Opinion
Civil Action No. 18-cv-02795-WJM-KMT
05-09-2019
JEROME L. GRIMES, Plaintiff, v. KRISTY DUMAS, MARY CHAN, ASHLEY CHANDLER, SSP, 720 CHAPMAN, LLC, COLORADO SPRINGS APARTMENT MANAGEMENT, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This case comes before the court on Plaintiff Jerome Grimes' "Motion for Entry of Default Judgment." (Doc. No. 37, filed March 12, 2019.) Plaintiff seeks default judgment against Defendants Kristy Dumas, Mary Chan, Ashley Chandler, SSP, 720 Chapman, LLC, and Colorado Springs Apartment Management (collectively "Defendants"). Also before the court is Plaintiff's "Motion for Leave to File an Amended Complaint." (Doc. No. 48, filed April 28, 2019.) For the following reasons, the court respectfully recommends that both motions be DENIED.
FACTUAL BACKGROUND
The following factual background is derived from Plaintiff's Amended Complaint. (Doc. No. 4.) On or around August 3, 2018, Plaintiff rented an apartment collectively owned and run by Defendants in Colorado Springs, Colorado. (Id. at 2-3, 6, Exh. A.) Shortly thereafter, Defendants informed Plaintiff they would be entering his apartment to spray for roaches as part of a two-phase pest control process. (Id. at 3-6, Exhs. F, H.) In September, Plaintiff received a notice that Defendants would be entering his apartment to perform the second pest spray on September 27, 2018 but, for reasons unknown to the court, Defendants did not spray that day. (Id. at 11, Exhs. F, N.)
On October 3, 2018, Defendants charged Plaintiff a $150 fee for missing/refusing the September 27, 2018 pest spraying. (Id. at 11, 15.) Defendants also charged Plaintiff $93.80 in sewage and water fees plus a $5.00 per day late fee. (Id. at 15.) Plaintiff filed suit the following month, alleging various claims associated with Defendants entering his apartment and charging him fees. (See generally Amended Complaint)
PROCEDURAL BACKGROUND
Plaintiff filed his pro se Complaint on October 31, 2018 (Doc. No. 1) and filed his Amended Complaint on November 6, 2018 (Doc. No. 4 [Amend. Compl.]). Plaintiff's Amended Complaint, although somewhat difficult to decipher, appears to assert claims for relief against Defendants pursuant to the Fourth, Sixth and Fourteenth Amendments to the U.S. Constitution, Dodd-Frank Wall Street Reform and Consumer Protection Act, various criminal claims, as well as a claim for injunctive relief. (See generally Amend. Compl.) On November 6, 2018, Plaintiff returned proofs of service for each of the defendants. (Doc. No. 6.) Plaintiff moved for default judgment on December 6, 2018 (Doc. No. 12), but the court denied the motion because review of the docket indicated the summonses were never issued by the Clerk of Court (Doc. No. 14). Plaintiff purportedly served each of the defendants with the Clerk-issued summonses on December 21, 2018, and filed the proofs of service on December 26, 2018. (Doc. Nos. 18-22.) Plaintiff filed an Amended Motion for Entry of Default on December 31, 2018 (Doc. No. 23), which the court denied because the time to answer or otherwise respond had not expired (Doc. No. 24). None of the Defendants answered, moved against, or otherwise responded to the Amended Complaint, and Plaintiff filed Motions for Entry of Default on February 11, 2019 and February 12, 2019. (Doc. Nos. 27, 28.) The Clerk entered default as to each of the defendants on February 15, 2019. (Doc. No. 29.)
Because Plaintiff alleges constitutional violations in his civil suit, the court infers that Plaintiff intends to bring his constitutional claims pursuant to 28 U.S.C. § 1983, which provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .28 U.S.C. § 1983.
