United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND
Y. Wang United States Magistrate Judge.
matter comes before the court on nine pending motions filed
by both Plaintiff Brian Bath ("Plaintiff or "Mr.
Bath") and the various Defendants. The court considers
the following motions pursuant to 28 U.S.C. § 636(b),
the Order Referring Case dated March 4, 2019 [#20], and the
associated memoranda identified below:
(1) PayPal, Inc.'s Amended Motion to Dismiss
("PayPal's Amended Motion to Dismiss") [#56]
which the was referred to the undersigned Magistrate Judge by
the Memorandum dated March 11, 2019 [#57];
(2) LexisNexis Risk Solutions, Inc.'s Amended Motion to
Dismiss Plaintiff's Complaint ("LexisNexis'
Amended Motion to Dismiss") [#63], referred by the
Memorandum dated March 14, 2019 [#67];
(3) Defendant American Express Company's Amended Motion
to Dismiss Plaintiff's Complaint [#65] ("American
Express' Amended Motion to Dismiss"), referred by
the Memorandum dated March 14, 2019 [#66];
(4) Defendant TD Bank USA, N.A, 's Motion for Dismissal
Under Rules l2(b)(4)-(6) [#68] ("TD Bank's Motion to
Dismiss"), referred by the Memorandum dated March 18,
(5) Defendant Realpage Inc.'s Motion to Dismiss [#81]
("Realpage's Motion to Dismiss"), referred by
the Memorandum dated April 2, 2019 [#82];
(6) Plaintiff Brian Bath's Motion for Appointment of
Counsel [#83] ("Plaintiff's Motion to Appoint
Counsel"), referred by the Memorandum dated April 9,
(7) Defendant First Premier Bank's Motion for Judgment on
the Pleadings [#107] ("First Premier's 12(c)
Motion"), referred by the Memorandum dated April 24,
(8) Plaintiff Brian Bath's Motion for Leave to Amend
Original Complaint [#109] ("Plaintiffs Motion to
Amend"), referred by the Memorandum dated April 30, 2019
(9) Defendants American Express National Bank (misnamed as
"American Express Company"); First Premier Bank;
LexisNexis Risk Solutions Inc.; PayPal, Inc.; RealPage, Inc.;
TD Bank USA, N.A. (misnamed as "TD Bank"); and
Wells Fargo Bank, N.A's Joint Motion for
Discovery-Management Order [#112] ("Motion for Discovery
Management Order"), referred by the Memorandum dated May
3, 2019 [#113].
Motions have been folly briefed, but the court nonetheless
finds it appropriate to proceed. D.C.COLOLCivR 7.1(d). For
the reasons stated herein, it is respectfully
RECOMMENDED that: LexisNexis' Motion to
Dsmiss, American Express' Motion to Dsmiss, and First
Premier's 12(c) Motion be GRANTED; that
PayPal's Motion to Dismiss and TD Bank's Motion to
Dismiss be GRANTED IN PART AND DENIED IN
PART; and Plaintiffs Motion to Amend be
DENIED. Additionally, it is
ORDERED that that Plaintiffs Motion to
Appoint Counsel is DENIED and the
Defendants' Motion for Discovery Management Order is
GRANTED and discovery in this matter is
STAYED pending the presiding judge's,
the Honorable Raymond P. Moore, ruling on this Recommendation
and the currently outstanding motions.
Brian Bath originally filed this case in Denver District
Court, and Defendant PayPal, Inc. ("PayPal")
removed it to this court on March 1, 2019, invoking the
court's diversity jurisdiction under 28 U.S.C. §
1332. [#1]. The operative Complaint [#4]
identified several Defendants: American Express Company
("American Express"); Capital One; LexisNexis Risk
Solutions, Inc. ("LexisNexis"); First Premier Bank;
OneMain Financial Group ("OneMain"); RealPage d/b/a
Leasing Desk ("RealPage"); PayPal; Synchrony Bank
("Synchrony"); Bank of America; Wells Fargo Bank,
National Association ("Wells Fargo"); and TD Bank.
[#4]. Mr. Bath asserts claims for Fraud
("Count I"), Conversion ("Count II"), and
Theft ("Count ID") relating to allegedly inaccurate
credit records maintained by the three credit-reporting
agency defendants: Experian credit file #0610-5540-48
("the Experian File"); Trans Union credit file
#310634414 ("the Trans Union File"), and; Equifax
credit file #9003044461 ("the Equifax file";
collectively "Credit Files"). [Id. at
¶¶ H 21, 22]. Although Mr. Bath references sending
dispute letters regarding these accounts, [id. at
¶¶ 15, 17, 19, 23, 24, 28, 30, 32, 36, 38, 40, 42],
he does not appear to allege that the information contained
in the Credit Files is inaccurate. Rather, Mr. Bath's
claims appear to be based on the allegedly inappropriate
queries of his Credit Files by the Defendants who are not
credit reporting agencies. See generally [#4].
