Lucero v. Gordon et al

Filing 23

ORDER: The Recommendation 21 is adopted in its entirety. Plaintiff's Objection 22 is overruled. Defendants' Motion to Dismiss 13 is granted. Plaintiff's Fourteenth Amendment claim is dismissed with prejudice. The Court declines t o exercise its supplemental jurisdiction over Plaintiff's remaining state law claim of fraud and thus that claim is dismissed without prejudice. Clerk shall enter judgment in favor of Defendants. Each party shall bear his or its own attorneys' fees and costs, By Judge William J. Martinez on 12/17/2018. (ebuch)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 17-cv-3142-WJM-KMT
ANTHONY J. LUCERO,
Plaintiff,
v.
PAUL GORDON, and
PAUL GORDON LLC,
Defendants.

ORDER ADOPTING SEPTEMBER 17, 2018 RECOMMENDATION OF MAGISTRATE
JUDGE GRANTING DEFENDANTS’ MOTION TO DISMISS, DISMISSING
PLAINTIFF’S CONSTITUTIONAL CLAIM, AND DECLINING TO EXERCISE
SUPPLEMENTAL JURISDICTION OVER THE REMAINING STATE LAW CLAIM

This matter is before the Court on United States Magistrate Judge Kathleen M.
Tafoya’s Recommendation dated September 17, 2018 (the “Recommendation”) (ECF
No. 21), which recommended that this Court grant Defendant Paul Gordon and
Defendant Paul Gordon, LLC’s (collectively, “Defendants”), Motion to Dismiss (ECF No.
13) Anthony J. Lucero’s (“Plaintiff”) claims as follows: (1) dismiss, with prejudice,
Plaintiff’s Fourteenth Amendment claim; and (2) decline to exercise supplemental
jurisdiction over Plaintiff’s remaining fraud claim. The Recommendation is incorporated
herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). Plaintiff filed
a timely Objection to the Recommendation (“Objection”). (ECF No. 22.) For the
reasons set forth below, Plaintiff’s Objection is overruled, the Recommendation is
adopted in its entirety, Defendants’ Motion to Dismiss is granted, Plaintiff’s Fourteenth

Amendment claim is dismissed with prejudice, and Plaintiff’s fraud claim is dismissed
without prejudice.
I. BACKGROUND
The Court derives the following primarily from Defendants’ Motion to Dismiss
(ECF No. 13) and the exhibits attached to that motion. This is because Plaintiff’s
complaint (ECF No. 1) and amended complaint (ECF No. 9) (the “Amended Complaint”)
are completely devoid of information needed to separately provide this Court with
needed context and background.
In 2006, Plaintiff sustained serious injuries while working at a hotel. (ECF No.
13-5 at 2.) Plaintiff retained attorney James R. Koncilja and law firm Koncilja & Koncilja,
P.C. (collectively, “Koncilja”), who filed a personal injury action on Plaintiff’s behalf in
November 2008. (Id.) That action was eventually dismissed in 2010 “for failure to
respond to a delay prevention order and otherwise diligently prosecute the case.” (Id.)
In 2011, Plaintiff retained Defendants to file an action against Koncilja alleging
professional malpractice and breach of contract in the handling of the personal injury
case. (Id.) This lawsuit was ultimately dismissed in 2012 because Plaintiff: (1) had
failed to obtain expert testimony after it had been “deemed to be necessary to
determine whether Koncilja’s actions constituted negligence or a breach of contract”;
and (2) “had not filed a certificate of review as required by statute.” (Id.) The Colorado
Court of Appeals subsequently affirmed that dismissal ruling. (Id. at 3.)1

1

Plaintiff then filed a petition for writ of certiorari, which was denied by the Colorado
Supreme Court. Lucero v. Koncilja, 2018 WL 4242924, at *2 (D. Colo. Sept. 6, 2018). Soon
after, Plaintiff, proceeding pro se, filed a second malpractice lawsuit against Koncilja in
Colorado state court. Id. In dismissing the action, the trial court noted that “the issues raised in

