Ortiz et al. v. Depriest et al.

Filing 61

ORDER: 54 Motion to Strike Plaintiffs' Second Amended Complaint is GRANTED; 57 Motion to Strike is GRANTED; 58 Motion to Dismiss Defendant Julie Myers Wood is MOOT; 59 Plaintiffs' Motion for Leave to Amend Complaint is DENIED. The Court grants leave to amend, and specifically, to file a Fourth Amended Complaint that is Compliant with Rule 8. by Judge R. Brooke Jackson on 7/8/15.(jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 14-cv-02639-RBJ
ANSELMO ORTIZ ORTIZ,
JOHANNA ORTIZ, and
ARMANDO ORTIZ,
JOSE LUIS ESPINOSA RODARTE
Plaintiffs,
v.
TRAVIS DePRIEST, Colorado State Patrol,
STEVEN JOHNSON, Colorado State Patrol,
BRYAN LARREAU, Colorado State Patrol,
GEORGE DINGFELDER, Colorado State Patrol,
MARK TROSTEL, Colorado State Patrol,
DOYLE EICHER, Colorado State Patrol,
JOHN DOE 1, Colorado State Patrol,
LINETTE SCHMIDT, Colorado State Patrol,
JOHN DOE 2, Colorado State Patrol,
JOHN DOE 3, Colorado State Patrol,
BILL RITTER, State of Colorado,
LOUIS GALLEGOS, Louis’ Paint and Body,
JULIE L. MYERS, U.S. Department of Homeland Security Immigration and Customs
Enforcement,
EDWARD TOLBERT, U.S. Department of Homeland Security Immigration and Customs
Enforcement,
JOHN P. LONGSHORE, U.S. Department of Homeland Security Immigration and Customs
Enforcement,
HARRY M. QUALANTONE, U.S. Department of Homeland Security Immigration and
Customs Enforcement, and
HOLLY LANDGREN, U.S. Department of Homeland Security Immigration and Customs
Enforcement,
Defendants.

ORDER

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This order addresses (1) the motion of the “State Defendants” to strike plaintiffs’ Second
Amended Complaint,1 (2) the motion of the “Federal Defendants” either to strike the Second
Amended Complaint or for a more definite statement; (3) the separate motion of one of the
“Federal Defendants” to dismiss for lack of personal jurisdiction; and (4) plaintiffs’ motion for
leave to amend by filing a proposed Third Amended Complaint. The motions to strike are
granted; the motion to dismiss is moot; and the motion for leave to amend is denied.
BACKGROUND
As best I can tell, the essence of this case is that Anselmo Ortiz Ortiz and Jose Luis
Espinosa Rodarte were detained and arrested as a result of racial profiling. Both gentlemen
apparently were in the United States illegally at the time, but they allege that they were detained
without reasonable suspicion and arrested without probable cause in violation of the Fourth
Amendment and perhaps other laws. The problem is that the basic core of the case is lost in a
pleading morass that successive iterations of the complaint have, if anything, made worse.
The initial Complaint, ECF No. 1, was 79 pages long, contained 134 numbered
paragraphs (excluding the prayer for relief), asserted eight claims for relief, and named 19
defendants. Two of the defendants, the Conejos County Commissioners and the Conejos County
Sheriff, moved to dismiss under Rule 12(b)(6) and for sanctions under Rule 11 and 28 U.S.C. §
1927. The motions became moot when plaintiffs filed their First Amended Complaint (which
omitted the Commissioners but still named the Sheriff).

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Although the movants bill themselves as the “State Defendants,” they include one individual (James)
who was voluntarily dismissed before the Second Amended Complaint was filed, and they omit four
individuals (Larreau and the three John Doe’s) who presumably should be included among the “State
Defendants.”

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The First Amended Complaint was 167 pages long, contained 584 numbered paragraphs
(excluding the prayer for relief), asserted seven claims, and named 19 defendants. Two
defendants (the Conejos County Sheriff, Robert Gurule, and a state patrol officer, Todd James)
were voluntarily dismissed. The Court then, sua sponte, struck the First Amended Complaint for
failure to comply with Rule 8 of the Federal Rules of Civil Procedure [ECF No. 51]. In its
Minute Order the Court found that the First Amended Complaint “does not contain a short and
plain statement of the claims, both due to its unnecessary and unreasonably length and because it
contains a substantial amount of extraneous matter that has no place in a complaint.” Id.
The plaintiffs then filed their Second Amended Complaint. This time Jose Luis Espinosa
Rodarte was added as an additional plaintiff, although the allegations concerning him were
relatively sparse. Plaintiffs allege that a state patrolman, Bryan Larreau (not previously named
as a defendant) stopped Mr. Espinosa Rodarte in October 2014 purportedly on a (bogus) claim of
a windshield obstruction, but actually because of his Hispanic appearance; interrogated him
about his immigration status; arrested him; and turned him over to immigration officers. [ECF
No. 53 at ¶¶6, 296.]
But the brevity of the allegations concerning Mr. Espinosa Rodarte is belied by the
Second Amended Complaint as a whole. Although a little shorter than the First Amended
Complaint, it has 137 pages, 491 numbered paragraphs (exclusive of the prayer for relief),
asserts seven claims, and names 17 defendants. Once again various defendants responded with
motions to dismiss or strike. But rather than responding to any of these motions, the plaintiffs
filed a motion for leave again to amend their complaint. With that motion they tendered their
proposed Third Amended Complaint. But this latest version is itself a monster: 151 pages long,