March 8, 2019, LexisNexis, PayPal, and American Express moved
to dismiss Mr. Bath's claims against them, respectively.
The presiding judge, the Honorable Raymond Moore, denied
these motions without prejudice for failure to comply with
his Practice Standards on March 8, 2019. [#49; #50; #51].
Then on March 11, 2019, PayPal filed an Amended Motion to
Dismiss. [#56]. Two days later, LexisNexis and American
Express filed their respective Amended Motions to Dismiss.
[#63; #65]. Then on March 15, 2019, TD Bank filed its Motion
to Dismiss [#68], and RealPage followed suit on April 1, 2019
[#81]. Finally, on April 23, 2019, First Premier Bank moved
for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure. [#107].
Bath moved the court for appointment of counsel on April 8,
2019. [#83]. On April 29, 2019, Plaintiff moved for leave to
file an Amended Complaint, to "correct the original
complaint to sufficient plead facts," among other
reasons. [#109 at 1]. Shortly thereafter, Defendants moved
for a discovery management order, stating that Mr. Bath had
begun propounding discovery improperly because the court had
not yet held a Scheduling Conference pursuant to Rule 16(b)
of the Federal Rules of Civil Procedure. [#112].
court now considers all pending motions in this case in this
omnibus Recommendation and Order, beginning with
Defendants' respective motions challenging the viability
of the operative Complaint, then considering whether Mr. Bath
should be permitted leave to amend, and finally turning to
Mr. Bath's request for appointment of counsel.
federal court generally may not rule on the merits of a case
without first determining that it has jurisdiction over the
category of claim in suit (subject-matter jurisdiction) and
the parties (personal jurisdiction)." Sinochem
Int'l Co. v. Malaysia Int'l Shipping Corp., 549
U.S. 422, 430-31 (2007) (observing that without jurisdiction
the court cannot proceed at all in any cause; it may not
assume jurisdiction for the purpose of deciding the merits of
the case). Though a motion to dismiss pursuant to Rule
12(b)(6) considers the sufficiency of the operative pleading
and does not weigh the potential evidence that the parties
might present in the case, see Pirraglia v. Novell,
Inc., 339F.3d 1182, 1187 (10th Cir. 2003), Rule 12(b)(6)
judgments are considered by the United States Court of
Appeals for the Tenth Circuit ("Tenth Circuit") a
dismissal on the merits. See Slocum v. Corp. Exp. U.S.
Inc., 446 Fed.Appx. 957, 960 (10th Cir. 2011) (observing
that a Rule 12(b)(6) dismissal is considered an adjudication
on the merits since it requires an evaluation of the
substance of a complaint). Accordingly, this court first
considers whether Mr. Bath has established personal
jurisdiction over RealPage.
12(b)(2) of the Federal Rules of Civil Procedure allows a
defendant to challenge the court's exercise of personal
jurisdiction. Fed. R Civ. P. 12(b)(2). Plaintiff bears the
burden of demonstrating that the court has personal
jurisdiction over the Defendants. See Dudnikov v.
Chalk & Vermilion Fine Arts, 514 F.3d 1063,
1069 (10th Cir. 2008). When, as here, the court decides a
Rule 12(b)(2) motion to dismiss without holding an
evidentiary hearing, "the plaintiff need only make a
prima facie showing of personal jurisdiction to defeat the
motion." AST Sports Sci, Inc. v. CLF Distrib.
Ltd., 514 F.3d 1054, 1057 (10th Cir. 2008). "The
plaintiff may make this prima facie showing by demonstrating,
via affidavit or other written materials, facts that if true
would support jurisdiction over the defendant." OMI
Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d
1086, 1091 (10th Cir. 1998). In considering this question,
the court must accept all well pleaded facts as true and must
resolve any factual disputes in favor of the plaintiff.
See Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th
establish jurisdiction over a non-resident defendant, a
plaintiff must show that the exercise of jurisdiction is
authorized under the relevant state long-arm statute and does
not offend due process. Wenz, 55 F.3d at 1506 (10th
Cir. 1995). Because the Colorado Supreme Court has determined
that Colorado's long-arm statute, Colo. Rev. Stat. §
13-1-124(2018), is coextensive with due process requirements,
Keefe v. Kirschenbaum & Kirschenbaum, P.C., 40
P.3d 1267, 1270 (Colo. 2002), the inquiry is thus simplified
into one basic question: whether the exercise of personal
jurisdiction comports with the requirements of due process
under the Fourteenth Amendment to the United States
Constitution. AST Sports Sci, Inc. v. CLF Distrib.
