Smith v. GMAC Mortgage

Filing 11

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 02/07/13. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-00009-BNB
MATTHEW A. SMITH,
Plaintiff,
v.
GMAC MORTGAGE,
Defendant.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Matthew A. Smith, has filed pro se a Complaint (ECF No. 1). The court
must construe the Complaint liberally because Mr. Smith is 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 be an advocate for a pro se
litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, Mr. Smith will be
ordered to file an amended complaint if he wishes to pursue his claims in this action.
The court has reviewed the Complaint and finds that the Complaint is deficient
because the 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 basis for the claims against them so that they may
respond and to allow the court to conclude that the allegations, if proven, show that the
plaintiff is 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. 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.
Mr. Smith invokes the court’s federal question jurisdiction pursuant to 28 U.S.C. §
1331, which provides that “[t]he district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.” However,
Mr. Smith fails to provide a short and plain statement of any federal claims, or any
claims at all, showing that he is entitled to relief. “For a case to arise under federal law
within the meaning of § 1331, the plaintiff’s well-pleaded complaint must establish one
of two things: either that federal law creates the cause of action or that the plaintiff’s
right to relief necessarily depends on resolution of a substantial question of federal law.”
Firstenberg v. City of Santa Fe, 696 F.3d 1018, 1023 (10th Cir. 2012) (quotation marks
omitted). Even construed liberally, Mr. Smith’s vague references to foreclosure and
bankruptcy proceedings are not sufficient to provide a short and plain statement of his
claims showing that he is entitled to relief and do not demonstrate that this action arises
under federal law.
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Therefore, Mr. Smith will be ordered to file an amended complaint that clarifies
the claims he is asserting. Mr. Smith is advised that, in order to state a claim in federal
court, he “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 general rule that pro se pleadings must be
construed liberally has limits and “the court cannot take on the responsibility of serving
as the litigant’s attorney in constructing arguments and searching the record.” Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Accordingly, it is
ORDERED that Mr. Smith file, within thirty (30) days from the date of this
order, an amended complaint that complies with the pleading requirements of Fed. R.
Civ. P. 8 as discussed in this order. It is
FURTHER ORDERED that Mr. Smith shall obtain the appropriate court-approved
Complaint form, along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Mr. Smith fails within the time allowed to file an
amended complaint that complies with this order, the action will be dismissed without
further notice.

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DATED February 7, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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