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discussing propriety of attorneys' fees under Section 201 against a pro se plaintiff but not yet addressing issue because no affidavit supporting fee request had been filed
Summary of this case from Macintyre v. JPMorgan Chase BankOpinion
Civil Action No. 19-cv-00606-RM-NYW
05-31-2019
BRIAN BATH, Plaintiff, v. AMERICAN EXPRESS COMPANY; J.P. MORGAN CHASE NATIONAL CORPORATE SERVICES; LEXISNEXIS RISK SOLUTIONS, INC.; FIRST PREMIER BANK; REALPAGE d/b/a Leasing Desk; PAYPAL INC.; SYNCHRONY BANK; WELLS FARGO BANK, NATIONALASSOCIATION; TD BANK; Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND ORDER
This matter comes before the court on nine pending motions filed by both Plaintiff Brian Bath ("Plaintiff" or "Mr. Bath") and the various Defendants. The court considers the following motions pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated March 4, 2019 [#20], and the associated memoranda identified below:
(1) PayPal, Inc.'s Amended Motion to Dismiss ("PayPal's Amended Motion to Dismiss") [#56] which the was referred to the undersigned Magistrate Judge by the Memorandum dated March 11, 2019 [#57];
(2) LexisNexis Risk Solutions, Inc.'s Amended Motion to Dismiss Plaintiff's Complaint ("LexisNexis' Amended Motion to Dismiss") [#63], referred by the Memorandum dated March 14, 2019 [#67];
(3) Defendant American Express Company's Amended Motion to Dismiss Plaintiff's Complaint [#65] ("American Express' Amended Motion to Dismiss"), referred by the Memorandum dated March 14, 2019 [#66];
(4) Defendant TD Bank USA, N.A.'s Motion for Dismissal Under Rules 12(b)(4)-(6) [#68] ("TD Bank's Motion to Dismiss"), referred by the Memorandum dated March 18, 2019 [#69];
(5) Defendant Realpage Inc.'s Motion to Dismiss [#81] ("Realpage's Motion to Dismiss"), referred by the Memorandum dated April 2, 2019 [#82];
(6) Plaintiff Brian Bath's Motion for Appointment of Counsel [#83] ("Plaintiff's Motion to Appoint Counsel"), referred by the Memorandum dated April 9, 2019 [#84];
(7) Defendant First Premier Bank's Motion for Judgment on the Pleadings [#107] ("First Premier's 12(c) Motion"), referred by the Memorandum dated April 24, 2019 [#108];
(8) Plaintiff Brian Bath's Motion for Leave to Amend Original Complaint [#109] ("Plaintiff's Motion to Amend"), referred by the Memorandum dated April 30, 2019 [#110], and;
(9) Defendants American Express National Bank (misnamed as "American Express Company"); First Premier Bank; LexisNexis Risk Solutions Inc.; PayPal, Inc.; RealPage, Inc.; TD Bank USA, N.A. (misnamed as "TD Bank"); and Wells Fargo Bank, N.A's Joint Motion for Discovery-Management Order [#112] ("Motion for Discovery Management Order"), referred by the Memorandum dated May 3, 2019 [#113].
Not all Motions have been fully briefed, but the court nonetheless finds it appropriate to proceed. D.C.COLOLCivR 7.1(d). For the reasons stated herein, it is respectfully RECOMMENDED that: LexisNexis' Motion to Dismiss, American Express' Motion to Dismiss, and First Premier's 12(c) Motion be GRANTED; that PayPal's Motion to Dismiss and TD Bank's Motion to Dismiss be GRANTED IN PART AND DENIED IN PART; and Plaintiff's Motion to Amend be DENIED. Additionally, it is ORDERED that that Plaintiff's Motion to Appoint Counsel is DENIED and the Defendants' Motion for Discovery Management Order is GRANTED and discovery in this matter is STAYED pending the presiding judge's, the Honorable Raymond P. Moore, ruling on this Recommendation and the currently outstanding motions.
BACKGROUND
Plaintiff Brian Bath originally filed this case in Denver District Court, and Defendant PayPal, Inc. ("PayPal") removed it to this court on March 1, 2019, invoking the court's diversity jurisdiction under 28 U.S.C. § 1332. [#1]. The operative Complaint [#4] identified several Defendants: American Express Company ("American Express"); Capital One; LexisNexis Risk Solutions, Inc. ("LexisNexis"); First Premier Bank; OneMain Financial Group ("OneMain"); RealPage d/b/a Leasing Desk ("RealPage"); PayPal; Synchrony Bank ("Synchrony"); Bank of America; Wells Fargo Bank, National Association ("Wells Fargo"); and TD Bank. [#4]. Mr. Bath asserts claims for Fraud ("Count I"), Conversion ("Count II"), and Theft ("Count III") relating to allegedly inaccurate credit records maintained by the three credit-reporting agency defendants: Experian credit file #0610-5540-48 ("the Experian File"); Trans Union credit file #310634414 ("the Trans Union File"), and; Equifax credit file #9003044461 ("the Equifax file"; collectively "Credit Files"). [Id. at ¶¶ 14, 21, 22]. Although Mr. Bath references sending dispute letters regarding these accounts, [id. at ¶¶ 15, 17, 19, 23, 24, 28, 30, 32, 36, 38, 40, 42], he does not appear to allege that the information contained in the Credit Files is inaccurate. Rather, Mr. Bath's claims appear to be based on the allegedly inappropriate queries of his Credit Files by the Defendants who are not credit reporting agencies. See generally [#4].
Defendants LexisNexis, First Premier Bank, TD Bank, and American Express filed Notices of Consent to Removal. [#26; #28; #40; #44]. Neither Plaintiff nor the other Defendants sought remand, but rather proceeded in this court.
Four of the Defendants resolved their respective disputes with Mr. Bath and were dismissed from this action: Capital One [#76; #77]; One Main [#58]; Bank of America [#41]; and Wells Fargo [#117]. Wells Fargo originally filed a Motion to Enforce Settlement Agreement [#72], which this court recommended be mooted in light of the Stipulation of Dismissal filed by Mr. Bath and Wells Fargo on May 17, 2019. [#117; #118].
On March 8, 2019, LexisNexis, PayPal, and American Express moved to dismiss Mr. Bath's claims against them, respectively. The presiding judge, the Honorable Raymond Moore, denied these motions without prejudice for failure to comply with his Practice Standards on March 8, 2019. [#49; #50; #51]. Then on March 11, 2019, PayPal filed an Amended Motion to Dismiss. [#56]. Two days later, LexisNexis and American Express filed their respective Amended Motions to Dismiss. [#63; #65]. Then on March 15, 2019, TD Bank filed its Motion to Dismiss [#68], and RealPage followed suit on April 1, 2019 [#81]. Finally, on April 23, 2019, First Premier Bank moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. [#107].