Ltd., 514 F.3d 1054, 1057 (10th Cir. 2008).
even if this test is met, a court must still consider whether
"the exercise of personal jurisdiction over the
defendant offends traditional notions of fair play and
substantial justice." OMI Holdings, 149 F.3d at
1091. In this inquiry the court considers: (1) the burden on
the defendant, (2) the forum state's interest in
resolving the dispute, (3) the plaintiffs interest in
receiving convenient and effective relief, (4) the interstate
judicial system's interest in obtaining the most
efficient resolution of controversies, and (5) the shared
interest of the several states in furthering fundamental
social policies. Id. at 1095.
a corporation is subject to general jurisdiction in the place
of incorporation and principal place of business. See
Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). Though
those loci are not the only forums where a corporation can be
held to be subject to personal jurisdiction, it is not enough
that a corporation engaged in a substantial, continuous or
systematic course of business. Rather, the inquiry is whether
a foreign corporation's "affiliations with the State
are 'so continuous and systematic' as to render it
essentially at home in the forum State." Id.
(citing Goodyear Dunlop Tires Operations, S.A. v.
Brown, 564 U.S. 915, 919 (2011)).
specific jurisdiction, this court looks to whether its
contacts with this forum associated with the action at hand
is sufficient for it to be haled into court in this District:
"(a) whether the plaintiff has shown that the defendant
has minimum contacts with the forum state; and, if so, (b)
whether the defendant has presented a compelling case that
the presence of some other considerations would render
jurisdiction unreasonable." Old Republic Ins. Co. v.
Cont'l Motors, Inc., 877 F.3d 895, 904 (10th Cir.
Rule 12(b)(4) and 12(b)(5) of the Federal Rules of Civil
12(b)(4) motion allows a defendant to challenge the form or
content of a summons, while a Rule 12(b)(5) motion challenges
the mode or lack of delivery of a summons. Gross v.
Taylor, No. 05-CV-243-J, 2006 WL 8435510, at *2& n.7
(D. Wyo. Apr. 26, 2006). Rule 4(a) and 4(b) govern the
contents of a summons, and indicate that the Clerk of the
Court must sign, seal, and issue it to the plaintiff for
service on the defendant. Fed.R.Civ.P. 4(a), (b).
"Effectuation of service is a precondition to
suit[.]" Jenkins v. City of Topeka, 136 F.3d
1274, 1275 (10th Cir. 1998). Without proof of service, the
Court lacks personal jurisdiction over the Defendant.
Oklahoma Radio Associates v. FDIC, 969 F.2d
940, 943 (10th Cir. 1992). In opposing a motion to dismiss
for insufficient service of process, "plaintiff bears
the burden of making a prima facie case that he has satisfied
statutory and due process requirements so as to permit the
court to exercise personal jurisdiction over the
defendant." Allen v. United Properties &
Const., No. 07-cv-00214-LTB-CBS, 2008 WL 4080035, at *9
(D.Colo. Sept. 3, 2008) (quoting Fisher v. Lynch,
531 F.Supp.2d 1253, 1260 (D.Kan. 2008). In removed actions,
federal courts look to the law of the forum state to
determine whether service of process was perfected prior to
removal. See Wallace V. Microsoft Corp., 596 F.3d
703, 706 (10th Cir. 2010). Such a motion "differ[s] from
the other motions permitted by Rule 12(b) in that [it]
offer[s] the district court a course of action-quashing the
process without dismissing the action-other than simply
dismissing the case when the defendant's defense or
objection is sustained." 5B C. Wright & A. Miller,
Federal Practice & Procedure § 1354, at 346 (3d ed.
2004). Indeed, even without a showing of good cause, the
court retains broad discretion to extend the time for service
even when the plaintiff has not shown good cause.
Fed.R.Civ.P. 5(m); Espinoza v. United States, 52
F.3d 838, 840-41 (10th Cir. 1995).
Rule 8 of the Federal Rules of Civil Procedure
of the Federal Rules of Civil Procedure instructs that a
complaint must contain: (1) a short and plain statement of
the grounds for the court's jurisdiction, (2) a short and
plain statement of the claim showing that the pleader is
entitled to relief, and (3) a demand for the relief sought.
Fed. R Civ. P. 8(a). The philosophy of Rule 8(a) is
reinforced by Rule 8(d)(1), which provides that "[e]ach
allegation must be simple, concise, and direct." Read
together, Rules 8(a) and (d)(1) underscore the emphasis
placed on clarity and brevity by the federal pleading rules.