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567 numbered paragraphs (exclusive of the prayer for relief), 17 claims for relief, and 16
defendants. [ECF No. 59-1.]
I wish to emphasize, however, that length is only one of the problems with these
complaints. The Second Amended Complaint, for example, in parts reads as if counsel is just
regurgitating a story told to him by his clients, in parts like a display of the breadth of counsel’s
knowledge of immigration law, and in parts like a polemic against the immigration system as a
whole. Plaintiffs name several individuals who, based on the pleading itself, seem to have little
if anything to do with what happened to Mr. Ortiz Ortiz and Mr. Espinosa Rodarte. It several
times attributes wrongdoing to “defendant” [presumably former Security Janet] Napolitano but
does not name her in the caption. The pleading contains excessive, often extraneous, allegations
of supposed fact. For example, apparently worried about statute of limitations problems, counsel
includes numerous allegations attempting to refute that potential defense that are better suited for
a response to a summary judgment motion. Some of these allegations might make counsel a
necessary witness. The convention of pleading “on information and belief,” repeated 52 times in
the Second Amended Complaint, seems to be viewed as an open invitation to plead anything that
might turn out to have some basis in fact. Although the Court has not yet reached or decided the
merits of any of the claims for relief, some of them appear to lack merit on their face (and they
multiply in the proposed Third Amended Complaint).
CONCLUSIONS
The Second Amended Complaint fails to comply with Rule 8’s requirement of a short
and plain statement of the claims. I am well aware that federal court plaintiffs need to plead
sufficient facts to state plausible claims for relief. The Second Amended Complaint may or may

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not meet that standard somewhere within its boundaries, but it fails any reasonable application of
Rule 8.
The question is what to do about it. The Court’s comments in striking the First Amended
Complaint appear to have fallen on deaf ears. The proposed Third Amended Complaint is even
worse, in a Rule 8 sense, than the first three versions. It is unfair to repeatedly put all these
defendants to the expense of filing motions to strike or dismiss, each time to be greeted by yet
another version of the complaint that moots the latest round of motions. On the other hand, it is
possible that there might be a meritorious case in there somewhere. If, and I emphasize if, there
are law enforcement officers out there who are detaining or arresting people with no basis other
than their Hispanic appearance, then that is a wrong that begs for a right. But there comes a time
when enough is enough.
The Court will give plaintiffs one more chance to structure a complaint that meets the
letter and spirit of Rules 8 (and 11) of the Federal Rules of Civil Procedure. No defendant
should be named without a good faith basis in fact and law to believe that he or she committed a
wrong that caused actual harm to one or more of the plaintiffs. No claim should be asserted
without a good faith basis to believe it is well grounded in fact and in law and is necessarily
asserted in the proper representation of the plaintiffs. No allegation of fact should be asserted
without a good faith basis in fact and law. This Court liberally permits amendment of pleadings
if important facts are developed through disclosures and discovery. If, however, plaintiffs file
another non-compliant pleading, they should expect dismissal and the possibility of sanctions.

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ORDER
1. The Motion to Strike Plaintiffs’ Second Amended Complaint [ECF No. 54] is
GRANTED. The Second Amended Complaint [ECF No. 53] is stricken.
2. The Motion to Strike Plaintiffs’ Second Amended Complaint or, Alternatively, For a
More Definite Statement [ECF No. 57] is GRANTED. The Second Amended Complaint is
stricken.
3. The Motion to Dismiss Defendant Julie Myers Wood [ECF No. 58] is MOOT. The
Court expresses no opinion on the merits of the motion. The Court assumes and expects that
counsel will consider the viability of the plaintiffs’ claims against Ms. Wood, including the
jurisdictional issue, in his analysis of what claims to assert in a Fourth Amended Complaint.
4. Plaintiffs’ Motion for Leave to Amend Complaint [ECF No. 59] is DENIED. It is
denied because the proposed Third Amended Complaint does not comply with Rule 8 of the
Federal Rules of Civil Procedure. The Court grants leave to amend, and specifically, to file a
Fourth Amended Complaint that is Compliant with Rule 8.
DATED this 8th day of July, 2015.

BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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