United States District Court, D. Utah
ORDER ADOPTING IN PART REPORT AND
PARRISH UNITED STATES DISTRICT JUDGE
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].
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
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
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.
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.
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
MOTION TO DISMISS
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)
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
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).
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.
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).
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