Anthony v. City and County of Denver

          ORDER

          RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE

         In this case, Plaintiff brings just compensation claims against Defendants related to property he previously owned, which is the subject of eminent domain proceedings in Colorado state court. Two separate motions are presently before the Court on separate recommendations from Magistrate Judge Nina Y. Wang. One is Defendants' Motion to Dismiss Second Amended Complaint Pursuant to Fed.R.Civ.P. 12(B)(1) and (6). (ECF No. 110.) The Recommendation of United States Magistrate Judge is to grant the motion to dismiss. (ECF No. 133.) The other is Plaintiff's Motion to File Replacement Second Amended and Supplemented Complaint and Reconsider Order of Sept. 29, 2017 In Part. (ECF No. 131.) The Recommendation of United States Magistrate Judge is to deny Plaintiff's motion to reconsider and motion for leave to file an amended complaint. (ECF No. 160.) Plaintiff objects to both recommendations (ECF Nos. 138, 161); the Defendants responded to each objection (ECF Nos. 145, 164).^[1]

         For the following reasons, the Court OVERRULES Plaintiff's objections, ADOPTS the recommendations, DENIES Plaintiff's motion to reconsider and request for leave to file an amended complaint, and GRANTS Defendants' motion to dismiss.

         I. BACKGROUND

         The parties do not object to the factual or procedural background discussed in the recommendations. Accordingly, the Court adopts and incorporates the factual and procedural background included within the recommendations as if set forth herein. To put the Court's analysis in context, a brief summary follows.^[2]

         When Plaintiff filed his initial complaint on May 23, 2016, he owned property at 5001 National Western Drive, Denver, Colorado (the “Property”), located next to the National Western Stock Show's property. The Property was used as his personal residence and place of business. In November 2015, a tax issue was passed to fund the National Western Center Project-a multimillion dollar expansion of the National Western Center, which is located near Plaintiff's Property (the “Project”). Subsequently, the City of Denver notified Plaintiff it intended to acquire his Property through condemnation proceedings.

         Plaintiff alleges that Defendants engaged in various wrongful actions to devalue and acquire his Property for a deflated amount through eminent domain. After Plaintiff initiated this lawsuit (May 23, 2016) but before filing his Second Amended Complaint (January 26, 2018), the City filed a Petition in Condemnation in the District Court, City and County of Denver, State of Colorado on November 10, 2016, to acquire Plaintiff's Property, titled City & County of Denver v. Anthony, No. 2016CV34153 (the “Condemnation Proceeding”). (See ECF Nos. 73-1; 73-2; 73-3; 75, 109-10.)^[3] Plaintiff then entered into a Stipulation for Immediate Possession (the “Stipulation”), allowing the City to acquire possession of the Property; therefore, the sole remaining issue in the state Condemnation Proceeding was the amount of just compensation for the Property taken. (See ECF Nos. 71 at ¶1; 75; 73-3.) On July 31, 2017, a final order was entered in the Condemnation Proceeding which identified the amount of compensation Plaintiff would be paid for the taken Property.^[4] (ECF No. 109-10 at 3.) On November 16, 2017, Plaintiff filed a Notice of Appeal, appealing the final order in the Condemnation Proceeding to the Colorado Court of Appeals. (Id. at 1.) No. decision from the Colorado Court of Appeals has been issued. The Court now turns to the applicable legal standards and motions at issue in this case.

         II. LEGAL STANDARDS

         A. Review of the Magistrate Judge's Recommendation

         When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires the district court judge to “determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to.” In conducting its review, “[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3). An objection is proper if it is filed within fourteen days of the magistrate judge's recommendations and 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)). The district judge need not, however, consider arguments not raised before the magistrate judge. United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) (“In this circuit, theories raised for the first time in objections to the magistrate judge's report are deemed waived.”).

         In the absence of a timely and specific objection, “the district court may review a magistrate's report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Fed. R. Civ. P. 72 Advisory Committee's Note (“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.”). And, where a claim is dismissed on two or more independent grounds, the plaintiff must contest each of those grounds. See Lebahn v. Nat'l Farmers Union Unif. Pension Plan, 828 F.3d 1180, 1188 (10th Cir. 2016). If the plaintiff fails to do so, the court may affirm on the ground which the plaintiff failed to challenge. Id.

         B. Motions to Dismiss

          1. Fed.R.Civ.P. 12(b)(1)

         Motions to dismiss under Rule 12(b)(1) are, generally, either a facial attack on the complaint's allegations as to the existence of subject matter jurisdiction or a factual attack which goes beyond the allegations and challenges the facts on which subject matter jurisdiction is based. Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001). A facial attack challenging the sufficiency of the complaint requires the court to accept the allegations of the complaint as true. Stuart, 271 F.3d at 1225; Holt v. United States, 46 F.3d 1000, 1002 (10th Cir.1995) (internal citation omitted). A factual attack affords the district court “‘wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts.'” Stuart, 271 F.3d at 1225 (quoting Holt, 46 F.3d at 1003). Such reference to evidence outside the pleadings does not convert the Rule 12(b)(1) motion to a Rule 56 motion for summary judgment. Stuart, 271 F.3d at 1225.

         2. Fed.R.Civ.P. 12(b)(6)

         In evaluating a motion to dismiss under Rule 12(b)(6), a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the plaintiff, and draw all reasonable inferences in the plaintiff's favor. Brokers' Choice of America, Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1135-36 (10th Cir. 2014); Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). Conclusory allegations are insufficient. See Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009). Instead, in the complaint, the plaintiff must allege a “plausible” entitlement to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-556 (2007). A complaint warrants dismissal if it fails “in toto to render plaintiffs' entitlement to relief plausible.” Twombly, 550 U.S. at 569 n.14 (italics in original). “In determining the plausibility of a claim, we look to the elements of the particular cause of action, keeping in mind that the Rule 12(b)(6) standard does not require a plaintiff to set forth a prima facie case for each element.” Safe Streets Alliance v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017) (citation, internal quotation marks, and alteration omitted).

         C. Motions to Amend a Scheduling Order

          “After a scheduling order deadline, a party seeking leave to amend must demonstrate (1) good cause for seeking modification under Fed.R.Civ.P. 16(b)(4), and (2) satisfaction of the [Fed. R. Civ. P.] 15(a) standard.” Gorsuch, Ltd., B.C. v. Wells Fargo Nat. Bank Ass'n, 771 F.3d 1230, 1240 (10th Cir. 2014). Good cause under Fed.R.Civ.P. 16(b)(4) (“Rule 16”) may be met if a plaintiff learns new information from discovery. However, “[i]f the plaintiff knew of the underlying conduct but simply failed to raise [his claims] … the claims are barred.” Id.

         D. Plaintiff's Pro Se Status

          Plaintiff proceeds pro se so the Court must liberally construe his pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The Court, however, cannot act as advocate for Plaintiff, who must still comply with the fundamental requirements of the Federal Rules of ...