Viegas et al v. Partner Colorado Credit Union et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24–cv–00415–PAB–MDB
KERI L VIEGAS, the individual, and
JAMES VIEGAS, the individual,
Plaintiffs,
v.
PARTNER COLORADO CREDIT UNION,
HARRY L. SIMON,
DANIELLE L. RAMOS,
SARA M. GARRIDO, and
DIANA COFFEY,
Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Maritza Dominguez Braswell
This matter is before the Court on Defendant Partner Colorado Credit Union’s Motion to
Dismiss (Doc. No. 6) and the Motion to Dismiss Defendant Harry L. Simon (Doc. No. 28).
(collective, the “Motions”). Plaintiffs have filed responses to each Motion (Doc. Nos. 9; 33), to
which Defendants have responded (Doc. Nos. 14; 37). The Court has reviewed the Motions,
briefing, and applicable law, and RECOMMENDS that the Motions be GRANTED.
This matter is also before the Court on its Order to Show Cause (“OSC’) as to Plaintiffs’
failure to effect service as to Defendants Ramos and Coffey. (Doc. No. 46.) Plaintiffs filed a
response to the OSC. (Doc. No. 47.) Based on its review of Plaintiffs’ response and the
Case No. 1:24-cv-00415-PAB-STV Document 48 filed 08/23/24 USDC Colorado
pg 1 of 16

2
applicable law, the Court RECOMMENDS Defendants Ramos and Coffey be DISMISSED
from this action.
SUMMARY FOR PRO SE PLAINTIFFS
The Court is recommending the dismissal of your claims against Defendants Simon and
Partner Colorado Credit Union. Under the Rooker-Feldman doctrine, the Court lacks subject
matter jurisdiction over your Fourth and Fifth Amendment claims because they are inextricably
intertwined with the Jefferson County case underlying this action. Further, your claims under the
Seventh Amendment fail to state a cause of action and require dismissal. The Court further
recommends that Defendant Coffey and Ramos be dismissed for lack of timely service on them.
This is only a high-level summary of the Court’s Recommendation. The full Recommendation is
set forth below, along with information about your right to object to it.
STATEMENT OF THE CASE1
I. 	Plaintiffs’ Allegations
This suit arises out of a Jefferson County case initiated by Defendant Partner Colorado
Credit Union (“PCCU”) against Plaintiffs.2 (See Doc. No. 1; Doc. No. 6 at 1–3.)
1 Plaintiffs’ Complaint is difficult to sort through. (See generally Doc. No. 1.) However,
Plaintiffs appear pro se and are thus entitled to a liberal reading of their pleadings. Accordingly,
the Court takes extra care in its attempt to understand and synthesize Plaintiffs’ allegations and
claims. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972) (holding the allegations of a pro se
complaint “to less stringent standards than formal pleadings drafted by lawyers”); Hall v.
Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991) (“A court reviewing the sufficiency of a
complaint presumes all of plaintiff’s factual allegations are true and construes them in the light
most favorable to the plaintiff.”).
2 According to PCCU,
Defendant [PCCU] sued the Plaintiffs for a bad check arising out of a breach of a
retail installment contract for a motor vehicle.... The Complaint sued the Viegas’
Case No. 1:24-cv-00415-PAB-STV Document 48 filed 08/23/24 USDC Colorado
pg 2 of 16

3
Plaintiffs allege that “[o]n or about March 21, 2023, a letter was received [from]
Defendant Harry Simon3 regarding a private automobile ... [saying] that it was paid [for] with a
fraudulent check to Defendant [PCCU]” (Doc. No. 1 at ¶ 1.) Plaintiffs say they responded to the
letter “stating that an EFT (Electronic Funds Transfer) instrument was accepted and processed by
[PCCU] around the end of January[,] 2023.” (Id.) Plaintiffs contend that something was done by
PCCU to “alter[ ]” the EFT. (Id.) They go on to allege that sometime in April 2023, “documents
were left in the yard” by Defendant Ramos4—these documents were ostensibly a complaint and
summons connected to the Jefferson County action. (Id. at ¶ 3.)
Plaintiffs say they appeared in the Jefferson County suit and filed an answer. (Id. at ¶ 4.)
An apparently unsuccessful mediation was held “on or about July 20, 2023.” (Id. at ¶ 5.)
Plaintiffs also allege they filed a “Motion to Dismiss to the Clerk of Court” that was rejected by
for a remaining balance of $10,733.06 (against James Viegas only) and sued both
Viegas’ for the bad check they wrote to allegedly payoff the remaining balance
owed to Defendant Partner for financing one 2019 Toyota Tundra.
The Viegas’ used an Electronic Funds Transfer (“EFT”) given to the Defendant
[PCCU] that appeared to be a normal check. Defendant Partner processed the
“check” and mailed the title to James Viegas. Unfortunately, the EFT failed to
produce any money for Defendant Partner, thus authorizing the lawsuit.
(Doc. No. 6 at 1–2.)
3 Defendant Simon was serving as counsel for PCCU. (Doc. No. 28 at 2.)
4 Defendant Ramos appears to have been a process server hired by PCCU and Defendant Simon
to serve Plaintiffs. (See Doc. No. 6 at 3.)
Case No. 1:24-cv-00415-PAB-STV Document 48 filed 08/23/24 USDC Colorado
pg 3 of 16

