Bane v. Amazon

20CA1759 Bane v Amazon 12-02-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA1759

Arapahoe County District Court No. 20CV90

Honorable Elizabeth Beebe Volz, Judge

Mamadou Bane,

Plaintiff-Appellant,

v.

Amazon.com Services, Inc.,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division V

Opinion by JUDGE GOMEZ

Richman and Harris, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced December 2, 2021

Mamadou Bane, Pro Se

Littler Mendelson, P.C., Margaret Parnell Hogan, Stephen E. Baumann II,

Denver, Colorado, for Defendant-Appellee

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¶ 1 Plaintiff, Mamadou Bane, appeals the trial court’s judgment

dismissing his complaint against defendant, Amazon.com Services

Inc. (Amazon). We affirm.

I. Background

¶ 2 Bane alleges the following facts in his amended complaint. He

worked as a seasonal delivery driver for Amazon, beginning in May

2019. A few months into the job, he complained to three managers

that one of his supervisors, Robert Stepp, was mistreating him. The

managers said they would investigate, but Bane never heard back

from them. Meanwhile, the situation with Stepp deteriorated. In

October 2019, about a month after he lodged his complaint, he

ceased working for Amazon, though it’s unclear whether he quit his

job or was fired.

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¶ 3 Bane, acting pro se, filed a complaint and then an amended

complaint asserting claims against Amazon for (1) “incredible and

reckless company’s policies violations” and (2) “multiple

1

The allegations concerning the dates of employment are

inconsistent, but we assume, as the trial court did, that Bane’s

employment ended in October 2019 rather than October 2020.

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defamation – slander.”

2

As relief, he sought a judgment declaring

Amazon responsible for Stepp’s policy violations, $460 trillion in

damages for defamation, and punitive damages.

¶ 4 Amazon filed a motion for a more definite statement pursuant

to C.R.C.P. 12(e), arguing that the amended complaint was “so

confusing and indefinite” that Amazon couldn’t properly respond to

it. Bane filed four responses to the motion, largely restating some

of the allegations in his amended complaint and arguing that he

had sufficiently stated the bases for his claims.

¶ 5 The trial court granted the motion. In its order, the court

expressed that, to the extent that Bane’s responses to the motion

were intended to provide a more definite statement of his claims,

the information in those responses “does not satisfy the

requirement of notice to the defendant of what relief [Bane] is

seeking and the basis for that relief.” The court granted Bane an

additional fourteen days to “submit an amended complaint in

2

The amended complaint also listed Stepp as a defendant. But

Bane never served Stepp with process, so Stepp was not joined in

the action and is not a party to this appeal.

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compliance with pleading standards,” adding that if he failed to do

so the court would dismiss the case without prejudice.

¶ 6 Bane didn’t file another amended complaint. Instead, he filed

a response to the court’s order, reiterating some of his factual

allegations and adding some additional allegations.

¶ 7 On August 27, 2020, the court entered an order dismissing

the complaint. In that order, the court detailed the allegations in

the amended complaint and in Bane’s subsequent pleadings and

determined that those allegations didn’t state a cognizable claim for

relief. Thus, in effect, the court determined that Bane hadn’t stated

a claim upon which relief could be granted.

¶ 8 About a month later, Bane filed a response to the dismissal

order. In an order entered on October 7, 2020, the court construed

his response as a motion for reconsideration and denied it.

II. Analysis

¶ 9 Bane challenges the trial court’s orders (1) dismissing his

complaint and (2) denying his motion for reconsideration.

¶ 10 Because Bane is appearing without an attorney, we construe

his pleadings broadly to effectuate their substance rather than their

form. See People v. Cali, 2020 CO 20, ¶ 34. Nonetheless, the fact

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that he is self-represented doesn’t relieve him of the pleading

requirements to state a claim. See Gandy v. Raemisch, 2017 COA

110, ¶ 41. And while Amazon is correct in arguing that Bane is also

bound by procedural rules, see Cikraji v. Snowberger, 2015 COA

66, ¶ 10, we decline its request to strike Bane’s opening brief for

failure to comply with the Colorado Appellate Rules. Instead, we

“take into account that he appears pro se” and “elect to address his

appellate contentions, to the extent we can discern them.” Id.