2

On October 17, 2013, Plaintiff, proceeding pro se, filed an action against
Defendants in Colorado state court. (Id.) In the lawsuit, Plaintiff alleged that the
Defendants were “negligent in handling the legal malpractice case against Koncilja.”
(Id.) This time Plaintiff filed a certificate of review but once again did not designate any
expert witness for trial. (Id.) On October 28, 2014, Defendants filed a motion for
summary judgment, arguing that Plaintiff had continually “failed to endorse any expert
witness” even though such “expert testimony was necessary to show professional
negligence.” (ECF No. 13-1 at 2.) The state court denied the motion and subsequently
granted Plaintiff multiple continuances under “the belief that Plaintiff, who remains pro
se, should be given extra reasonable opportunities to comply with the expert witness
disclosure requirements.” (Id. at 2–3.)
In its last continuance, the court required Plaintiff to disclose who his “expert
witness might be” by June 1, 2015. (Id. at 3.) When Plaintiff failed to do so, the court
granted Defendants’ second motion for summary judgment. (Id. at 5.) The court noted
that “[d]espite numerous opportunities and time to endorse an expert to opine on the
standard of care purportedly breached by [Defendants], Plaintiff has failed to disclose
any expert.” (Id. at 5.)

the instant case are the same issues that were or should have been raised in [Plaintiff’s first
malpractice lawsuit].” Id. In addition, the court noted that Plaintiff once again did not file the
required certificate of review. Id. Instead of appealing the court’s dismissal, Plaintiff filed a
motion for relief. Id. This motion was denied by the trial court because “Plaintiff’s remedy . . .
was to file a Notice of Appeal.” Id. Plaintiff appealed the trial court’s denial of his motion for
relief but the Colorado Court of Appeals affirmed the order. Id. Plaintiff then filed a petition for
writ of certiorari, which was again denied by the Colorado Supreme Court. Id. Soon after,
Plaintiff brought a third malpractice action against Koncilja, this time before this Court. Id.
Plaintiff’s federal question claim (that Koncilja violated Plaintiff’s Fourteenth Amendment Due
Process right by not adequately investigating Plaintiff’s case) was dismissed and this Court
declined to exercise supplemental jurisdiction over Plaintiff’s state law claims. Id. at *5–6.

3

Plaintiff failed to appeal this judgment within the time permitted by Colorado law,
but instead filed a motion for relief from judgment. (ECF Nos. 13 at 2 & 13-5 at 3.) In
the motion, Plaintiff relied primarily on the argument that the Defendants had attached a
fraudulent affidavit (the “Affidavit”) to their summary judgment motion. (ECF No. 13-5 at
3.) The Affidavit described alleged discussions the Defendants had with Plaintiff
concerning: “(1) [the] likely difficulty in collecting on any judgment they might obtain
against Koncilja; (2) [Defendants’] unwillingness to advance [Plaintiff] funds for obtaining
a certificate of review[;] and (3) [Plaintiff’s] options[2] concerning filing or not filing a
certificate of review.” (Id. at 3–4.) After concluding that Plaintiff had failed to show that
relief was warranted, the Colorado trial court denied the motion. (Id. at 4.)
Plaintiff then initiated appellate proceedings, resulting in the Colorado Court of
Appeals affirming the denial of the motion for relief from judgment. (Id. at 11.) After
“filing an unsuccessful motion to disqualify two members of the panel of the Court of
Appeals (ECF Nos. 13-6 & 13-7) and an unsuccessful petition for rehearing (ECF Nos.
13-8 & 13-9), [Plaintiff] filed a petition for a writ of certiorari to the Colorado Supreme
Court which was likewise denied (ECF Nos. 13-10 & 13-11).” (ECF No. 13 at 2–3.)
On December 22, 2017, Plaintiff, proceeding pro se, filed this case asserting
claims against the Defendants for violations of his Fourteenth Amendment Due Process

2

In particular, the Affidavit alleges: “[Defendants] instructed [Plaintiff] that he had the
option of paying for an expert to provide a certificate of review, to forego his claims against
Koncilja, or to authorize [Defendants] to proceed without a certificate of review on the theory
that a certificate of review was not necessary because the claims against Koncilja were simple
and easy to understand, such that a certificate of review was unnecessary. [Defendants]
explained the risks of all three options, and [Plaintiff] acknowledged those risks. [Plaintiff]
elected to proceed with the claims against Koncilja, but without obtaining a certificate of review.”
(ECF No. 13-2 ¶¶ 3–4.)

