Opinion
Civil Action No. 20-cv-00470-CMA-NRN
07-08-2020
FRED HERR, Plaintiff, v. BBVA BANK, Defendant.
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS (Dkt. #9) and PLAINTIFF'S MOTION TO REMAND (Dkt. #17)
Presently before this Court is Defendant BBVA USA's (erroneously named BBVA Bank in the Complaint) Motion to Dismiss arguing that Plaintiff's Complaint should be dismissed because it fails to state a plausible claim. Dkt. #9. This motion was referred to the Court for a recommendation by Judge Christine M. Arguello on February 28, 2020. Dkt. #15. Also before the Court is Plaintiff's Motion to Remand (Dkt. #17), asking that his case be remanded back to Arapahoe County District Court. The Motion to Remand was referred to this Court by Judge Arguello on March 16, 2020 (Dkt. #18), and Defendant filed a response on March 22, 2020. Dkt. #19. The Motion to Remand, along with the Motion to Dismiss, were both discussed at the April 22, 2020 Initial Status Conference. Dkt. #21.
Having carefully considered the briefing, record, discussion at the Initial Status Conference, and applicable law, the Court finds that Plaintiff has failed to assert a plausible claim against Defendant. It is therefore recommended that Defendant's Motion to Dismiss be granted. The Court further finds that the removal to federal court was proper, and accordingly recommends that the Motion to Remand be denied.
PROCEDURAL BACKGROUND
Plaintiff, who proceeds pro se, initiated this lawsuit in Arapahoe County District Court on February 3, 2020. Dkt. #4. The dispute arises out of a loan for a 2015 Dodge Charger automobile from Defendant to Plaintiff. Defendant removed the case to this Court on February 21, 2020, asserting that this Court has jurisdiction under 28 U.S.C. § 1332 because there is complete diversity between the parties and, according to Plaintiff's Complaint, the amount in controversy exceeds $75,000.
Defendant filed its Motion to Dismiss on February 26, 2020. Dkt. #9. Plaintiff has not filed a response.
Plaintiff filed a Motion to Remand on March 12, 2020, arguing that there was no diversity of citizenship and that because the breach occurred in Centennial, Colorado, the Complaint was properly filed in Arapahoe County District Court. Dkt. #17. Defendant filed its Opposition to Plaintiff Fred Herr's Motion to Remand (Dkt. #19), arguing that complete diversity exists because Defendant is a citizen of Alabama, which is where it's principal place of business lies.
This Court held an Initial Status Conference on April 22, 2020. Dkt. #21. Plaintiff and counsel for Defendant appeared by telephone. At the Status Conference, Plaintiff expressed that he did not want his case to be federal court. This Court explained to him that his request for damages of $1 million in his Complaint provided a basis for the Court to exercise diversity jurisdiction over the case. The Court also explained to Plaintiff that if he were to amend the complaint with more details to support his claim and limit damages to less than $75,000, the case would be remanded back to Arapahoe County District Court, or he could file a notice of voluntary dismissal. Plaintiff was amenable to the suggestion, and this Court accordingly ordered Plaintiff to either file an amended complaint or a voluntary dismissal on or before May 22, 2020. Dkt. #21. No amended complaint or voluntary dismissal was filed before the deadline, and this Court issued an Order to Show Cause requiring Plaintiff to show cause why the case should not be dismissed pursuant to Fed. R. Civ. P. 16(f) and/or 41(b), and D.C.COLO.LCivR 41.1. Dkt. #22.
After the Order to Show Cause was issued, the Court received Plaintiff's Motion for Continuance, which was dated May 21, 2020, but which the Court did not receive until May 29, 2020. Dkt. #24. In the Motion for Continuance, Plaintiff requested additional time due to the Covid-19 pandemic which prevented him from speaking with the "main witness" in his case. Dkt. #24. Upon referral of the Motion for Continuance by Judge Arguello (Dkt. #25), this Court denied Mr. Herr's request for additional time without prejudice because Plaintiff did not indicate how long he believed a continuance would be necessary, or why speaking with the witness was necessary for Plaintiff to file an amended complaint or voluntary dismissal. The Court ordered Plaintiff to file a Status Report providing more information, or in the alternative, an amended complaint or voluntary dismissal on or before June 17, 2020. Dkt. #26.
On June 22, the Court received a document titled "Show Cause Motion" from Plaintiff. Dkt. #31. The Show Cause Motion was not a motion, but contained additional factual details that ostensibly would support Plaintiff's claim, and indicated that he did not wish to limit his damages to $75,000 or less. Id.
Shortly after receiving Plaintiff's "Show Cause Motion," the Court's Order on Plaintiff's Motion to Continue and a Minute Order re-setting a Status Conference for July 7, 2020 were returned as undeliverable. Dkt. ##32 & 33. This Court then issued a Minute Order directing the clerk to mail all filings returned as undeliverable to two addresses for Mr. Herr, one being the address provided in the Complaint, and the second being an address that was in his "Show Cause Motion." Dkt. #34. The Court also reiterated that Mr. Herr was expected to appear by telephone at the Status Conference set on July 7, 2020. Mr. Herr did not appear at the Status Conference on July 7, 2020. Dkt. #36.
