United States District Court, D. Utah Central Division
A. Kimball Judge.
RULING & ORDER
B. Pead U.S. 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.
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 Plaintiff's 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 (10th 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 Plaintiff's 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 (10thCir. 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 Civil 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
allegations in this case are extremely limited. For example,
the only reference to Wells Fargo is 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 ...