Mr. Bath moved the court for appointment of counsel on April 8, 2019. [#83]. On April 29, 2019, Plaintiff moved for leave to file an Amended Complaint, to "correct the original complaint to sufficient plead facts," among other reasons. [#109 at 1]. Shortly thereafter, Defendants moved for a discovery management order, stating that Mr. Bath had begun propounding discovery improperly because the court had not yet held a Scheduling Conference pursuant to Rule 16(b) of the Federal Rules of Civil Procedure. [#112].
The court now considers all pending motions in this case in this omnibus Recommendation and Order, beginning with Defendants' respective motions challenging the viability of the operative Complaint, then considering whether Mr. Bath should be permitted leave to amend, and finally turning to Mr. Bath's request for appointment of counsel.
ANALYSIS
I. Legal Standards
A. Personal Jurisdiction
"A federal court generally may not rule on the merits of a case without first determining that it has jurisdiction over the category of claim in suit (subject-matter jurisdiction) and the parties (personal jurisdiction)." Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 430-31 (2007) (observing that without jurisdiction the court cannot proceed at all in any cause; it may not assume jurisdiction for the purpose of deciding the merits of the case). Though a motion to dismiss pursuant to Rule 12(b)(6) considers the sufficiency of the operative pleading and does not weigh the potential evidence that the parties might present in the case, see Pirraglia v. Novell, Inc., 339 F.3d 1182, 1187 (10th Cir. 2003), Rule 12(b)(6) judgments are considered by the United States Court of Appeals for the Tenth Circuit ("Tenth Circuit") a dismissal on the merits. See Slocum v. Corp. Exp. U.S. Inc., 446 F. App'x 957, 960 (10th Cir. 2011) (observing that a Rule 12(b)(6) dismissal is considered an adjudication on the merits since it requires an evaluation of the substance of a complaint). Accordingly, this court first considers whether Mr. Bath has established personal jurisdiction over RealPage.
Rule 12(b)(2) of the Federal Rules of Civil Procedure allows a defendant to challenge the court's exercise of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). Plaintiff bears the burden of demonstrating that the court has personal jurisdiction over the Defendants. See Dudnikov v. Chalk & Vermilion Fine Arts, 514 F.3d 1063, 1069 (10th Cir. 2008). When, as here, the court decides a Rule 12(b)(2) motion to dismiss without holding an evidentiary hearing, "the plaintiff need only make a prima facie showing of personal jurisdiction to defeat the motion." AST Sports Sci., Inc. v. CLF Distrib. Ltd., 514 F.3d 1054, 1057 (10th Cir. 2008). "The plaintiff may make this prima facie showing by demonstrating, via affidavit or other written materials, facts that if true would support jurisdiction over the defendant." OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir. 1998). In considering this question, the court must accept all well pleaded facts as true and must resolve any factual disputes in favor of the plaintiff. See Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995).
To establish jurisdiction over a non-resident defendant, a plaintiff must show that the exercise of jurisdiction is authorized under the relevant state long-arm statute and does not offend due process. Wenz, 55 F.3d at 1506 (10th Cir. 1995). Because the Colorado Supreme Court has determined that Colorado's long-arm statute, Colo. Rev. Stat. § 13-1-124 (2018), is coextensive with due process requirements, Keefe v. Kirschenbaum & Kirschenbaum, P.C., 40 P.3d 1267, 1270 (Colo. 2002), the inquiry is thus simplified into one basic question: whether the exercise of personal jurisdiction comports with the requirements of due process under the Fourteenth Amendment to the United States Constitution. AST Sports Sci., Inc. v. CLF Distrib. Ltd., 514 F.3d 1054, 1057 (10th Cir. 2008).
However, even if this test is met, a court must still consider whether "the exercise of personal jurisdiction over the defendant offends traditional notions of fair play and substantial justice." OMI Holdings, 149 F.3d at 1091. In this inquiry the court considers: (1) the burden on the defendant, (2) the forum state's interest in resolving the dispute, (3) the plaintiff's interest in receiving convenient and effective relief, (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states in furthering fundamental social policies. Id. at 1095.
Generally, a corporation is subject to general jurisdiction in the place of incorporation and principal place of business. See Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). Though those loci are not the only forums where a corporation can be held to be subject to personal jurisdiction, it is not enough that a corporation engaged in a substantial, continuous or systematic course of business. Rather, the inquiry is whether a foreign corporation's "affiliations with the State are 'so continuous and systematic' as to render it essentially at home in the forum State." Id. (citing Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)).
As to specific jurisdiction, this court looks to whether its contacts with this forum associated with the action at hand is sufficient for it to be haled into court in this District: "(a) whether the plaintiff has shown that the defendant has minimum contacts with the forum state; and, if so, (b) whether the defendant has presented a compelling case that the presence of some other considerations would render jurisdiction unreasonable." Old Republic Ins. Co. v. Cont'l Motors, Inc., 877 F.3d 895, 904 (10th Cir. 2017).
B. Rule 12(b)(4) and 12(b)(5) of the Federal Rules of Civil Procedure
A Rule 12(b)(4) motion allows a defendant to challenge the form or content of a summons, while a Rule 12(b)(5) motion challenges the mode or lack of delivery of a summons. Gross v. Taylor, No. 05-CV-243-J, 2006 WL 8435510, at *2 & n.7 (D. Wyo. Apr. 26, 2006). Rule 4(a) and 4(b) govern the contents of a summons, and indicate that the Clerk of the Court must sign, seal, and issue it to the plaintiff for service on the defendant. Fed. R. Civ. P. 4(a), (b). "Effectuation of service is a precondition to suit[.]" Jenkins v. City of Topeka, 136 F.3d 1274, 1275 (10th Cir. 1998). Without proof of service, the Court lacks personal jurisdiction over the Defendant. Oklahoma Radio Associates v. FDIC, 969 F.2d 940, 943 (10th Cir. 1992). In opposing a motion to dismiss for insufficient service of process, "plaintiff bears the burden of making a prima facie case that he has satisfied statutory and due process requirements so as to permit the court to exercise personal jurisdiction over the defendant." Allen v. United Properties & Const., No. 07-cv-00214-LTB-CBS, 2008 WL 4080035, at *9 (D.Colo. Sept. 3, 2008) (quoting Fisher v. Lynch, 531 F.Supp.2d 1253, 1260 (D.Kan. 2008). In removed actions, federal courts look to the law of the forum state to determine whether service of process was perfected prior to removal. See Wallace v. Microsoft Corp., 596 F.3d 703, 706 (10th Cir. 2010). Such a motion "differ[s] from the other motions permitted by Rule 12(b) in that [it] offer[s] the district court a course of action—quashing the process without dismissing the action—other than simply dismissing the case when the defendant's defense or objection is sustained." 5B C. Wright & A. Miller, Federal Practice & Procedure § 1354, at 346 (3d ed. 2004). Indeed, even without a showing of good cause, the court retains broad discretion to extend the time for service even when the plaintiff has not shown good cause. Fed.R.Civ.P. 5(m); Espinoza v. United States, 52 F.3d 838, 840-41 (10th Cir. 1995).
