Donna v. Countrywide Mortgage et al

Filing 8

ORDER Directing Plaintiff to File Second Amended Complaint; 7 Plaintiffs Motion for Extension of 1st Amended Filing Time, is denied as moot, by Magistrate Judge Gordon P. Gallagher on 2/4/15.(morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03515-GPG
LINDA FAYE J. DONNA,
Plaintiff,
v.
COUNTRYWIDE MORTGAGE, a.k.a. BANK OF AMERICA,
BANK OF AMERICA, N.A., A Nationally Chartered Bank, and
NATIONSTAR MORTGAGE, A Nationally Servicing Company,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT

Plaintiff Linda Faye J. Donna, acting pro se, initiated this action by filing a
Complaint, ECF No. 1. The Court reviewed the Complaint, determined that Plaintiff’s
Complaint had failed to comply with Fed. R. Civ. P.8, and directed Plaintiff to file an
Amended Complaint that is in compliance. On February 2, 2015, Plaintiff filed an
Amended Complaint. The Court must construe the Amended Complaint liberally
because Plaintiff 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 act as an advocate for a pro se litigant. See Hall, 935 F.2d at
1110.
The Court has reviewed the Amended Complaint and finds it too does not
comply with Rule 8. The Amended Complaint is repetitive, does not state proper
jurisdiction, and fails to present the claims against Defendants in a short and concise
manner.

As Plaintiff was informed in the January 4, 2015 Order to Amend, 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 (10 th 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 (10 th 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 statem ent 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.” (emphasis added). 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.
Upon review of the “face of the complaint,” the Court finds Plaintiff is asserting
violations of the State of Colorado constitution and other various state law causes of
action, and not claims pursuant to the Constitution and laws of the Unites States. See
Firstenberg v. City of Santa Fe, N.M., 698 F.3d 1018, 1023 (10th Cir. 2012) (in
assessing presence of federal question courts are to look at face of complaint) (quoting
Sac & Fox Nation of Okla. v. Cuomo, 193 F.3d 1162, 1165 (10th Cir. 1999)); see also
Bell v. Hood, 327 U.S. 678, 681 (1946) (must look to the way the complaint is “drawn;”
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must seek a right to recovery under the Constitution and laws of United States). The
Court, therefore, does not have federal question jurisdiction pursuant to 28 U.S.C.
§ 1331 over Plaintiff’s claims. Furthermore, Plaintiff fails to assert diversity jurisdiction
pursuant to 28 U.S.C. § 1332.
Pursuant to 28 U.S.C. § 1332, district courts shall have original jurisdiction over
actions between citizens of different states “where the matter in controversy exceeds
the sum or value of $75,000, exclusive of interest and costs.” The facts essential to
show diversity jurisdiction must be pleaded affirmatively. See Penteco Corp. Ltd.
Partnership-1985A v. Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir. 1991).
Plaintiff alleges that the parties are citizens of different states, but does not specify an
award of damages that satisfies the amount in controversy requirement for diversity
jurisdiction.
Plaintiff also fails to allege specific facts that demonstrate how Defendants
violated the Colorado Constitution, Article VI § 9. Merely making vague and conclusory
allegations that her rights have been violated does not entitle a pro se pleader to a day
in court, regardless of how liberally a court construes such pleadings. See Ketchum v.
Cruz, 775 F. Supp. 1399, 1403 (D. Colo. 1991), aff’d, 961 F.2d 916 (10th Cir. 1992).
“[I]n analyzing the sufficiency of the plaintiff’s complaint, the court need accept as true
only the plaintiff’s well-pleaded factual contentions, not his conclusory allegations.”
Hall, 935 F.2d at 1110. Furthermore, 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).
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Plaintiff will be ordered to file a Second Amended Complaint that provides fair
notice of the specific jurisdiction for filing this action in this Court and assert claims that
identify the legal basis for each claim. Plaintiff also in a simple and concise manner
“must explain what each defendant did to [ ] her; when the defendant did it; how the
defendant’s action harmed [ ] 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). Accordingly, it is
ORDERED that Plaintiff file, within thirty days from the date of this Order, a
Second Amended Complaint that complies with the pleading requirements of Fed. R.
Civ. P. 8 as discussed in this Order. It is
FURTHER ORDERED that Plaintiff shall obtain the appropriate Court-approved
Complaint form, along with the applicable instructions, at www.cod.uscourts.gov, use
the Court-approved form to amend. It is
FURTHER ORDERED that, if Plaintiff fails within the time allowed to file a
Second Amended Complaint that complies with this Order, the action will be dismissed
without further notice. IT IS
FURTHER ORDERED that Plaintiff’s “Motion for Extension of 1st Amended Filing
Time,” ECF No. 7, is denied as moot.
DATED February 4, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher

United States Magistrate Judge

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