Free Brief in Support of Motion - District Court of Colorado - Colorado

Case 1:03-cv-02319-WDM-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-cv-02319-WDM-MJW OLOYEA D. WALLIN, Plaintiff, vs. CMI, CHARLES ABBOTT, KIM DEMPEWOLF, RYAN BRADLEY, MARYE DEMING, MONIQUE M. MARTEL, SANDRA CANNON-GRANT, AND JASON COLLIDGE Defendants.

DEFENDANT MARTEL'S BRIEF IN SUPPORT OF MOTION TO DISMISS ______________________________________________________________________________ Defendant, MONIQUE M. MARTEL, by her attorneys, JENNIFER M. PALMER and BILLY-GEORGE HERTZKE of the firm SENTER GOLDFARB & RICE, L.L.C., pursuant to Fed.R.Civ.P. 4, 12(b)(4), 12(b)(5) and 12(b)(6) submits her Brief in Support of Motion to Dismiss as follows: I. BACKGROUND Defendant Monique Martel should be dismissed from this case, filed by pro se Plaintiff Oloyea Wallin, because the Complaint served upon her does not name Ms. Martel as a Defendant in this action or make any allegations against her. Further, the Summons and

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Complaint served on Ms. Martel do not comply with the Federal Rules of Civil Procedure. Therefore, under Fed.R.Civ.P. 4 and 12, Ms. Martel should be dismissed from this action. On December 2, 2005, Monique Martel was served with copies of a Summons in the matter of Wallin v. CMI, Civil Action No. 03-cv-02319-WDM-MJW, a handwritten document titled, "Proposed Amended Complaint and Jury Trial Demand," a document titled, "Prisoner Complaint," a document titled, "Order Directing Service Upon Defendant Monique M. Martel," and an "Order of Reference to Magistrate Judge and Instructions Regarding Notice of Availability of a United States Magistrate Judge to Exercise Jurisdiction Pursuant to 28 U.S.C. § 636(c)." [See Exhibit A-1, Affidavit of Monique M. Martel, at ¶¶ 2-5]. No other documents were served upon Ms. Martel. Id. at ¶ 6. Further, Monique Martel is not identified by name or by description in either the Proposed Amended Complaint or Prisoner Complaint that were served upon her. II. DISMISSAL IS WARRANTED PURSUANT TO FED.R.CIV.P. 12(b)(4) & 12(b)(5) BECAUSE SERVICE WAS DEFECTIVE

The documents served upon Ms. Martel, the Prisoner Complaint and Proposed Amended Complaint, are undecipherable. The Proposed Amended Complaint bears two U.S. District Court date stamps, May 11, 2004 and November 3, 2004.1 The Proposed Amended Complaint references a previous Amended Complaint. The proposed Amended Complaint appears to incorporate the prior Amended Complaint by reference. However, this prior Amended

Complaint was never served on Ms. Martel. [See Exhibit A-1, ¶ 6].

1

The copy served upon Ms. Martel is illegible. The November 3, 2004 date was ascertained from the Court's docket.

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Further, the Court's docket shows that a document titled, "Amended Prisoner Complaint" was filed on January 5, 2005. (Docket No. 41). Ms. Martel was not served with a copy of this pleading. The January 5, 2005 pleading appears to be the operative Complaint in this matter based upon a review of the docket sheet. Moving for dismissal under Fed.R.Civ.P. 12(b)(4) challenges the sufficiency of the process itself. See 2 MOORE'S FED. PRACTICE, § 12.33[3]. The Summons served upon Ms. Martel instructed her to file an "answer to the complaint which is herewith served upon you." The Complaint served upon Ms. Martel does not identify Ms. Martel as a Defendant. The Summons is, therefore, defective on its face, and Ms. Martel should be dismissed under Fed.R.Civ.P. 12(b)(4) and 12(b)(5). Plaintiff's failure to comply with Fed.R.Civ.P. 4(c)(1) constitutes a defect in the process, necessitating dismissal under Fed.R.Civ.P. 12(b)(5). Further, the Summons does not comply with Fed.R.Civ.P. 4(a) because it does not contain Plaintiff's address. [See Summons attached to Exhibit A-1]. Since Ms. Martel is not identified in either the Proposed Amended Complaint or the Prisoner Complaint and because the Summons did not comply with Fed.R.Civ.P. 4(a), service of process was defective, and Ms. Martel should be dismissed from this action. III. DISMISSAL IS WARRANTED PURSUANT ON FED.R.CIV.P. 12(b)(6) BECAUSE THE COMPLAINT FAILS TO STATE ANY CLAIM OR FACT AGAINST MS. MAREL The Court should dismiss Defendant Monique Martel from this action pursuant to Fed.R.Civ.P. 12(b)(6) because Plaintiff has failed to state a claim upon which relief can be granted. None of the allegations contained in the Proposed Amended Complaint or Prisoner Complaint, which were served upon Ms. Martel, are directed toward her, and she is not

