Hanks et al v. Aminokit Laboratories, Inc. et al

Filing 81

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re denying 27 MOTION to Dismiss or in the Alternative for More Difinite [sic] Statement filed by Tamea Sisco, Aminokit Laboratories, Inc., by Magistrate Judge Michael J. Watanabe on 1/25/2018. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-01108-RM-MJW
BRIAN HANKS and
MAGGIE OLANIE,
Plaintiffs,
v.
AMINOKIT LABORATORIES, INC. a Colorado Corporation;
TAMEA SISCO;
KANE LAI, MD;
HCA HEALTHONE, LLC, a Colorado Limited Liability Company d/b/a SKY RIDGE
MEDICAL CENTER; and
MEDICAL OFFICE BUILDINGS OF COLORADO II, LLC, a Delaware Limited Liability
Company,
Defendants.
RECOMMENDATION ON THE MOTION TO DISMISS, OR IN THE ALTERNATIVE
FOR MORE DIFINITE [SIC] STATEMENT, BY DEFENDANTS AMINOKIT
LABORATORIES, INC. AND TAMEA SISCO
(Docket No. 27)
MICHAEL J. WATANABE
United States Magistrate Judge
This case is before this Court pursuant to an Order Referring Case entered by
Judge Raymond P. Moore on June 28, 2017 (Docket No. 22). Now before the Court is
the Motion to Dismiss, or in the Alternative for More Difinite (sic) Statement, by
Defendants Aminokit Laboratories, Inc. and Tamea Sisco (Docket No. 27). Plaintiffs
filed a response (Docket No. 29). No reply was filed and the deadline to file a reply has
elapsed. Judge Moore referred the subject motion to the undersigned magistrate judge
(Docket No. 28). The Court has reviewed the parties’ filings (Docket Nos. 27 & 29),

