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Lucero v. Gordon

United States District Court, D. Colorado

December 17, 2018



          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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