge Charger Police Pursuit AWD vehicles that she had
serviced at the “Big O franchise.” [#1 at 1- 2].
According to Plaintiff, the Big O shops defectively repaired
her vehicles, charging her inconsistent prices and using
faulty parts whose failure in the course of vehicle operation
posed a danger to the occupants. See [id.].
While the allegations regarding the vehicles' repair are
clear and detailed, there are few factual allegations
regarding the connection between the actions of Big O Tires
and Defendant Shader, either in his official capacity or in
his capacity as CEO of Leeds West Groups.
filed this Motion to Dismiss for failure to state a claim
under Rule 12(b)(6) on June 6, 2018 [#5]. Defendant filed her
Response on June 22, 2018 [#8], and Defendant filed a Reply
on June 29, 2018 [#9]. The matter is now fully briefed and
ready for disposition.
12(b)(6) states that a court may dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). To state a claim, a
complaint must contain factual allegations that, when taken
as true, establish a claim for relief that is plausible on
its face. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Plausibility is distinct from, and more demanding
than, mere conceivability. Khalik v. United Air
Lines, 671 F.3d 1188, 1190 (10th Cir. 2012).
reviewing a motion to dismiss under Rule 12(b)(6), a court
accepts as true all well-pleaded factual allegations and
views those allegations in the light most favorable to the
plaintiff. Sec. & Exch. Comm'n v. Shields,
744 F.3d 633, 640 (10th Cir. 2014). Legal conclusions,
whether presented as such or masquerading as factual
allegations, are not afforded such deference. Dahn v.
Amedei, 867 F.3d 1178, 1185 (10th Cir. 2017). An
unadorned, conclusory recitation of the elements of the cause
of action does not meet this standard. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
must liberally construe a pro se party's
pleadings and will not dismiss his claims under Rule 12(b)(6)
if the court can “reasonably read the pleadings to
state a valid claim on which the plaintiff could prevail . .
. despite the plaintiff's failure to cite proper legal
authority, his confusion of various legal theories, his poor
syntax and sentence construction, or his unfamiliarity with
pleading requirements.” Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991); see also Tatten v. City
and Cty. of Denver, 730 Fed.Appx. 620, 623-24 (10th Cir.
2018) (reviewing the rule in Hall and its rationale). But 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. See Gallagher
v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009)
(“[Court's] role is not to act as [pro se
fails to state a claim upon which relief can be granted
because she does not link the conduct at issue with the
Defendants in any manner, let alone a plausible one.
Affording the pro se Plaintiff a liberal
construction of the Complaint does not change this conclusion
because the near-complete absence of factual allegations on
this point leaves the court with nothing to liberally
construe. As noted, Plaintiff has made ample allegations of
fact, but only as to Big O Tires; the allegations against the
parties actually joined in this case do not rise to the level
of threadbare. There are no allegations regarding any
affirmative conduct by Defendant, and the company he heads,
Leeds West Groups, is not mentioned at all in the Complaint.
fact, Defendant Shader is mentioned only once in the
Complaint, and only in the fourth claim for relief based on
deceptive trade practices and then several levels removed
from the allegations at issue. See [id. at
4] (“[These deceptive trade practices] appear to be
allowed by the current district manager ‘Wil
Cancanon' and appears to further be condoned by
‘Tim Moran' and ultimately ‘Judd Kyle
Shader' since this has been brought to their attention
and do not want to address the issues of quality but, instead
non-relevance acceptance of invoices, even though said
invoices were not signed due to employees not requesting or
even presenting it, to which ‘Tim Moran' believes
exist.”). The only factual allegation regarding
Defendant Shader is that he “appears” to condone
Tim Moran's apparent approval of Wil Concanon's
apparent approval of deceptive trade practices occurring at
local Big O Tire facilities. [Id.]. At no point does
Plaintiff link Defendant Shafer to Big O Tires, or the
conduct at issue, nor does Plaintiff link Leeds West Groups
to Big O Tires or the conduct at issue.
this court finds that Plaintiff has inadequately alleged any
causal nexus between the action of Defendant and the alleged
injury to Plaintiff. Thus, the Motion to Dismiss must be
granted, but with leave to refile. Where a complaint fails to
state a claim under Rule 12(b)(6), dismissal without
prejudice is appropriate where granting leave to amend would
not be futile, and generally, the court will permit plaintiff
to cure her defects through amendment at least in the first
instance. See The Sherwin-Williams Co. v. SUSE, LLC,
No. 2:15-CV-129-JNP-DBP, 2015 WL 10990185, at *7 (D. Utah
Oct. 23, 2015) (citing Brereton v. Bountiful City
Corp., 434 F.3d 1213, 1219 (10th Cir. 2006). To the
extent that Plaintiff ...