Claypool v. Thompson et al

Filing 6

ORDER. Plaintiff may file an amended complaint by or before Friday, 6/14/2013. By Judge Philip A. Brimmer on 5/17/13. (mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-01180-PAB
GEORGE LEONARD CLAYPOOL,
Plaintiff,
v.
BRUCE R. THOMPSON (C.F.O.) and
BANK OF AMERICA N/A,
Defendants.

ORDER

This matter is before the Court on the Affidavit of Facts [Docket No. 5] filed by
plaintiff George Leonard Claypool on May 13, 2013. Mr. Claypool brought this action
against defendants Bruce R. Thompson and Bank of America, N/A on May 3, 2013,
alleging violations of the Fourth, Fifth, Sixth, Seventh, Ninth, Eleventh, Thirteenth, and
Fourteenth Amendments in the foreclosure and sale of his property by defendants.
Docket No. 1 at 1.
On May 7, 2013, the Court issued an Order to Show Cause why this case should
not be dismissed for failure to comply with Federal Rule of Civil Procedure 8(a). Docket
No. 4. In particular, the Court noted that the complaint referred to an “Affidavit of
Facts,” but that no such affidavit was attached to the complaint. Plaintiff’s response to
the Order to Show Cause appears to be the Affidavit of Facts.
Rule 8(a)(2) requires that a complaint contain “a short and plain statement of the

claim showing that the pleader is entitled to relief.” As the Court explained in its Order,
“mere labels and conclusions[ ] and a formulaic recitation of the elements of a cause of
action will not suffice; a plaintiff must offer specific factual allegations to support each
claim.” Burnett v. Mortgage Electronic Registration Sys., Inc., 706 F.3d 1231, 1235
(10th Cir. 2013) (internal citations omitted). Furthermore, “to state a claim in federal
court, a complaint must explain what each defendant did to [the plaintiff]; when the
defendant did it; how the defendant’s action harmed [the plaintiff]; 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 affidavit sets forth the following factual allegations:
•

Your Affiant has proof that the Defendants Bruce R. Thompson (CFO)
of BANK OF AMERICA N/A and BANK OF AMERICA N/A has
committed Fraud upon the Affiant “George” one of the People.

•

Your Affiant has proof that the Defendants have not given full
disclosure of the Truth in Lending rules and that the Defendants did
not Loan your Affiant “George” any moneys for the purchase said
property and that the Promissory Note that was signed by your Affiant
was in fact turned over to the US Treasury for full payment on or
about August 14, 2006.

•

Your Affiant “George” was not told at the time of closing that the
property in question was being signed over to BANK OF AMERICA
N/A for BANK OF AMERICA N/A to resale it back to your Affiant
“George”. This action by the Defendants proves Fraud and deception
on the Affiant “George”.

Docket No. 5 at 2, ¶¶ 6-8. The remainder of the affidavit contains statements of law
and general allegations. See, e.g., Docket No. 5 at 2, ¶ 4 (“Your Affiant at all times
claims all and waives none of his God given inherent, unlimited, unalienable, secured
and guaranteed Rights pursuant to the Declaration of Independence and the
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Constitution of the united [sic] States of America as ratified 1791 with the Articles of the
Amendments.”).
The factual allegations in the complaint, as supplemented by the affidavit of
facts, are insufficient under Rule 8(a) as they do not “explain what each defendant did
to [the plaintiff]; when the defendant did it; how the defendant’s action harmed [the
plaintiff]; and, what specific legal right the plaintiff believes the defendant violated.”
Nasious, 492 F.3d at 1163. These statements are likewise too vague and conclusory to
fulfill the purpose of notice pleading, which is to “give the defendant[s] fair notice of
what the [plaintiff’s] claim is and the grounds upon which it rests.” Erickson v. Pardus,
551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). For example, the affidavit refers to property that Mr. Claypool purchased, but
does not identify where the property is or how or when he purchased it. Docket No. 5 at
2, ¶ 7. Likewise, it refers to a loan, but does not indicate who extended the loan or
recite any of the relevant terms of the loan agreement. Id. Moreover, the complaint
does not describe any actions taken by Mr. Thompson or Bank of America or explain
how such actions harmed Mr. Claypool. See Nasious, 492 F.3d at 1163. In sum,
plaintiff has not cured the deficiencies identified in the Order to Show Cause.
Dismissal is “a harsh remedy which must be cautiously studied, not only to
effectuate the spirit of the liberal rules of pleading but also to protect the interests of
justice.” Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1359
(10th Cir. 1989) (quoting Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.
1986)). In this jurisdiction, a court typically does not dismiss a case for failure to state a

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claim until the plaintiff has been provided notice and an opportunity to amend the
complaint to cure the defective allegations. See Hall v. Bellmon, 935 F.2d 1106,
1109-10 (10th Cir. 1991). The Court may only dismiss “sua sponte when it is ‘patently
obvious’ that the plaintiff could not prevail on the facts alleged, and allowing him an
opportunity to amend his complaint would be futile.” Id. (quoting McKinney v.
Oklahoma, 925 F.2d 363, 365 (10th Cir. 1991)). Mr. Claypool has not previously
amended his pleading and the statements in his affidavit suggest that some of the
deficiencies found herein may be cured. Thus, because it is possible Mr. Claypool may
cure his pleading deficiencies, the Court will allow him to file an amended complaint
within thirty days of this Order. If plaintiff does not file an amended complaint or if any
amended complaint he files does not cure the noted deficiencies, the case will be
dismissed. Accordingly, it is
ORDERED that plaintiff may file an amended complaint by or before Friday,
June 14, 2013.

DATED May 17, 2013.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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