United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Michael E. Hegarty United States Magistrate Judge.
the Court is Defendant Hammersmith Management, Inc.'s
Motion to Dismiss. ECF No. 19. In the Motion, Defendant seeks
to dismiss Plaintiff's claims under the Americans with
Disabilities Act (“ADA”), claims for
“environmental harassment, ” and Colorado tort
claims alleged in the “Amendment Complaint and Jury
Demand Continuing Violation, Continuing Claim Cases:
16-cv-03111, 17-cv-02830” (“Amended
Complaint”). Defendant argues that Plaintiff's ADA
claims have already been dismissed with prejudice by Senior
Judge Lewis T. Babcock, and that Plaintiff's
“environmental harassment” and Colorado tort
claims are barred by the doctrine of res judicata and the
applicable statute of limitations. Additionally, at the Tenth
Circuit's direction, I address the issue of whether
Plaintiff has alleged plausible claims for premises liability
or breach of contract under Colorado law. Ultimately, I
conclude those claims fail as well. For the reasons that
follow, I respectfully recommend that the Motion be
Statement of Facts
proceeds in this action pro se, and his Amended Complaint is
vague, prolix, and at times difficult to discern. The
following factual allegations, liberally construed, are taken
as true for analysis under Fed.R.Civ.P. 12(b)(6) pursuant to
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
first detected contamination and air pollution under the
bedroom of his condominium on June 18, 2015. ECF No. 14 at 5.
“Red Sky Condominium Building Manager” Dale Smith
(“Smith”) and “Red Sky Condominium
Director” Henry Hipple (“Hipple”) visited
Plaintiff's unit after he discovered the contamination.
Id. Plaintiff made requests to the
“HOADirector” and the “HOA's
Manager” for the contamination to be removed, but no
action was taken to address the problem. Id.
Plaintiff waited until the end of July, but when the
contamination remained, he filed a lawsuit, apparently in
Arapahoe County District Court. Id. at 5-6.
Plaintiff filed that lawsuit, the “HOA” stopped
cleaning the trash in the hallway between units “H-106
and H-108” and around the staircase. Id. at 6.
This occurred sometime in 2015. See Id. at 9. In
January 2017, Defendant entered into a contract, apparently
with the HOA, for Defendant to maintain the public space in
the complex. Id. at 10. But Defendant breached the
contract and never swept around Plaintiff's unit or the
staircase. Id. Plaintiff claims he has suffered
reduced property value and loss of enjoyment of life as a
consequence of the breach. Id. Both the
“contamination” and the trash accumulation remain
at Plaintiff's condominium. See Id. at 6, 11. On
May 16, 2018, Plaintiff spoke by telephone with an
unidentified representative of Defendant who
“affirmed” that Plaintiff's race
(Asian-American) “was the motivator for disdain.”
Id. at 9.
filed this suit on June 1, 2018. ECF No. 1. Pursuant to 28
U.S.C. § 1915(e)(2)(B)(i), the Honorable Lewis T.
Babcock issued an Order to Dismiss in Part and Draw Case on
July 31, 2018. ECF No. 5. In that Order, he identified the
following four causes of action in the Complaint: (1) ADA
claims, (2) 42 U.S.C. § 1981 retaliation, (3) claims for
“environmental harassment, ” and (4)
“Colorado state tort[s].” Id. at 3. He
dismissed with prejudice Plaintiff's ADA claims as
legally frivolous. Id. at 6. He also noted that
Plaintiff's “environmental harassment” and
Colorado tort claims may be barred by the doctrine of res
judicata, due to Plaintiff's previous lawsuits that were
premised on the alleged contamination of his condominium.
Id. at 3-4. But Judge Babcock declined to dismiss
those claims, because he could not determine whether privity
existed between Defendant here and the defendants in the
previous suits. Id. at 4. He further found it
inappropriate to rule on the merits of Plaintiff's 42
U.S.C. § 1981 claim. Id. at 8. Accordingly,
Judge Babcock dismissed the ADA claims with prejudice,
dismissed the claims of “environmental
harassment” and “Colorado torts” without
prejudice, and ordered assignment to the Honorable R. Brooke
Jackson. Id. at 8.
filed the operative Amended Complaint on September 17, 2018,
reasserting the same four causes of action. See ECF
No. 14 at 3-4. I construe the allegations to state an injury
to himself by the “contamination” and to his
property from the trash. Defendant filed the present Motion
to Dismiss on October 9, 2018, ECF No. 19, which was fully
briefed on December 7, 2018, see ECF No. 39.
12(b)(1) empowers a court to dismiss a complaint for
“lack of subject matter jurisdiction.” Dismissal
under Rule 12(b)(1) is not a judgment on the merits of a
plaintiff's case, but only a determination that the court
lacks authority to adjudicate the matter. 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). A court lacking jurisdiction “must dismiss the
cause at any stage of the proceeding in which it becomes
apparent that jurisdiction is lacking.” Full Life
Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016 (10th Cir.
2013). A Rule 12(b)(1) motion to dismiss must be determined
from the allegations of fact in the complaint, without regard
to mere conclusory allegations of jurisdiction. Smith v.
Plati, 258 F.3d 1167, 1174 (10th Cir. 2001). The burden
of establishing subject matter jurisdiction is on the party
asserting jurisdiction. Butler v. Kempthorne, 532
F.3d 1108, 1110 (10th Cir. 2008). Accordingly, Plaintiff in
this case bears the burden of establishing that the Court has
jurisdiction to hear his claims.
Rule 12(b)(1) motions to dismiss for lack of subject matter
jurisdiction take two forms. Holt v. United States,
46 F.3d 1000, 1002 (10th Cir. 1995).
First, a facial attack on the complaint's allegations as
to subject matter jurisdiction questions the sufficiency of
the complaint. In reviewing a facial attack on the complaint,
a district court must accept the allegations in the complaint
Second, a party may go beyond allegations contained in the
complaint and challenge the facts upon which subject matter
jurisdiction depends. When reviewing a factual attack on
subject matter jurisdiction, a district court may not presume
the truthfulness of the complaint's factual allegations.
A court has wide discretion to allow affidavits, other
documents, and a limited evidentiary hearing to resolve
disputed jurisdictional facts under Rule 12(b)(1). In such
instances, a court's reference to evidence outside the
pleadings does not convert the motion to a Rule 56 motion.
Id. at 1002-03 (citations omitted). The present
motion launches a facial attack on this Court's subject
matter jurisdiction; therefore, the Court will accept the
truthfulness of the Amended Complaint's factual