Opinion
Civil Action No. 13-cv-02973-REB-MEH
04-10-2014
JON A. GOODWIN, an individual, directly and derivatively in the right of and for the benefit of Barra Partners, LLC, a Delaware limited liability company, Plaintiff, v. MARCIA ANN BRUGGEMAN-HATCH, an individual, et al. Defendants.
Judge Robert E. Blackburn
AMENDED ORDER OVERRULING OBJECTION TO AND ADOPTING
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This order is amended merely to correct a clerical error in paragraph 5 of the orders, as there is no basis for entering judgment at this time. The substance of the order is otherwise unchanged
Blackburn, J.
The matters before me are (1) the Recommendation of United States Magistrate Judge [#81], filed January 24, 2014; and (2) Plaintiff's Objection [to] Recommendation To Dismiss Claims Against Defendant City and County of San Francisco [#90], filed February 7, 2014. I overrule the objection, adopt the recommendation, and grant the apposite motion to dismiss for lack of personal jurisdiction.
"[#81]" is an example of the convention I use to identify the docket number assigned to a specific paper by the court's case management and electronic case filing system (CM/ECF). I use this convention throughout this order.
Plaintiff is proceeding pro se. Thus, I have construed his pleadings more liberally and held them to a less stringent standard than formal pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)).
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the recommendation to which objections have been filed. I have considered carefully the recommendation, objections, and applicable caselaw.
The recommendation is detailed and well-reasoned. Contrastingly, plaintiff's objections are imponderous and without merit. Plaintiff devotes the entirety of his objection to attempting to establish that defendant Sue Kaplan, although "facially" employed by the Superior Court of California ( see Objection at 7), is actually employed by the City and County of San Francisco. Neither this argument nor the evidence purporting to support it were presented in connection with the underlying motion to dismiss. More relevantly, however, plaintiff has failed utterly to suggest how the allegations of his complaint adequately plead how the City, either on its own or through Ms. Kaplan (assuming arguendo that she is employed by the City), subject it to personal jurisdiction in Colorado. I concur with the magistrate judge's conclusion that nothing in the complaint plausibly alleges a valid basis for this court to assume either general or specific personal jurisdiction over the City in this forum.
Plaintiff's request - both in his response to the underlying motion and in his objections - for leave to amend his complaint to attempt to assert valid claims is procedurally improper. See D.C.COLO.LCivR 7.1(d) ("A motion shall not be included in a response or reply to the original motion. A motion shall be made in a separate document."); Health Grades, Inc. v. MDX Medical, Inc., 2012 WL 4351601 at *1 (D. Colo. Sept. 24, 2012) (in regard to party's request for relief made in objections to recommendation of magistrate judge, "[t]he merits of any such request was [sic] not before the Court, as plaintiff had not filed a motion requesting any court action.").
--------
Thus, I find and conclude that the arguments advanced, authorities cited, and findings of fact, conclusions of law, and recommendation proposed by the magistrate judge should be approved and adopted.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#81], filed January 24, 2014, is APPROVED AND ADOPTED as an order of this court;
2. That the objections stated in Plaintiff's Objection [to] Recommendation To Dismiss Claims Against Defendant City and County of San Francisco [#90], filed February 7, 2014, are OVERRULED;
3. That Defendant City and County of San Francisco's Motion To Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) [#16], filed November 26, 2013, is GRANTED IN PART and DENIED IN PART as follows;
a. That the motion is GRANTED to the extent it seeks dismissal of plaintiff's claims against the City and County of San Francisco on the basis of lack of personal jurisdiction in this forum; and
b. That in all other respects, the motion is DENIED AS MOOT;
4. That plaintiff's claims against the City and County of San Francisco are DISMISSED WITHOUT PREJUDICE for lack of personal jurisdiction in this forum;
5. That at the time judgment enters, judgment without prejudice SHALL ENTER on behalf of defendant, City and County of San Francisco, against plaintiff, Jon A. Goodwin, on all claims for relief and causes of action asserted against this defendant in this action;
6. That defendant, City and County of San Francisco is DROPPED as a named party to this action, and the case caption AMENDED accordingly; and
7. That this amended order SUPPLANTS and SUPERSEDES the Order Overruling Objection to and Adopting Recommendation of United States Magistrate Judge [#212] filed April 8, 2014.
Dated April 10, 2014, at Denver, Colorado.
BY THE COURT:
______________________
Robert E. Blackburn
United States District Judge