On February 15, 2019, after review of Plaintiff's Amended Complaint and the docket, the court entered an order allowing the defendants to file responses to the Motions for Entry of Default no later than March 12, 2019. (Doc. No. 34.) In that Order, the court noted it had reviewed the proofs of service and was suspicious of proper service and notification. (Doc. No. 34, pg. 1.) Accordingly, the court directed the Clerk to mail copies of the Order, the Amended Complaint, the proofs of service, Plaintiff's motions, and the Clerk's entry of default as to the defendants. (Id. at pg. 2.) The court further directed the Clerk to send copies of the same to the registered agent of Defendant SSP, 710 Chapman, LLC, as listed by the Colorado Secretary of State. (Id.) No defendant responded to the Motions for Entry of Default. On March 12, 2019, Plaintiff filed the present Motion for Entry of Default Judgment. (Doc. No. 37.)
Plaintiff's Proposed Second Amended Complaint deletes the entire "Background of the Case" section, every defendant but SSP, 720 Chapman, LLC, and certain claims. (See Doc. No. 50.) Plaintiff's proposed pleading does not contain any new factual or legal allegations. (Id.) On April 25, 2019 and April 29, 2019, respectively, Plaintiff filed a supplement and amended supplement to his Motion for Leave to File Amended Complaint, both of which contain documentation regarding a loan proposal for Jerome L. Grimes' Productions, LLC. (Doc. Nos. 51, 52).
LEGAL STANDARDS
A. Entry of Default Judgment
Default must enter against a party who fails to appear or otherwise defend a lawsuit. Fed.R.Civ.P. 55(a). Pursuant to Rule 55(b)(1), default judgment must be entered by the clerk of court if the claim is for "a sum certain"; in all other cases, "the party must apply to the court for a default judgment." Fed.R.Civ.P. 55(b)(2). "[D]efault judgment must normally be viewed as available only when the adversary process has been halted because of an essentially unresponsive party. In that instance, the diligent party must be protected lest he be faced with interminable delay and continued uncertainty as to his rights. The default judgment remedy serves as such a protection." In re Rains, 946 F.2d 731, 732-33 (10th Cir.1991) (internal quotation marks and citation omitted).
Further, "a party is not entitled to a default judgment as of right; rather the entry of a default judgment is entrusted to the 'sound judicial discretion' of the court." Greenwich Ins. Co. v. Daniel Law Firm, No. 07-cv-2445, 2008 WL 793606, at *2 (D.Colo. Mar. 22, 2008) (internal citation omitted). Before granting a motion for default judgment, the court must take several steps. First, the court must ensure it has subject matter jurisdiction over the action and personal jurisdiction over the defaulting defendants. See Williams v. Life Sav. & Loan, 802 F.2d 1200, 1202-03 (10th Cir.1986). The court must do so in consideration of the well-established rule that "a judgment is void if the court that enters it lacks jurisdiction over either the subject matter of the action or the parties to the action." United States v. 51 Pieces of Real Prop., 17 F.3d 1306, 1309 (10th Cir. 1994).
Next, the court should consider whether the well-pleaded allegations of fact, which are deemed admitted by a defendant in default, support a judgment on the claims against the defaulting defendants. See Fed. Fruit & Produce Co. v. Red Tomato, Inc., 2009 WL 765872, *3 (D.Colo. March 20, 2009) ("Even after entry of default, however, it remains for the court to consider whether the unchallenged facts constitute a legitimate basis for the entry of a judgment.") (citations omitted). "In determining whether a claim for relief has been established, the well-pleaded facts of the complaint are deemed true." Id. (citing Dundee Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722 F.2d 1319, 1323 (7th Cir.1983)). Once the court is satisfied that default judgment should be entered, it has the discretion to hold a hearing to determine the amount of damages. See Fed. R. Civ. Pro. 55(b)(2). Generally, a damages hearing is not needed when the damages requested are for a sum certain. See United States v. Craighead, 176 Fed.Appx. 922, 925 (10th Cir. 2006).
B. Amended Complaint
Motions to amend should be freely granted when justice requires. See, e.g., Bellairs v. Coors Brewing Co., 907 F. Supp. 1448, 1459-60 (D. Colo. 1995). However, a motion to amend may be denied because of "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. . . ." Foman v. Davis, 371 U.S. 178, 182 (1962). A motion to amend must be left to the sound discretion of the district court, and must be decided based upon a careful evaluation of multiple factors. State Distribs., Inc. v. Glenmore Distilleries Co., 738 F.2d 405, 416 (10th Cir. 1984). A proposed amendment is futile if the complaint, as amended, would be subject to dismissal. Jefferson Cty. Sch. Dist. No. R-1 v. Moody's Inv'rs Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999).