4
Defendant Coffey5 for failure to contain “wet signatures.”6 (Id. at ¶ 8.) A trial was eventually
held on April 12, 2024.7 (Id. at ¶ 7).
Based on these allegations, Plaintiffs claim each Defendant violated the Fourth, Fifth, and
Seventh Amendments. (Doc. No. 1 at 3–5.) They further appear to claim Defendant Ramos and
Judge Garrido violated 18 U.S.C. § 241 and 242.8 (Id. at 4, ¶¶ 3, 5.) In his Motion, Defendant
Simon argues Plaintiffs’ claims are barred by the Rooker-Feldman doctrine—an argument in
which PCCU joins.9 (Doc. No. 28; 32.) Defendants Simon and PCCU alternatively argue
Plaintiffs have failed to state claims under Federal Rule of Civil Procedure 12(b)(6) or that their
Complaint is facially inadequate under Federal Rule of Civil Procedure 8. (Id.)
II. 	Service
5 Plaintiffs say Defendant Coffey is the “Clerk of Court.” (Doc. No. 1 at 6.) The Court’s research
suggests Defendant Coffey was the Clerk of Court for Colorado’s First Judicial District until
March 1, 2024. See Chief Judge Order 2024-02, State of Colorado First Judicial District,
https://www.coloradojudicial.gov/sites/default/files/2024-06/CJO%202024-
02%20Order%20Regarding%20the%20Appointment%20of%20the%20Clerk%20of%20Court%
20of%20the%20Jefferson%20County%20Combined%20Courts.pdf.
6 According to Defendant PCCU, “the Viegas’ filed a Motion to Dismiss for Insufficiency
Process of Service, Lack of Jurisdiction and for Failure to State a Claim.” (Doc. No. 6 at 2.) That
motion was denied by Defendant Judge Garrido. (Id.)
7 Defendant PCCU notes that Plaintiffs failed to appear at trial. (See Doc. No. 28 at 3 (“The
[Plaintiffs] failed to appear at trial in the Jefferson County Court on April 12, 2024[,] and the
Court entered a judgment in favor of [PCCU] and as against the Plaintiffs ... in the amount of
$12, 231.46.”); see also (Doc. No. 32.)
8 Plaintiffs also cite 12 U.S.C. § 615 and UCC 3-604 for unclear reasons. (Doc. No. 1 at ¶ 4.)
9 At the time PCCU filed its Motion, the state court proceeding was still ongoing, and
accordingly, PCCU declined to make Rooker-Feldman-based arguments. (Doc. No. 6.) On April
29, 2024, PCCU filed a notice indicating the state court matter had concluded, and it joined
Defendant Simon’s Rooker-Feldman argument. (Doc. No. 32.)
Case No. 1:24-cv-00415-PAB-STV Document 48 filed 08/23/24 USDC Colorado
pg 4 of 16