C. Rule 8 of the Federal Rules of Civil Procedure
Rule 8 of the Federal Rules of Civil Procedure instructs 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. Fed. R. Civ. P. 8(a). 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." Read together, Rules 8(a) and (d)(1) underscore the emphasis placed on clarity and brevity by the federal pleading rules. A decision to dismiss a complaint pursuant to Rule 8 is within the trial court's sound discretion. See Atkins v. Northwest Airlines, Inc., 967 F.2d 1197, 1203 (8th Cir. 1992); Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969).
B. 12(b)(6) of the Federal Rules of Civil Procedure
To survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a pleading must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 560 (2007)). Allegations that are "so general that they encompass a wide swath of conduct, much of it innocent," will not be sufficient, Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (citation and quotation omitted), and even though modern rules of pleading are somewhat forgiving, "a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." RE/MAX, LLC v. Quicken Loans Inc., 295 F. Supp. 3d 1163, 1168 (D. Colo. 2018) (citations and quotations omitted). In this analysis, the court must "accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff," Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)), but even so a plaintiff may not rely on mere labels or conclusions, "and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555; see also Hall, 935 F.2d at 1110 (holding that even pro se litigants cannot rely on conclusory, unsubstantiated allegations to survive a 12(b)(6) motion). The ultimate duty of the court is to "determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed." Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
C. Rule 12(c) of the Federal Rules of Civil Procedure
A motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) may be filed only "[a]fter the pleadings are closed." Fed. R. Civ. P. 12(c). "Pleadings are closed within the meaning of Rule 12(c) if no counter or cross claims are at issue when a complaint and an answer have been filed." Maniaci v. Georgetown Univ., 510 F. Supp. 2d 50, 60 (D.D.C. 2007).
A motion under Rule 12(c) is evaluated under the same standard applicable to a Rule 12(b)(6) motion to dismiss. See Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1223-24 (10th Cir. 2009). Accordingly, the factual record in conjunction with a motion for judgment on the pleadings under Rule 12(c) is the same as that under Rule 12(b). United States v. Wahdan, 325 F. Supp. 3d 1136, 1138 (D. Colo. 2018); XY, LLC v. Trans Ova Genetics, LC, 333 F. Supp. 3d 1097, 1101 (D. Colo. 2018). The Court accepts all well-pleaded allegations in a complaint as true and views those allegations in the light most favorable to the nonmoving party. Wahdan, 325 F. Supp. 3d at 1138.
But a court should not grant a Rule 12(c) motion unless "the moving party clearly establishes that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law." Ciber, Inc. v. ACE Am. Ins. Co., 261 F. Supp. 3d 1119, 1125 (D. Colo. 2017) (quoting Park Univ. Enters., Inc. v. Am. Cas. Co., 442 F.3d 1239, 1244 (10th Cir. 2006)). A motion for a judgment on the pleadings "only has utility when all material allegations of fact are admitted or not controverted in the pleadings and only questions of law remain to be decided by the district court." 5C Charles Alan Wright et al., Federal Practice & Procedure § 1367 (3d ed., Apr. 2019 update).
D. Pro Se Litigants
A pro se litigant's pleadings "are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Hall, 935 F.2d at 1110 (citation omitted). But "[t]he broad reading of the plaintiff's complaint does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based." Id. Rather, a court should reasonably read the pro se litigant's 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, 935 F.2d at 1110. Notwithstanding this accommodation, the court's role is not to advocate for the pro se litigant. Id.
II. Motions to Dismiss
Though not filed first in time, this court finds its most appropriate to first consider the Motion to Dismiss filed by RealPage and TD Bank, because they raise issues of personal jurisdiction. In addition, although Defendants move separately on Rule 12(b)(6) grounds, this courts will not repeat its analysis for each Defendant, but rather, will refer back to the initial analysis when appropriate.
A. RealPage
Defendant RealPage has filed a motion to dismiss for lack of personal jurisdiction, insufficiency of process, and for failure to state a claim, as well as a Reply. [#81; #106]. Mr. Bath filed: "Plaintiff's Motion Opposing Defendant RealPage Motion for Dismissal." [#87]. Though styled as a motion, Mr. Bath does not request any affirmative relief, but rather objects to the dismissal sought by RealPage. [Id.]. This court thus considers, and refers to, it a Response to the Motion to Dismiss.
1. Personal Jurisdiction
As discussed above, this court begins with personal jurisdiction. Given Plaintiff bears the initial burden of establishing personal jurisdiction by a prima facie showing, Shrader v. Biddinger, 633 F.3d 1235, 1239 (10th Cir. 2011), it is incumbent upon Mr. Bath to come forward with facts to establish personal jurisdiction over RealPage.
Here, Plaintiff alleges that RealPage is a "Foreign Corporation located in Richardson, Texas." [#4 at ¶ 11]. But in its Motion, RealPage indicates that it is incorporated in Delaware and has a principal place of business in Richardson, Texas [#81 at 5], and argues that it is not subject to general personal jurisdiction in this forum because it is neither incorporated nor has its principal place of business in Colorado. [Id. at 5-6]. In response, Mr. Bath alleges that "[t]he records reflect Defendant RealPage conducts business and stole the Plaintiff [sic] personal property in Colorado." [#103 at ¶ 2]. Then, Mr. Bath refers back to his Complaint, Exhibit A as support for contention that dismissal is not proper. [Id. at ¶ 3].
Though this court takes "as true all well-pled (that is, plausible, non-conclusory, and non-speculative) facts alleged in plaintiff['s] complaint," Shrader, 633 F.3d at 1239, there are insufficient well-pled facts in Mr. Bath's Complaint to establish either general jurisdiction or specific jurisdiction. In addition to alleging that RealPage is a foreign corporation located in Richardson, Texas, Plaintiff alleges that he mailed "a certified USPS, Dispute Notice to the CEO of RealPage dba Leasing Desk, located at 2201 Lakeside Boulevard, Richardson, TX 75082, dated 01.18.2019" based on "an unauthorized, 'unspecified' inquiries, dated 09.13.2017, by a company calling itself Leasing Desk." [Id. at ¶¶ 37-38]. There are no allegations that upon which this court could conclude that RealPage is generally "at home" in Colorado. See generally [#4]. There is also no allegation that the inquiry directed at Equifax of which Mr. Bath complaint in Paragraph 37 originated from, or took place in, Colorado. [Id. at ¶¶ 37-38]. Nor are there any other allegations of actions taken by RealPage in Colorado that are plausible, non-conclusory, and non-speculative that allows this court to conclude that Plaintiff has established even a prima facie showing of personal jurisdiction. In Response, Mr. Bath argues that "[t]he records reflect Defendant RealPage conducts business . . . in Colorado." [#87 at ¶ 2]. Even if Mr. Bath could amend his Complaint with that statement, Mr. Bath has still failed to allege specific, non-conclusory facts that establish RealPage was "at home" in Colorado or that forum-specific conduct by RealPage gave rise to this action. Accordingly, this court concludes that Plaintiff has failed to carry his burden of establishing personal jurisdiction over RealPage.