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right and for fraud. (ECF No. 1; ECF No. 9 at 2–3.) In particular, Plaintiff alleges that
Defendants, who represented him in the malpractice lawsuit against Koncilja, “violated
[his] rights to due process of the law by choosing not to file the requisite certificate of
review” and by failing to “do any interrogatories, depositions, or investigations . . . .”
(ECF No. 9 at 3.) In addition, Plaintiff alleges that “Defendants committed extrinsic and
intrinsic Fraud against Plaintiff [] and the State District Court” when they “created and
filed . . . an provable, non-evidential, sham [A]ffidavit that is evidentially provable to be
fraudulent, perjured in all aspects, and grounds for disbarment and criminal
prosecution.” (Id.)
On June 29, 2018, Defendants filed a Motion to Dismiss the complaint pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 13). In the motion,
Defendants argue that, even after a liberal reading (as warranted by his pro se status),
Plaintiff’s complaint fails to meet the minimal standard of stating a valid claim on which
Plaintiff could reasonably prevail. (Id. at 3–4.) In addition, Defendants assert that this
Court does not have jurisdiction because: (1) Plaintiff’s federal question claim fails since
the Defendants are not state actors; and (2) diversity jurisdiction does not exist because
all parties “reside[] in Colorado or do business in Colorado.” (Id. at 4.)
Moreover, Defendants argue that Plaintiff’s “attempted legal malpractice claim is
barred by the Rooker-Feldman doctrine which generally prohibits lower federal courts
from hearing federal claims requiring direct review of final state court judgments.” (Id.)
In closing, Defendants claim:
What [Plaintiff] is attempting to accomplish is to have this federal
court review the judgment of the [Colorado] District Court and the
Colorado Court of Appeals and denial of certiorari by the Colorado
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Supreme Court. To accomplish this end, [Plaintiff] simply adds to
his malpractice claim stating he was denied to due process of law.
This is not permitted.
(Id.) The Magistrate Judge reviewed the Motion and issued her Recommendation on
September 17, 2018. (ECF No. 21.)
II. LEGAL STANDARD
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. 2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). An
objection is sufficiently 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.” Fed. R. Civ. P. 72(b)(3). Here, Plaintiff filed a timely objection to the
Magistrate Judge’s Recommendation. (ECF No. 22.) Therefore, this Court reviews the
issues before it de novo.
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.” Fed. R. Civ. P. 12(b)(6).
“The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that
the parties might present at trial, but to assess whether the plaintiff’s complaint alone is
legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start,
Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (internal quotation marks omitted).
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The Rule 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). Thus, in ruling on a Motion to Dismiss under Rule 12(b)(6), 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)); see also Ashcroft v. Iqbal, 559 U.S. 662, 678 (2009).
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).
However, “[t]he burden is on the plaintiff to frame a complaint ‘with enough factual
matter (taken as true) to suggest’ that he or she is entitled to relief.” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 556).
“[C]omplaints that are no more than ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action,’ . . . ‘will not do.’” Id. (quoting Twombly, 550 U.S. at
555).
Further, in considering the Magistrate Judge’s recommendation, the Court is also
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,
472 F.3d 1242, 1243 (10th Cir. 2007). The Court, however, cannot act as advocate for
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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, 318 F.3d 1183, 1188 (10th Cir. 2003).
III. ANALYSIS
The Magistrate Judge recommended that: (1) Defendants’ Motion to Dismiss
(ECF No. 13) be granted; (2) Plaintiff’s Fourteenth Amendment claim be dismissed with
prejudice; and (3) supplemental jurisdiction over Plaintiff’s fraud claim not be exercised
by this Court. (ECF No. 21 at 6.) The Magistrate Judge made several findings to reach
these recommendations. Plaintiff specifically objects to each of the Magistrate Judge’s
findings supporting his recommendation. (ECF No. 22.) This Court will address the
Magistrate Judge’s findings and Plaintiff’s objections in turn.3
A.

