Cogswell v. Paulson et al

Filing 28

ORDER. The magistrate judges Recommendation on Defendants Motion To Dismiss Complaint Pursuant to Fed.R.Civ.P. 12(b)(1) 22 , filed 02/9/2009 is APPROVED AND ADOPTED as an order of this court. The magistrate judges Supplemental Recommendation To Di smiss 24 filed 02/12/2009 also is APPROVED AND ADOPTED as an order of this court. The objections stated in Plaintiffs Objections to Proposed Findings and Recommendation s of Magistrate 25 filed 02/20/2009 are OVERRULED. Defendants Motion To Dism iss Complaint Pursuant to Fed.R.Civ.P. 12(b)(1) 8 filed 11/14/2008, is GRANTED. plaintiffs proposed Amended Complaint 23 , filed 02/10/2009 is STRICKEN. Plaintiffs claims against defendant, Joseph. R. Biden, Jr., President of the United States Se nate, are DISMISSED for lack of subject matter jurisdiction. Judgment SHALL ENTER on behalf of defendant, Joseph R. Biden, Jr., President of the United States Senate, and against plaintiff, John Marshall Cogswell, as to all claims for relief and causes of action. Defendant is AWARDED his costs by Judge Robert E. Blackburn on 02/27/2009.(sah, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Civil Case No. 08-cv-01929-REB-MEH JOHN MARSHALL COGSWELL, Plaintiff, v. JOSEPH R. BIDEN, JR., President of the United States Senate, Defendants. ORDER OVERRULING OBJECTIONS TO AND ADOPTING RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE Blackburn, J. The matters before me are (1) the magistrate judge's Recommendation on Defendants' Motion To Dismiss Complaint Pursuant to Fed.R.Civ.P. 12(b)(1) [#22] filed February 9, 2009; (2) the magistrate judge's Supplemental Recommendation To Dismiss [#24] filed February 12, 2009; and (3) Plaintiff's Objections to Proposed Findings and Recommendation s of Magistrate [#25] filed February 20, 2009. I overrule the objections, adopt the recommendations, strike plaintiff's amended complaint, and grant defendant's motion to dismiss. 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, and have considered carefully the recommendation, objections, and applicable caselaw. Even though plaintiff is a licensed attorney, in an abundance of caution, because plaintiff is proceeding pro se, 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, ___, 127 S. Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Belmon, 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)). The recommendations are detailed and well-reasoned.1 Contrastingly, plaintiff's objections are imponderous and without merit. Therefore, I find and conclude that the arguments advanced, authorities cited, and findings of fact, conclusions of law, and recommendations proposed by the magistrate judge should be approved and adopted. THEREFORE, IT IS ORDERED as follows: 1. That the magistrate judge's Recommendation on Defendants' Motion To Dismiss Complaint Pursuant to Fed.R.Civ.P. 12(b)(1) [#22], filed February 9, 2009, is APPROVED AND ADOPTED as an order of this court; 2. That the magistrate judge's Supplemental Recommendation To Dismiss [#24] filed February 12, 2009, also is APPROVED AND ADOPTED as an order of this court; 3. That the objections stated in Plaintiff's Objections to Proposed Findings and Recommendation s of Magistrate [#25] filed February 20, 2009, are OVERRULED;

Although the magistrate judge's supplemental recommendation counsels dismissing plaintiff's Amended Complaint on substantive grounds, because the pleading was filed without leave of court to amend, I will strike it instead. See FED.R.CIV.P. 15(a)(2). Since the purported amendment would be ineffective and futile in any event, as discussed in the supplemental recommendation, there would be no reason to permit amendment in any event. See id. (noting that leave to amend should be freely granted "when justice so requires").

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4. That Defendants' Motion To Dismiss Complaint Pursuant to Fed.R.Civ.P. 12(b)(1) [#8] filed November 14, 2008, is GRANTED; 5. That plaintiff's proposed Amended Complaint [#23], filed February 10, 2009, is STRICKEN; 6. That plaintiff's claims against defendant, Joseph. R. Biden, Jr., President of the United States Senate, are DISMISSED for lack of subject matter jurisdiction; 7. That judgment SHALL ENTER on behalf of defendant, Joseph R. Biden, Jr., President of the United States Senate, and against plaintiff, John Marshall Cogswell, as to all claims for relief and causes of action; and 8. That defendant is AWARDED his costs, to be taxed by the Clerk of the Court pursuant to Fed.R.Civ.P. 54(d)(1) and D.C.COLO.LCivR 54.1. Dated February 27, 2009, at Denver, Colorado. BY THE COURT:

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