Brooker et al v. Gould

Filing 6

ORDER DIRECTING PLAINTIFFS TO FILE AMENDED COMPLAINT. Plaintiffs shall file, on or before 10/1/2012 an Amended Complaint that complies with this Order. By Magistrate Judge Kathleen M. Tafoya on 09/12/2012. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 12–cv–01608–REB–KMT

CAREY WAYNE BROOKER, and
LENORA RENEE BROOKER,
Plaintiffs,
v.
RUSSELL JAY GOULD,
STACEY L. ARONOWITZ, Attorney Reg. #36290,
SUSAN J. HENDRICK, Attorney Reg. #33196,
MARCH L. MCDERMOTT, Attorney Reg. #38030,
ARONOWITZ & MECKLENBUG, LLP,
FEDERAL NATIONAL MORTGAGE ASSOCIATION,
BANK OF AMERICA, N.A.,
BRIAN MOYNIHAN,
BAC HOME LOANS SERVICING, LP,
BAC HOME LOAN SERVICING, LP,
BARBARA DESOER,
DONNA LEONETTI,
LAS ANIMAS COUNTY PUBLIC TRUSTEE,
LAS ANIMAS COUNTY TREASURER,
TRINIDAD ABSTRACT & TITLE COMPANY,
TOWN AND COUNTRY ESTATES REALTY, INC.,
EDGAR J. TROMMETER, license ER1326745
LAS ANIMAS COUNTY SHERIFF’S DEPARTMENT,
JAMES W. CASIAS,
LAS ANIMAS COUNTY COURT,
LAS ANIMAS COUNTY JUDGE BRUCE A. BILLINGS,
LAS ANIMAS COUNTY REVIEW CLERK EMMA BARROS,
DISTRICT ADMINISTRATOR/CLERK OF COURT ROBERT KREIMAN, and
SANTA FE TRAIL RANCH,
Defendants.

ORDER DIRECTING PLAINTIFFS TO FILE AMENDED COMPLAINT

Plaintiffs initiated this action by filing a pro se Complaint. The Court must construe the
Complaint liberally because the plaintiffs are not represented by an attorney. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
However, the Court should not act as an advocate for a pro se litigant. See Hall, 935 F.2d at
1110. For the reasons stated below, Plaintiffs will be ordered to file an Amended Complaint.
Plaintiffs’ Complaint is deficient because the have not used the Court-approved
Complaint form that pro se litigants are required to use. Pursuant to Rule 8.1A. of the Local
Rules of Practice of the United States District Court for the District of Colorado-Civil, “[a] pro
se party shall use the forms established by this court to file an action.” Therefore, Plaintiffs will
be ordered to file an Amended Complaint and submit their claims on the Court-approved
Complaint form.
The Court also finds that Plaintiffs’ Complaint does not comply with the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure. The twin purposes of a
complaint are to give the opposing parties fair notice of the bases for the claims against them so
that they may respond and to allow the court to conclude that the allegations, if proven, show
that Plaintiffs are entitled to relief. See Monument Builders of Greater Kansas City, Inc. v.
American Cemetery Ass’n of Kansas, 891 F.2d 1473, 1480 (10th Cir. 1989). The requirements
of Fed. R. Civ. P. 8 are designed to meet these purposes. See TV Communications Network, Inc.