Fourteenth Amendment Claim
In the Recommendation, the Magistrate Judge noted that, under 42 U.S.C.

§ 1983,4 “persons acting under the color of state law can be held liable for depriving
others of their constitutional rights.” (ECF No. 21 at 4.) See also Adickes v. S.H. Kress
& Co., 398 U.S. 144, 150 (1970). The Recommendation further noted:
In order to show that an action was taken under color of state
law, a plaintiff must show: (1) that the “alleged constitutional
deprivation [was] ‘caused by the exercise of some right or
privilege created by the State or by a rule of conduct imposed

3

Plaintiff makes several arguments in his Objection, most of which are extraneous to the
issues at hand. (ECF No. 22.) For purposes of this Order, the Court will focus exclusively on
the arguments that relate to the Magistrate Judge’s Recommendation (ECF No. 21).
4

“[C]laims alleging violation of the Fourteenth Amendment must be brought pursuant to
42 U.S.C. § 1983; the Amendment itself does not provide a direct cause of action.” Robinson v.
Bd. of Regents of Univ. of Colo., 390 F. Supp. 2d 1011, 1017 (D. Colo. 2005).

8

by the State or by a person for whom the state is responsible,’”
and (2) that the “party charged with the deprivation [was] a
person who may fairly be said to be a state actor.”
(ECF No. 21 at 4 (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)).)
The Magistrate Judge recommended that the Fourteenth Amendment claim be
dismissed because Plaintiff had failed to plead “any facts to show that the [D]efendants
are state actors.” (ECF No. 21 at 5.)
In his Objection, Plaintiff argues that the Defendants are “state actors under color
of state and federal law.” (See ECF No. 22 at 4–5.) To support his argument, Plaintiff
cites a Supreme Court case which states: “[A] person [] may fairly be said to be a state
actor . . . [if] he has acted together with or has obtained significant aid from state
officials . . . .” (Id. at 4 (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)).)
Plaintiff makes several assertions to support his allegation that Defendants acted
together with and obtained significant aid from state officials.
First, Plaintiff claims that the state court allowed the Defendants to submit the
“sham [A]ffidavit . . . 11 months after the deadline to introduce an affirmative defense.”
(Id. at 4.) Second, Plaintiff alleges that a state trial court judge allowed Defendants’
Affidavit to be introduced into the record without a motion, even though the judge had
previously ruled that it could be introduced “only upon a motion.” (Id. at 5.) Third,
Plaintiff asserts that a state trial court judge who presided over his case could have
served as his expert witness and when she refused to do so she “legally align[ed]
herself with [the Defendants], ignoring the rules of law and equity.” (Id.) Fourth, Plaintiff
claims that the Magistrate Judge “made an unjustified ruling that granted [Defendants’]

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Motion for Summary Judgment, without legal or equitable justification.” (Id.)5 Fifth,
Plaintiff alleges that the courts committed all of the foregoing discrepancies even though
“Plaintiff had done everything correctly, including the introduction of 31 pieces of
evidence,” while the Defendants’ only evidence was the “sham [A]ffidavit.” (Id. at 4–5.)
Generally, “a lawyer representing a client is not, by virtue of being an officer of
the court, a state actor ‘under color of state law’ within the meaning of § 1983.” Polk
County v. Dodson, 454 U.S. 312, 318 (1981). A sufficient claim of a conspiracy
between a private lawyer and state actors, however, “could support the allegation that a
private lawyer acted under color of state law.” Ellibee v. Fox, 244 F. App’x. 839, 843
(10th Cir. 2007) (citing Tower v. Glover, 467 U.S. 914, 920 (1984)). “When a plaintiff in
a § 1983 action attempts to assert the necessary ‘state action’ by implicating state . . .
judges in a conspiracy with private defendants, mere conclusory allegations with no
supporting factual averments are insufficient; the pleadings must specifically present
facts tending to show agreement and concerted action.” Raiser v. Kono, 245 F. App’x.
732, 736 (10th Cir. 2007) (quoting Sooner Prods. Co. v. McBride, 708 F.2d 510, 512
(10th Cir. 1983)). This “standard is even stricter where the state officials allegedly
involved in the conspiracy are immune from suit, as are the state court judges here.” Id.
Plaintiff’s Amended Complaint does not contain any facts, or even conclusory
allegations, that could establish an agreement or meeting of the minds between

