Teece v. United States Small Business Loan Administration et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS 22 ; denying 18 Motion to Implead; denying 20 Motion to Amend/Correct Amended Complaint. Signed by Judge Dale A. Kimball on 9/24/2014. (jds)
201~ SEP 25 ~;., fl: 50
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
'; !t-, TR ,,,
RICHARD TEECE and DAVID COOK,
UNITED STATES SMALL BUSINESS
MOUNTAIN AMERICA FEDERAL
CREDIT UNION, WOODY
WOODRUFF, BRENT PITCHER, and
ORDER ADOPTING REPORT AND
MOTION TO IMPLEAD AND TO FILE
SECOND AMENDED COMPLAINT
Case No. 2:13CV854 DAK-EJF
This matter is before the court on the Magistrate Judge's Report and Recommendation,
filed on August 29, 2014, and also on Plaintiffs' Motion to Implead and Plaintiffs' Motion to
Submit Second Amended Complaint. 1 The court will address each of these in tum.
REPORT AND RECOMMENDATION
On August 29, 2014, the Magistrate Judge issued a Report and Recommendation
("R&R"), recommending that the court (1) find the initial motions to dismiss moot because of
Plaintiffs' filing of an Amended Complaint; (2) dismiss the Complaint without prejudice as to the
SBA under Rule 12(b)(l) and 12(b)(6), based upon sovereign immunity and failure to state a
See Docket Nos. 22 (Report and Recommendation), 18 (Motion to Implead), and 20
(Motion to Submit Second Amended Complaint).
claim; and (3) dismiss the Complaint without prejudice as to the MACU Defendants under Rule
12(b)(6) for failure to state a claim. Plaintiffs timely filed Objections to the R & R. 2
A Magistrate Judge's Report and Recommendation is subject to de novo review by this
court. See 28 U.S.C. § 636(b)(1)(B); see also Fed. R. Civ. P. 72(b). The court has therefore
reviewed the entire record de novo, including the (1) Answer to Report and Recommendations, 3
(2) Answer to Defendant Rupp's Answer By Memorandum to Motion to Submit a Second
Amended Complaint, 4 (3) Answer to SBA Motion to Dismiss, 5 (4) Answer to Defendant Rupp's
Memorandum in Opposition to Plaintiffs' Motion to Implead, 6 (5) Answer to Mountain America
Federal Credit Union et al. Motion to Dismiss, 7 and (6) Answer to Report and Recommendations. 8
See Docket Nos. 23 & 30.
Docket No. 23. While this filing is difficult to decipher, it appears that Mr. Teece
requests that he be given until September 19, 2014 to file an Objection to the R & R. Mr. Teece
then filed his Objection on September 19, 2014, see Docket No. 30, and thus the court will
consider his Objection.
Docket No. 24. The court construes this "Answer" as a reply memorandum regarding
Plaintiff's Motion to File a Second Amended Complaint. The memorandum was not timely
filed, but the court has nevertheless considered it.
Docket No. 27. This "Answer" is apparently a response to the SBA's Motion to
Dismiss, which was one of the motions at issue in the R&R. Plaintiff's response is filed five
months after the SBA filed its motion and after the Magistrate Judge addressed the motion. The
court, however, has considered the response.
Docket No. 28. The court construes this "Answer" as a reply memorandum regarding
Plaintiff's Motion to Implead. The memorandum was not timely filed, but the court has
nevertheless considered it.
Docket No. 29 .. This "Answer" is apparently a response to the MACU Defendants'
Motion to Dismiss, which was one of the motions at issue in the R&R. Plaintiff's response is
Having considered the entire record, the court affirms and adopts the R & R.
Accordingly, the court finds that the initial motions to dismiss are moot because of Plaintiffs'
filing of an Amended Complaint. In addition, the court dismisses the Amended Complaint
without prejudice as to the SBA under Rule 12(b)(1) and 12(b)(6), based upon sovereign
immunity and failure to state a claim and dismisses the Amended Complaint without prejudice as
to the MACU Defendants under Rule 12(b)(6) for failure to state a claim.
But adoption of the R & R does not end the discussion. On July 10, 2014, Plaintiffs filed
a Motion to Implead, and on August 7, 2014, they filed a Motion to Submit a Second Amended
Complaint. Thus, the court will consider those motions.
II. MOTION TO IMPLEAD
The instant motion appears to be a request to add as Defendants the law firm that
represents the current Defendants, along with adding many individual attorneys who work for the
law firm. Plaintiffs claim, among other unmeritorious assertions, that this law firm has failed to
advise the Defendants of their culpability, failed to respond, and failed to work as a team.
Plaintiffs purport to rely on Rule 14(a) of the Federal Rules of Civil Procedure.
Plaintiffs, however, have failed to state any claim against the law firm or individuals they
seek to join. Plaintiffs appear to believe that the law firm and its attorneys owe some duty to
filed five months after the MACU Defendants filed their motion and after the Magistrate Judge
addressed the motion. The court, however, has considered the response.
Docket No. 30.
Plaintiffs, but Plaintiffs are simply wrong. Moreover, Plaintiffs have not established that the court
has subject matter jurisdiction over any purported claims. The law does not permit plaintiffs to
join defendants to a lawsuit when there is no legal basis for doing so. Accordingly, the "Motion
to Implead" is denied.
