Brown v. DISH, L.L.C. et al

Filing 59

ORDER ADOPTING APRIL 21, 2017 RECOMMENDATION OF MAGISTRATE JUDGE GRANTING DEFENDANT'S MOTION TO DISMISS. ORDERED: 1. Plaintiff's Objection 47 to the Magistrate Judge's Recommendation is OVERRULED;2.The Magistrate Judges Recomm endation 41 is ADOPTED in its entirety; 3.Defendant's Motion to Dismiss 27 is GRANTED; 4.The Clerk shall enter judgment in favor of Defendant on all claims and shall terminate this case.5.The parties shall bear their own costs and fees, by Judge William J. Martinez on 7/18/2017. (dhans, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 16-cv-2491-WJM-KMT
FRANK BROWN,
Plaintiff,
v.
DISH NETWORK, L.L.C.,
Defendant.

ORDER ADOPTING APRIL 21, 2017 RECOMMENDATION OF MAGISTRATE JUDGE
GRANTING DEFENDANT’S MOTION TO DISMISS

This matter is before the Court on the April 21, 2017 Recommendation of United
States Magistrate Judge Kathleen M. Tafoya (“Recommendation,” ECF No. 41) that
Defendant’s Motion to Dismiss (the “Motion,” ECF No. 27) be granted. The
Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B);
Fed. R. Civ. P. 72(b). Plaintiff filed an objection to the Recommendation. (“Objection,”
ECF No. 47.) For the reasons set forth below, Plaintiff’s Objection is overruled, the
Magistrate Judge’s Recommendation is adopted, Defendant’s Motion is granted, and
judgment is entered in favor of Defendant on all claims in this matter.
I. STANDARD OF REVIEW
When a magistrate judge issues a recommendation on a dispositive matter,
Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de
novo any part of the magistrate judge’s [recommendation] that has been properly
objected to.” An objection to a recommendation is properly made if it is both timely and

specific. United States v. One Parcel of Real Property Know n as 2121 East 30th St.,
73 F.3d 1057, 1059 (10th Cir. 1996). An objection is suf ficiently specific if it “enables
the district judge to focus attention on those issues—factual and legal—that are at the
heart of the parties’ dispute.” Id. In conducting its review, “[t]he district court judge may
accept, reject, or modify the recommendation; receive further evidence; or return the
matter to the magistrate judge with instructions.” Id. Here, Plaintiff filed a timely
objection to Judge Tafoya’s Recommendation. Therefore, this Court reviews the issues
before it de novo.
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to
dismiss for “failure to state a claim upon which relief can be granted.” In evaluating
such a motion, a court must “assume the truth of the plaintiff’s well-pleaded factual
allegations and view them in the light most favorable to the plaintiff.” Ridge at Red
Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). T he dispositive
inquiry is “whether the complaint contains ‘enough facts to state a claim to relief that is
plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Granting a motion to dismiss “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.” Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir.
2009) (internal quotation marks omitted). “Thus, ‘a well-pleaded complaint may
proceed even if it strikes a savvy judge that actual proof of those facts is improbable,
and that a recovery is very remote and unlikely.’” Id. (quoting Twombly, 550 U.S. at
556).

