Haynie et al v. PHH Mortgage et al

Filing 51

COURTROOM MINUTES/MINUTE ORDER for proceedings held before Magistrate Judge Craig B. Shaffer: Motion Hearing held on 6/24/2013. 32 Motion to Dismiss by Defendants Aronowitz & Mecklenburg and Stacey L. Aronowitz is WITHDRAWN. The court RECOMMENDS t hat 33 Public Trustee's Combined Motions to Amend Caption and to Dismiss for Lack of Subject Matter Jurisidiction and to Dismiss for Failure to State a Claim should be GRANTED in part and DENIED in part. The motion should be granted to the ext ent that it seeks to dismiss Plaintiffs' state tort law claims and be denied in all other respects. Plaintiffs have 30 days from todays date to properly serve Defendants PHH Mortgage, Inc., Aronowitz & Mecklenburg, and Stacey L. Aronowitz. Withi n 30 days from todays date, Plaintiffs shall either file a motion for leave to amend their complaint, attaching a proposed second amended complaint, or alternatively, Plaintiffs may serve the current amended complaint. FTR: Courtroom A402 - C. Covington. (ccovi)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
MAGISTRATE JUDGE CRAIG B. SHAFFER

Civil Action: 12-cv-01575-RM-CBS
Date: June 24, 2013

FTR - COURTROOM A-402
Courtroom Deputy: Courtni Covington

Parties

Attorney(s)

MATTHEW HAYNIE, and
KELSEY HAYNIE,

Pro Se

Plaintiffs,
v.
PHH MORTGAGE, INC., et al.,
Defendants.

Lauren E. Tew
Lissa Kalt
Sam D. Starritt

COURTROOM MINUTES/MINUTE ORDER

HEARING: MOTION HEARING
Court in Session:
1:31 p.m.
Court calls case. Appearances of counsel. Plaintiffs appear pro se.
This matter is before the court regarding MOTION to Dismiss Pursuant to Fed. R. Civ. P.
12(b)(1), (2), (5) and (6) by Defendants, Aronowitz & Mecklenburg and Stacey L. Aronowitz
[Doc No. 32, filed 12/05/12] and Public Trustee’s Combined MOTIONS to Amend Caption and
to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to F.R.C.P. 12(b)(1) and for
Failure to State a Claim Pursuant to F.R.C.P. 12(b)(6) [Doc. No. 33, filed 12/14/12].

The court addresses Matthew and Kelsey Haynie regarding the Order filed by the court directing
Plaintiffs to respond to the Motions to Dismiss on or before June 17, 2013 and their failure to do
so.
The court shall start with the MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1), (2), (5)
and (6) by Defendants, Aronowitz & Mecklenburg and Stacey L. Aronowitz. Defendants make
an oral motion to withdraw, without prejudice, their pending motion to dismiss so that they may file a
more comprehensive motion and Plaintiffs would therefore have an opportunity to respond.
Plaintiffs do not object.

ORDERED:

Defendants’ oral motion to WITHDRAW without prejudice their Motion to
Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1), (2), (5) and (6) by Defendants,
Aronowitz & Mecklenburg and Stacey L. Aronowitz [Doc No. 32, filed
12/05/12] is GRANTED. Motion is withdrawn.

The court moves on to Defendant Public Trustee’s Combined MOTIONS to Amend Caption and
to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to F.R.C.P. 12(b)(1) and for Failure
to State a Claim Pursuant to F.R.C.P. 12(b)(6) [Doc. No. 33, filed 12/14/12].
Counsel for Defendant Paul N. Brown presents oral argument and engages in discussion with the court.
2:47

Plaintiff Kelsey Haynie leaves the courtroom.

Further discussion between the court and Mr. Haynie regarding argument presented on the pending
motion to dismiss. Relevant case law cited. Further discussion regarding the claims listed in the
Complaint, the substitution of the current Public Trustee in place of Defendant Paul N. Brown, and
proper service of the Defendants in the case.
The court addresses Mr. Haynie regarding its issues with the claims in the case and his failure to
provide relevant case law to support his position. Discussion regarding how the case will proceed.
ORDERED:

For the reasons stated on the record, the court RECOMMENDS that
Defendant Public Trustee’s Combined MOTIONS to Amend Caption and to
Dismiss for Lack of Subject Matter Jurisdiction Pursuant to F.R.C.P. 12(b)(1)
and for Failure to State a Claim Pursuant to F.R.C.P. 12(b)(6) [Doc. No. 33,
filed 12/14/12] be GRANTED IN PART and DENIED IN PART. Plaintiffs
concede that they failed to comply with the notice of claim provision in the
Colorado Governmental Immunity Act (“CGIA”), C.R.S. § 24-10-109(a), prior
to commencing the instant action. See also Bethel v. United States, 456 Fed.
Appx. 771, 775 n. 11 (10th Cir. 2012) (noting that the CGIA requires, “as a
jurisdictional prerequisite, that any person seeking to sue a public employee,
whether or not his actions are willful and wanton and whether or not he is being
sued in his personal capacity, comply with [the statute’s] notice of claim
provision”); Aspen Orthopaedics & Sports Medicine, LLC v. Aspen Valley
Hospital District, 353 F.3d 832, 840 (10th Cir. 2003) (“in the context of a
motion to dismiss, pleading compliance with the notice provisions of the CIGA
is de facto jurisdictional”). Accordingly, Public Trustee’s Motion to Dismiss
should be granted to the extent that it seeks to dismiss Plaintiffs’ state tort law
claims. Those state law tort claims should be dismissed without prejudice. The
motion to dismiss should be denied in all other respects.

Discussion and clarification between the court regarding service.
The court addresses Mr. Haynie regarding suing Paul N. Brown in his official or individual capacity.
ORDERED:

Plaintiffs have 30 days from today’s date to properly serve Defendants PHH
Mortgage, Inc., Aronowitz & Mecklenburg, and Stacey L. Aronowitz.

ORDERED:

Within 30 days from today’s date, Plaintiffs shall either file a motion for leave
to amend their complaint, attaching a proposed second amended complaint, or
alternatively, Plaintiffs may serve the current amended complaint. Defendants
may respond to the second amended complaint. If no second amended
complaint is filed, Defendants may renew their motions to dismiss.

After the 30 days have passed, the court will be in a better position to know how the case will be
moving forward, what parties will be a part of the case, and what claims will be pursued.
The court informs the parties that only a ruling from the bench will issue, no written order will follow,
and therefore the amount of days to file an objection should be calculated from today’s date.
HEARING CONCLUDED.
Court in recess:
3:47 p.m.
Total time in court:
02:16
To order transcripts of hearings with Magistrate Judge Shaffer, please contact Avery Woods Reporting at (303)
825-6119 or toll free at 1-800-962-3345.