A plaintiff may not amend his complaint with a response to a motion to dismiss. See In re Qwest Commc'ns Int'l, Inc., 396 F. Supp. 2d 1178, 1203 (D. Colo. 2004) (finding that a plaintiff may not further amend a Complaint by alleging new facts in response to a motion to dismiss).
2. Process
Although this court finds that the lack of personal jurisdiction is a sufficient basis for a recommendation of dismissal, this court proceeds to considering RealPage's arguments with respect to process out of completeness. Though RealPage moves for dismissal under Rule 12(b)(4) for insufficient process, its arguments relate to the mode and delivery of process, rather than the sufficiency of the summons. See [#81 at 7-8]. Therefore, this court finds that it is more appropriate to consider RealPage's arguments regarding improper service pursuant to Rule 12(b)(5) as a challenge to the sufficiency of service of process. In opposing a motion to dismiss for insufficient service of process, the "plaintiff bears the burden of making a prima facie case that he has satisfied statutory and due process requirements so as to permit the court to exercise personal jurisdiction over the defendant." Allen v. United Properties & Const., No. 07-cv-00214-LTB-CBS, 2008 WL 4080035, at *9 (D.Colo. Sept. 3, 2008) (unpublished) (quoting Fisher v. Lynch, 531 F.Supp.2d 1253, 1260 (D. Kan. 2008). Plaintiff must demonstrate that the procedure employed by him to effect service satisfied the requirements of Rule 4 of the Federal Rules of Civil Procedure. Light v. Wolf, 816 F.2d 746, 751 (D.C.Cir.1987).
As noted above, this action was originally filed in Colorado state court, and then was removed so this court looks to Colorado law to determine whether service of process was perfected prior to removal. Mr. Bath does not address service in his Response. [#87]. Here, the Affidavit of Service indicates that a true and correct copy of the Summons and Complaint was mailed via U.S. Mail and electronic mail to Stephen T. Winn, CEO RealPage. [#12]. But Rule 4(g) of the Colorado Rules of Civil Procedure makes clear that "[e]xcept as otherwise provided by law, service by mail or publication shall be allowed only in actions affecting specific property or status or other proceedings in rem." C.R.C.P. 4(g). There are no allegations in the Complaint that indicate that Mr. Bath's asserted claims relate to real property located within the state of Colorado. Nor, as pointed out by RealPage, has Plaintiff submitted the verified motion or obtained the order from the court, contemplated by Rule 4(g) of the Colorado Rules of Civil Procedure. Therefore, this court concludes that Plaintiff has failed to carry his burden of establishing, even by prima facie proof, that he properly serve RealPage.
RealPage also argues that service of the Complaint was not proper under Rule 304 of the Colorado Rules of Civil Procedure. [#81 at 8]. This court finds that Rule inapposite in this case. Rule 304 applies to actions commenced in Colorado county courts. See C.R.C.P. 301. This action was commenced in Denver District Court. [#4]. Indeed, because Mr. Bath seeks more than $25,000 in damages, see [#4], a Colorado county court would lack jurisdiction. Colo. Rev. Stat. § 13-6-104.
3. Stating a Cognizable Claim
Finally, Real Page argues that Plaintiff has failed to state a claim for any of the three claims for relief asserted: fraud, conversion, or theft.
Fraud. To state a prima facie case for fraud under Colorado law, a "plaintiff must present evidence that the defendant made a false representation of a material fact; that the party making the representation knew it was false; that the party to whom the representation was made did not know of the falsity; that the representation was made with the intent that it be acted upon; and that the representation resulted in damages." Brody v. Brock, 897 P.2d 769, 775-76 (Colo. 1995). Here, Plaintiff does not point to any knowingly false representations made by RealPage (or any of the Defendants); rather, his claims appear to center on two types of representations: (1) "Defendant(s) made a false representation when it represented that it [sic?] had consent to review consumer Credit Files"; (2) "The Defendant(s) represented that the credit file was authorized but withheld any proof of consent via a 'signed contract.'" [#4 at ¶ 49 (quotations in original)].
Rule 9(b) of the Federal Rules of Civil Procedure, and the corollary Rule 9(b) of the Colorado Rules of Civil Procedure, both require fraud to be plead with particularity. Fed. R. Civ. P. 9(b), C.R.C.P. 9(b). But Plaintiff never identifies when which Defendant is engaging in what conduct; indeed, the use of parentheses around the (s) in "Defendants(s)" underscores the lack of particularity of Mr. Bath's allegations. Plaintiff also does not allege that RealPage, or any of the other Defendants, made their unspecified, fraudulent representations knowing their falsity, nor does he allege that the party to whom the representation was made did not know of the false character of the statements or that he relied on these statements to his detriment in any manner. Accordingly, Mr. Bath's Complaint fails to articulate sufficient, particularized factual allegations for his first claim for relief of fraud to survive dismissal.
Second, to state claims for theft and conversion, Plaintiff must plead sufficient, non-conclusory facts that allow the factfinder to conclude that Plaintiff has been deprived of some property. Scott v. Scott, 428 P.3d 626, 633(Colo. 2018) (listing elements of theft); Associates v. Century Mortg. & Inv. Corp., 680 P.2d 1315, 1317 (Colo. Ct. App. 1984) (listing elements of conversion). Plaintiff alleges that he has a "right to private property in his credit files, held by Defendant(s)." See [#4 at ¶¶ 51, 55]. But Plaintiff does not explain how credit files maintained by others constitutes his personal property, nor does he explain how inaccurate records or unwanted credit inquiries constitutes a deprivation of his "private property." In his Response, Mr. Bath avers that "[t]he records reflect that RealPage ... stole the Plaintiff [sic] personal property in Colorado." [#87 at ¶ 2]. Again, Plaintiff provides no non-conclusory factual allegations regarding the personal property in Colorado of which he was deprived. Plaintiff's failure to specify any personal property leads this court to conclude that the Complaint fails to allege essential elements of the second and third claims for theft and conversion, respectively, and are subject to dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
For the reasons set forth above, this court respectfully RECOMMENDS that RealPage's Motion to Dismiss be GRANTED.
Defendants also seek dismissal with prejudice. This court discusses the request for dismissal with prejudice in conjunction with the analysis of Plaintiff's Motion to Amend below.
B. TD Bank
The court turns next to TD Bank's Motion to Dismiss, as it also seeks dismissal under Rule 12(b)(4) for insufficiency of process; Rule 12(b)(5) for insufficient service of process, and Rule 12(b)(6) for failure to state cognizable claims. [#68]. Mr. Bath responded [#88], and TD Bank replied. [#104].