5
Plaintiffs initiated this action on February 12, 2024, naming PCCU, Simon, Garrido,
Ramos, and Coffey as Defendants. (Doc. No. 1.) Plaintiffs filed proofs of service as to
Defendants PCCU, Simon, and Garrido on February 15, 2024 (Doc. No. 5), March 9, 2024 (Doc.
No. 16), and March 10, 2024 (Doc. No. 17), respectively. However, Plaintiffs have not filed
proofs of service demonstrating Defendants Ramos and Coffey have been properly served.
The Court ordered Plaintiffs to show cause “as to why Defendants Ramos and Coffey
should not be dismissed without prejudice, pursuant to Federal Rule of Civil Procedure 4(m), for
lack of service.” (Doc. No. 46 at 2.) Plaintiffs were advised that if they “fail[ed] to show good
cause for their failure to serve Defendants Ramos and Coffey, the Court [would] recommend the
dismissal of Defendants Ramos and Coffey from this action without further notice.” (Id.)
Plaintiffs responded to the OSC on July 23, 2024. (Doc. No. 47.) In the response,
Plaintiffs contend, “Defendant Ramos provided a false statement in process server affidavit and
committed perjury.” (Id. at ¶ 4.) They further state that “Defendant Ramos is aware of said
complaint and is avoiding service .... Defendant Ramos received summons and complaint by
certified mail and will be subpoenaed as a witness regarding the untruths in her process service
document to the Jefferson County Court.” (Id. at ¶ 5.) Finally, Plaintiffs say, “Defendant Coffey
was served via the agent for her at the Attorney Generals (sic) office. Amy Colony, acting as
agent, has acknowledged receipt of documents per ECF 35.” (Id. at ¶ 6.)
LEGAL STANDARD
I. 	Federal Rule of Civil Procedure 12(b)(1)
Federal courts are courts of limited jurisdiction and, as such, “are duty bound to examine
facts and law in every lawsuit before them to ensure that they possess subject matter
Case No. 1:24-cv-00415-PAB-STV Document 48 filed 08/23/24 USDC Colorado
pg 5 of 16

6
jurisdiction.” The Wilderness Soc. v. Kane Cty., Utah, 632 F.3d 1162, 1179 n.3 (10th Cir. 2011)
(Gorsuch, J., concurring). Indeed, courts have an independent obligation to determine whether
subject matter jurisdiction exists, Cellport Sys., Inc. v. Peiker Acustic GMBH & Co. KG, 762
F.3d 1016, 1029 (10th Cir. 2014), even in the absence of a challenge from any party, 1mage
Software, Inc. v. Reynolds & Reynolds, Co., 459 F.3d 1044, 1048 (10th Cir. 2006). Pursuant to
Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may bring either a facial or factual
attack on subject matter jurisdiction, and a court must dismiss a complaint if it lacks subject
matter jurisdiction. See Pueblo of Jemez v. United States, 790 F.3d 1143, 1147 n.4 (10th Cir.
2015). For a facial attack the court takes the allegations in the Complaint as true; for a factual
attack the court may not presume the truthfulness of the Complaint's factual allegations and may
consider affidavits or other documents to resolve jurisdictional facts. Rural Water Dist. No. 2 v.
City of Glenpool, 698 F.3d 1270, 1272 n.1 (10th Cir. 2012) (citing Holt v. United States, 46 F.3d
1000, 1002-03 (10th Cir. 1995)). The burden of establishing jurisdiction rests with the party
asserting jurisdiction. See Kline v. Biles, 861 F.3d 1177, 1180 (10th Cir. 2017).
II. 	Federal Rule of Civil Procedure 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss
a claim for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
“The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the
parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally
sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d
1194, 1201 (10th Cir. 2003) (quotation marks omitted).
Case No. 1:24-cv-00415-PAB-STV Document 48 filed 08/23/24 USDC Colorado
pg 6 of 16

7
“A court reviewing the sufficiency of a complaint presumes all of plaintiff’s factual
allegations are true and construes them in the light most favorable to the plaintiff.” Hall, 935 at
1109. “To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Plausibility, in the context of a Rule 12(b)(6) motion to dismiss, means that the plaintiff pleaded
facts that allow “the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. The Iqbal evaluation requires two prongs of analysis. First, the Court
identifies “the allegations in the complaint that are not entitled to the assumption of
truth,” i.e., those allegations which are legal conclusions, bare assertions, or merely
conclusory. Id. at 679–81. Second, the Court considers the factual allegations “to determine if
they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible
claim for relief, the claim survives the motion to dismiss. Id. at 679.
III. 	Pro Se Plaintiffs
Plaintiffs are proceeding pro se. The court, therefore, “review[s] [their] pleadings and
other papers liberally and hold[s] them to a less stringent standard than those drafted by
attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted);
see Haines, 404 U.S. at 520–21 (holding the allegations of a pro se complaint “to less stringent
standards than formal pleadings drafted by lawyers”). However, a pro se litigant’s “conclusory
allegations without supporting factual averments are insufficient to state a claim upon which
relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not
assume that a plaintiff can prove facts that have not been alleged or that a defendant has violated
Case No. 1:24-cv-00415-PAB-STV Document 48 filed 08/23/24 USDC Colorado
pg 7 of 16

