Opinion
Civil Action 20-cv-03152-RM-NYW
05-28-2021
JAIMIE LYNN KULIKOWSKI, Plaintiff, v. JARED POLIS, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Nina Y. Wang United States Magistrate Judge
Magistrate Judge Nina Y. Wang This matter comes before the court on the Motion to Dismiss filed by Defendant Jared Polis (“Defendant” or “Governor Polis”) [#19, filed February 4, 2021], which has been referred the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated October 22, 2020 [#4], and the Memorandum dated February 9, 2021 [#21]. Having reviewed the briefing associated with the Motions, the entire court docket, including the dockets associated with other cases filed by Plaintiff Jaimie Lynn Kulikowski (“Plaintiff” or “Ms. Kulikowski”), and the applicable case law, this court respectfully RECOMMENDS that the Motion to Dismiss be GRANTED.
BACKGROUND
This court has set forth the factual background of this matter in other orders [#18], and therefore, only discusses it as relevant here. On April 24, 2020, Ms. Kulikowski, proceeding pro se, sued Governor Polis, along with the United States of America, Congressman Jason Crow, and Aurora Mayor Mike Coffman. See Kulikowski v. United States, Civil Action No. 20-cv-01160- RM-NYW (D. Colo.) (“First Action”). Prior to any responsive pleading or motion by the defendants, Ms. Kulikowski voluntarily dismissed the action. [No. 20-cv-01160-RM-NYW, ECF No. 10 at 19]. The presiding judge, the Honorable Raymond P. Moore, then denied Plaintiff's Motion to Reopen Case with New Complaint & Request for Relief Based on New Evidence & Extraordinary Circumstances, because the case had been terminated upon the filing of her voluntary dismissal. [Id. at ECF Nos. 21, 22].
This court uses the convention of [#] and the page number assigned by the Electronic Court Filing System (“ECF”) for this District to refer to materials filed in this action. For docket entries from other cases, the court refers to the case number, and then uses the convention [ECF No. ].
Ms. Kulikowski, again proceeding pro se, then initiated this action on October 21, 2020 [#1] against Governor Polis. In her original Complaint, Ms. Kulikowski invoked Sections 2 and 4 of the Sherman Act, 15 U.S.C. §§ 2, 4, challenging Governor Polis's “mask, social isolation, and social distancing orders.” [#1 at 1-2]. Plaintiff contends that the mask, social isolation, and social distancing orders entered by Governor Polis to address the global pandemic of the novel coronavirus and the disease it causes, COVID-19, is weakening the country's competitive spirit and that as a result, the “economy and entire American foundation will collapse.” [Id. at 3]. She avers that the public health orders across Colorado, including the October 16, 2020 Tri-County Health Department Public Health Order, “are exclusionary because they exclude the physical, mental, and social health needs of over 99% of [the] population.” [Id.]. As relief, she requests that Governor Polis be ordered “to open Colorado back up to total normalcy.” [Id.].
Ms. Kulikowski filed a separate action against Congressman Crow, Kulikowski v. Crow, Civil Action No. 20-cv-01946-RM-NYW (D. Colo.), on July 2, 2020 (“Crow Action”). The court entered final judgment against Ms. Kulikowski in the Crow Action on October 15, 2020. [Id. at ECF Nos. 37, 38]. Ms. Kulikowski is also the plaintiff in two unrelated matters filed in 2018 against a former employer. See Kulikowski v. Payscale, Civil Action No. 18-cv-00702-MSK-MEH (D. Colo.), filed March 26, 2018; Kulikowski v. Payscale, Inc., Civil Action No. 18-cv-02531-MSK-MEH (D. Colo), filed October 3, 2018.
Plaintiff served Governor Polis with the Summons and Complaint on October 27, 2020, through the Attorney General for the State of Colorado. [#7]. Three days later, Ms. Kulikowski filed a Motion to Increase Request for Relief Based on Death Analysis. [#8]. Ms. Kulikowski included additional relief, i.e., the impeachment of Governor Polis and “a new Governor who will open Colorado back up to total normalcy and give us our American rights back.” [Id. at 2]. This court construed the Motion to Increase Request for Relief Based on Death Analysis (“Amended Complaint”) [#8] as an amendment as a matter of right, and ordered Governor Polis to answer or otherwise respond no later than February 5, 2021. [#18].
Defendant then filed this instant Motion to Dismiss on February 4, 2021, arguing that Plaintiff lacks Article III standing because she suffered no injury-in-fact; that she fails to state a cognizable claim under the Sherman Act; and that she lacks antitrust standing. [#19]. Plaintiff responded [#20], and Governor Polis replied [#22]. Being fully advised of the premises, this court respectfully RECOMMENDS that the Motion to Dismiss be GRANTED.
