Driskell v. Thompson et al

Filing 47

ORDER adopting 46 Recommendation of the United States Magistrate Judge. Defendant Bruce R. Thompson's Motion To Dismiss Plaintiff's Complaint Pursuant to Fed. R. Civ. P. 12(b)(5) and (6) [# 42 ] is GRANTED IN PART and DENIED IN PART. Plaintiff's claims against the remaining defendants, Bruce R. Thompsonand John Doe 1-100, are DISMISSED WITHOUT PREJUDICE. By Judge Robert E. Blackburn on 10/30/2013.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-03107-REB-KLM
ROBERT J. DRISKELL,
Plaintiff,
v.
BRUCE R. THOMPSON, Chief Financial Officer (CFO), doing business as CFO Bruce
R. Thompson Bank of America, N.A, and
John Doe 1-100, successor by merger BAC Home Loans Serving, LP, formerly known
as Countrywide Home Loans, LP,
Defendants.

ORDER ADOPTING RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matter before me is the Recommendation of United States Magistrate
Judge [#46],1 filed September 27, 2013. No objection having been filed to the
recommendation, I review it for plain error only. See Morales-Fernandez v.
Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005).2
Finding no such error in the magistrate judge’s recommended disposition, I find and

1

“[#46]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s electronic case filing and management system (CM/ECF). I use this
convention throughout this order.
2

This standard pertains even though plaintiff is proceeding pro se in this matter. MoralesFernandez, 418 F.3d at 1122. In addition, 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, 94, 127 S. Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007);
Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 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)).

conclude that the recommendation should be approved and adopted.3
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#46], filed
September 27, 2013, is APPROVED AND ADOPTED as an order of this court;
2. That Defendant Bruce R. Thompson’s Motion To Dismiss Plaintiff’s
Complaint Pursuant to Fed. R. Civ. P. 12(b)(5) and (6) [#42], filed July 15, 2013, is
GRANTED IN PART and DENIED IN PART as follows:
a. That the motion is GRANTED insofar as it seeks dismissal of plaintiff’s
claims against defendant, Bruce R. Thompson, pursuant to Fed. R. Civ. P.
12(b)(6); and
b. That in all other respects, the motion is DENIED;
3. That plaintiff’s claims against the remaining defendants, Bruce R. Thompson
and John Doe 1-100, are DISMISSED WITHOUT PREJUDICE;
4. That judgment SHALL ENTER as follows:
a. On behalf of defendants, Bruce R. Thompson, Chief Financial Officer
(CFO), doing business as CFO Bruce R. Thompson Bank of America,

3

Although the magistrate judge does not address the issue, I find and conclude that plaintiff’s
claims against the John Doe defendants should be dismissed as well. The John Does are designated in
the caption as “Successor by Merger BAC Home Loans Serving, LP fka Countrywide Home Loans, LP.”
Yet in other filings, plaintiff has referred to Bank of America itself as the “Successor by Merger to BAC
Homeloans Servicing, LP fka Countrywide Home Loans Servicing, LP.” (See Status Report at 5 [#40],
filed July 15, 2013.) Moreover, the complaint contains no factual allegations regarding any entity named
“BAC Home Loans Serving, LP” or “Countrywide Home Loans, LP,” let alone any facts suggesting that
particular individuals associated with either of these entities might be liable to plaintiff. (See
Recommendation at 8 [#46], filed September 27, 2013) (noting that bare allegation implicating “[t]he
Bank [and] their agents” insufficient to give defendants proper notice of the basis of claims alleged against
them). Under these circumstances, where it appears obvious that plaintiff could not prevail on the facts
alleged and that allowing him an opportunity to amend his complaint would be futile, a dismissal of these
claims sua sponte is appropriate. See Curley v. Perry, 246 F.3d 1278, 1281–82 (10th Cir. 2001).

2

N.A.; and John Doe 1-100, successor by merger BAC Home Loans
Serving, LP, formerly known as Countrywide Home Loans, LP, against
plaintiff, Robert J. Driskell, on all claims for relief and causes of action
asserted against him by plaintiff; provided that the judgment as to the
claims against these defendants shall be without prejudice; and
b. On behalf of defendant, Bank of America, N.A., against plaintiff, Robert
J. Driskell, as provided in this court’s Order Adopting Recommendation
of the United States Magistrate Judge ¶ 5 at 2 [#45], filed September
10, 2013; and
6. That defendants are AWARDED their 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 October 30, 2013, at Denver, Colorado.
BY THE COURT:

3