A decision to dismiss a complaint pursuant to Rule 8 is
within the trial court's sound discretion. See
Atkins v. Northwest Airlines, Inc., 967 F.2d 1197,
1203 (8th Cir. 1992); Gillibeau v. City of Richmond,
417 F.2d 426, 431 (9th Cir. 1969).
12(b)(6) of the Federal Rules of Civil Procedure
survive a motion to dismiss for failure to state a claim
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a pleading 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) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 560 (2007)). Allegations that are
"so general that they encompass a wide swath of conduct,
much of it innocent," will not be sufficient, Khalik
v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir.
2012) (citation and quotation omitted), and even though
modern rules of pleading are somewhat forgiving, "a
complaint still must contain either direct or inferential
allegations respecting all the material elements necessary to
sustain a recovery under some viable legal theory."
RE/MAX, LLC v. Quicken Loans Inc., 295 F.Supp.3d
1163, 1168 (D. Colo. 2018) (citations and quotations
omitted). In this analysis, the court must "accept as
true all well-pleaded factual allegations . . . and view
these allegations in the light most favorable to the
plaintiff," Casanova v. Ulibarri, 595 F.3d
1120, 1124 (10th Cir. 2010) (quoting Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009)), but even
so a plaintiff may not rely on mere labels or conclusions,
"and a formulaic recitation of the elements of a cause
of action will not do." Twombly, 550 U.S. at
555; see also Hall, 935 F.2d at 1110 (holding that
even pro se litigants cannot rely on conclusory,
unsubstantiated allegations to survive a 12(b)(6) motion).
The ultimate duty of the court is to "determine whether
the complaint sufficiently alleges facts supporting all the
elements necessary to establish an entitlement to relief
under the legal theory proposed." Forest Guardians
v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
Rule 12(c) of the Federal Rules of Civil Procedure
for judgment on the pleadings pursuant to Federal Rule of
Civil Procedure 12(c) may be filed only "[a]fter the
pleadings are closed." Fed.R.Civ.P. 12(c).
"Pleadings are closed within the meaning of Rule 12(c)
if no counter or cross claims are at issue when a complaint
and an answer have been filed." Maniaci v.
Georgetown Univ., 510F.Supp.2d 50, 6O(D.D.C. 2007).
motion under Rule 12(c) is evaluated under the same standard
applicable to a Rule 12(b)(6) motion to dismiss. See
Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219,
1223-24 (10th Cir. 2009). Accordingly, the factual record in
conjunction with a motion for judgment on the pleadings under
Rule 12(c) is the same as that under Rule 12(b). United
States v. Wahdan, 325 F.Supp.3d 1136, 1138 (D. Colo.
2018); XY, LLC v. Trans Ova Genetics, LC, 333
F.Supp.3d 1097, 1101 (D. Colo. 2018). The Court accepts all
well-pleaded allegations in a complaint as true and views
those allegations in the light most favorable to the
nonmoving party. Wahdan, 325 F.Supp.3d at 1138.
court should not grant a Rule 12(c) motion unless "the
moving party clearly establishes that no material issue of
fact remains to be resolved and the party is entitled to
judgment as a matter of law." Ciber, Inc. v. ACE Am.
Ins. Co., 261 F.Supp.3d 1119, 1125 (D. Colo. 2017)
(quoting Park Univ. Enters., Inc. v. Am. Cas. Co.,
442 F.3d 1239, 1244 (10th Cir. 2006)). A motion for a
judgment on the pleadings "only has utility when all
material allegations of fact are admitted or not controverted
in the pleadings and only questions of law remain to be
decided by the district court." 5C Charles Alan Wright
et al., Federal Practice & Procedure § 1367 (3d ed.,
Apr. 2019 update).
Pro Se Litigants
se litigant's pleadings "are to be construed
liberally and held to a less stringent standard than formal
pleadings drafted by lawyers." Hall, 935 F.2d
at 1110 (citation omitted). But "[t]he broad reading of
the plaintiffs complaint does not relieve the plaintiff of
the burden of alleging sufficient facts on which a recognized
legal claim could be based." Id. Rather, a
court should reasonably read the pro se litigant's
pleadings to state "a valid claim on which the plaintiff
could prevail . . . despite the plaintiffs failure to cite
proper legal authority, his confusion of various legal
theories, his poor syntax and sentence construction, or his
unfamiliarity with pleading requirements."
Hall, 935 F.2d at 1110. Notwithstanding this
accommodation, the court's role is not to advocate for
the pro se litigant. Id.