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mentioned in either pleading. The Prisoner Complaint (Docket No. 3) makes allegations against Defendants CMI, Kim Dempewolf, Ryan Bradley, and individuals named Mary, Sandra, Aaron, Jason, and Charles. There are no allegations in the Prisoner Complaint against Monique Martel or any Doe Defendant. In addition, the Proposed Amended Complaint served upon Ms. Martel does not identify her as a Defendant. The Proposed Amended Complaint does identify a Jane Doe. However, this individual is not Ms. Martel because the Jane Doe is identified as a medical doctor. See Proposed Amended Complaint, A. Parties, ¶ 10 (first page of pleading). Ms. Martel is not a medical doctor. The purpose of a Fed.R.Civ.P. 12(b)(6) motion is to test the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true. Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). Here, even if all of the facts alleged in Plaintiff's Prisoner Complaint and Proposed Amended Complaint are true, Plaintiff does not state a cause of action against Ms. Martel or even identify her as a Defendant. Plaintiff can prove no set of facts in support of his claim to entitle him to relief against Ms. Martel because she is not identified in either the Proposed Amended Complaint or the Prisoner Complaint. Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir. 1986). For this reason, Ms. Martel should be dismissed from this case. IV. CONCLUSION The documents served upon Ms. Martel on December 2, 2005 do not provide her with adequate information about Plaintiff's allegations. In fact, the Prisoner Complaint and Proposed Amended Complaint do not identify Ms. Martel as a defendant in this action. The Summons is

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defective because it does not inform Ms. Martel of the proper Complaint, if any, to which she is supposed to respond. The Summons also fails to comply with Fed.R.Civ.P. 4(a). Finally, Plaintiff has failed to state a claim for relief against Ms. Martel. In all pleadings, Plaintiff failed to make any allegations against Ms. Martel, so dismissal under Fed.R.Civ.P. 12(b)(6) is warranted. WHEREFORE, Defendant Monique Martel respectfully requests the Court dismiss her from this case pursuant to Fed.R.Civ.P. 4 and 12, award her reasonable attorney's fees and costs, and other such relief the Court deems just and proper. Respectfully submitted,

By s/ Jennifer M. Palmer Jennifer M. Palmer

By s/ Billy-George Hertzke Billy-George Hertzke SENTER GOLDFARB & RICE, L.L.C. 1700 Broadway, Suite 1700 Denver, Colorado 80290 Telephone: (303) 320-0509 Facsimile: (303) 320-0210 E-mail: [email protected] [email protected] Attorneys for Defendant Martel

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 11th day of January, 2006, I electronically filed a true and exact copy of the above and foregoing DEFENDANT MARTEL'S BRIEF IN SUPPORT OF MOTION TO DISMISS with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Steven J. Wienczkowski ­ [email protected] Daniel M. Hubbard ­ [email protected] Scott S. Nixon ­ [email protected] PRYOR JOHNSON CARNEY KARR & NIXON, P.C. Attorneys for Defendants CMI, Abbott, Dempewolf, Bradley, Deming, Coolidge, and CannonGrant Via U.S. Mail Oloyea D. Wallin AVCF, Prisoner #111389 P.O. Box 1000 Crowley, CO 81034 Plaintiff, Pro Se /s Billy-George Hertzke