Olds et al v. Bank of America N.A.

Filing 9

ORDER denying without prejudice 6 Motion to Dismiss. The Complaint is STRICKEN for failure to comply. Plaintiffs shall have until 1/2/2013 to submit an amended complaint. Plaintiffs' failure to comply with this order may result in a recommendation that the plaintiffs' case be dismissed. By Magistrate Judge Boyd N. Boland on 12/27/12. (kfinn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 12-cv-03210-REB-BNB
ROBERT S. OLDS, and
BONNIE L. OLDS,
Plaintiffs,
v.
BANK OF AMERICA, N.A.,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on the following:
1. The plaintiffs’ Complaint [Doc. #1-3, filed 12/07/2012]; and
2. Defendant’s Motion to Dismiss Plaintiffs’ Complaint Pursuant to Fed. R. Civ. P.
12(b)(6) [Doc. #6, filed 12/14/2012] (the “Motion to Dismiss”).
The Complaint is STRICKEN, and the plaintiffs are directed to submit an amended
complaint that complies with this order. The Motion to Dismiss is DENIED WITHOUT
PREJUDICE.
This action was filed in the Arapahoe County District Court on November 16, 2012. It
was removed to this court on December 7, 2012, based on both federal question and diversity
jurisdiction. The allegations of the Complaint arise out of the foreclosure of the plaintiffs’
property.

The Federal Rules of Civil Procedure require that a complaint 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 . . . .” Fed. R. Civ. P. 8(a). “[T]he only permissible pleading is a short and plain
statement of the claim showing that the pleader is entitled to relief on any legally sustainable
grounds.” Blazer v. Black, 196 F.2d 139, 144 (10th Cir. 1952). “[T]o state a claim in federal
court, a complaint must explain what each defendant did to him or her; when the defendant did
it; how the defendant’s action harmed him or her, and what specific legal right the plaintiff
believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158,
1163 (10th Cir. 2007). The requirements of Rule 8(a) guarantee “that defendants enjoy fair
notice of what the claims against them are and the grounds upon which they rest.” TV
Communications Network, Inc. v. ESPN, Inc., 767 F. Supp. 1062, 1069 (D. Colo. 1991), aff'd,
964 F.2d 1022 (10th Cir. 1992). 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.
I am aware that the plaintiffs are proceeding pro se, and I must liberally construe their
pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). I cannot act as advocate for pro se
litigants, however, who must comply with the fundamental requirements of the Federal Rules of
Civil Procedure. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
The Complaint suffers from many deficiencies. It is not submitted on the court’s
standard complaint form. “A pro se party shall use the forms established by this court to file an

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action.” D.C.COLO.LCivR 8.1A. In addition, all typewritten complaints must be doublespaced. D.C.COLO.LCiv.R 10.1E. The Complaint is typewritten and single-spaced.
In addition, the plaintiffs do not clearly state their claims; the legal bases for their claims;
the actions or inactions of the defendant; and how those actions or inactions violate the law.
Consequently, the Complaint fails to provide notice of the plaintiffs’ causes of action as required
by Rule 8.
The Complaint is stricken. The plaintiffs shall submit an amended complaint which
complies with the Federal Rules of Civil Procedure, the local rules of this court, and this order.
The amended complaint shall be submitted on the court’s form and shall be titled “Amended
Complaint.” The background statement shall briefly summarize the plaintiffs’ case and shall not
exceed one double-spaced typewritten page. Each claim shall be numbered and shall be stated
separately. Each claim shall state the legal basis for the claim; identify which defendant(s) the
claim is brought against; and allege facts sufficient to state a claim for relief as to each of those
defendants. Each claim shall not exceed two typewritten pages, double-spaced. The Complaint
shall not contain conclusory allegations or argument.
IT IS ORDERED:
1. The Complaint is STRICKEN for failure to comply with Fed. R. Civ. P. 8,
D.C.COLO.LCivR 8.1A, and D.C.COLO.LCiv.R 10.1E;
2. The plaintiffs shall have until January 2, 2013, to submit an amended complaint
which complies with Fed. R. Civ. P. 8, D.C.COLO.LCivR 8.1A, D.C.COLO.LCiv.R 10.1E, and
this order;

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3. The plaintiffs’ failure to comply with this order may result in a recommendation that
the plaintiffs’ case be dismissed;
4. The Clerk of the Court shall enclose with this order a copy of the court’s complaint
form; and
5. The Defendant’s Motion to Dismiss Plaintiffs’ Complaint Pursuant to Fed. R. Civ. P.
12(b)(6) [Doc. #6] is DENIED WITHOUT PREJUDICE.
Dated December 27, 2012.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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