8
laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal.
State Council of Carpenters, 459 U.S. 519, 526 (1983); see Whitney v. New Mexico, 113 F.3d
1170, 1173–74 (10th Cir. 1997) (stating that a court may not “supply additional factual
allegations to round out a plaintiff’s complaint”); Drake v. City of Fort Collins, 927 F.2d 1156,
1159 (10th Cir. 1991) (the court may not “construct arguments or theories for the plaintiff in the
absence of any discussion of those issues”). The plaintiffs’ pro se status does not entitle them to
an application of different rules. Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
ANALYSIS
I. 	Motions to Dismiss
A. The Rooker-Feldman Doctrine
“The Rooker-Feldman doctrine provides that only the Supreme Court has jurisdiction to
hear appeals from final state court judgments.” Mayotte v. U.S. Bank Nat’l Ass’n, 880 F.3d
1169, 1173 (10th Cir. 2018) (quoting Bear v. Patton, 451 F.3d 639, 641 (10th Cir. 2006))
(alteration omitted); see also Rooker v. Fid. Trust Co., 263 U.S. 413 (1923). The doctrine
prevents lower federal courts from exercising jurisdiction “over cases brought by ‘state-court
losers’ challenging ‘state-court judgments rendered before the [federal] district court
proceedings commenced.’” Lance v. Dennis, 546 U.S. 459, 460 (2006) (quoting Exxon Mobil
Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)). Because the Rooker-Feldman
doctrine “implicates [the Court’s] subject matter jurisdiction,” the Court addresses it “before
turning to the merits of the case.” PJ ex rel. Jensen v. Wagner, 603 F.3d 1182, 1193 (10th Cir.
2010).
Case No. 1:24-cv-00415-PAB-STV Document 48 filed 08/23/24 USDC Colorado
pg 8 of 16

9
The doctrine applies to claims where “(1) the plaintiff lost in state court, (2) the state
court judgment caused the plaintiff’s injuries, (3) the state court rendered judgment before the
plaintiff filed the federal claim, and (4) the plaintiff is asking the district court to review and
reject the state court judgment.” Bruce v. City & Cnty. of Denver, 57 F.4th 738, 746 (10th Cir.
2023) (citing Exxon Mobil, 544 U.S. at 284). “Where these factors exist, [a federal district court]
lack[s] subject matter jurisdiction.” Id. (citing Lance, 546 U.S. at 465). It precludes claims
“actually decided by a state court,” as well as claims “inextricably intertwined with a prior state-
court judgment.” Kline v. Biles, 861 F.3d 1177, 1180 (10th Cir. 2017) (quoting Tal v. Hogan,
453 F.3d 1244, 1256 (10th Cir. 2006)). “A claim is inextricably intertwined if the state-court
judgment caused, actually and proximately, the injury for which the federal-court plaintiff
seeks redress.” Tal, 453 F.3d at 1256 (internal quotation marks and citation omitted) (emphasis
in original).
“The Rooker-Feldman doctrine ‘has a narrow scope.’” D.A. Osguthorpe Family P’ship v.
ASC Utah, Inc., 705 F.3d 1223, 1232 (10th Cir. 2013) (quoting Chapman v. Oklahoma, 472
F.3d 747, 749 (10th Cir. 2006)). The doctrine “does not deprive a federal court of jurisdiction to
hear a claim just because it could result in a judgment inconsistent with a state-court
judgment.” Mayotte, 880 F.3d at 1174. “There is no jurisdictional bar to litigating the same
dispute on the same facts that led to the state judgment.” Id. (emphasis in original); see Lance,
546 U.S. at 466 (“Rooker-Feldman is not simply preclusion by another name.”).” What is
prohibited under Rooker-Feldman is a federal action that tries to modify or set aside a state-court
judgment because the state proceedings should not have led to that judgment.” Mayotte, 880
F.3d at 1174 (citing Exxon Mobil, 544 U.S. at 291) (emphasis in original). “The essential point
Case No. 1:24-cv-00415-PAB-STV Document 48 filed 08/23/24 USDC Colorado
pg 9 of 16