1. Process
Unlike RealPage, TD Bank challenges the form and substance of the Summons, as well as the mode and delivery of the Summons and Complaint. [#68]. Specifically, TD Bank contends that the Summons is facially flawed because it identifies two different courts and left blank spaces where time and date were to be filled in. [Id. at 7]. Although this court agrees that the Summons in this case contains both the Denver District Court as well as the Arapahoe County District Court and does not contain a time or date for an answer [#1-10; #68-2], this court declines to recommend dismissal on this basis. As an initial matter, the Summons also includes a date stamp that although partially obfuscated in TD Bank's copy, clearly reflects the Denver District Court as the place of filing; a stamp from the Denver Clerk of the Court; and the address of the Denver court. [#1-10 at 1]. It also includes a date of January 30, 2019, from which TD Bank or its counsel could clearly calculate the deadline for a responsive pleading. [Id.]. Finally, there is no indication from the record that TD Bank was actually confused by the flaws in the Summons. Accordingly, given Mr. Bath's pro se status and the lack of any indicia of confusion or prejudice on the part of TD Bank, this court declines to recommend dismissal for insufficient process pursuant to Rule 12(b)(4).
TD Bank also argues for dismissal pursuant to Rule 12(b)(5) because the service of the Summons and Complaint were insufficient. [#68 at 8]. TD Bank asserts that Plaintiff attempted to serve it by mailing the Summons and Complaint to its Chief Operating Officer, George Braca ("Mr. Braca"). [Id. (citing #14 at 3)]. In response, Mr. Bath filed a "Motion Opposing TD Bank USA Motion to Dismiss," in which he does not respond to the service argument. [#88]. Though this court agrees that the Certificate of Service on the Summons indicates that the Summons and Complaint were mailed to Mr. Braca, the Affidavit of Service also indicates that Mr. Braca was personally served. [#14 at 1]. A signed affidavit constitutes prima facie evidence of valid service, which can be overcome only by strong and convincing evidence. Gates v. Syrian Arab Republic, 646 F.Supp.2d 79, 85-86 (D.D.C. 2009). Because TD Bank did not submit a Declaration or Affidavit indicating that Mr. Braca had not been personally served, this ambiguity in the record leads this court to decline to recommend dismissal on the basis of improper service pursuant to Rule 12(b)(5).
3. Stating a Cognizable Claim
TD Bank also moves for dismissal pursuant to Rule 12(b)(6) for failure to state a cognizable claim. Plaintiff's factual allegations as to TD Bank are substantially similar to those directed at RealPage, and are similarly lacking. [#4 at ¶¶ 39, 40]. For the reasons set forth above, see supra Section II(A)(3), this court finds that Plaintiff has failed to state a cognizable claim.
4. Attorney's Fees
Finally, this court considers TD Bank's request for attorney's fees under Colo. Rev. Stat. § 13-17-201. [#68 at 13]. Section 201 states, in relevant part:
In all actions brought as a result of a death or an injury to person or property occasioned by the tort of any other person, where any such action is dismissed on motion of the defendant prior to trial under rule 12(b) of the Colorado rules of civil procedure, such defendant shall have judgment for his reasonable attorney fees in defending the action.Colo. Rev. Stat. § 13-17-201 (2018). In a diversity action like this one, federal courts apply section 201 in the same manner as state courts. Infant Swimming Research, Inc. v. Faegre & Benson, LLP, 335 F. App'x 707, 715 (10th Cir. 2009) ("The Tenth Circuit has held that, when exercising diversity jurisdiction, federal courts should use § 13-17-201 as the fee recovery provision when Colorado state law tort claims are dismissed under Fed.R.Civ.P. 12(b) because courts 'must apply the substantive law of the forum state' and attorney fee statutes are considered substantive for diversity purposes."). Section 201 is mandatory—a defendant shall have judgment for reasonable attorney's fees. Colo. Special Districts Prop. & Liab. Pool v. Lyons, 277 P.3d 874, 884 (Colo. App. 2012) ("Section 13-17-201 creates a mandatory right to attorney fees when a plaintiff's tort action is dismissed prior to trial under C.R.C.P. 12(b)").
This court finds that it is premature to adjudicate TD Bank's request for attorney's fees at this juncture. First, the presiding judge, the Honorable Raymond P. Moore, has not yet had the opportunity to pass on the Recommendation with respect to not only TD Bank's Motion to Dismiss but also Plaintiff's Motion for Leave to Amend, discussed below. Second, TD Bank's request for attorney's fees is not compliant with this District's Local Rule of Civil Practice 54.3, which requires any motion for attorney's fees to be supported by an affidavit, and include a summary of relevant qualification and experience, and a detailed description of the services rendered, the amount of time spent, the hourly rate charged, and the total amount claims. D.C.COLO.LCivR 54.3. Third, while Plaintiff has responded to TD Bank's Motion to Dismiss, it has not addressed the attorney's fees argument under section 201, including the appropriateness of any requested fees. See [#88]. This court recommends that should this Recommendation be adopted, any party seeking attorney's fees, including TD Bank, be ORDERED to file a compliant Motion for Attorney's Fees within fourteen days of final judgment.
For the reasons set forth herein, this court respectfully RECOMMENDS that TD Bank's Motion to Dismiss be GRANTED IN PART as to the dismissal of Plaintiff's claims against TD Bank, and DENIED IN PART without prejudice, as to TD Bank's request for attorney's fees in favor of the filing of a compliant Motion for Attorney's Fees if judgment is entered in this action as a result of these Motions to Dismiss.
C. PayPal
PayPal moves to dismiss pursuant to Rule 12(b)(6), solely arguing that Plaintiff fails to state claims for fraud, conversion, or theft. [#56]. Mr. Bath again filed "Plaintiff's Motion Opposing Defendant PayPal Motion to Dismiss." [#85]. PayPal did not file a Reply.
With respect to PayPal, Mr. Bath alleges that he "reviewed Trans Union credit file #310634414, dated January 2, 2019; observed an unauthorized, 'unspecified' inquiry, dated 12. 17. 2018; by a company calling itself PAYPAL. See Exhibit C[.]" [#4 at ¶ 33]. He goes on to allege facts regarding seemingly unrelated class action lawsuits, Zepeda v. PayPal, Inc., Case No. 4:10-cv-02500 (N.D. Cal.) and Comb v. PayPal, Cases No. C-02-1227 and C-02-2777 (N.D. Cal). [Id. at ¶ 34]. But Mr. Bath provides insufficient factual allegations in his Complaint to support his claims for fraud, conversion, or theft against PayPal. See generally [#4]. And his incorporation by reference of Exhibit C to his Complaint does not elicit any such facts. [#1-3 at 6].
