United States District Court, D. Colorado
REPORT AND RECOMMENDATION ON DEFENDANT EAGLE COUNTY,
STATE OF COLORADO'S MOTION TO DISMISS (DKT. #23) AND
DEFENDANT BELLCO CREDIT UNION'S MOTION TO DISMISS (DKT.
REID NEUREITER UNITED STATES MAGISTRATE JUDGE.
case is before the Court pursuant to Orders (Dkt. ##26 &
32) issued by Judge Christine M. Arguello referring
Defendants Eagle County, State of Colorado ("Eagle
County") and Bellco Credit Union's
("Bellco") (collectively "Defendants")
respective Motions to Dismiss. (Dkt. ##23 & 31.) The
Court has carefully considered the motions, Plaintiff Reed
Kirk McDonald's Responses (Dkt. ##33 & 38), and
Defendants' Replies. (Docket ##35 & 42.) The Court
has taken judicial notice of the Court's file, considered
the applicable Federal Rules of Civil Procedure and case law,
and makes the following recommendation.
McDonald initiated this case by filing a Complaint and Jury
Demand against Eagle County. (Dkt. #1.) On March 8, 2018, he
filed an Amended Complaint in which he asserted additional
claims against Bellco. (Dkt. #14.) Mr. McDonald proceeds pro se
and the nature of his claims are convoluted and difficult to
ascertain with any certainty. However, construing the
pleadings liberally, as it must, the Court gleans the
action stems from two unrelated state court cases. First, Mr.
McDonald alleges that in McDonald v. Zions First Natl
Bank, N.A., Eagle County District Court No. 2009-cv-604
(the "Eagle County Litigation"), Eagle County
refused to allow him to "present his civil case"
against Zions First National Bank, N.A., and successive Eagle
County judges have "disobeyed the Court of Appeals
Orders." (Dkt. #14 ¶¶ 24-29.) Mr.
McDonald's claims in the Eagle County Litigation were
dismissed on summary judgment. (Dkt. #31 -1.) Judgment was
entered against him on April 7, 2011 in the amount of $102,
267.75. (Dkt. ##31-2 & 31-3.) A writ of garnishment was
issued on Mr. McDonald's Bellco bank account.
(Id.) All this somehow led to Mr. McDonald's
arrest by the FBI. (Dkt. #14 ¶ 36.)
McDonald asserts the following claims against Eagle County:
(1) Violations of his Fifth and Fourteenth Amendment rights
pursuant to 42 U.S.C. § 1983 by denying him equal
protection and due process within "its court
proceedings"; (2) Violation of his Fourth Amendment
rights pursuant to 42 U.S.C. § 1983 for issuing a writ
of garnishment and the issuance of an unlawful arrest
warrant; (3) Violations of his Fifth and Fourteenth Amendment
rights by denying equal protection and due process; and (4)
Violation of 42 U.S.C. § 1985 for conspiring to violate
his civil rights.
second state court case relates to Mr. McDonald's claims
against Bellco in Bellco Credit Union v. McDonald,
Arapahoe District No. 17-cv-162 (the "Arapahoe County
Litigation"). That case started as a county court
collections action initiated after Mr. McDonald failed to pay
on a car loan. Mr. McDonald counterclaimed against Bellco
under the state and federal fair debt collection laws and
attempted to join Eagle County as a third-party defendant.
(Dkt. #31-4.) The matter was removed to Arapahoe County
District Court, and all claims save for Bellco's original
collections claims were dismissed, including Mr.
McDonald's counterclaims against Bellco and the
third-party claims against Eagle County. (Dkt. #31-5.) Mr.
McDonald improperly purported to remove the Arapahoe County
Litigation to this Court on January 24, 2018 (Dkt. #6), and
then argued in the state court case that the Arapahoe County
District Court did not have jurisdiction. (Dkt. #31-6 at 1.)
This strategy proved futile; on March 14, 2018, the Arapahoe
County District Court entered summary judgment in favor of
Bellco. (Dkt. #31-7.) Judgment in the amount of $14, 664.09
was entered in favor of Bellco and against Mr. McDonald on
March 14, 2018. (DM. #31-8 at 9.) Mr. McDonald has appealed.
(Id. At 2.)
McDonald asserts the following claims against Bellco: (1)
Violation of the Fourteenth Amendment; (2) Violation of the
federal Fair Debt Collection Practices Act
("FDCPA"); (3) Violation of Colorado's FDCPA;
and (4) Violation of his First Amendment rights.
now move to dismiss Mr. McDonald's claims pursuant to
Fed.R.Civ.P. 12(b)(1) and (12)(b)(6).
Pro Se Plaintiff
McDonald 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." Hail
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 Cai, inc. v. Cai. 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"). A 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
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 case at any stage of the
proceedings in which it becomes apparent that jurisdiction is
lacking." Id. The dismissal is without
prejudice. Brereton v. Bountiful City Corp., 434
F.3d 1213, 1218 (10th Cir. 2006)
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 resoive disputed jurisdictional facts
under Rule 12(b)(1)." Id.
Failure to State a Claim Upon Which Relief
Can Be Granted
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 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, 935 F.2d at1198. "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 conclusions, 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).
assessing a motion to dismiss under Rule 12(b)(6), the usual
rule is that a court should consider no evidence beyond the
pleadings. See Alvarado v. KOB-TV, LLC, 493 F.3d
1210, 1216 (10th Cir.2007). "If, on a motion under Rule
12(b)(6) . . ., matters outside the pleadings are presented
to and not excluded by the court, the motion must be treated
as one for summary judgment under Rule 56." Fed.R.Civ.P.
12(d). However, "the district court may consider
documents referred to in the complaint if the documents are
central to the plaintiff's claim and the parties do not
dispute the documents' authenticity."
Alvarado, 493 F.3d at 1216 (quoting Jacobsen v.
Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002));
see also GFF Corp. v. Associated Wholesale Grocers,
Inc., 130 F.3d 1381, 1384 (10th Cir.1997)("[i]f a
document is referenced in and central to a complaint, a court
need not convert the motion but may consider that document on
a motion to dismiss."). In addition, "facts subject
to judicial notice may be considered in a Rule 12(b)(6)
motion without converting the motion to dismiss into a motion
for summary judgment." Tal v. Hogan, 453 F.3d
1244, 1264 n. 24 (10thCir.2006).