5

In his Objection, Plaintiff claims that this Court (and not the Magistrate Judge) made
the alleged “unjustified ruling” that granted Defendants’ motion for summary judgment. The
Defendants, however, have never filed a motion for summary judgment in this lawsuit and this
Court has made no such ruling. Thus, it appears that Plaintiff is referring to the Magistrate
Judge’s recommendation that Defendants’ Motion to Dismiss be granted. But Plaintiff has not
alleged that the Magistrate Judge participated in the state court lawsuit.

10

Defendants and the state court judges to deprive him of his constitutional right of Due
Process. (See ECF No. 9 at 2–3.) Instead, the Amended Complaint merely states that
Defendants “violated [his] rights to due process of the law by choosing not to file the
requisite certificate of review” and by failing to do “any interrogatories, depositions, or
investigations” in Plaintiff’s lawsuit against Koncilja. (Id. at 3.) In fact, Plaintiff does not
once allege a conspiracy between Defendants and any state actor until his Objection.
(See ECF No. 22 at 4–5.)
Even if this Court construed the Objection to be a supplement to the Amended
Complaint, Plaintiff still fails to state a claim upon which relief can be granted. In the
Objection, Plaintiff merely cites rulings by the state court that were not favorable to him.
This is far from establishing an agreement or meeting of the minds between Defendants
and the state court judges to deprive him of any federal rights. Thus, Plaintiff has failed
to state a cognizable claim under § 1983. Accordingly, the Court adopts the Magistrate
Judge’s Recommendation in regard to Plaintiff’s Fourteenth Amendment claim and
grants Defendants’ Motion to Dismiss the claim.
B.

Supplemental Jurisdiction
The Magistrate Judge recommended that if this Court dismisses Plaintiff’s

constitutional claim, which it has done, it should also decline to exercise supplemental
jurisdiction over the remaining state law claim of fraud. (ECF No. 21 at 5–6.) The
Recommendation noted that this Court would no longer have federal question
jurisdiction once the constitutional claim is dismissed. (Id. at 5.) In addition, the
Magistrate Judge found that Plaintiff “concedes that there is no diversity jurisdiction
pursuant to 28 U.S.C. § 1332.” (Id.; see ECF No. 16 at 2.)
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In his Objection, Plaintiff argues that this Court has diversity jurisdiction because
“[he] meets the diversity criteria . . . because he [is] not just racially diverse, but diversity
can also apply to educational level, brain injury challenges, and access to the legal
information.” (ECF No. 22 at 6.) In addition, Plaintiff claims that “not being an attorney
set[s] him apart automatically as diverse, as well as his life-threatening, continually
debilitating work injuries form [sic] 11/2006, that are the foundation for this case at
hand.” (Id.) But Plaintiff simply misunderstands the meaning of “diversity” in this
context, which is entirely focused on the geographic residence of the parties. See 28
U.S.C. § 1332.
In the Motion to Dismiss, Defendants assert that diversity jurisdiction does not
exist in this case because “[a]ll parties [have] always resided in Colorado or do business
in Colorado.” (ECF No. 13 at 4.) In his response, Plaintiff states that his “case does not
involve diversity [jurisdiction]” but instead involves federal question jurisdiction. (ECF
No. 16 at 2, 5.) In addition, Plaintiff notes in his proposed scheduling order that Plaintiff
is a resident of Colorado, Defendant Paul Gordon is an attorney practicing law in
Colorado, and Defendant Paul Gordon, LLC, is a company doing business in Colorado.6
(ECF No. 20 at 15.) In sum, Plaintiff has provided this Court with no basis to conclude
that diversity jurisdiction exists. Accordingly, the Court only has supplemental
jurisdiction over the remaining fraud claim. See 28 U.S.C. § 1367.