ANALYSIS
A. Motion for Entry of Default Judgment
1. Jurisdiction
a. Subject Matter Jurisdiction
In determining whether default judgment is warranted, the court must first consider whether it has jurisdiction over the subject matter and the defendants. Dennis Garberg & Associates, Inc., v. Pack-Tech Int'l Corp., 115 F.3d 767, 772 (10th Cir.1997). Subject matter jurisdiction is "the courts' statutory or constitutional power to adjudicate the case." United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (quoting Steel Co., 523 U.S. at 89, 118 S.Ct. 1003). To establish subject matter jurisdiction based on diversity, a party must show that complete diversity of citizenship exists between the parties and the amount of controversy exceeds $75,000. 28 U.S.C. § 1332. To establish subject matter jurisdiction based on a federal question, the plaintiff must bring a civil action arising under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331.
The court finds that subject matter jurisdiction does not exist pursuant to 28 U.S.C. § 1332 because the parties are not of diverse citizenships. Indeed, the Amended Complaint alleges Plaintiff and Defendants all reside in Colorado. (See Doc. No. 4, pg. 2-3.) However, Plaintiff purports violations of the Fourth and Fourteenth Amendments to the U. S. Constitution stemming from an allegedly illegal entrance into his home, in addition to violations of the Sixth Amendment and Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub. L. No. 111-203, § 929-Z, 124 Stat. 1376, 1871 (2010) (codified at 12 U.S.C. § 5301, et seq., hereinafter "Dodd-Frank Act")), relating to bills he received from Defendants. (See generally Amend. Compl.) A liberal construction of Plaintiff's pro se complaint leads the court to find it has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1331 because Plaintiff raised a federal question.
b. Personal Jurisdiction
In addition to subject matter jurisdiction, entry of default judgment in a civil case requires personal jurisdiction over the defendants. Bixler v. Foster, 596 F.3d 751, 761 (10th Cir.2010). The court "must determine whether it has jurisdiction over the defendant[s] before [it may enter] judgment by default against a party who has not appeared in the case." Dennis Garberg & Assoc., 115 F.3d at 772; Deville v. Wilson, 208 F. App'x 629, 631 (10th Cir. 2006). See also Williams v. Life Sav. & Loan, 802 F.2d 1200, 1202 (explaining defects in personal jurisdiction are not waived by default when a party fails to appear or respond).
Plaintiff brings claims against both individual and corporate defendants. The personal jurisdiction of individuals is based on domicile (Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2853 (2011)) so, because Defendants Kristy Dumas, Mary Chan and Ashley Chandler reside in Colorado, this court has personal jurisdiction over them. Additionally, this court has personal jurisdiction over the business defendants because both entities are present within the territorial jurisdiction of the court. See Int'l Shoe Co. v. State of Wash., 326 U.S. 310, 316 (1945) (citing Pennoyer v. Neff, 95 U.S. 714, 733 (1987)). Indeed, SSP, 710 Chapman, LLC, is a Delaware corporation with a business address in Colorado, and Colorado Springs Apartment Management is a Colorado limited liability company.
According to the Colorado Secretary of State's website, Colorado Springs Apartment Management is a trade name for E/L Properties, LLC.
2. Plaintiff's Claims
Plaintiff appears to allege Defendants violated his constitutional rights and engaged in criminal activity by entering his apartment to search for valuable property under the guise of spraying for roaches and fixing a water leak. (See Amend. Compl. 3-5.) Plaintiff purports Defendants intended to poison him with pesticides that were akin to dirty bomb smoke. (Id. at 6-7.) Plaintiff also alleges Defendants violated his Sixth Amendment rights, as well as the Dodd-Frank Act, by charging him certain fees as part of an abusive financial practice. (Id. at 8-14, 17). Finally, Plaintiff brings various criminal claims, such as illegally searching Plaintiff's apartment for valuables, illegally entering Plaintiff's apartment to attempt to murder Plaintiff, and forcing entry into Plaintiff's apartment. (Id. at 1, 4, 8.) Plaintiff seeks injunctive relief in the form of a ruling that Defendants do not have unlimited rights to enter his apartment, in addition to damages in the amount of $260,000.00. (Id. at 23.) Taking the facts pled in Plaintiff's Complaint as true, Plaintiff has not set forth viable claims for any of his allegations.