PayPal also seeks an award of attorney's fees under Colo. Rev. Stat. § 13-17-201. [#56 at 9]. For the same reasons as discussed with TD Bank's request for attorney's fees, see supra Section II(B)(4), this court finds that the relief sought is better adjudicated through a future motion, compliant with D.C.COLO.LCivR 54.3. Accordingly, for the same reasons stated above, this court respectfully RECOMMENDS that PayPal's Amended Motion to Dismiss be GRANTED as to the dismissal of Plaintiff's claims against PayPal, and DENIED IN PART without prejudice as to PayPal's request for attorney's fees in favor of the filing of a compliant Motion for Attorney's Fees if judgment is entered in this action as a result of these Motions to Dismiss.
D. LexisNexis
LexisNexis moves for dismissal pursuant to Rule 12(b)(6), arguing that this action is duplicative of Plaintiff's prior action, Bath v. Experian Information Sys., et al., Civil Action 19-cv-00106-RM ("106 Action") and Plaintiff fails to state a cognizable claim. [#63]. Plaintiff has responded with a substantially similar "Motion Opposing Defendant LexisNexis Motion to Dismiss." [#86]. LexisNexis replied. [#102].
Though not substantively responded to by Plaintiff [#86], this court will briefly address the argument regarding this action's duplicative nature, because it is unique to LexisNexis. "[G]enerally, a suit is duplicative if the claims, parties, and available relief do not significantly differ between the two actions." Veitia Piedra v. Aguirre, 125 F. App'x 968, 969 (10th Cir. 2005) (quoting Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir.1993) (internal quotation marks and citations omitted). LexisNexis argues that the Complaint in this action is duplicative because it arises out of the same alleged fact, i.e., the alleged LexisNexis inquiry on December 17, 2018 on Trans Union credit file # 310634414 and involves the same parties. [#63 at 4]. While the court acknowledges that the sparse allegations in the Complaint in this action and the First Amended Class Complaint in the 106 Action both implicate Trans Union credit file # 310634414 [#4, ECF No. 71 at 20], the lack of sufficient pleading in both cases makes it difficult for this court to determine that the actions are definitively duplicative. The causes of action, and claimed relief, between the two actions are different. Compare [#4] with [ECF No. 71]. Accordingly, this court declines to recommend dismissal on the grounds that the two actions are duplicative.
When referring to filings in the 106 Action, this court will use the convention "ECF No." for the purposes of distinguishing the two dockets.
Nevertheless, Plaintiff's lack of factual allegations against LexisNexis warrant a recommendation of dismissal for the reasons stated above. Plaintiff alleges that he "reviewed Trans Union credit file# 310634414, dated January 2, 2019; observed an unauthorized, 'unspecified' inquiry, dated 12.17.2018; by a company calling itself LEXISNEXIS," and he "filed a complaint with dispute notice regarding the LexisNexis inquiry with the Consumer Financial Protection Bureau on 11.04.2018, file# 181105-3604177." These allegations are simply not enough for Plaintiff's claims for fraud, conversion, and theft to survive LexisNexis' Amended Motion to Dismiss. See supra Section II(A)(3). Accordingly, this court respectfully RECOMMENDS that LexisNexis' Amended Motion to Dismiss be GRANTED.
E. American Express
American Express seeks dismissal pursuant to Rule 12(b)(6), arguing that all the claims are preempted by the Fair Credit Reporting Act ("FCRA"); the Complaint does not allege facts supporting the elements of the causes of action; and does not provide any specific factual averments to sustain a claim of fraud as required by Rule 9(b) of the Federal Rules of Civil Procedure. [#65]. Mr. Bath responded [#89], and American Express replied. [#105]. Again, this court will address American Express' preemption argument, which has not been argued in conjunction the motions discussed above.
As recognized in the Recommendation issued in the 106 Action [ECF No. 174], the FCRA preempts state law causes of action against furnishers of credit information under 15 U.S.C. § 1681t(b)(1)(F). Macpherson v. JP Morgan Chase Bank, N.A., 665 F.3d 45, 46 (2nd Cir. 2011); Purcell v. Bank of Am., 659 F.3d 622, 625 (7th Cir. 2011); Collins v. BAC Home Loans Servicing LP, 912 F. Supp. 2d 997, 1003 (D. Colo. 2012). Section 1681t(b)(1)(F) provides that:
No requirement or prohibition may be imposed under the laws of any State -Though 15 U.S.C. § 1681s-2(b) imposes a duty on furnishers to reasonably investigate and report incomplete or inaccurate information after receiving notice of a consumer dispute from a credit reporting agency, Mr. Bath does not allege in this action that American Express failed to investigate or reported incomplete or inaccurate information. Instead, Mr. Bath alleges that American Express made some type of "unauthorized, unspecified inquiry." [#4 at ¶ 16]. Furthermore, even if Mr. Bath's allegations could be read as implicating American Express's duties under the FCRA, 15 U.S.C. § 1681h(e) precludes a consumer from bringing state law claims, "except as to false information furnished with malice or willful intent to injure such consumer." 15 U.S.C. § 1681h (emphasis added). Again, Mr. Bath's allegations of malice and willfulness are unsupported by any factual averments. To that extent concern the Defendants' conduct as furnishers of credit information, such claims are preempted as these actions which governs duties to provide correct information, correct and update information, provide notice, and conduct upon receiving a customer dispute. Pinson v. Equifax Credit Info. Servs., Inc., 316 F. App'x 744, 751 (10th Cir. 2009). To the extent that some of Plaintiff's claims are based on distinguishable conduct not governed by §1681s-2, Plaintiff still has failed to allege sufficient facts to state cognizable claims. See supra Section II(A)(3). As a result, this court respectfully RECOMMENDS that American Express's Amended Motion to Dismiss be GRANTED.
(1) with respect to any subject matter regulated under - . . .
(F) section 1681s-2 of this title, relating to the responsibilities of persons who furnish information to consumer reporting agencies.
III. First Premier's Rule 12(c) Motion
Though First Premier has moved for a judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure [#107], it makes the two arguments analyzed above regarding the Rule 12(b)(6) Motions: that Plaintiff's claims are preempted and further fail to state a claim. [Id. at 6-10]. Plaintiff did not respond to this motion, and the time to do so has expired.
Procedurally, the Motion is proper. Pleadings have closed between Mr. Bath and First Premier with the filing of the latter's Answer Brief. [#29]; Maniaci, 510 F. Supp. 2d at 60. As noted above, the same standard is applied to First Premier's Motion for Judgment on the Pleadings as to the other Defendants' Motions to Dismiss pursuant to Rule 12(b)(6). The Complaint contains two allegations that are specific to First Premier:
41. The Plaintiff reviewed Equifax credit file# 9003044461 , dated January 3, 2019; observed an unauthorized, 'unspecified" inquiry, dated 05.01 .2017, by a company calling itself First Premier Bank. See Exhibit D[.] and[#4 at ¶¶ 41, 42]. Therefore, on the merits, First Premier's Motion succeeds for the same reasons discussed above in analyzing the other Defendants' 12(b)(6) motions. See supra Section II(A)(3).