After the briefing on the Motion to Dismiss, Ms. Kulikowski filed three additional papers: Final Draft Amendment to Increase Request for Relief Based on Death Analysis [#23]; Supplement/Amendment [#24]; and a Reply to the Governor's Response to Plaintiff's Complaint Amendments [#26]. In reviewing these filings, Ms. Kulikowski appears to be seeking to supplement her operative pleading [#8]. Rule 15(d) of the Federal Rules of Civil Procedure provides “[o]n motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. The court may permit supplementation even though the original pleading is defective in stating a claim or defense. The court may order that the opposing party plead to the supplemental pleading within a specified time.” Fed.R.Civ.P. 15(d). Ms. Kulikowski did not file a motion seeking to supplement her operative pleading. Although this court affords her papers and filings a liberal construction, Haines v. Kerner, 404 U.S. 519, 520- 21 (1972), but the court cannot and does not act as her advocate, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), and applies the same procedural rules and substantive law to Plaintiff as to a represented party, see Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir. 2008); Dodson v. Bd. of Cty. Comm'rs, 878 F.Supp.2d 1227, 1236 (D. Colo. 2012). Accordingly, this court finds that none of the three filings is an appropriate supplementation of the operative pleading. Nevertheless, even if this court were to consider the three filings, it would not substantively affect the outcome of this Recommendation.
LEGAL STANDARDS
I. Rule 12(b)(1) and Standing
Federal courts are courts of limited jurisdiction. Under Article III of the United States Constitution, federal courts only have jurisdiction to hear certain “cases” and “controversies.” Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2341 (2014). As such, courts “are duty bound to examine facts and law in every lawsuit before them to ensure that they possess subject matter jurisdiction.” The Wilderness Soc. v. Kane Cty., Utah, 632 F.3d 1162, 1179 n.3 (10th Cir. 2011) (Gorsuch, J., concurring). Indeed, courts have an independent obligation to determine whether subject matter jurisdiction exists, even in the absence of a challenge from any party. 1mage Software, Inc. v. Reynolds & Reynolds, Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (citing Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)).
A plaintiff must establish Article III standing to bring her claim. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006); Bronson v. Swensen, 500 F.3d 1099, 1106 (10th Cir. 2007). The standing inquiry has two components: constitutional and prudential. To establish constitutional standing, a plaintiff must demonstrate “(1) an ‘injury in fact,' (2) sufficient ‘causal connection between the injury and the conduct complained of,' and (3) a ‘likel[ihood]' that the injury ‘will be redressed by a favorable decision.'” Susan B. Anthony List, 134 S.Ct. at 2341 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). A plaintiff must also satisfy the requirements of prudential standing. Traditionally, courts described prudential standing as not derived from Article III of the Constitution but encompassing three broad principles: (1) the general prohibition on a litigant's raising another person's legal rights, (2) the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and (3) the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked. Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126, 134 S.Ct. 1377, 1386, 188 L.Ed.2d 392 (2014). But the Lexmark Court clarified that the generalized grievance test is properly part of the Article III constitutional standing inquiry, id. at 127 n.3; Hill v. Warsewa, 947 F.3d 1308, 1309 (10th Cir. 2020). The elements of standing “are not mere pleading requirements but rather an indispensable part of the plaintiff's case.” Lujan, 504 U.S. at 561. Therefore, Article III standing cannot be assumed; the court must resolve issues of standing before it may reach the merits of an issue. See Colorado Outfitters Ass'n v. Hickenlooper (“Colorado Outfitters II”), 823 F.3d 537, 543 (10th Cir. 2016).
Attacks on subject matter jurisdiction may take two different forms, which in turn, implicate different analytical frameworks. The United States Court of Appeals for the Tenth Circuit (“Tenth Circuit”) has explained that
[m]otions to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may take one of two forms. First, a party may make a facial challenge to the plaintiff's allegations concerning subject matter jurisdiction, thereby questioning the sufficiency of the complaint. In addressing a facial attack, the district court must accept the allegations in the complaint as true. Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter depends. In addressing a factual attack, the court does not presume the truthfulness of the complaint's factual allegations, but has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).United States v. Rodriquez Aguirre, 264 F.3d 1195, 1203 (10th Cir. 2001) (quoting Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995)) (further citations omitted). See also S. Utah Wilderness All. v. Palma, 707 F.3d 1143, 1152 (10th Cir. 2013) (on a facial attack, “[w]hen evaluating a plaintiff's standing at the stage of a motion to dismiss on the pleadings, ‘both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.'” (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975))); Holt, 46 F.3d at 1002-03 (when a factual challenge is made, there is no presumption of truthfulness attached to the plaintiff's allegations).