10
is that barred claims are those ‘complaining of injuries caused by state-court judgments.”
Campbell v. City of Spencer, 682 F.3d 1278, 1283 (10th Cir. 2012) (quoting Exxon Mobil, 544
U.S. at 284). “In other words, an element of the claim must be that the state court wrongfully
entered its judgment.” Id.
Here, Plaintiffs take issue with the process and results of the Jefferson County action and
contend that a deprivation of their rights resulted in an unfavorable ruling. (See Doc. No. 1 at ¶ 5
(“Due process was not followed.”); ¶ 7 (“[Defendants] violated the Plaintiffs[’] 4 th , 5th , and 7th
Amendments.”).) Plaintiffs appear to invoke the unreasonable search and seizure provision of
the Fourth Amendment, the Fifth Amendment’s Due Process Clause, and the right to a jury trial
found in the Seventh Amendment to the United States Constitution. (See Doc. No. 1 at 4.)
Plaintiffs have made similar allegations under similar circumstances. See 23-cv-02939-
PAB-MDB (in which Plaintiffs contend that a State of Colorado Rule 120 foreclosure hearing
violated their Fourth, Fifth, and Seventh Amendment rights). Moreover, other courts in this
District have considered similar Rooker-Feldman challenges on similar claims. For example, in
Driskell v. Thompson, 971 F. Supp. 2d 1050, 1065 (D. Colo. 2013), the plaintiff argued that a
Rule 120 foreclosure proceeding violated his Fourth, Fifth, and Seventh Amendment rights. Id.
at 1056. As here, the Driskell court considered Rooker-Feldman’s application to plaintiff’s
constitutional claims, determining plaintiff’s Fourth and Fifth Amendment claims were barred,
but his Seventh Amendment claim could proceed to a merits review. Id. at 1062–65.
As the Court found in its 23-cv-02939-PAB-MDB Recommendation, the Driskell
decision accurately and persuasively applied the Rooker-Feldman doctrine and is therefore
instructive. Thus, the Court proceeds similarly here. To the extent Plaintiffs attempt to state a
Case No. 1:24-cv-00415-PAB-STV Document 48 filed 08/23/24 USDC Colorado
pg 10 of 16

11
Fifth Amendment due process claim based on the fairness of the Jefferson County proceeding,
the relief here would necessarily challenge the adjudication in state court. In other words, this
claim is inextricably intertwined with the state court proceeding. See Tal, 453 F.3d at 1256
(stating a claim is inextricably intertwined with the state court proceeding when a plaintiff
alleges the state court proceeding actually and proximately caused the injury alleged in federal
court). Thus, the claim is barred by Rooker–Feldman and should be dismissed.
And while Plaintiffs’ invocation of the Fourth Amendment is vague and of unclear
application to the facts at issue, it appears Plaintiffs seek to challenge the $12,231.46 judgment
as some form of unreasonable search and seizure. If so, that too is barred by the Rooker–
Feldman doctrine. See Exxon Mobil, 544 U.S. at 284 (explaining that Rooker-Feldman applies to
“cases brought by state-court losers complaining of injuries caused by state-court judgments
rendered before the district court proceedings commenced and inviting district court review and
rejection of those judgments.”); see also McDonald v. Eagle Cnty., 2018 WL 6531696, at *6 (D.
Colo. Dec. 12, 2018), report and recommendation adopted, 2019 WL 1058204 (D. Colo. Mar. 6,
2019) (saying Rooker-Feldman applied to constitutional claims that would require the court “to
overrule the state court’s determination that [the plaintiff] was indebted to [a defendant] in the
amount of $14,664.09”). If not, the Court cannot discern a cognizable claim.
B. Plaintiffs’ Seventh Amendment Claim
On the other hand, Plaintiffs’ Seventh Amendment claim ostensibly challenges the
procedure by which the state court case was adjudicated—namely, the lack of a jury trial—
rather than the outcome itself, and thus may not be barred by Rooker-Feldman. However, even
assuming a lack of a jurisdictional bar, the Plaintiffs’ Seventh Amendment claim is entirely
Case No. 1:24-cv-00415-PAB-STV Document 48 filed 08/23/24 USDC Colorado
pg 11 of 16