a. Section 1983 Claims
Title 42 U.S.C. § 1983 provides a civil cause of action for individuals who are deprived of "any rights, privileges, or immunities secured by the Constitution and laws" by a person acting "under color of law." Adickes v. SH Kress & Co., 398 U.S. 144, 147 (1970). To assert viable claims under § 1983, Plaintiff must allege a deprivation of a federal or constitutional right by a person acting under color of state law. Watson v. City of Kansas City, Kan., 857 F.2d 690, 694 (10th Cir.1988); West v. Atkins, 487 U.S. 42, 48 (1988) (recovering under § 1983 requires showing that "the alleged deprivation was committed by a person acting under color of state law"). In his Amended Complaint, Plaintiff alleges violations of the Fourth, Sixth and Fourteenth Amendments. Nowhere, however, does Plaintiff allege that any government official or person acting "under the color of state law" deprived him of a constitutional guarantee, thus making his constitutional claims inviable and inappropriate to sustain a default judgment.
The Fourth Amendment protects persons against unreasonable searches of their persons and houses. U. S. Const. amend. IV; Taylor v. Leidig, 484 F. Supp. 1330, 1331 (D. Colo. 1980). The Fourth Amendment only pertains to government action and is "wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official." U.S. v. Jacobsen, 466 U.S. 109 (1984) (quoting Walter v. United States, 447 U.S. 649, 662 (1980)). Plaintiff has shown that Defendants entered his apartment, but does not allege facts to show that a government-effectuated search of his apartment took place, or that Defendants took any action related to Plaintiff while associated with a governmental official.
The Sixth Amendment to the U.S. constitution guarantees the accused in a criminal prosecution the right to a speedy and public trial and the right to assistance of counsel. U. S. Const. amend. VI; United States v. Orman, 417 F. Supp. 1126, 1138 (D. Colo. 1976). Plaintiff alleges violations of the Sixth Amendment that he somehow relates to unfair and abusive billing practices. Plaintiff does not allege that he was involved in a criminal prosecution and was denied the right to a speedy and public trial or denied the right to assistance of counsel. (See Amend. Compl. pg. 10.)
The Fourteenth Amendment prohibits state action that abridges privileges and immunities of U.S. citizens, that deprives any person of life, liberty, or property without due process of law, or that denies a person within its jurisdiction the equal protection of the laws. U. S. Const. amend. XIV. Plaintiff alleges he was deprived of unspecified, personal property in violation of the Fourteenth Amendment (Amend. Compl. at 10), but does not allege it was the result of state action.
b. Violations of Dodd-Frank Act
Plaintiff alleges Defendants violated the Dodd-Frank Act by engaging in unfair billing practices in the form of charging Plaintiff certain apartment-related fees. (Supra at 2.) The Dodd-Frank Act was enacted in 2010 to regulate mortgage companies and lenders for the benefit of consumers. See 12 U.S.C. § 5301. Although the Dodd-Frank Act includes a whistleblower provision with an individual right of action, any such action must be filed against an employer. See 15 U.S.C. § 78u-6(h)(1)(A). Plaintiff does not allege facts related to banking activities or retaliatory actions by an employer. Accordingly, Plaintiff has not set forth a viable claim for violation of the Dodd-Frank Act.