MOTION TO SUBMIT SECOND AMENDED COMPLAINT
In this case, Plaintiffs filed an Amended Complaint after Defendants filed their respective
Motions to Dismiss. 9 After Plaintiffs filed the Amended Complaint on March 18,2014,
Defendants again moved for dismissal. 10 Plaintiffs responded by attempting to file a Second
Amended Complaint. On July 9, 2014, however, the court returned the Second Amended
Complaint to Plaintiffs because 'the had failed to obtain leave of court. On August 7, 2014,
Plaintiffs filed the instant Motion to Submit Second Amended Complaint. Plaintiffs did not
attach their proposed Second Amended Complaint to their motion, as required. 11 On September
16, 2014, Plaintiffs attached their proposed Second Amended Complaint as an exhibit to their
"Answer to Defendant Rupp's Answer by Memorandum to Motion to Submit a Second Amended
Docket Nos., 2, 6, and 10. The court notes that Plaintiffs' Amended Complaint was not
timely filed with regard to the MACU Defendants' First Motion to Dismiss. Under Rule 15 of
the Federal Rules of Civil Procedure, plaintiffs may file an amended complaint without leave of
court twenty-one (21) days after a motion to dismiss is filed. Here, Plaintiffs' Amended
Complaint was filed more than forty (40) days after the MACU Defendants' motion was filed.
The court, however, will deem the Amended Complaint to be timely filed.
Docket Nos. 12, 14.
See DUCiv R 15-1.
Complaint By Plaintiffs By Affidavit."
The court has reviewed the proposed Second Amended
Complaint in ruling on this motion.
Rule 15(a)(2) of the Federal Rules of Civil Procedure allows amendment of a complaint
when justice so requires. A motion to amend shall be denied, however, if amending the
complaint would be futile. See Jefferson Cnty. Sch. Dist. No. R-1 v. Moody's Investor's Servs.,
Inc., 175 F.3d 848, 859 (101h Cir. 1999) (stating that "[a]lthough Fed. R. Civ. P. 15(a) provides
that leave to amend shall be given freely, the district court may deny leave to amend where
amendment would be futile."). A proposed amended complaint would be futile "if the
complaint, as amended, would be subject to dismissal."
Jefferson Cnty, 175 F.3d at 859.
Here, the court finds that it would be futile to allow the filing of the proposed Second
Amended Complaint. Not only is the 178-page Complaint very difficult to understand, but it does
not remedy the many legal problems that were pointed out by the Magistrate Judge in the R&R
addressing the Defendants' Motions to Dismiss. The court cannot identify a plausible theory
under which Plaintiffs could recover against Defendants. Moreover, Plaintiffs have not addressed
the basis for this court's jurisdiction or how Mr. Teece has standing to bring any claims against
MACU after he filed for Chapter 7 bankruptcy.
Finally, Richard Teece, as a layperson, may not represent the legal claims of David Cook.
While Mr. Teece listed Mr. Cook as a Plaintiff when Mr. Teece filed the initial Complaint, Mr.
See Docket No. 25, Ex. B.
Cook did not even sign the initial "Complaint and Affidavit."
When Mr. Teece filed the First
Amended Complaint, he did not list Mr. Cook as a Plaintiff in the caption, although Mr. Teece
appears assert claims on behalf of Mr. Cook, 14 and Mr. Cook signed the Amended Complaint.
Mr. Teece claims to be an "Attorney-in-fact," and he has listed this title on all documents filed
with the court. But Mr. Teece is not a licensed attorney. It is clear that "a non-attorney is not
permitted to represent any other person ... in federal court." Watson v. Global Energy
Technologies, Inc., 2011 WL 1427970 (D. Utah April13, 2011) (citing Arson v. My Investing
Place, 2009 U.S. Dist. Lexis 119506, at *4 (D. Utah Dec. 23, 2009) (citations omitted); Lundahl
v. Quinn, 2003 UT 11, ,-r,-r 6-7, 67 P .3d 1000 (discussing prohibition of pro se litigant "to represent
the legal interests of other persons"). Accordingly, the claims of Mr. Cook are not properly before
the court in any event and are therefore dismissed. Mr. Teece is admonished that he may not
represent the legal interests of any other person or entity.
For the foregoing reasons, the court hereby APPROVES and ADOPTS the Magistrate
Judge's Report and Recommendation [Docket No. 22]. Accordingly, the Motion to Dismiss filed
by defendants Mountain America Federal Credit Union, Wendell "Woody" Woodruff, Brent
Pitcher, and Scott Rasmussen [Docket No. 2] is MOOT; the Motion to Dismiss filed by the Small
Business Administration [Docket NO. 6] is MOOT; the Motion to Dismiss Amended Complaint
See Docket No. 1 at 13.
See Docket No. 10 at 1, 4
Docket No. 10 at 15.
filed by the Small Business Administration [Docket No. 12] is GRANTED; and the Motion to
Dismiss Amended Complaint filed by Mountain America Federal Credit Union, Wendell
"Woody" Woodruff, Brent Pitcher, and Scott Rasmussen [Docket No. 13] is GRANTED. In
addition, Mr. Teece's Motion to Implead [Docket NO. 18] is DENIED, and his Motion to Submit
a Second Amended Complaint [Docket No. 20] is DENIED as futile. The Clerk of Court is
directed to Close this case.
DATED this 241h day of September, 2014.
BY THE COURT:
'n'ili A. KIMBA~
United States District Judge
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