Sarno v. Reilly et al

Filing 25

MINUTE ORDER denying 22 Plaintiffs Motion of Objection to Defendants Motion to Dismiss Amended Complaint; IT IS FURTHER ORDERED that Plaintiff shall file a Response to the pending Motion to Dismiss 19 no later than September 4, 2012, by Magistrate Judge Kristen L. Mix on 8/14/2012.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00280-REB-KLM
GEORGE D. SARNO,
Plaintiff,
v.
JOHN REILLY,
DONALD BRIGHTWELL, and
DINO WILLIAMS,
Defendants.
_____________________________________________________________________
MINUTE ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion of Objection to Defendant’s
Motion to Dismiss Amended Complaint [Docket No. 22; Filed May 16, 2012] (the
“Motion”). Plaintiff, who proceeds in this matter pro se, objects to Defendants’ Motion to
Dismiss [#19] on the basis that discovery has not yet been conducted in this matter;
accordingly, Plaintiff seeks to have the Motion to Dismiss denied as premature.
In the Motion to Dismiss, Defendants seek dismissal of Plaintiff’s claims pursuant
to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). The purpose of a motion to dismiss pursuant to
Rule 12(b)(1) is to test whether the Court has jurisdiction to properly hear the case before
it. Dismissal of a federal claim for lack of subject-matter jurisdiction “is proper only when
the claim is ‘so insubstantial, implausible, foreclosed by prior decisions of this Court, or
otherwise completely devoid of merit as not to involve a federal controversy.” Steel Co. v.
Citizens for a Better Env't, 523 U.S. 83, 89 (1998) (quoting Oneida Indian Nation v. County
of Oneida, 414 U.S. 661, 666 (1974)). The Rule 12(b)(6) standard tests “the sufficiency of
the allegations within the four corners of the complaint after taking those allegations as
true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). To survive a Rule 12(b)(6)
motion, “[t]he complaint must plead sufficient facts, taken as true, to provide ‘plausible
grounds' that discovery will reveal evidence to support plaintiff's allegations.” Shero v. City
of Grove, Okla., 510 F .3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
Thus, motions to dismiss based on Fed. R. Civ. P. 12(b)(1) and 12(b)(6) are
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generally made prior to the initiation of discovery in a matter. If Plaintiff’s case survives
resolution of the pending Motion to Dismiss, the Court will conduct a Scheduling
Conference and set the parameters and deadlines for discovery at that time. Accordingly,
IT IS HEREBY ORDERED that the Motion [#22] is DENIED.
IT IS FURTHER ORDERED that Plaintiff shall file a Response to the pending Motion
to Dismiss [#19] no later than September 4, 2012.

Dated: August 14, 2012

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