Briggs et al v. Deutsche Bank National Trust Company et al

Filing 74

MINUTE ORDER: The Motion to Strike [# 53 ] is DENIED and the Affidavit Motion [# 62 ] is GRANTED. The Affidavit of Service [# 57 ] purporting to evidenceservice of a summons on Mares is STRICKEN. By Magistrate Judge Kristen L. Mix on 3/21/2014.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02433-MSK-KLM
VALORIE BRIGGS, and
JOHN A. DAVIS,
Plaintiff,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,
HELLERSTEIN AND SHORE, PC, and
DAVID A. SHORE, individually and corporate capacities,
Defendants.
_____________________________________________________________________
MINUTE ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on non-party Cynthia Mares’ (“Mares”) Motion to
Strike [#53]1 (the “Summons Motion”) and Cynthia Mares’ Motion to Strike Affidavit of
Service [#62] (the “Affidavit Motion” collectively with the Summons Motion, the “Motions”).
On March 20, 2014, Plaintiffs filed a Response [#72] to the Affidavit Motion. Mares has not
filed a reply in support of the Affidavit Motion and Plaintiffs have not filed a response to the
Summons Motion.2 Pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c), the
Motions have been referred to this Court for disposition [##60, 63]. For the reasons set
forth below, the Motion to Strike [#53] is DENIED and the Affidavit Motion [#62] is
GRANTED.
On February 13, 2014, the Court granted Plaintiffs, who proceed in this matter pro

1

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

Pursuant to D.C.COLO.LCivR 7.1(d), the Court may rule on a pending motion at any time.

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se,3 leave to file their First Amended Complaint. Accordingly, the First Amended Complaint
[#51] was filed that day. Plaintiffs name four Defendants in the First Amended Complaint:
Deutsche Bank National Trust Company, as Trustee; Mortgage Electronic Registration
Systems, Inc.; Hellerstein and Shore, PC; and David A. Shore. See First Am. Compl. [#51]
at 1, 4-5. Plaintiffs do not name Cynthia Mares or her position, the Arapahoe County Public
Trustee, as defendants in this action. However, Mares was served with a summons and
a document titled “Plaintiffs[‘] Second Amended Complaint.” See generally Motion, Ex. A
[#53-1]. In their Response, Plaintiffs contend that Mares is a named defendant in this
lawsuit. Response [#72] at 2. That is incorrect. The operative complaint, the First
Amended Complaint [#51], does not name either Mares or the Arapahoe County Public
Trustee as a defendant.
In the Motions, Mares seeks relief pursuant to Fed. R. Civ. P. 12(f), which allows the
Court to “strike from a pleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Pursuant to Fed. R. Civ. P. 7, “pleading” is defined to
include a complaint but not a summons or an affidavit. However, the document titled
“Plaintiffs[‘] Second Amended Complaint” was not filed in this action even though it purports
to be a complaint in this action. For that reason, the Court will not strike “Plaintiffs[‘]
Second Amended Complaint” that was served on Mares.
Regarding the summons served on Mares and the related Affidavit of Service [#57],
Fed. R. Civ. P. 4(a)(1)(B) requires that a summons be directed to a defendant. Further,
Fed. R. Civ. P. 12(1)(A) requires that a defendant serve an answer to a complaint. Mares
is not a defendant in this action and, therefore, the summons she received which states
that she “must serve on the plaintiff an answer to the attached complaint or a motion under
Rule 12 of the Federal Rules of Civil Procedure” was improper. Further, the Affidavit of
Service [#57] is deficient both because it states that service was effected on a nonparty and
because it only states that a summons was served on her. See Aff. of Service [#57] at 1
(stating that Mares was served with a “SUMMONS IN A CIVIL ACTION” but not mentioning
service of a complaint). Fed. R. Civ. P. 4(c)(1) states that a “summons must be served with
a copy of the complaint.” Accordingly, the Court will strike the Affidavit of Service [#57] filed
by Plaintiffs that purports to evidence service of a summons on Mares. Therefore,
IT IS HEREBY ORDERED that the Motion to Strike [#53] is DENIED and the
Affidavit Motion [#62] is GRANTED.

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The Court must construe the filings of pro se litigants liberally. 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 the pro se litigants’ advocate, nor should the Court “supply additional factual
allegations to round out [the pro se litigants’] complaint or construct a legal theory on [their] behalf.”
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110).
In addition, pro se litigants must follow the same procedural rules that govern other litigants.
Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).

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IT IS FURTHER ORDERED that the Affidavit of Service [#57] purporting to evidence
service of a summons on Mares is STRICKEN.
Dated: March 21, 2014

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