United States District Court, D. Colorado
ANTHONY J. LUCERO, Plaintiff,
v.
PAUL GORDON, and PAUL GORDON LLC, Defendants.
ORDER
ADOPTING SEPTEMBER 17, 2018 RECOMMENDATION OF MAGISTRATE
JUDGE GRANTING DEFENDANTS' MOTION TO DISMISS, DISMISSING
PLAINTIFF'S CONSTITUTIONAL CLAIM, AND DECLINING TO
EXERCISE SUPPLEMENTAL JURISDICTION OVER THE REMAINING STATE
LAW CLAIM
William J. Martínez Judge
This
matter is before the Court on United States Magistrate Judge
Kathleen M. Tafoya's Recommendation dated September 17,
2018 (the “Recommendation”) (ECF No. 21), which
recommended that this Court grant Defendant Paul Gordon and
Defendant Paul Gordon, LLC's (collectively,
“Defendants”), Motion to Dismiss (ECF No. 13)
Anthony J. Lucero's (“Plaintiff”) claims as
follows: (1) dismiss, with prejudice,
Plaintiff's Fourteenth Amendment claim; and (2) decline
to exercise supplemental jurisdiction over Plaintiff's
remaining fraud claim. The Recommendation is incorporated
herein by reference. See 28 U.S.C. §
636(b)(1)(B); Fed.R.Civ.P. 72(b). Plaintiff filed a timely
Objection to the Recommendation (“Objection”).
(ECF No. 22.) For the reasons set forth below,
Plaintiff's Objection is overruled, the Recommendation is
adopted in its entirety, Defendants' Motion to Dismiss is
granted, Plaintiff's Fourteenth Amendment claim is
dismissed with prejudice, and Plaintiff's fraud
claim is dismissed without prejudice.
I.
BACKGROUND
The
Court derives the following primarily from Defendants'
Motion to Dismiss (ECF No. 13) and the exhibits attached to
that motion. This is because Plaintiff's complaint (ECF
No. 1) and amended complaint (ECF No. 9) (the “Amended
Complaint”) are completely devoid of information needed
to separately provide this Court with needed context and
background.
In
2006, Plaintiff sustained serious injuries while working at a
hotel. (ECF No. 13-5 at 2.) Plaintiff retained attorney James
R. Koncilja and law firm Koncilja & Koncilja, P.C.
(collectively, “Koncilja”), who filed a personal
injury action on Plaintiff's behalf in November 2008.
(Id.) That action was eventually dismissed in 2010
“for failure to respond to a delay prevention order and
otherwise diligently prosecute the case.”
(Id.)
In
2011, Plaintiff retained Defendants to file an action against
Koncilja alleging professional malpractice and breach of
contract in the handling of the personal injury case.
(Id.) This lawsuit was ultimately dismissed in 2012
because Plaintiff: (1) had failed to obtain expert testimony
after it had been “deemed to be necessary to determine
whether Koncilja's actions constituted negligence or a
breach of contract”; and (2) “had not filed a
certificate of review as required by statute.”
(Id.) The Colorado Court of Appeals subsequently
affirmed that dismissal ruling. (Id. at
3.)[1]
On
October 17, 2013, Plaintiff, proceeding pro se,
filed an action against Defendants in Colorado state court.
(Id.) In the lawsuit, Plaintiff alleged that the
Defendants were “negligent in handling the legal
malpractice case against Koncilja.” (Id.) This
time Plaintiff filed a certificate of review but once again
did not designate any expert witness for trial.
(Id.) On October 28, 2014, Defendants filed a motion
for summary judgment, arguing that Plaintiff had continually
“failed to endorse any expert witness” even
though such “expert testimony was necessary to show
professional negligence.” (ECF No. 13-1 at 2.) The
state court denied the motion and subsequently granted
Plaintiff multiple continuances under “the belief that
Plaintiff, who remains pro se, should be given extra
reasonable opportunities to comply with the expert witness
disclosure requirements.” (Id. at 2-3.)