II. Rule 12(b)(6)
Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), 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)). However, 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.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citation omitted). “The burden is on the plaintiff to frame ‘a complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Id. 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).
ANALYSIS
I. Subject Matter Jurisdiction
Governor Polis brings a facial challenge to Plaintiff's Amended Complaint and argues that this court lacks subject matter jurisdiction because Ms. Kulikowski has not suffered any injury-in-fact for two reasons: (1) she has failed to identify a concrete and particularized injury, but rather asserts a generalized grievance over which this court does not have subject matter jurisdiction; and (2) her allegations are entirely conjectural and hypothetical. [#19 at 4-5]. In Plaintiff's Response, she does not address Defendant's legal arguments or point to particular factual allegations in her Amended Complaint but rather argues that she is following the lead of the Department of Justice officials who filed a lawsuit against Google, and “the private citizen and proof of injury requirements do not apply in this case because I am a military veteran with a duty to protect the Constitution and act on behalf of U.S. citizens.” [#20 at 6]. On Reply, Defendant contends that “Plaintiff makes no effort to establish constitutional standing[.]” [#22 at 1].
Contrary to Ms. Kulikowski's suggestion that she might be exempt as a veteran, constitutional standing applies to this case. The burden of establishing subject matter jurisdiction lies with Plaintiff, and she must clearly allege facts demonstrating each element. Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016); Lujan, 504 U.S. at 560-61. Moreover, because the restriction on generalized grievances is jurisdictional, the court must decide it first. See Hill, 947 F.3d at 1313 (J. Bacharach, dissenting) (citing Arbaugh v. Y&H Corp, 546 U.S. 500 (2006)).
The United States Supreme Court has explained that a “generalized grievance” is one “shared in substantially equal measure by all or a large class of citizens, ” and has concluded “that harm alone normally does not warrant exercise of jurisdiction.” See Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). Two courts considering whether executive orders mandating masks and other precautionary measures due to the COVID-19 pandemic confer standing have found that, without an articulation of an injury-in-fact particularized to the plaintiff, a plaintiff lacks standing to challenge a governor's orders. See, e.g., Delaney v. Baker, No. CV 20-11154-WGY, 2021 WL 42340, at *10 (D. Mass. Jan. 6, 2021) (citing Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409, 133 S.Ct. 1138, 1147, 185 L.Ed.2d 264 (2013)); Parker v. Wolf, No. 20-CV-1601, 2020 WL 7295831, at *12 (M.D. Pa. Dec. 11, 2020). This court is persuaded that the same reasoning applies in this action.
Here, Ms. Kulikowski fails to allege sufficient facts, taken as true, for the court to conclude that she has a particularized injury-in-fact. Indeed, in her operative Amended Complaint, Ms. Kulikowski alleges no facts particular to herself. [#8]. Rather, she relies upon “worksheets” that necessarily rely upon aggregate data. [Id. at 2]. There are no allegations as to how Ms. Kulikowski has been affected by Defendant's COVID-19 Executive Orders, and the relief Ms. Kulikowski seeks is not particularized to her. [Id.]. Rather, she “request[s] the impeachment of Governor Jared Polis and request[s] a new Goveror who will open Colorado back up to total normalcy and give us our American rights back.” [Id.]. As noted in another context, “the refuge offered by the federal court is not a forum for the general airing of miscellaneous political grievances a citizen or group of citizens may wish to air about the regulatory efforts of a government actor.” Cowboys for Trump, Inc. v. Oliver, No. CV 20-587 GJF/SMV, 2020 WL 7771159, at *7 (D.N.M. Dec. 30, 2020). It is also clear that a plaintiff does not have standing simply because the challenged action is personally offensive to her. See Schaffer v. Clinton, 240 F.3d 878, 884 (10th Cir. 2001). In applying these standards, this court concludes that Plaintiff lacks standing to bring this action. Having found so, this court declines to consider Defendant's additional arguments. See Colorado Outfitters II, 823 F.3d at 543 (“[A] federal court can't ‘assume' a plaintiff has demonstrated Article III standing in order to proceed to the merits of the underlying claim, regardless of the claim's significance.” (citations omitted)).
The same is true of Ms. Kulikowski's “Final Draft Amendment to Increase Request for Relief Based on Death Analysis” [#23] and “Supplement/Amendment” [#24].
CONCLUSION
For the reasons stated herein, this court respectfully RECOMMENDS that: (1) The Motion to Dismiss filed by Defendant Jared Polis [#19] be GRANTED.
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the District Court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. One Parcel of Real Prop. Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court's decision to review a Magistrate Judge's recommendation de novo despite the lack of an objection does not preclude application of the “firm waiver rule”); Int 'l Surplus Lines Ins. Co. v. Wyoming Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge's ruling). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).