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Further, in considering Judge Tafoya’s Recommendation, the Court is mindful of
Plaintiff’s pro se status, and accordingly reads his pleadings and filings liberally. Haines
v. Kerner, 404 U.S. 519, 520–21 (1972); Trackwell v. United States Gov’t, 472 F.3d
1242, 1243 (10th Cir. 2007). The Court, however, cannot act as advocate for Plaintiff,
who must still comply with the fundamental requirements of the Federal Rules of Civil
Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also
Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1188 (10th Cir. 2003). 1
II. BACKGROUND
No parties object to the recitation of facts set forth by Judge Tafoya in the April
21, 2017 Recommendation. (See ECF Nos. 41, 47, 49.) Accordingly, the Court adopts
and incorporates the “Statement of the Case” section of the Recommendation as if set
forth herein. (ECF No. 41 at 1–3.)
Briefly, Plaintiff worked for Defendant DISH Network between December 3, 2007
and January 22, 2008. (ECF No. 1 ¶ 5.) Plaintiff was employed as an Associate Tester
and was required to report to the Defendant’s location in Spartanburg, South Carolina.
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Plaintiff objects to Judge Tafoya’s reliance on Hall, in which Judge Tafoya states that
“a pro se litigant’s ‘conclusory allegations without supporting factual averments are insufficient
to state a claim upon which relief can be based.’” (ECF No. 47 at 8 (citing ECF No. 41 at 3
(quoting Hall, 935 F.2d at 1110)).) Plaintiff argues that this “claim made by the Magistrate is
without merit . . . [and t]his is an outdated precedent for which new precedent exist[s].” (ECF
No. 47 at 8 (citing Trackwell, 472 F.3d at 1243).)
First, even with application of the less stringent standard articulated in Trackwell, the
Tenth Circuit still requires all litigants, pro se or not, to plead factual averments that are
sufficient to state a claim. See Smith-Johnson, 207 F. App’x 911, 912 (10th Cir. 2016)
(“Although we construe pro se filings liberally, ‘this court has repeatedly insisted that pro se
parties follow the same rules of procedure that govern other litigants.’” (quoting Nielsen v. Price,
17 F. 3d 1276, 1277 (10th Cir. 1994)). Second, and contrary to Plaintiff’s argument, the Court
finds that Judge Tafoya gave appropriate deference to Plaintiff’s pleadings considering his pro
se status. Accordingly, Plaintiff’s objection to this portion of the Recommendation is overruled.

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(Id. ¶¶ 5–6.) Following his separation from employment with Defendant, on April 21,
2008, Plaintiff was arrested and charged in a Pennsylvania state court with criminal
offenses related to a robbery that occurred in Philadelphia on December 18, 2007. (Id.
¶ 7.)
At trial, Plaintiff asserted that on the day of the robbery he was on assignment for
Defendant in South Carolina. (Id. at ¶ 8.) The prosecution subpoenaed Defendant to
produce employment records demonstrating Plaintiff’s presence in South Carolina on
December 18, 2007. (Id.) The employment records produced did not verify Plaintiff’s
alibi. (Id. ¶ 9 (“Despite the fact that Plaintiff was, in fact, on assignment and physically
present at Defendant’s South Carolina location on December 18, 2007, said
employment records as disclosed by Defendant failed to reflect as much.”).) According
to Plaintiff, “[a]s a consequence, and because Plaintiff was unable to establish that he
was on assignment . . . Plaintiff was found guilty of the charges against him.” (Id. ¶10.)
On March 18, 2010, Plaintiff was sentenced to an indefinite term of seven to fourteen
years in prison, followed by fifteen years of probation. (Id.)
Plaintiff asserts that on June 15, 2015, he obtained em ployment records from
Defendant, which “revealed an error in Defendant’s record-keeping.” (Id. ¶¶ 11–12.)
Plaintiff contends that had these employment records been disclosed before his
criminal trial, he would have been able to demonstrate that Defendant’s record-keeping
was inaccurate and that, contrary to the prosecutor’s contention, Plaintiff was on
assignment in South Carolina on the date of the robbery. (Id. ¶ 16.)

