Baayer v. Shader

Filing 15

MEMORANDUM OPINION AND ORDER by Magistrate Judge Nina Y. Wang on 10/30/2018. Defendant Judd Kyler Shader's Motion to Dismiss 5 is GRANTED; and Plaintiff Baayer is GRANTED leave to file an amended complaint on or before November 30, 2018. (bwilk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 18-cv-01216-NYW
FATIMA BAAYER,
Plaintiff,
v.
JUDD KYLE SHADER, individually and in his official capacity as CEO of Leeds West Groups,
Defendant.
______________________________________________________________________________
MEMORANDUM OPINION AND ORDER
______________________________________________________________________________
Magistrate Judge Nina Y. Wang
This matter comes before the court on Defendant Judd Kyle Shader’s (“Defendant” or
“Mr. Shader”) Motion to Dismiss [#5, filed June 6, 2018] under Rule 12(b)(6) for failure to state
a claim (“Motion to Dismiss”). The Motion to Dismiss is before the court pursuant to the Order
of Reference dated July 10, 2018 [#13; #14] and 28 U.S.C. § 636(c). The court has carefully
considered the Motion and related briefing, the entire case file, and the applicable case law. For
the following reasons, Defendant’s Motion to Dismiss is GRANTED.
BACKGROUND
Plaintiff Fatima Baayer (“Plaintiff” or “Ms. Baayer”) filed this pro se case on May 17,
2018 against Judd Kyler Shader in both his individual capacity and in his capacity as CEO of
Leeds West Group. Ms. Baayer is a Florida resident who owns three identical 2014 Dodge
Charger Police Pursuit AWD vehicles that she had serviced at the “Big O franchise.” 1 [#1 at 1–

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Plaintiff does not specifically identify which company she visited aside from referring to it as
“Big O.” The court interprets this as a reference to Big O Tires, an automobile repair company
headquartered in Centennial, Colorado.

2]. According to Plaintiff, the Big O shops defectively repaired her vehicles, charging her
inconsistent prices and using faulty parts whose failure in the course of vehicle operation posed a
danger to the occupants. See [id.]. While the allegations regarding the vehicles’ repair are clear
and detailed, there are few factual allegations regarding the connection between the actions of
Big O Tires and Defendant Shader, either in his official capacity or in his capacity as CEO of
Leeds West Groups.
Defendant filed this Motion to Dismiss for failure to state a claim under Rule 12(b)(6) on
June 6, 2018 [#5]. Defendant filed her Response on June 22, 2018 [#8], and Defendant filed a
Reply on June 29, 2018 [#9]. The matter is now fully briefed and ready for disposition.
LEGAL STANDARD
Rule 12(b)(6) states that a court may dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To state a claim, a complaint must
contain factual allegations that, when taken as true, establish a claim for relief that is plausible on
its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plausibility is distinct from, and more
demanding than, mere conceivability. Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th
Cir. 2012).
When reviewing a motion to dismiss under Rule 12(b)(6), a court accepts as true all wellpleaded factual allegations and views those allegations in the light most favorable to the plaintiff.
Sec. & Exch. Comm’n v. Shields, 744 F.3d 633, 640 (10th Cir. 2014). Legal conclusions,
whether presented as such or masquerading as factual allegations, are not afforded such
deference. Dahn v. Amedei, 867 F.3d 1178, 1185 (10th Cir. 2017). An unadorned, conclusory
recitation of the elements of the cause of action does not meet this standard. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).

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A court must liberally construe a pro se party’s pleadings and will not dismiss his claims
under Rule 12(b)(6) if the court can “reasonably read the pleadings to state a valid claim on
which the plaintiff could prevail . . . despite the plaintiff's failure to cite proper legal authority,
his confusion of various legal theories, his poor syntax and sentence construction, or his
unfamiliarity with pleading requirements.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991); see also Tatten v. City and Cty. of Denver, 730 F. App’x 620, 623–24 (10th Cir. 2018)
(reviewing the rule in Hall and its rationale). But a court may not assume that a plaintiff can
prove facts that have not been alleged, or that a defendant has violated laws in ways that a
plaintiff has not alleged. See Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009)
(“[Court’s] role is not to act as [pro se litigant’s] advocate.”).
ANALYSIS
Plaintiff fails to state a claim upon which relief can be granted because she does not link
the conduct at issue with the Defendants in any manner, let alone a plausible one. Affording the
pro se Plaintiff a liberal construction of the Complaint does not change this conclusion because
the near-complete absence of factual allegations on this point leaves the court with nothing to
liberally construe. As noted, Plaintiff has made ample allegations of fact, but only as to Big O
Tires; the allegations against the parties actually joined in this case do not rise to the level of
threadbare. There are no allegations regarding any affirmative conduct by Defendant, and the
company he heads, Leeds West Groups, is not mentioned at all in the Complaint.
In fact, Defendant Shader is mentioned only once in the Complaint, and only in the fourth
claim for relief based on deceptive trade practices and then several levels removed from the
allegations at issue. See [id. at 4] (“[These deceptive trade practices] appear[] to be allowed by
the current district manager ‘Wil Cancanon’ and appears to further be condoned by ‘Tim Moran’

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and ultimately ‘Judd Kyle Shader’ since this has been brought to their attention and do not want
to address the issues of quality but, instead non-relevance acceptance of invoices, even though
said invoices were not signed due to employees not requesting or even presenting it, to which
‘Tim Moran’ believes exist.”). The only factual allegation regarding Defendant Shader is that he
“appears” to condone Tim Moran’s apparent approval of Wil Concanon’s apparent approval of
deceptive trade practices occurring at local Big O Tire facilities. [Id.]. At no point does Plaintiff
link Defendant Shafer to Big O Tires, or the conduct at issue, nor does Plaintiff link Leeds West
Groups to Big O Tires or the conduct at issue.
Accordingly, this court finds that Plaintiff has inadequately alleged any causal nexus
between the action of Defendant and the alleged injury to Plaintiff. Thus, the Motion to Dismiss
must be granted, but with leave to refile. Where a complaint fails to state a claim under Rule
12(b)(6), dismissal without prejudice is appropriate where granting leave to amend would not be
futile, and generally, the court will permit plaintiff to cure her defects through amendment at
least in the first instance. See The Sherwin-Williams Co. v. SUSE, LLC, No. 2:15-CV-129-JNPDBP, 2015 WL 10990185, at *7 (D. Utah Oct. 23, 2015) (citing Brereton v. Bountiful City
Corp., 434 F.3d 1213, 1219 (10th Cir. 2006). To the extent that Plaintiff chooses to file an
Amended Complaint, she is advised that she must address the deficiencies identified in this
Memorandum Opinion and Order, or her amended pleading may be subject to dismissal.

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CONCLUSION
For the foregoing reasons, IT IS ORDERED that:
(1)

Defendant Judd Kyler Shader’s Motion to Dismiss [#5] is GRANTED; and

(2)

Plaintiff Baayer is GRANTED leave to file an amended complaint on or before
November 30, 2018.

DATED: October 30, 2018

BY THE COURT:

_______
United States Magistrate Judge

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