United States District Court, D. Utah, Central Division
Dale A. Kimball
RULING & ORDER
B. PEAD UNITED STATE MAGISTRATE JUDGE
case is before Magistrate Judge Dustin Pead pursuant to a 28
U.S.C. §636(b)(1)(B) referral from District Court Judge
Dale Kimball. (ECF No. 21.)
April 5, 2017, the court granted Plaintiff Gregg
Anderson's (Plaintiff or Anderson) application for leave
to proceed in forma pauperis and waived the
prepayment of filing fees pursuant to 28 U.S.C. §1915.
(ECF No. 2.) Several months later, on September 6,
2017, Plaintiff filed an "Ammended [sic] Complaint"
naming Kody Watts (Mr. Watts), Rose M. Toews (Ms. Toews),
1st Liberty Title (Liberty Title) and Wells Fargo
Home Mortgage (Wells Fargo) as Defendants (collectively
Defendants) and asserting federal diversity jurisdiction
pursuant to 28 U.S.C. §1332(a). (ECF No. 14.)
pending before this court are three separate motions to
dismiss the complaint filed by Liberty Title, Mr. Watts and
Wells Fargo. (ECF No. 25, ECF No. 35, ECF No. 36.)
court "must, sua sponte, satisfy itself of its power to
adjudicate in every case and at every stage of the
proceedings." State Farm Mut. Auto. Ins. Co. v.
Narvaez, 149 F.3d 1269, 1270-1271 (10th Cir.
1998) (quoting Tafoya v. U.S. Dept. of Justice, 748
F.2d 1389, 1390 (10thCir. 1984). As the plaintiff
in this action, Mr. Anderson has the burden of establishing
federal jurisdiction. Penteco Corp. Ltd. P
'ship-1985A v. Union Gas Sys., Inc., 929
F.2d 1519, 1521 (10th Cir. 1991).
review, the court is unable to identify any basis for this
court's jurisdiction. Plaintiff asserts diversity
jurisdiction based upon his domicile in Oregon and the
Defendants location in the State of Utah. Specifically, Mr.
Anderson states that he is "domicile[d] within the State
of Oregon with no intention of returning to Utah, " and
the Defendants' are "domicile[d]" and
"resid[e]" in "the State of Utah." (ECF
No. 14 at 1.) The court docket, however, lists Mr.
Anderson's current address as Bountiful, Utah, and
Plaintiffs pleading was signed and notarized in Davis County,
Utah. Given this discrepancy, the court
concludes there is insufficient evidence of Mr.
Anderson's current state of domicile or citizenship to
establish diversity with the named Defendants. See 28
U.S.C. 1332(a); see also Siloam Springs Hotel, L.L.C. v.
Century Surety Co., 781 F.3d 1233, 1238 (10th
Cir. 2015) (citing Whitelock v. Leatherman, 460 F.2d
507, 514) n. 14 (10* Cir. 1972) (individual's domicile is
relevant for diversity and "an allegation that a party
... is a resident of a state is not equivalent to an
allegation of citizenship and is insufficient to confer
jurisdiction upon the District Court."). In turn, while
federal question jurisdiction may also be established based
on claims "arising under the Constitution, laws, or
treaties of the United States, " Plaintiff does not rely
upon or identify any federal statutes or regulations as the
basis for his claims. See 28 U.S.C. §1331.
diversity or federal question jurisdiction this court is
prohibited from hearing Mr. Anderson's case. A basis for
neither is evident on the face of the complaint. As such, the
court lacks jurisdiction and Plaintiffs complaint is
dismissed without prejudice. See Fed. R. Civ. P.
To State A Claim
the court authorizes a party to proceed without the
prepayment of fees under the IFP statute, the court is
required to "dismiss the case at any time if the court
determines that. . . the action or appeal. . . is frivolous
or malicious. . . [or] fails to state a claim on which relief
may be granted." 28 U.S.C. §1915(e)(2)(B)(i), (ii).
In determining whether a complaint fails to state a claim for
relief under the IPF statute, the court employs the same
standard used for analyzing motions to dismiss for failure to
state a claim under rule 12(b)(6) of the Federal Rules of
Civil Procedure. In undertaking this analysis, the court is
mindful that Mr. Anderson is pro se, and "[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 v. Bellmon, 935 F.2d
1106, 1110 (10* Cir. 1991). That said, it is not "the
proper function of the district court to assume the role of
advocate for the pro se litigant" Bellmon, 935
F.2d at 1110, and the court "will not supply additional
facts, nor will [it] construct a legal theory for [a pro se]
plaintiff that assumes facts that have not been
pleaded." Dunn v. White, 880 F.2d 1188, 1197
(10th Cir. 1989) (per curiam).
of the Federal Rules of Civi I Procedure requires a Plaintiff
to provide "a short and plain statement of the claim
showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a)(2). Compliance with Rule 8 compels a
Plaintiff to "explain what each defendant did to him or
her; when the defendant did it; how the defendant's
action harmed him or her; and, what specific legal right the
plaintiff believes the defendant violated." Nasious
v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163
(10th Cir. 2007), Fed.R.Civ.P. 8. Specific
information is imperative in order to provide the opposing
party with full and fair notice of the claims raised. See
Monument Builders of Greater Kansas City, Inc. v. American
Cemetery Assn. of Kansas, 891 F.2d 1473, 1480
(10th Cir. 1989) (citing Perington Wholesale
Inc. v. Burger King Corp., 631 F.2d 1369, 1371)
(10th Cir. 1979); see also Nasious, 492
F.3d 1163 (10th Cir. 2007) (a plain statement
under rule 8 provides defendant with "sufficient notice
to begin preparing its defense and the court sufficient
clarity to adjudicate the merits.").
allegations in this case are extremely limited. For example,
the only reference to Wei I s Fargo i s found at paragraph
four (4) and the only reference to Liberty Title is at
paragraph ten (10). (ECF No 14.) Additionally Plaintiff fails
to state causes of action against any of the Defendants. And,
although Mr. Anderson's "allegations" appear to
suggest some type of wrongdoing, it is not the obligation of
this court to construct legal theories on his behalf. Absent
additional information, Defendants lack sufficient notice to
prepare a defense and this court lacks the information
necessary for it to adjudicate the merits. Accordingly, as an
alternative basis for dismissal, the ...