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Based on this course of events, Plaintiff filed the instant action asserting the
following claims: (1) “negligent creation and maintenance of employment records” (i.e.,
negligent recordkeeping) and (2) “negligent search, retrieval, production and disclosure
of employment records” (i.e., negligent misrepresentation). (ECF No. 1 at 6–13.) After
Plaintiff filed his complaint, United States District Judge Lewis T. Babcock sua sponte
dismissed Plaintiff’s negligent misrepresentation claim, finding that such a claim was
not actionable under the circumstances. (ECF No. 7 at 4–5.) Plaintiff moved for
reconsideration of the dismissal of his negligent misrepresentation claim (see ECF
No. 17), however this Court agreed with Judge Babcock in that Plaintiff could not state
such a claim, and accordingly denied Plaintiff’s motion (ECF No. 39).2
III. ANALYSIS
Judge Tafoya recommended that Defendant’s Motion be granted “and that
Plaintiff’s claims be dismissed with prejudice for failure to state a claim upon which
relief can be granted.” (ECF No. 41 at 7.) Judge Tafoya made several findings to
reach that recommendation.
First, Judge Tafoya found that “Colorado does not recognize a claim for
negligent recordkeeping.” (Id. at 5 (citing Cash v. Minnequa Bank of Pueblo, 426 P.2d
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In Plaintiff’s Objection, he again “objects to the dismissal of Plaintiff’s negligent
misrepresentation claim.” (ECF No. 47 at 9.) Plaintiff asserts that “within the Magistrate’s
recommendation, the magistrate confirms the dismissal of my negligent misrepresentation
claim.” (Id.) In the Court’s view, this is an improper second attempt to object to the dismissal of
his claim. Rule 72 permits a party to “file specific written objections to the proposed findings
and recommendations.” Fed. R. Civ. P. 72(b)(2) (emphasis added). Here, Judge Tafoya, in a
footnote, merely recognized that this Court had previously dismissed his claim for negligent
misrepresentation—indeed no analysis was provided regarding the negligent misrepresentation
claim. (See ECF No. 41 at 3 n.1.) Thus, this footnote does not constitute a “finding” or
“recommendation” that Plaintiff could properly object to. Accordingly, Plaintiff’s objection to this
portion of the Recommendation is overruled.

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767, 770 (Colo. 1967) (analyzing claim for negligent recordkeeping under theory of
negligence)).) Second, Judge Tafoya found that a two-year statute of limitations
applies to negligence claims, and that Plaintiff’s claims are therefore barred by the
statute of limitations. (Id. at 5–7 (citing Colo. Rev. Stat. § 13-80-102(1)(a)).)
Plaintiff contends that Judge Tafoya’s conclusion that Colorado does not
recognize a negligent recordkeeping claim “is false and contrary to Colorado law.”
(ECF No. 47 at 6 (citing Click v. Lupori, 2014 WL 7228747, at *1 (D. Colo. Dec. 16,
2014)).) Plaintiff maintains that the plaintiff in Click asserted a negligent recordkeeping
claim and that “this recordkeeping claim made it all the way to trial and was heard and
decided on by a jury.” (Id. at 6–7.)
However, Plaintiff’s misunderstands the holding in Click. There the plaintiff sued
her dentist for professional negligence based on the negligent extraction of her wisdom
teeth. See Click, 2014 WL 7228747, at *1. W hile the plaintiff did call attention to her
dentist’s recordkeeping problems, the court noted that a medical providers negligence
in keeping inaccurate medical records may only be analyzed under a professional
negligence claim as “part of his overall ‘treatment’ of the patient.” Id. at *6–7. Thus, in
the Court’s view, the plaintiff in Click clearly did not bring a claim for negligent
recordkeeping that “made it all the way to trial.”
Further, as cited in Judge Tafoya’s Recommendation, in Minnequa Bank of
Pueblo the Colorado Supreme Court found the defendant bank careless and negligent
in the recordkeeping of its safety deposit box receipts, but went on to analyze
defendant’s conduct under a civil negligence claim, not a negligent recordkeeping

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claim. Minnequa Bank of Pueblo, 426 P.2 at 770. Thus, the Court finds that Judge
Tafoya properly concluded that Colorado does not recognize a claim for negligent
recordkeeping. Accordingly, Plaintiff’s objection to this portion of the Recommendation
is overruled.3
Plaintiff also objects to Judge Tafoya’s finding that “Plaintiff’s claims are barred.”
(ECF No. 41 at 6.) Judge Tafoya correctly noted that “Colorado’s general discovery
rule provides that claims accrue when a plaintiff knows or should know through
reasonable diligence of both the injury and its cause.” (Id. at 6 (citing Micale v. Bank
One N.A., 382 F. Supp. 2d 1207, 1225 (D. Colo. 2005)).) Based on her finding that
Plaintiff’s claim should be properly construed as one for negligence, Judge Tafoya
applied a two-year limitations period. (Id. at 5.) Judge Tafoya then found that by
“February 1, 2010, Plaintiff knew or should have known of his injury—his
conviction—and its cause—his inability to provide an alibi due to the Defendant’s
alleged failure to provide records to back up his alibi.” (Id. at 7.) Judge Tafoya
concluded that “[b]ecause Plaintiff’s claims accrued, at the latest, on February 1, 2010,
he had until February 1, 2012, at the latest to file his Complaint . . . but he did not file
his case in this Court until October 4, 2016.” (Id.)4

