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Rusk v. Fidelity Brokerage Services, LLC

United States District Court, D. Utah

March 30, 2018

ZACHARY RUSK, Plaintiff,
v.
FIDELITY BROKERAGE SERVICES, LLC, Defendant.

          ORDER ADOPTING IN PART REPORT AND RECOMMENDATION

          JKL N. PARRISH UNITED STATES DISTRICT JUDGE

         Rusk, acting pro se, sued Fidelity Brokerage Services, LLC for (1) violations of the Americans with Disabilities Act (ADA), (2) violations of the Rehabilitation Act of 1973, (3) religious discrimination under Title VII, (4) retaliation for engaging in a protected activity, and (5) defamation. In response, Fidelity filed three motions: a motion to dismiss Rusk's Second Amended Complaint [Docket 117], a motion for summary judgment [Docket 126], and a motion to quash Rusk's subpoena [Docket 116]. Rusk also filed a motion for expedited consideration [Docket 144] and an ex parte motion to allow communication with Fidelity [Docket 146].

         Magistrate Judge Pead issued a Report and Recommendation for the five pending motions. [Docket 151]. Judge Pead recommended that this court deny Fidelity's motion for summary judgment and that the court grant Fidelity's motion to dismiss Rusk's claims with prejudice. Judge Pead further recommended that the court find that the remaining motions are moot.

         Rusk retained an attorney to respond to the Report and Recommendation. Through counsel, Rusk objected in part to the recommendation that his claims be dismissed with prejudice. [Docket 156]. Rusk conceded that he has not pleaded facts to support his claim under the Rehabilitation Act of 1973. But he argued that his Second Amended Complaint complies with the “short and plain statement” requirement of Rule 8(a)(2) of the Federal Rules of Civil Procedure and that he pleaded sufficient facts to state claims for violations of the ADA, religious discrimination under Title VII, retaliation for engaging in a protected activity, and defamation.

         Fidelity did not object to the Report and Recommendation. Instead, it filed a response to Rusk's objection, moving to strike the objection as over-length and arguing that Rusk waived all of the arguments in his objection because he did not present them to Judge Pead. [Docket 157]. Rusk then filed a motion to strike Fidelity's response because it requests affirmative relief but was not filed as a separate motion. [Docket 159].

         Because Rusk filed an objection to the Report and Recommendation, the court “must determine de novo” whether his objections have merit. See Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.”). To the extent that any portion of the Report and Recommendation has not been objected to, the parties have waived any argument that Judge Pead's recommendations were in error. See United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). The court will decline to apply the waiver rule only if “the interests of justice so dictate.” Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).

         I. MOTIONTO STRIKE

         As a preliminary matter, Rusk moves to strike Fidelity's response to his objection to the Report and Recommendation. Rusk argues that the response should be stricken because it incorporates a motion to strike the objection as over-length in violation of DUCivR 7-1(b)(1)(A), which provides: “No motion . . . may be included in a response or reply memorandum.” The court agrees that Fidelity's response violates this local rule and disregards the request for affirmative relief contained in the response. But DUCivR 7-1(b)(1)(A) does not suggest that the appropriate remedy for a violation of the rule is to strike portions of the response or reply memorandum, much less the memorandum in its entirety. The court, therefore, denies Rusk's motion to strike.

         II. MOTION TO DISMISS

         Judge Pead recommended that Rusk's Second Amended Complaint be dismissed with prejudice for two main reasons. First, Judge Pead concluded that Rusk's complaint does not comply with Rule 8(a)(2). Second, Judge Pead concluded that Rusk failed to plead sufficient facts to state a claim for any of his causes of action. A.Rule 8(a)(2)

         Rule 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” This rule “serves the important purpose of requiring plaintiffs to state their claims intelligibly so as to inform the defendants of the legal claims being asserted.” Mann v. Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007). In order to comply with Rule 8(a)(2),

a complaint must 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. . . . [T]hese are, very basically put, the elements that enable the legal system to get weaving- permitting the defendant sufficient notice to begin preparing its defense and the court sufficient clarity to adjudicate the merits.

Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). “Something labeled a complaint but written more as a press release, prolix in evidentiary detail, yet without simplicity, conciseness and clarity as to whom plaintiffs are suing for what wrongs, fails to perform the essential functions of a complaint.” Mann, 477 F.3d at 1148 (citation omitted).

         If a complaint does not comply with Rule 8(a)(2), a court may dismiss it pursuant to Rule 41(b) for a failure “to comply with [the Federal Rules of Civil Procedure].” Dismissal with prejudice under Rule 41(b) is a harsh penalty. Nasious, 492 F.3d at 1162. Before resorting to such a punishment, a district court must consider “(1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions.” Id. (citation omitted).

         The Report and Recommendation states that Rusk's 24-page single-spaced Second Amended Complaint does not comply with the “short and plain statement” requirement of Rule 8(a)(2). The complaint contains approximately nineteen pages of unorganized factual allegations followed by about four pages of threadbare legal claims. Without any attempt to connect the factual claims-many of which appear to be irrelevant-to the legal claims, Fidelity and the court are left to wonder about the precise nature of Rusk's claims. The court is mindful that because Rusk was a pro se litigant when he composed the Second Amended Complaint, it must be construed liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.”). But the court cannot assume the role of an advocate by combing through a lengthy complaint to construct the factual basis for Rusk's claims for him. See Id. (“[W]e do not believe it is the proper function of the district court to assume the role of advocate for the pro se litigant.”); Glenn v. First Nat. Bank in Grand Junction, 868 F.2d 368, 372 (10th Cir. 1989) (a court is not “obligated to construct a cause of action from allegations in a complaint filed by a party who was unwilling or unable to plead the cause of action himself”); Chavez v. Huerfano City., 195 F. App'x 728, 730 (10th Cir. 2006) (unpublished) (“It is not the role of the court to sort through a lengthy complaint to construct the plaintiff's case.”). This court, therefore, agrees with Judge Pead that the Second Amended Complaint does not comply with Rule 8(a)(2) because it fails to give notice of the basis for Rusk's claims.

         After considering the five mandatory factors, Judge Pead recommended that this court dismiss the Second Amended Complaint with prejudice as a sanction under Rule 41(b). He reasoned that this harsh sanction was appropriate because Rusk had been given two previous opportunities to amend his complaint but was still unable to comply with Rule 8(a)(2). But after Judge Pead issued his Report and Recommendation, an important event transpired that affects the five-factor test: Rusk retained an attorney. Moreover, in the objection to the Report and Recommendation, Rusk's attorney effectively organized the disparate factual allegations in the complaint into categories associated with the claims alleged in the Second Amended Compliant. This new development affects the fifth consideration of whether a lesser sanction would be effective. It appears that, with the aid of an attorney, a lesser sanction of dismissal without prejudice may be effective in bringing about compliance with Rule 8(a)(2).

         In sum, the court concludes that the Second Amended Complaint does not comply with Rule 8(a)(2). But taking into account the five factors the court must consider before dismissing a complaint with prejudice, the court concludes that the lesser ...


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