Opinion
Civil No. 2:04-CV-414 TC.
September 8, 2004
REPORT AND RECOMMENDATION
Before the court are Defendants' Motion to Dismiss and Plaintiffs' Motion for Summary Judgment. The Court has carefully reviewed the memoranda and pursuant to Utah local rule 7-1(f) elects to determine the motions on the basis of the written memoranda and finds that oral argument would not be helpful.See DUCivR 7-1(f).
After reviewing the memoranda, the facts of this case, and relevant law, this court recommends the district court DENY Plaintiffs' Motion for Summary Judgment and GRANT Defendants' Motion to Dismiss.
DISCUSSION
Plaintiffs, Paul and Susan Venable, Pro Se, filed a complaint alleging fraud and violations of, inter alia, Federal Reserve Bank policies, Generally Accepted Accounting Principles, federal truth in lending laws and the Uniform Commercial Code. See Plaintiffs' Complaint, Docket no. 1. All of Plaintiffs' claims center around a loan transaction where Plaintiffs entered into a standard mortgage loan agreement for the purchase of real estate.See id. Plaintiffs stopped making their monthly payments and Defendants are "anticipating beginning foreclosure proceedings." Defendants' Mem. in Supp. p. 1.When reviewing a plaintiff's allegations, the court must construe the pro se complaint liberally. See Haines v. Kerner, 404 U.S. 519, 519-21 (1972). However, the court "will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1179, 1173-74 (10th Cir. 1997).
The broad reading of a plaintiff's complaint "does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Not every fact need be described in specific detail, but "conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based." Id.
I. Plaintiffs' Motion
Plaintiffs have filed a Motion for Summary Judgment alleging that Defendants have stipulated and admitted all counts of their complaint because Defendants have failed to answer the complaint. Rule 12(a)(4) of the Federal Rules of Civil Procedure alters the time period in which a defendant is required to answer a complaint if a pre-answer motion is filed. See Fed.R.Civ.P. 12(a)(4). Defendants filed their Motion to Dismiss on June 9, 2004, before their answer to Plaintiffs' complaint was required. Therefore, Defendants have not stipulated to any counts in Plaintiffs' complaint.
Furthermore, Plaintiffs fail to support their factual statements in their Motion for Summary Judgment by any affidavit or evidence. See Hall, 935 F.2d at 1110; Jaxon v. Circle K Corp., 773 F.2d 1138, 1139 (10th Cir. 1985). A movant is not always required to come forward with affidavits or other evidence to support a motion for summary judgment. See Hall, 935 F.2d at 1111, fn. 5. However, in this case Plaintiffs fall short of demonstrating an absence of proof in Defendants' case and at a minimum must make such a showing. See id. Therefore, it is inappropriate to grant Plaintiffs' motion.
Accordingly, based on Rule 12(a)(4) and the failure of Plaintiffs to support their Motion for Summary Judgment, this Court recommends the district court deny Plaintiff's motion.
II. Defendants' Motion
In the instant case Plaintiffs have failed to file any opposition to Defendants' Motion to Dismiss. Failure to respond to a motion, per se, may result in the court granting the motion. See DUCivR 7-1(d). However, after a thorough reading of Plaintiffs' complaint this court concludes Plaintiffs' complaint fails to state a claim pursuant to Rule 12(b)(6). See Fed.R.Civ.P. 12(b)(6). Plaintiffs' fraud claim also fails to meet the particularity requirement of Rule 9(b). See Fed.R.Civ.P. 9(b).
Pursuant to Rule 12(b) a complaint may be dismissed for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Although a pro se litigant's pleadings are construed more broadly, a pro se plaintiff must still allege sufficient facts upon which a legal claim may be based. See Hall 935 F.2d at 1110-1111.
In the instant case, Plaintiffs' complaint fails to meet even the lower standard given to pro se litigants. Plaintiffs citations to legal authority and various other sources are not enough to establish a legal claim. Mere conclusory allegations are not enough to state a claim on which relief can be based.See Hall, 935 F.2d at 1110.
Finally, Federal Rule 9(b) requires "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Fed.R.Civ.P. 9(b). This rule "enables `a defending party to prepare an effective response to charges of fraud, and to protect itself from unfounded charges of wrongdoing which might injure its reputation and good will.'"Universal Premium Acceptance Corp. v. Oxford Bank Trust, 277 F.Supp. 2d 1120, 1130 (D. Kan. 2003) (citation omitted). "To plead a fraud claim, the complainant must describe the circumstances of the fraud, i.e., the time, place, and content of the false representation; the identity of the person making the representation; and the harm caused by complainant's reliance on the false representation." Id.
Plaintiffs fail to specify who allegedly made the misrepresentations, what the misrepresentations were and the time or place where they occurred. See id. Conclusory allegations as those set forth by Plaintiffs fail to meet the requirements of Rule 9(b) and therefore should be dismissed. See Full Faith Church of Love Rest, Inc. v. Hoover Treated Wood Prods. Inc., 224 F. Supp. 2d 1285, 1294 (D. Kan. 2002) (dismissing the plaintiff's claims that failed to sufficiently articulate the circumstances surrounding the misrepresentations).
Accordingly, the court recommends that the district court dismiss all of Plaintiffs' fraud claims for failure to meet the requirements of Rule 9(b).
RECOMMENDATION
Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiffs Motion for Summary Judgement be DENIED. Defendants' Motion to Dismiss should be GRANTED.Copies of the foregoing report and recommendation are being mailed to all parties who are hereby notified of their right to object. The parties must file any objection to the Report and Recommendation within ten days after receiving it. Failure to object may constitute a waiver of objections upon subsequent review.