42. Plaintiff mail a certified USPS, Dispute Notice to the CEO of First Premier Bank, located at 601 South Minnesota Avenue, Sioux Falls, SD 57104; dated 01 .18.2019.
In addition, First Premier argues that any attempt by Plaintiff to amend his Complaint would be futile, and requests that dismissal be with prejudice. As before, this court will consider this request in conjunction with Plaintiff's Motion for Leave to Amend below. Accordingly, the court respectfully RECOMMENDS that First Premier's Motion for Judgment on the Pleadings be GRANTED.
IV. Plaintiff's Motions
Though filed chronically later than his Motion to Appoint Counsel, this court will now turn to Plaintiff's Motion for Leave to Amend because of its intertwined nature with Defendants' various motions and the requests for dismissal with prejudice by PayPal, LexisNexis, and First Premier.
A. Motion for Leave to Amend
Because this court has yet to set a deadline for joinder of parties and amendment of pleadings, the instant Motion to Amend comes before any such deadline and is governed by Rule 15(a) of the Federal Rules of Civil Procedure. See Fernandez v. Bridgestone/Firestone, Inc., 105 F. Supp. 2d 1194, 1195 (D. Colo. 2000) (explaining that the movant need not demonstrate good cause under Rule 16(b) under such circumstances). Rule 15(a)(2) provides that leave to amend "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a)(2). "Indeed, Rule 15(a)'s purpose is to provide litigants the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties." Warnick v. Cooley, 895 F.3d 746, 754-55 (10th Cir. 2018) (internal quotation marks omitted). But the court may refuse leave to amend upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment. See Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). Whether to allow amendment is within the trial court's discretion. Burks v. Oklahoma Publ'g Co., 81 F.3d 975, 978-79 (10th Cir. 1996).
In his Motion for Leave to Amend, Plaintiff seeks to amend his complaint as it was originally filed in state court and removed against his wishes. [#109 at 1]. Plaintiff states that he seeks to add additional facts to comport with federal pleading rules. [Id.]. He attaches a proposed "First Amended Private Action Class Complaint" that is substantially similar to the proposed Second Amended Class Complaint he filed in the 106 Action. Compare [#109-2] with [ECF No. 144-1]. Defendants oppose the Motion to Amend as failing to comply with Local Rule 15.1, undue delay, and futility. [#116].
The proposed First Amended Complaint is significantly different than the current operative Complaint, and seeks to transform the current action into one substantially similar to, if not duplicative of, the 106 Action. For this basis alone, this court finds that leave to amend is not appropriate. See Minter v. Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006) (finding that courts are justified in denying leave to amend "when it appears that the plaintiff is using Rule 15 to make the complaint a moving target . . . to salvage a lost case by untimely suggestion of new theories of recovery . . . [or] to present theories in seriatim in an effort to avoid dismissal." (internal quotations and citations omitted)); Gillon v. Bureau of Prisons, No. CIV.A. 06-CV-02383MS, 2008 WL 350115, at *1 (D. Colo. Feb. 7, 2008) ("[A] a court may deny a motion to amend when . . . the claims which the plaintiff seeks to add are completely new and would transform the action into a brand new lawsuit."). In addition, consistent with its Recommendation in the 106 Action [ECF No. 74], this court finds that Mr. Bath is not an appropriate class representative under Rule 23 of the Federal Rules of Civil Procedure; the proposed First Amended Complaint does not add factual support to the existing claims or the proposed claims; the state law claims are preempted under the FCRA; and that the proposed First Amended Complaint would make this action duplicative of the 106 Action. Accordingly, the undersigned respectfully RECOMMENDS that the Motion to Amend be DENIED.
B. Dismissal with Prejudice
Defendants also seek dismissal of the claims against them with prejudice. A dismissal with prejudice of a complaint that fails to state a claim under Rule 12(b)(6) is appropriate only when "granting leave to amend would be futile." Due to heightened concerns when a plaintiff is proceeding pro se, dismissal with prejudice is only appropriate "where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend." Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006); Oxendine v. Kaplan, 241 F.3d, 1272, 1275 (10th Cir.2001); Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir.2010) (citations omitted) ("[O]rdinarily the dismissal of a pro se claim under Rule 12(b)(6) should be without prejudice, and a careful judge will explain the pleading's deficiencies so that a prisoner with a meritorious claim can then submit an adequate complaint."). Futility has been found when a party has been previously granted leave to amend, but was unable to cure the deficiencies, and where a party has made no showing how it could cure the defects present in its current complaint. TV Commc'ns Network, Inc. v. Turner Network Television, Inc., 964 F.2d 1022, 1028 (10th Cir. 1992).
While TD Bank and American Express request dismissal with prejudice, neither makes an argument as to why they are entitled to dismissal with prejudice. [#68 at 14; #65 at 4]. The remaining Defendants (RealPage, PayPal, LexisNexis, and First Premier) contend that no amendment could cure the defects to Plaintiff's Complaint, rendering any attempt futile. [#81 at 13; #56 at 9; #63 at 9; #107 at 11]. In the end, whether dismissal with prejudice is warranted, depends upon what ground the court dismisses the claims.
To the extent that the court dismisses for lack of personal jurisdiction or improper service, dismissal without prejudice is appropriate. See Arocho v. Lappin, 461 F. App'x 714, 719 (10th Cir. 2012) ("Absent the power to proceed to an adjudication, a court must dismiss without prejudice because it cannot enter a judgment on the merits." (emphasis in original)); Fed. R. Civ. P. 4(m) ("If a defendant is not served within 90 days after the complaint is filed, the court -on motion or on its own after notice to the plaintiff- must dismiss the action without prejudice against that defendant or order that service be made within a specified time."); Murphy v. City of Tulsa, 556 F. App'x. 664, 667 (10th Cir. 2014).
To the end that the court finds that the claims are preempted, or not cognizable, as a matter of law, then dismissal with prejudice is warranted. Indeed, it is difficult for this court to conceive of a set of facts related to Plaintiff's asserted claims regarding Defendant's "unauthorized, unspecified inquiries" reflected on his credit filed from non-parties Experian and Trans Union that would support viable claims for fraud, conversion, or theft. Plaintiff does not allege that any of the Defendants made affirmative statements to Plaintiff. [#4]. As to the fraud claim, Plaintiff does not cite, and this court could not independently find, any precedent to suggest that a fraud claim under Colorado law may be premised on alleged misrepresentations or actions directed at third parties, and authority from Colorado and other jurisdictions suggests otherwise. Cf. Aktieselskabet AF 21. Nov. 2001 v. Fame Jeans Inc., 525 F.3d 8, 22-23 (D.C. Cir. 2008) (concluding that false statements made to third party are not actionable if plaintiff did not rely on those false statements); Pasternack v. Laboratory Corp. of Am. Holdings, 839 F.3d 151, 152 (2d Cir. 2016) (plaintiff could not establish reliance element of fraud by showing third party relied on false statements); Atkins v. Heavy Petroleum Partners, LLC, 86 F. Supp. 3d 1188, 1202 (D. Kan.), aff'd, 635 F. App'x 483 (10th Cir. 2015) (finding that under Kansas law, "a key element of a fraud claim is a misrepresentation made to the injured party. A fraud claim is not actionable if the misrepresentation was made to a third party."). And as to the conversion and theft claims, Plaintiff does not cite, and this court could not independently find, any precedent to suggest that Mr. Bath's credit files can constitute personal property. Cf. Poulin v. Thomas Agency, 746 F. Supp. 2d 200, 206 (D. Me. 2010). But to the extent that the court simply finds that Mr. Bath has failed to plead sufficient facts but that the claims for fraud, conversion, and theft are legally viable, dismissal without prejudice seems appropriate, even in the circumstances of denying Mr. Bath's instant Motion for Leave to Amend. Given these different considerations, this court makes no recommendation with respect to whether dismissal should be with or without prejudice, and simply reserves this issue to the presiding judge.