12
unexplained and unsupported in the Complaint and, accordingly, must be dismissed under Fed.
R. Civ. P. 12(b)(6). See Iqbal, 556 U.S. at 678 (stating that a court must dismiss a complaint
which “tenders’ naked assertion[s]’ devoid of ‘further factual enhancement’” (citation
omitted)).10
II. 	Service of Defendants Ramos and Coffey
Plaintiffs have failed to properly serve Defendants Ramos and Coffey within the time
provided by Fed. R. Civ. P. 4(m). (See Doc. No. 46 at 1–2 (noting “Plaintiffs filed an Affidavit
of Nonservice as to Defendant Ramos” (citing Doc. No. 35), and further noting Plaintiffs’ filings
as to Defendant Coffey “were stricken by the Court” as improper (citing Doc. Nos. 10; 12)).)
In response to the Court’s OSC addressing this issue, Plaintiffs contend Defendant
Ramos is avoiding service (Doc. No. 47 at ¶¶ 4–5 (citing Doc. No. 35)), and Defendant Coffey
“was served via the agent for her at the Attorney Generals (sic) office.” (Id. at ¶ 6 (citing Doc.
No. 35).) In support of both arguments, Plaintiffs cite the Affidavit of Nonservice regarding
Defendant Ramos.11 (See Doc. No. 35.) The affidavit discusses four attempts to serve Defendant
Ramos at her purported address between April 21 and April 28, 2024. (Id.) The process server
indicated there was no answer at the door on any attempt. (Id. at 1–2.) He further noted that the
house was quiet and dark for attempts 1, 3, and 4. (Id.) Moreover, during the second attempt, the
process server spoke with a neighbor who did not know who lived at the address in question and
10 Additionally, though it is unclear whether Plaintiffs attempt to assert a claim via the
Complaint’s reference to 12 U.S.C. § 615 and UCC 3-604 (see Doc. No. 1 at ¶ 4; supra at n. 7),
the reference is unexplained and unsupported and thus also requires dismissal under Rule
12(b)(6).
11 Plaintiffs filed this document on May 9, 2024. (Doc. No. 35.)
Case No. 1:24-cv-00415-PAB-STV Document 48 filed 08/23/24 USDC Colorado
pg 12 of 16

13
did not recognize Defendant Ramos’ name. (Id. at 2.) The Affidavit of Nonservice makes no
mention of Defendant Coffey. (See id.)
“If a defendant is not served within 90 days after the complaint is filed, the court—on
motion or on its own after notice to the plaintiff—must dismiss the action without prejudice
against that defendant or order that service be made within a specified time. “If Plaintiff shows
good cause for the delay, however, the district court must extend the time to serve the
defendant.” Wischmeyer v. Wood, 2008 WL 2324128, at *2 (D. Colo. June 2, 2008) (citing
Espinoza v. United States, 52 F.3d 838, 840–41 (10th Cir. 1995)). A plaintiff’s “meticulous
efforts to comply with the rule” may support a finding of good cause. In re Kirkland, 86 F.3d
172, 176 (10th Cir. 1996). Even if the plaintiff fails to show good cause, the district court must
consider whether the situation warrants a “permissive extension of time.” Espinoza, 52 F.3d at
841–42; see also Wischmeyer, 2008 WL 2324128, at *2.
The Court finds Plaintiffs’ response to the OSC fails to demonstrate “good cause” for
their failure to serve Defendants Ramos and Coffey within the period specified by Rule 4(m). As
to Defendant Ramos, four service attempts over the course of a single week—at least three of
which were made while the home in question was “quiet” and/or “dark”—is not necessarily
evidence of evasion. (Doc. No. 35.) For example, there is no indication that someone was
moving around in the home and refused to come to the door, or that they answered a doorbell
camera but then refused to open the door. Moreover, it is unclear if Plaintiffs even have the right
address for Defendant Ramos, as a neighbor reportedly told the process server she did not
recognize Defendant Ramos’ name. (Id. at 2.) Additionally, Plaintiffs’ last attempt to serve
Defendant Ramos appears to have been on April 28, 2024. (Id.) Over two months before the
Case No. 1:24-cv-00415-PAB-STV Document 48 filed 08/23/24 USDC Colorado
pg 13 of 16