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v. ESPN, Inc., 767 F. Supp. 1062, 1069 (D. Colo. 1991), aff’d, 964 F.2d 1022 (10th Cir. 1992).
Specifically, Rule 8(a) provides that a complaint “must contain (1) a short and plain statement of
the grounds for the court’s jurisdiction . . . ; (2) a short and plain statement of the claim showing
that the pleader is entitled to relief; and (3) a demand for the relief sought . . . .” The philosophy
of Rule 8(a) is reinforced by Rule 8(d)(1), which provides that “[e]ach allegation must be simple,
concise, and direct.” Taken together, Rules 8(a) and (d)(1) underscore the emphasis placed on
clarity and brevity by the federal pleading rules. Prolix, vague, or unintelligible pleadings
violate the requirements of Rule 8.
Plaintiffs fail to set forth a short and plain statement of their claims showing that they are
entitled to relief. Plaintiffs’ claims are unnecessarily verbose and unintelligible. Therefore,
Plaintiffs will be directed to file an Amended Complaint that complies with the pleading
requirements of Rule 8. Plaintiffs are reminded that it is their responsibility to present their
claims in a manageable format that allows the Court and defendants to know what claims are
being asserted and to be able to respond to those claims.
The Court notes Plaintiffs filed this case after this court issued similar Orders directing
Plaintiffs to file amended complaints in Civil Case Nos. 12–cv–00093–REB–KMT and
12–cv–00548–REB, apparently in an attempt to circumvent the Court’s Orders in those cases.
District Judge Robert E. Blackburn has dismissed both Civil Case Nos.
12–cv–00093–REB–KMT and 12–cv–00548–REB.
Although Plaintiffs are proceeding in this case without an attorney, they bear the
responsibility of complying with court orders and prosecuting their case. The Federal Rules of
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Civil Procedure give a district court ample tools to deal with recalcitrant litigants. See Jones v.
Thompson, 99 F.2d 261, 264 (10th Cir. 1993). Fed. R. Civ. P. 16(f)(1)(C) and
D.C.COLO.LCivR 41.1 enable the court to impose sanctions, including dismissal, when a party
fails to obey pretrial orders. Fed. R. Civ. P. 41 and D.C.COLO.LCivR 41.1 also enable the court
to dismiss a case for a party’s failure to prosecute.
The Tenth Circuit has recognized that “[a] district court undoubtedly has discretion to
sanction a party for failing to prosecute or defend a case, or for failing to comply with local or
federal procedural rules.” Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir.2002). However, a
dismissal with prejudice is a more severe sanction, and generally requires the district court to
consider certain criteria. AdvantEdge Bus. Group v. Thomas E. Mestmaker & Assoc., Inc., 552
F.3d 1233, 1235 (10th Cir.2009). In Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir.1992), the
Tenth Circuit set forth a non-exhaustive list of factors to be considered when evaluating grounds
for dismissal of an action with prejudice. The factors are: “(1) the degree of actual prejudice to
the defendant; (2) the amount of interference with the judicial process; . . . (3) the culpability of
the litigant; (4) whether the court warned the party in advance that dismissal of the action would
be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions.” Id. at 921
(internal quotations and citations omitted); see also Gates Rubber Co. v. Bando Chems. Indus.,
167 F.R.D. 90, 101 (D. Colo.1996). “These factors do not create a rigid test; rather they
represent criteria for the district court to consider prior to imposing dismissal as a sanction.” Id.
“Only when the aggravating factors outweigh the judicial system’s strong predisposition to

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resolve cases on their merits is dismissal an appropriate sanction.” Meade v. Grubbs, 841 F.2d
1512, 1521 n.7 (10th Cir.1988) (citations omitted).
Accordingly, it is
ORDERED that Plaintiffs shall file, on or before October 1, 2012, an Amended
Complaint that complies with this Order. It is further
ORDERED that the Clerk of the Court mail to Plaintiffs, together with a copy of this
Order, two copies of the Court-approved form for filing a Complaint. It is further
ORDERED that if Plaintiffs fail within the time allowed to file an Amended Complaint,
as directed, this court will recommend that this action be dismissed without further notice.
Plaintiffs are also warned that their failure to comply with this court’s Order will result in a
recommendation for the imposition of additional sanctions, including an order to pay the
defendants’ costs and attorney fees and that this case be dismissed, with prejudice, in its entirety,
pursuant to Rules 16(f)(1)(C) and 41, D.C.COLO.LCivR 41.1, and Ehrenhaus v. Reynolds, 965
F.2d 916 (10th Cir.1992).
Dated this 12th day of September, 2012.

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