6

While the citizenship of a corporation, for diversity jurisdiction purposes, is determined
by the state(s) in which the entity is incorporated and the state where its principal place of
business is located, the citizenship of a LLC is determined by the citizenship of all of the entity’s
members. See Siloam Springs Hotel, L.L.C. v. Century Sur. Co., 781 F.3d 1233, 1237 (10th
Cir. 2015). Paul Gordon, a resident of Colorado, is presumably a member of Paul Gordon, LLC.
Thus, Paul Gordon, LLC, is a citizen of Colorado.

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The Court has now dismissed Plaintiff’s constitutional claim in its entirety and
with prejudice. A federal court does not have original jurisdiction over a state law claim
unless that state law claim “turn[s] on substantial questions of federal law.” Grable &
Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005). Plaintiff’s
remaining state law claim does not turn on questions of federal law.
Federal supplemental subject matter jurisdiction over a state law claim “is
extended at the discretion of the court and is not a plaintiff’s right.” TV Commc’ns
Network, Inc. v. Turner Network Television, Inc., 964 F.2d 1022, 1028 (10th Cir. 1992).
According to 28 U.S.C. § 1367(c)(3), a district court may decline to exercise
supplemental jurisdiction if “the district court has dismissed all claims over which it has
original jurisdiction.” The Tenth Circuit has gone further and held that “[w]hen all federal
claims have been dismissed, the court may, and usually should, decline to exercise
jurisdiction over any remaining state claims.” Koch v. City of Del City, 660 F.3d 1228,
1248 (10th Cir. 2011) (emphasis added).
In considering whether to exercise supplemental jurisdiction, “a federal court
should consider and weigh in each case, and at every stage of the litigation, the values
of judicial economy, convenience, fairness, and comity in order to decide whether to
exercise jurisdiction over a case brought in that court involving pendent state-law
claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988). In the interest of
comity and federalism, district courts are advised against making “[n]eedless decisions
of state law.” TV Commc’ns Network, Inc., 964 F.2d at 1028.
The instant suit is not yet close to trial, so issues of judicial economy and fairness
are not implicated here. See Carnegie-Mellon Univ., 484 U.S. at 350. Rather, “[n]otions
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of comity and federalism demand that a state court try its own lawsuits, absent
compelling reasons to the contrary.” Thatcher Enters. v. Cache Cnty. Corp., 902 F.2d
1472, 1478 (10th Cir. 1990). The remaining claim of fraud is grounded in Colorado
common law; no federal laws are implicated by the claim. Since the Court finds no
compelling reasons to maintain jurisdiction over this suit, the Court declines to exercise
its supplemental jurisdiction over the remaining fraud claim.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

The Recommendation (ECF No. 21) is ADOPTED in its entirety;

2.

Plaintiff’s Objection (ECF No. 22) is OVERRULED;

3.

Defendants’ Motion to Dismiss (ECF No. 13) is GRANTED;

4.

Plaintiff’s Fourteenth Amendment claim is DISMISSED WITH PREJUDICE;

4.

The Court DECLINES to exercise its supplemental jurisdiction over Plaintiff’s
remaining state law claim of fraud and thus that claim is DISMISSED WITHOUT
PREJUDICE; and

5.

The Clerk of the Court shall enter judgment in favor of Defendants and terminate
this case. Each party shall bear his or its own attorneys’ fees and costs.
Dated this 17th day of December, 2018.
BY THE COURT:

William J. Martínez
United States District Judge
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