14
Court’s OSC—and over three months before this Recommendation. The Court has no
information indicating Plaintiffs have made new efforts to serve Defendant Ramos. This lack of
diligence further counsels against a finding of good cause.
Likewise, Plaintiffs have failed to demonstrate good cause as to their failure to timely
serve Defendant Coffey. As the Court noted, Plaintiffs’ attempts to serve Defendant Coffey by
publication and mail in March 2024 were explicitly stricken by the Court as improper. (Doc.
Nos. 10; 11; 12; 13.) Further, as with Defendant Ramos, Plaintiffs have apparently not made any
additional efforts at serving Defendant Coffey and thus have not demonstrated diligence in this
task. Finally, Plaintiffs’ OSC response that Defendant Coffey is aware of this case through her
“agent,” Ms. Colony, and citations to ECF 35—a document noting the service attempts of
Defendant Ramos (Doc. No. 47 at ¶ 6)—are unexplained and unpersuasive in demonstrating
good cause.
However, even though Plaintiffs have not shown “good cause” for their failure to serve
Defendants within 90 days, this does not end the Court’s inquiry. See Espinoza, 52 F.3d at
841. The Court must consider whether a “permissive extension of time” to serve Defendants
Coffey and Ramos is warranted. Id. (“If the plaintiff fails to show good cause, the district court
must still consider whether a permissive extension of time may be warranted.”). Here, the Court
does not see any basis for such an extension. Plaintiffs have failed to provide any information
suggesting their service attempts have been thwarted by unique hardship or that they are likely to
successfully serve Defendants Coffey or Ramos in the near future. Moreover, the Court notes
Plaintiffs have already been afforded a de facto Rule 4(m) extension as this case has been
pending for over five months. (Doc. No. 1.)
Case No. 1:24-cv-00415-PAB-STV Document 48 filed 08/23/24 USDC Colorado
pg 14 of 16

15
CONCLUSION
For the foregoing reasons the Court RECOMMENDS Defendant Partner Colorado
Credit Union’s Motion to Dismiss (Doc. No. 6) and the Motion to Dismiss Defendant Harry L.
Simon (Doc. No. 28) be GRANTED as follows:
• 	Plaintiffs’ Fourth Amendment and Fifth Amendment claims against Defendants
PCCU and Simon be dismissed without prejudice. See Strozier v. Potter, 71 F.
App’x 802, 804 (10th Cir. 2003) (“A district court’s dismissal for lack of subject
matter jurisdiction should be without prejudice.”).
• 	Plaintiffs’ Seventh Amendment claim be dismissed with prejudice.12
The Court further RECOMMENDS Defendants Ramos and Coffey be DISMISSED
from this action.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may
serve and file written objections to the Magistrate Judge’s proposed findings and
recommendations with the Clerk of the United States District Court for the District of Colorado.
28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A
general objection that does not put the district court on notice of the basis for the objection will
not preserve the objection for de novo review. “[A] party’s objections to the magistrate judge’s
report and recommendation must be both timely and specific to preserve an issue for de novo
12 Though the Court would ordinarily recommend the dismissal of Plaintiffs’ Seventh
Amendment claim without prejudice, Plaintiffs have caused Defendants and the Court to expend
significant time and resources on what appears to be a meritless claim. See Avery v. Wade, 2022
WL 17544077, at *2 (10th Cir. Dec. 9, 2022) (finding that the district court “didn't abuse its
discretion in dismissing [the plainitff’s] claims with prejudice” because he raised “indisputably
meritless legal theor[ies].” (quoting Northington v. Jackson, 973 F.2d 1518, 1520 (10th Cir.
1992)).
Case No. 1:24-cv-00415-PAB-STV Document 48 filed 08/23/24 USDC Colorado
pg 15 of 16

16
review by the district court or for appellate review.” United States v. One Parcel of Real Prop.
Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to
make timely objections may bar de novo review by the district judge of the magistrate judge’s
proposed findings and recommendations and will result in a waiver of the right to appeal from a
judgment of the district court based on the proposed findings and recommendations of the
magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court’s
decision to review a magistrate judge’s recommendation de novo despite the lack of an objection
does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at
1059-60 (a party’s objections to the magistrate judge’s report and recommendation must be both
timely and specific to preserve an issue for de novo review by the district court or for appellate
review); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir.
1995) (by failing to object to certain portions of the magistrate judge’s order, cross-claimant had
waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342,
1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal
the magistrate judge’s ruling). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th
Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
Dated this 23 rd day of August, 2024.
BY THE COURT:
___________________________
Maritza Dominguez Braswell
United States Magistrate Judge
Case No. 1:24-cv-00415-PAB-STV Document 48 filed 08/23/24 USDC Colorado
pg 16 of 16