C. Appointment of Counsel
Plaintiff also seeks appointment of counsel to assist him in litigating this case. [#83]. In so moving, Mr. Bath copies the allegations from his Complaint when prompted for a discussion of the merits or complexity of the action and includes the names of two lawyers who alleged declined to represent him. [Id. at 1-4]. The court is not persuaded that appointment of counsel of warranted.
The determination of whether to appoint counsel in a civil case is left to the sound discretion of the trial court. Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). In deciding whether to request counsel for a civil litigant, the district court should evaluate "the merits of a [litigant's] claims, the nature and complexity of the factual issues, and the [litigant's] ability to investigate the facts and present his claims." Hill v. Smithkline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (citations omitted). Under Local Attorney Rule 15(f), the court considers the following factors in reviewing a motion for appointment of counsel in a civil action: 1) the nature and complexity of the case; 2) the potential merit of the pro se party's claims; 3) the demonstrated inability of the unrepresented party to retain an attorney by other means; and 4) the degree to which the interests of justice will be served by appointment of counsel, including the benefit the court may derive from the assistance of the appointed counsel. D.C.COLO.LAttyR 15(f), Appointment Procedure under Civil Pro Bono Representation, http://www.cod.uscourts.gov/Portals/0/Documents/Announcements/2014-FINAL-Local%20Attorney%20Rule%2015.pdf. "The burden is on the applicant to convince the court that there is sufficient merit to his claim to warrant the appointment of counsel." Hill, 393 F.3d at 1115 (citation omitted). "Only in those extreme cases where the lack of counsel results in fundamental unfairness will the district court's decision be overturned." Hill, 393 F.3d at 1115 (citation omitted).
The court does not find appointment of counsel to be warranted at this stage. First, Mr. Bath's Complaint, as currently pled, does not suggest that there is a viable cause of action against any Defendant, and is subject to this court's Recommendation of dismissal. Appointment of counsel under such circumstances would be inappropriate. Second, this is not an especially complex or difficult case; the allegations appear to be limited in time and scope and would not appear to require an expert witness or especially complex or burdensome discovery. Finally, the court is staying discovery pending the court's ruling on the outstanding Motions and thus any outstanding obligations are limited. Accordingly, the court DENIES Mr. Bath's Motion for appointment of counsel.
V. Discovery Management Order
The Federal Rules of Civil Procedure do not expressly provide for a stay of proceedings; however, the power to stay "is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants." Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936) (citing Kansas City S. Ry. Co. v. United States, 282 U.S. 760, 763 (1931)). Whether to stay discovery is a matter left to the sound discretion of the trial court. Wang v. Hsu, 919 F.2d 130, 130 (10th Cir. 1990). In determining whether a stay is appropriate, the court weighs interests such as whether defendants are likely to prevail in the civil action, whether defendants will suffer irreparable harm, whether the stay will cause substantial harm to other parties to the proceeding, and the public interests at stake. United Steelworkers of Am. v. Oregon Steel Mills, Inc., 322 F.3d 1222, 1227 (10th Cir. 2003). The factors to be applied by the court in determining the propriety of a stay are: (1) Plaintiffs' interests in proceeding expeditiously with the action and the potential prejudice to Plaintiffs resulting from a delay; (2) the burden on the Defendants; (3) the convenience to the Court; (4) the interests of persons not parties to the litigation; and (5) the public interest. String Cheese Incident, LLC v. Stylus Shows, Inc., No. 1:02-CV-01934-LTB-PAC, 2006 WL 894955, at *2 (D. Colo. Mar. 30, 2006).
Defendants seek an order of the court to stay any present discovery in this case. [#112]. Defendants argue that Plaintiff's already-served discovery is premature at this juncture under Rule 26 as the parties have not yet had their initial Rule 26(f) conference as such requirement as terminated by the court's order dated March 11, 2019 [#62 (vacating 26(f) conference and initial disclosures requirement)]. Plaintiff has not responded but his opposition is presumed, but the court need not wait for a response as the court agrees with the movants. Given the substance of this Recommendation and Order, the court finds cause to stay discovery in this case pending the disposition of the pending motions. Accordingly, the Motion for Discovery Order is GRANTED.
CONCLUSION
Accordingly, it is respectfully RECOMMENDED that:
(1) PayPal, Inc.'s Amended Motion to Dismiss [#56] be GRANTED IN PART AND DENIED IN PART;
(2) LexisNexis Risk Solutions, Inc.'s Amended Motion to Dismiss Plaintiff's Complaint [#63] be GRANTED;
(3) Defendant American Express Company's Amended Motion to Dismiss Plaintiff's Complaint [#65] be GRANTED;
(4) Defendant TD Bank USA, N.A.'s Motion for Dismissal Under Rules 12(b)(4)-(6) [#68] be GRANTED IN PART AND DENIED IN PART;
(5) Defendant Realpage Inc.'s Motion to Dismiss [#81] be GRANTED;
(6) Defendant First Premier Bank's Motion for Judgment on the Pleadings [#107] be GRANTED, and;
(7) Plaintiff Brian Bath's Motion for Leave to Amend Original Complaint [#109] be DENIED.
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the District Court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court's decision to review a Magistrate Judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge's ruling). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
Further, IT IS ORDERED that:
(8) Plaintiff Brian Bath's Motion for Appointment of Counsel [#83] is DENIED; andDATED: May 31, 2019
(9) Defendants American Express National Bank (misnamed as "American Express Company"); First Premier Bank; LexisNexis Risk Solutions Inc.; PayPal, Inc.; RealPage, Inc.; TD Bank USA, N.A. (misnamed as "TD Bank"); and Wells Fargo Bank, N.A's Joint Motion for Discovery-Management Order [#112] is GRANTED, and;
(10) Discovery in this matter is STAYED pending Judge Moore's ruling on this Recommendation and outstanding Motions.
BY THE COURT:
/s/_________
Nina Y. Wang
United States Magistrate Judge