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There is also a serious question whether Colorado would recognize any cause of
action that presumes the innocence of a person still subject to a conviction. But the Court need
not address that question in these circumstances.
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Plaintiff’s criminal trial began on February 1, 2010, he was convicted on February 2,
2010, and was sentenced on March 18, 2010. (ECF No. 1 ¶ 10.) Picking among these dates is
immaterial to the outcome of Plaintiff’s case. The Court therefore need not decide precisely
when Plaintiff’s claim accrued.

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In his Objection, Plaintiff asserts that he did not discover the basis of his claims
until June 2015, when he received the employment records from Defendant. (ECF No.
47 at 5.) Plaintiff further asserts that he “had absolutely no employment records from
the Defendant that may have indicated [his] attendance for the entire week of
December 15, 2007 through December 22, 2007.” (Id. at 2.) Given this position,
Plaintiff appears to object to the following statement by Judge Tafoya:
The fact that Plaintiff received what he believes is proof of
the Defendant’s failure to provide proper documentation in
June 2015 is irrelevant, because he has known or should
have known that the Defendant’s records did not match his
own records, which Plaintiff alleges is the reason for his
conviction, no later than the date he was found guilty of the
charges.
(ECF No. 41 at 7.)
Plaintiff argues that “[t]his is an absolute misinterpretation of the Magistrate[’]s
part as I had absolutely no employment records that contradicted the records produced
by the Defendant.” (ECF No. 47 at 3.) And, “[c]ontrary to Magistrate’s interpretation, I
never made any statements within my Complaint which would make a person believe
that I had employment records for which to contradict Defendant’s employment records
[provided at trial].” (Id.)
Plaintiff misinterprets Judge Tafoya’s findings in her Recommendation. When
Judge Tafoya stated that Plaintiff “has known or should have know that the Defendant’s
records did not match his own records,” she was not referring to actual physical records
in Plaintiff’s possession. Rather, Judge Tafoya was referring to Plaintiff’s belief or
recollection that formed that basis of his assertion at trial that he was on assignment in
South Carolina on the date of the crime. In fact, in Plaintiff’s own Complaint he
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references this belief (without mentioning any physical records in his possession), when
he alleged “that Plaintiff was, in fact, on assignment and physically present at
Defendant’s South Carolina location on December 18, 2007, [albeit] said employment
records as disclosed by Defendant failed to reflect as much.” (ECF No. 1 ¶ 9.)
Thus, the Court finds disingenuous Plaintiff’s contention that he could not have
known of his injury—the conviction—until June 2015 when he received the employment
records from Defendant. In the Court’s view, the allegations in Plaintiff’s Complaint
clearly reveal that he should have known of his potential claim against Defendant at the
latest date of March 18, 2010, when he was sentenced for his criminal conviction. (See
id. ¶ 10.) Accordingly, Judge Tafoya correctly found that Plaintiff’s claims are barred by
the applicable statute of limitations. See Colo. Rev. Stat. § 13-80-102(1)(a). Plaintiff’s
objection to this portion of the Recommendation is overruled.
IV.CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Plaintiff’s Objection (ECF No. 47) to the Magistrate Judge’s Recommendation is
OVERRULED;

2.

The Magistrate Judge’s Recommendation (ECF No. 41) is ADOPTED in its
entirety;

3.

Defendant’s Motion to Dismiss (ECF No. 27) is GRANTED;

4.

The Clerk shall enter judgment in favor of Defendant on all claims and shall
terminate this case.

5.

The parties shall bear their own costs and fees.

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Dated this 18th of July, 2017.
BY THE COURT:

_________________________
William J. Martínez
United States District Judge

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