Pierre v. Aurora Loan Services , 602 F. App'x 410 ( 2015 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALSJanuary 16, 2015
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
GERARD M. PIERRE,
Plaintiff – Appellant, No. 14-1375
v. D. Colorado
AURORA LOAN SERVICES, LLC; (D.C. No. 1:14-CV-01572-LTB)
AURORA BANK FSB; AURORA
COMMERCIAL CORP.; DALE &
DECKER, INC.; CITIGROUP, INC.;
CITIMORTGAGE, INC. (“Citi”);
JACOB J. LEW (“Lew”), in his
capacity as United States Secretary of
the Treasury; UNITED STATES
DEPARTMENT OF THE
TREASURY; THOMAS J. CURRY
(“Curry”), in his capacity as
Comptroller of the Currency; THE
OFFICE OF THE COMPTROLLER
OF THE CURRENCY; MICHAEL E.
FINN (“Finn”), in his capacity as
Regional Director; THE OFFICE OF
THRIFT SUPERVISION;
ALLONHILL, LLC.; SUE ALLON
(“Allon”), in her capacity as Chief
Executive Officer; PROMONTORY
FINANCIAL GROUP; EUGENE
LUDWIG (“Ludwig”), in his capacity
as Chief Executive Officer; RUST
CONSULTING, INC.; and KYLE
BERNARD (“Rust”), in his capacity
as General Counsel,
Defendants – Appellees.
ORDER AND JUDGMENT *
Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiff and appellant, Gerard M. Pierre, appeals the dismissal of his
action, without prejudice, pursuant to Fed. R. Civ. P. 41(b), for failure to comply
with the pleading requirements of the Federal Rules of Civil Procedure. For the
following reasons, we affirm that dismissal.
Mr. Pierre’s property, located at 10176 Park Meadows Drive #2405 in Lone
Tree, Colorado, was foreclosed by defendant and appellee Aurora Loan Services,
LLC, in September of 2009. Mr. Pierre, proceeding pro se, initiated the instant
action on June 4, 2014, by filing a complaint against the defendants, a number of
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
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entities including the Aurora-related defendants 1, CitiMortgage, Inc.; Allonhill,
LLC d/b/a Stewart Lender Services; Promontory Financial Group, Inc.; Rust
Consulting, Inc., and numerous other individuals ostensibly in their official
capacities, including: Jacob J. Lew (in his capacity as United States Secretary of
the Treasury); Thomas J. Curry (in his capacity as Comptroller of the Currency
and Chief Administrator of National Banks); Michael E. Finn (in his capacity as
Regional Director of the Office of Thrift Supervision); Sue Allon (in her capacity
as Chief Executive Officer of Allonhill, LLC d/b/a Stewart Lending Services);
Eugene Ludwig (in his capacity as Chief Executive Officer of Promontory
Financial Group); and Jedd Keith (in his capacity as General Counsel of Rust
Consulting, Inc.).
Mr. Pierre’s initial complaint was 108 pages long, included more than
seventy additional pages of exhibits, and purported to assert fifteen claims for
relief. Against the Aurora-related defendants, the complaint included claims for
“Unsafe or Unsound Banking Practices,” “Deprivation of Procedural Due
Process,” “Wrongful and Illegal Foreclosure,” and “Breach of Contract Intended
Beneficiaries.” 6/4/2014 Complaint at 1; Supp. R. Vol. 1 at 6. The Complaint
sought “civil money damages and penalties” and “punitive damages” to “punish
1
The Aurora-related defendants include Aurora Loan Services, LLC, Aurora
Bank FSB, and Aurora Commercial Corp. The Defendants aver that Aurora Bank
FSB has merged with Aurora Commercial Corp.
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defendant according to the degree of culpability.” Id. at 103; Supp. R. Vol. 1 at
108.
On June 13, 2014, the district court ordered Mr. Pierre to file an amended
complaint that complied with the pleading requirements of the Federal Rules of
Civil Procedure. After noting the twin purposes of a complaint – to give the
opposing parties fair notice of the claims against them and to allow the court to
conclude that the allegations, if proven, show entitlement to relief– the court
determined the complaint was “prolix.” Order at 2; R. Supp. Vol. 1 at 188. The
court further explained:
Mr. Pierre fails to provide a short and plain statement of his
claims showing he is entitled to relief because the complaint is
prolix. In addition, despite the excessive length of the complaint, Mr.
Pierre’s vague and conclusory factual allegations do not provide fair
notice of the specific claims he is asserting against each named
Defendant.
Id. The court directed Mr. Pierre to file an amended complaint that “clarifies his
claims in this action. He must identify, clearly and concisely, the specific claims
he is asserting, the specific facts that support each asserted claim, against which
Defendant or Defendants he is asserting each claim, and what each Defendant did
that allegedly violated his rights.” Id. at 3; R. Supp. Vol. 1 at 189. The court
also noted that, to the extent Mr. Pierre was asserting a federal constitutional
claim pursuant to 42 U.S.C. § 1983, he had failed to “allege facts that
demonstrate the named Defendants were acting under color of state law.” Id.
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The court accordingly gave Mr. Pierre thirty days in which to file a complaint
complying with the Federal Rules of Civil Procedure. Mr. Pierre was further
directed to obtain the court-approved complaint form. The district court informed
him that failure to file a complying complaint would result in the dismissal of his
action.