LEGAL STANDARDS
I. Pro Se Parties
When a case involves pro se litigants, courts will review their "pleadings and other papers liberally and hold them to a less stringent standard than those drafted by attorneys." Trackwell v. U.S. Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007). Nevertheless, it is not "the proper function of the district court to assume the role of advocate for the pro se litigant." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A "broad reading" of a pro se plaintiff's pleadings "does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based." Id. Even pro se litigants do not have unlimited chances to amend, and they must follow the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994); Bertolo v. Raemisch, No. 17-cv-00773-RM-KLM, 2020 WL 132764, at *4, (D. Colo. Jan. 13, 2020).
II. Failure to Comply with Court Orders
Rule 41(b) of the Federal Rules of Civil Procedure provides in pertinent part:
If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule-except one for lack
of jurisdiction, improper venue, or failure to join a party under Rule 19-operates as an adjudication on the merits.Fed. R. Civ. P. 41(b). Furthermore, Rule 16(f) provides in pertinent part that "[o]n motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney: . . . (C) fails to obey a scheduling or other pretrial order." Fed. R. Civ. P. 16(f). Rule 37(b)(2)(A)(ii)-(vii), which is referenced in Rule 16(f), permits the following sanctions:
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;Fed. R. Civ. P. 37(b)(2)(A)(ii)-(vii) (emphasis added).
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
III. Motion to Dismiss
To survive a motion to dismiss, a complaint must allege enough facts to state a facially plausible claim from which the Court can draw a reasonable inference that the defendant is liable for the alleged conduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A pleading cannot make "naked assertion[s]" or conclusory statements without sufficient facts to prove alleged conduct. See Twombly, 550 U.S. at 557. At the pleading stage, a claim must contain enough facts that a reasonable expectation can be had that discovery could prove the plaintiff's allegations. Id. at 556. A plausible claim must provide more than just a mere possibility that the defendant acted unlawfully and must show a "reasonable likelihood" that the claim can be supported by facts. Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012); Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). Factual allegations are accepted as true and construed in the light most favorable to the plaintiff; however, the Court cannot advocate for a pro se litigant.
ANALYSIS
Defendant argues that Plaintiff's Complaint should be dismissed because it does not contain a short and plain statement of his claims or provide sufficient information for BBVA to determine what claims he asserts or the factual basis for his claims. The Court has reviewed the Complaint and agrees with Defendant. The Complaint consists of one page, including the caption, and alleges that Defendant "illegally refused" Mr. Herr's request to refinance the loan for and then "illegally repossessed" a 2015 Dodge Charger automobile. Dkt. #4. The Complaint also alleges that Defendant threatened Mr. Herr via his mother-in-law, but provides no detail as to what the allegedly harassing conduct was or when it occurred. Mr. Herr also alleges that Defendant violated Colorado law and infringed upon his "U.S. and Colorado Constitutional Rights," but does not identify what laws were allegedly violated or which rights were allegedly infringed upon. It does not contain enough factual information to state a facially plausible claim from which the Court could draw an inference that Defendant is liable to Mr. Herr. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570.
The Court advised Plaintiff that his Complaint was deficient at the initial Status Conference on April 22, 2020, when it instructed him to either file an amended complaint with sufficient factual detail or a voluntary dismissal, which would give Plaintiff the option of proceeding in state court if he agreed that his damages were less than $75,000.
While Plaintiff's "Show Cause Motion" does contain some additional factual detail about his claims, the Court will not permit piecemeal adjudication of Plaintiff's case, which means that Plaintiff must include all claims he seeks to bring in an amended complaint. Plaintiff did not submit an amended complaint as he was ordered to do at the initial Status Conference, in the Show Cause Order, and in the Minute Order relating to his Motion for Continuance. Then, Plaintiff failed to appear at the July 7 Status Conference. Taking into account Defendants' Motion to Dismiss, Plaintiff's failure to comply with this Court's orders and failure to appear leave the Court with no option other than to recommend dismissal. The Court recommends that a deadline be set within which Plaintiff be allowed to file a motion for leave to amend, along with a proposed amended complaint. Should such a motion be referred to this Court, it would look favorably on the motion.
CONCLUSION
For the reasons outlined above, the Court finds that Plaintiff's Complaint fails to state a plausible claim for relief and accordingly recommends that Defendant's Motion to Dismiss (Dkt. #9) be GRANTED, and that the Complaint be dismissed without prejudice. The Court further recommends that Plaintiff's Motion for Remand (Dkt. #17) be DENIED.
Pursuant to Fed. R. Civ. P. 72 , the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn , 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse , 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this 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., 73 F.3d 1057, 1060 (10th Cir. 1996).
July 8, 2020
/s/_________
N. Reid Neureiter
United States Magistrate Judge