In its
last continuance, the court required Plaintiff to disclose
who his “expert witness might be” by June 1,
2015. (Id. at 3.) When Plaintiff failed to do so,
the court granted Defendants' second motion for summary
judgment. (Id. at 5.) The court noted that
“[d]espite numerous opportunities and time to endorse
an expert to opine on the standard of care purportedly
breached by [Defendants], Plaintiff has failed to disclose
any expert.” (Id. at 5.)
Plaintiff
failed to appeal this judgment within the time permitted by
Colorado law, but instead filed a motion for relief from
judgment. (ECF Nos. 13 at 2 & 13-5 at 3.) In the motion,
Plaintiff relied primarily on the argument that the
Defendants had attached a fraudulent affidavit (the
“Affidavit”) to their summary judgment motion.
(ECF No. 13-5 at 3.) The Affidavit described alleged
discussions the Defendants had with Plaintiff concerning:
“(1) [the] likely difficulty in collecting on any
judgment they might obtain against Koncilja; (2)
[Defendants'] unwillingness to advance [Plaintiff] funds
for obtaining a certificate of review[;] and (3)
[Plaintiff's] options[2] concerning filing or
not filing a certificate of review.” (Id. at
3-4.) After concluding that Plaintiff had failed to show that
relief was warranted, the Colorado trial court denied the
motion. (Id. at 4.)
Plaintiff
then initiated appellate proceedings, resulting in the
Colorado Court of Appeals affirming the denial of the motion
for relief from judgment. (Id. at 11.) After
“filing an unsuccessful motion to disqualify two
members of the panel of the Court of Appeals (ECF Nos. 13-6
& 13-7) and an unsuccessful petition for rehearing (ECF
Nos. 13-8 & 13-9), [Plaintiff] filed a petition for a
writ of certiorari to the Colorado Supreme Court
which was likewise denied (ECF Nos. 13-10 &
13-11).” (ECF No. 13 at 2-3.)
On
December 22, 2017, Plaintiff, proceeding pro se,
filed this case asserting claims against the Defendants for
violations of his Fourteenth Amendment Due Process right and
for fraud. (ECF No. 1; ECF No. 9 at 2-3.) In particular,
Plaintiff alleges that Defendants, who represented him in the
malpractice lawsuit against Koncilja, “violated [his]
rights to due process of the law by choosing not to file the
requisite certificate of review” and by failing to
“do any interrogatories, depositions, or investigations
. . . .” (ECF No. 9 at 3.) In addition, Plaintiff
alleges that “Defendants committed extrinsic and
intrinsic Fraud against Plaintiff [] and the State District
Court” when they “created and filed . . . an
provable, non-evidential, sham [A]ffidavit that is
evidentially provable to be fraudulent, perjured in all
aspects, and grounds for disbarment and criminal
prosecution.” (Id.)
On June
29, 2018, Defendants filed a Motion to Dismiss the complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. (ECF No. 13). In the motion, Defendants argue
that, even after a liberal reading (as warranted by his
pro se status), Plaintiff's complaint fails to
meet the minimal standard of stating a valid claim on which
Plaintiff could reasonably prevail. (Id. at 3-4.) In
addition, Defendants assert that this Court does not have
jurisdiction because: (1) Plaintiff's federal question
claim fails since the Defendants are not state actors; and
(2) diversity jurisdiction does not exist because all parties
“reside[] in Colorado or do business in
Colorado.” (Id. at 4.)
Moreover,
Defendants argue that Plaintiff's “attempted legal
malpractice claim is barred by the Rooker-Feldman
doctrine which generally prohibits lower federal courts from
hearing federal claims requiring direct review of final state
court judgments.” (Id.)
In
closing, Defendants claim:
What [Plaintiff] is attempting to accomplish is to have this
federal court review the judgment of the [Colorado] District
Court and the Colorado Court of Appeals and denial of
certiorari by the Colorado Supreme Court. To
accomplish this end, [Plaintiff] simply adds to his
malpractice claim stating he was denied to due process of
law. This is not permitted.
(Id.) The Magistrate Judge reviewed the Motion and
issued her Recommendation on September 17, 2018. (ECF No.
21.)
II.
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