On July 24, 2014, Mr. Pierre filed an “Amendment of Complaint” which
was forty-seven pages long and stated that Mr. Pierre “amends his preexisting
complaint by substituting the below recast counts 1 through 15 in lieu of the prior
counts 1 through 15 in plaintiff’s preexisting complaint.” Amendment of
Complaint at 1; R. Supp. Vol. 1 at 191. The “Amendment of Complaint”
continued to assert claims called “Unsafe or Unsound Banking Practices”,
“Deprivation of Procedural Due Process,” “Wrongful and Illegal Foreclosure” and
“Breach of Contract Intended Beneficiaries.” Id. at 2-17; R. Supp. Vol. 1 at 192-
207.
On July 31, 2014, the district court entered a second order again requiring
Mr. Pierre to file an amended complaint using the court-approved form within
thirty days. The court explained that the amended complaint was still prolix,
failed to provide fair notice to the defendants of the specific claims asserted and
did not comply with the pleading requirements of the Federal Rules. Mr. Pierre
was therefore given another opportunity to obtain the court-approved form and
file an amended complaint which complied with the pleading requirements of the
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Federal Rules. The district court again cautioned Mr. Pierre that his failure to file
a proper amended complaint would result in dismissal of his action.
On September 2, 2014, still without using the court-approved form, Mr.
Pierre filed yet another amended complaint. This complaint was thirty-eight
pages long and continued to assert some fifteen claims for relief. The claims
against the Aurora-related defendants were labeled as follows: “Violation of 12
U.S.C. § 1818(b); and FIRIRCA; and FIRREA;” “Violation of 42 U.S.C. § 1983,
and Rule 3.4 of the Colorado Rules of Professional Conduct, Fairness to
Opposing Parties;” “Violation of 15 U.S.C. § 1641;” and “The Restatement
(Second) of Contracts § 302 Intended Beneficiaries.” Amended Complaint at 2-
22; R. Vol. 1 at 7-27.
On September 8, 2014, the district court entered an order dismissing the
action, without prejudice, pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure. The court noted that it was required to construe the amended
complaint liberally because Mr. Pierre was not represented by an attorney, but it
recognized that it was not obligated to act as Mr. Pierre’s advocate. The court
stated as follows:
Mr. Pierre asserts fifteen claims for relief in the amended
complaint that arise under federal and state law. However, Mr.
Pierre provides in support of his claims only vague and conclusory
factual allegations that do not set forth a short and plain statement of
his claims showing he is entitled to relief. As a result, Mr. Pierre
fails to give Defendants fair notice of the specific claims being
asserted against them.
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The general rule that pro se pleadings must be construed
liberally has limits and “the court cannot take on the responsibility of
serving as the litigant’s attorney in constructing arguments and
searching the record.” “In analyzing the sufficiency of the plaintiff’s
complaint, the court need accept as true only the plaintiff’s well-
pleaded factual contentions, not his conclusory allegations.” Because
Mr. Pierre fails to provide a clear and concise statement of the claims
he is asserting, the Court finds that the amended complaint must be
dismissed for failure to file an amended pleading that complies with
Rule 8 as directed.
Order of Dismissal at 3-4; R. Vol. 1 at 47-48 (quoting Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005); Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991) (further citations and quotations omitted). The court
accordingly dismissed the amended complaint without prejudice.
The court also certified that, pursuant to 28 U.S.C. § 1915(a)(3), any appeal
from its order would not be taken in good faith and the court therefore denied in
forma pauperis (“ifp”) status on appeal. Mr. Pierre appeals the district court’s
dismissal and seeks permission to proceed on appeal ifp.
We review the dismissal of an action under Rule 41(b) for an abuse of
discretion. Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 (10th
Cir. 2007); Cosby v. Meadors, 351 F.3d 1324, 1326 (10th Cir. 2003). Under the
abuse of discretion standard, we will not reverse the lower court’s decision unless
we conclude the court made “a clear error of judgment or exceed[ed] the bounds
of permissible choice in the circumstances.” Ecclesiastes 9:10-11-12, Inc. v.
LMC Holding Co., 497 F.3d 1135, 1143 (10th Cir. 2007).
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As the above recitation makes clear, the district court did not abuse its
discretion in dismissing Mr. Pierre’s action. Mr. Pierre repeatedly failed to
comply with the court’s orders, despite many opportunities to do so, and despite
being specifically referred to the court-approved complaint form. Mr. Pierre
argues the district court applied a too stringent standard to his pro se pleadings,
and that his pleadings, in any event, were adequate. He also claims the court
“ignores the record.” Appellant’s Br. at 15. Mr. Pierre appears to argue that,
because the defendants stipulated to an extension of time in which to respond to
his amended complaint, they somehow acknowledged that his pleadings were
sufficient.
All of these arguments are meritless. The district court explained why Mr.
Pierre’s pleadings were deficient. We need not add anything to that clear
explanation. The court accorded Mr. Pierre’s pleadings the lenient analysis
required for pro se litigants, but it properly declined to function as Mr. Pierre’s
advocate. And, neither the record nor the case law supports Mr. Pierre’s
argument that the defendants somehow conceded the adequacy of Mr. Pierre’s
pleadings or that any such concession demonstrates that the district court abused
its discretion in dismissing this case.
In short, Mr. Pierre fails to convince us that the district court abused its
discretion in dismissing this action without prejudice. We deny Mr. Pierre’s
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request to proceed on appeal ifp and we remind Mr. Pierre that all fees are due in
full.
AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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