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taken judicial notice of the Court’s entire file in this case, and considered the applicable
Federal Rules of Civil Procedure, statutes, and case law. Now being fully informed, the
Court makes the following report and recommendation.
Standard of Review
Defendants Aminokit Laboratories, Inc. (“Aminokit”) and Sisco move for dismissal
under Fed. R. Civ. P. 12(b)(6), or in the alternative, for an order requiring Plaintiffs to file
a more definitive statement of their claims under Fed. R. Civ. P. 12(e). The moving
Defendants also cite to Fed. R. Civ. P. 8 in their motion.
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. Am. Cemetery Ass’n of Kansas, 891
F.2d 1473, 1480 (10th Cir. 1989). The requirements of Rule 8 are designed to meet
these purposes. See TV Comm’s Network, Inc. v. ESPN, Inc., 767 F. Supp. 1062, 1069
(D. Colo. 1991), aff'd, 964 F.2d 1022 (10th Cir. 1992). 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 statement 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.” “At some point the factual detail in a complaint may be so sketchy
that the complaint does not provide the type of notice of the claim to which the
defendant is entitled under Rule 8.” Airborne Beepers & Video, Inc. v. AT & T Mobility
L.L.C., 499 F.3d 663, 667 (7th Cir. 2007).
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Under Rule 12(b)(6), a party may move to dismiss a claim in a complaint for
“failure to state a claim upon which relief can be granted.” The 12(b)(6) standard
requires the Court to “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, LLC v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such a motion, the
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).
Pursuant to Federal Rule of Civil Procedure 12(e), “[a] party may move for a
more definite statement of a pleading to which a responsive pleading is allowed but
which is so vague or ambiguous that the party cannot reasonably prepare a response.”
“A motion pursuant to Fed. R. Civ. P. 12(e) is generally disfavored by the Court.”
Shankar v. Wells Fargo Bank NA, No. 14-cv-02000-CMA-KLM, 2015 WL 870797, at *1
(D. Colo. Feb. 26, 2015). As such, Rule 12(e) motions are “rarely granted unless the
complaint is ‘so excessively vague and ambiguous as to be unintelligible’ or defendant
would be prejudiced in its attempt to answer it.” Id. (quoting Greater N.Y. Auto. Dealers
Ass'n v. Env’t Sys. Testing, Inc., 211 F.R.D. 71, 76 (E.D.N.Y. 2002)). Nonetheless, Rule
12(e) motions may be granted where a complaint’s structure and form make it difficult or
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impossible for a defendant to “ascertain the exact claims pleaded and their nature and
scope.” Green v. Potter, No. 10-cv-02201-LTB-KMT, 2011 WL 2693523, at *5 (D. Colo.
July 12, 2011). The decision to grant or deny a motion for more definite statement rests
within the trial court’s sound discretion. Emp’rs Mut. Cas. Co. v. Downey Excavation,
Inc., No. 10-cv-02043-MSK-KMT, 2011 WL 1335839, at *1 (D. Colo. Apr. 7, 2011).
Analysis
As an initial matter, the motion cites to Rule 12(b)(6) in its first paragraph, but
offers no legal analysis under that rule. Accordingly, the Court recommends that the
motion be denied to the extent it purports to be brought under Rule 12(b)(6). While a
violation of Rule 8 can form the basis for a dismissal under Rule 12(b), Defendants
Aminokit and Sisco provide no legal argument or authority for such a dismissal and it is
not the Court’s role to construct an argument for them. See Cordova v. Aragon, 569
F.3d 1183, 1191 (10th Cir. 2009) (“It is not our role to sift through the record to find
evidence not cited by the parties to support arguments they have not made.”); Adler v.
Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998) (“[D]istrict courts . . . have a
limited and neutral role in the adversarial process, and [ought to be] wary of becoming
advocates who comb the record . . . and make a party’s case for it.”); cf. United States
v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for
truffles buried in briefs.”).
The heart of the motion is a request for the Court to order Plaintiffs to file an
amended complaint that “provide[s] a more definite statement of the plaintiffs’ claims
and allegations.” (Docket No. 27 at 3). The Court construes this as a Rule 12(e)
argument. The moving Defendants state that the Complaint (Docket No. 1) is “90 pages
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long and consists of 430 paragraphs . . .,” which they argue “compromise[s] [their] ability
to properly ascertain and evaluate the bases for the plaintiffs’ various claims against
them.” (Docket No. 27 at 2). Plaintiffs note that because they assert claims under the
Racketeer Influenced and Corrupt Organizations Act (“RICO”), they are required to
describe the alleged scheme in enough detail to meet the requirements of Fed. R. Civ.
P. 9(b). (Docket No. 29 at 2-3). The also explain that they “are required to plead a
pattern of wrongful conduct in support of their RICO and Colorado Consumer Protection
Act, (“CCPA”) claims.” (Id. at 3).
The Court has reviewed the Complaint and found that it is not “so excessively
vague and ambiguous as to be unintelligible” Greater N.Y. Auto. Dealers Ass’n, 211
F.R.D. at 76. The Court also finds that Defendants Aminokit and Sisco will not be
prejudiced by being required to respond to the Complaint. Shankar, 2015 WL 870797,
at *1. Further, the structure of the Complaint is not confusing so as to make it hard for a
reader to understand what claims are being asserted. Green, 2011 WL 2693523, at *5.
For these reasons, the Court recommends that the motion be denied to the extent it
asks the Court to order Plaintiffs to file an amended complaint pursuant to Rule 12(e).
Recommendation
It is hereby RECOMMENDED that the Motion to Dismiss, or in the Alternative for
More Difinite (sic) Statement, by Defendants Aminokit Laboratories, Inc. and Tamea
Sisco (Docket No. 27) be DENIED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b)(2),
the parties have fourteen (14) days after service of this recommendation to serve

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and file specific written objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy. The District Judge need
not consider frivolous, conclusive, or general objections. A party’s failure to file
and serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53
(1985), and also waives appellate review of both factual and legal questions,
Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse,
91 F.3d 1411, 1412-13 (10th Cir. 1996).
Dated:

January 25, 2018
Denver, Colorado

/s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge

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