c. Allegations of Criminal Activity
Plaintiff makes various claims of purported criminal activity. A private citizen cannot bring a criminal action in a civil case. See Burns v. Huss, No. 10-CV-2691-WJM-CBS, 2013 WL 2295422, at *14 (D. Colo. May 24, 2013) ("criminal statutes do not provide a private right of action and are not enforceable by individuals through a civil action"); United States v. Goodman, No. 11-CV-00274-RBJ-MEH, 2012 WL 502807, at *5 (D. Colo. Jan. 4, 2012) (explaining the plaintiff could not bring a civil suit for criminal claims); Calvin v. Oklahoma, No. CIV-17-0610-HE, 2017 WL 4334236, at *2 (W.D. Okla. June 27, 2017) ("A plaintiff 'cannot bring a civil action to recover upon the alleged violation of criminal statutes or initiate criminal enforcement actions as a private citizen.'") (citation omitted), aff'd sub nom. Calvin v. Hank Chang, 730 F. App'x 587 (10th Cir. 2018). Accordingly, Plaintiff's allegations of criminal activity are not viable and do not support a judgment on the claims against the defaulting defendants.
d. Injunctive Relief
Because Plaintiff is acting pro se, the court construes Plaintiff's request for a court order "demanding the defendants to cease and desist invading" Plaintiff's privacy as a request for injunctive relief. (See Amend. Compl. at 23.) In evaluating whether to issue a permanent injunction, a court must consider whether the moving party has established the following factors: "(1) success on the merits; (2) irreparable injury if the injunction does not issue; (3) the threatened injury to it outweighs whatever damage the proposed injunction may cause the opposing party; and (4) the injunction will not be adverse to the public interest." Morrison & Foerster, LLP v. Wick, 94 F. Supp. 2d 1125, 1129 (D. Colo. 2000) (citations omitted). An injunction is an extraordinary remedy so "the right to relief must be clear and unequivocal." United States v. Power Engineering Co., 10 F.Supp.2d 1145, 1148 (D.Colo.1998) (citing SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir.1991)).
Plaintiff has failed on all four factors. He makes unsupported allegations as to the defendants' ulterior motives for entering his apartment, but does not proffer facts to show Defendants entered his apartment for any reason other than routine maintenance. He has not shown that he would suffer any injury or damage by the court denying his request for injunctive relief, much less irreparable injury. Finally, it would be injurious to the public if managers or owners of multi-family housing units were unable to perform routine maintenance such as pest control.
3. Sum Certain
Even if Plaintiff had established any claim for relief, which he has not, default judgment would not be entered for the damages Plaintiff seeks. Actual proof must support any default judgment for money damages. See Klapprott v. United States, 335 U.S. 601, 611-12 (1949). Moreover, the amount of damages must be ascertained before a final default judgment can be entered against a party. See Herzfeld v. Parker, 100 F.R.D. 770, 773 (D.Colo.1984) (citing 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil § 2692 at 465-66 (1983)).
Here, Plaintiff is seeking $260,0000 in damages to compensate him for embarrassment, emotional distress, financial expenses, and "damages reasonabl[y] certain to occur in the future as a direct result of the incident" including temporary homelessness. Plaintiff does not provide any documentation to support his request for $260,000 which, as far as the court can tell, is an arbitrary number.
B. Motion to Amend Complaint
By scratching through parties and allegations and adding a document relating to a business loan proposal, Plaintiff does not add any factual allegations or claims to his proposed amended pleading that could possibly salvage it. Plaintiff failed to allege a viable claim in his Amended Complaint (infra 9-11), and removing certain portions of that pleading and adding unrelated documentation about a business loan does not create a new, viable claim. Therefore, allowing Plaintiff's proposed amendments to proceed would be futile. See Ketchum v. Cruz, 961 F.2d 916, 920 (10th Cir.1992) (noting a district court is justified in denying a motion to amend as futile where the proposed amendment fails to state a claim). Accordingly, the court recommends denying Plaintiff's Motion to Amend.
WHEREFORE, for the foregoing reasons, this court
RECOMMENDS that Plaintiff's "Motion for Entry of Default Judgment" (Doc. No. 37) and Plaintiff's "Motion for Leave to File Amended Complaint" (Doc. No. 48) be DENIED. The court also
RECOMMENDS that the case be DISMISSED IN ITS ENTIRETY.
Advisement to the Parties
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 Prop. Known As 2121 East 30th Street, Tulsa, Okla., 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) (a 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"); One Parcel of Real Prop., 73 F.3d at 1059-60 (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); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., 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).
This 9th day of May, 2019.
BY THE COURT:
/s/_________
Kathleen M. Tafoya
United States Magistrate Judge