A. Dismissal of the Complaint

¶ 11 We first consider Bane’s challenge to the dismissal order.

We reject Amazon’s request that we decline to consider this issue

because it isn’t listed in the notice of appeal. One of the documents

included as part of Bane’s notice of appeal does list as orders being

appealed both the dismissal order and the order on reconsideration.

Specifically, that document “demand[s] [this court] to . . . overturn

the Arapahoe District Court dismissal motion granted on August

27, 2020 and October 7, 2020.” At any rate, a notice of appeal is

“advisory only” and doesn’t bind a party to the issues listed in the

notice. People v. Wilson, 397 P.3d 1090, 1094-95 (Colo. App. 2011),

aff’d, 2015 CO 37. And the notice of appeal, filed on October 14,

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2020, was timely as to both orders. Therefore, we can and do

consider Bane’s challenge to the dismissal order.

1. Standard of Review

¶ 12 Pursuant to C.R.C.P. 12(e), within the time for responding to a

complaint, a party “may file a motion . . . for a more definite

statement of any matter that is not averred with sufficient

definiteness or particularity to enable the party properly to prepare

a responsive pleading.” If the court grants the motion and the

court’s order is not obeyed within the deadline set by the court, “the

court may strike the pleading to which the motion was directed or

make such order as it deems just.” Id.

¶ 13 Ultimately, after granting the motion for a more definite

statement and considering Bane’s response, the trial court

dismissed Bane’s complaint for failure to state a claim upon which

relief can be granted. We review such dismissals de novo. See

Abu-Nantambu-El v. State, 2018 COA 30, ¶ 8. In doing so, we

accept all factual allegations in the complaint as true and view them

in the light most favorable to the plaintiff. Id. To survive dismissal,

a complaint must plead sufficient facts that, if taken as true,

suggest plausible grounds to support a claim for relief. Id.

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2. Bane’s First Claim for Relief

¶ 14 Bane argues that the trial court erred by dismissing his first

claim for relief, which was labeled as “incredible and reckless

company’s policies violations.” We disagree.

¶ 15 The trial court construed this claim as one for negligence and

described it as asserting that “Amazon failed to properly train

Mr. Stepp so that [he] would not violate company policies and/or

failed to take action when [he] violated the policies.” The court

concluded, after assessing Bane’s allegations in the amended

complaint, his response to the motion for a more definite statement,

and his response to the order granting that motion, that he hadn’t

stated a claim for negligence. The court noted in particular that

Bane didn’t “articulate what specific policy be believes was

violated”; he didn’t “clearly state how the violation of any given

policy injured him or caused him damage”; and, although he

referred to negligence per se, “[n]o where in [his] pleadings d[id] he

make reference to any statute or ordinance that he claims was

violated by Mr. Stepp or Amazon.”

¶ 16 We agree with the trial court’s analysis.

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¶ 17 To state a claim for negligence, Bane had to allege facts that, if

proven, would establish that (1) Amazon owed him a legal duty;

(2) Amazon breached that duty; (3) he suffered an injury and

damages; and (4) Amazon’s breach caused those damages. See Leaf

v. Beihoffer, 2014 COA 117, ¶ 12. Or, to state a claim for

negligence per se, he had to allege facts that, if proven, would

establish that (1) Amazon violated a statutory standard; (2) that

violation caused Bane to suffer damages; (3) Bane is a member of

the class of persons the statute was designed to protect; and (4) the

damages he suffered were the kind the statute was enacted to

prevent. See Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d

565, 573 (Colo. 2008).

¶ 18 Viewing the allegations in Bane’s amended complaint and his

other pleadings in his favor, he alleges the following:

• At some point, Bane’s relationship with Stepp deteriorated,

and Stepp started assigning Bane more challenging and time-

consuming delivery routes.

• Stepp “was back talking, making negative comments about

[Bane] and even sharing his productivity numbers with other

team members.”

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• Bane “suspected that [Stepp] was also discussing [Bane’s]

personal information and even other sensitive unlawful topics

at work.”

• Stepp was on “several occasions rude[,] such as raising his

voice, making gestures and being unprofessional.”

• Based on comments by some of Bane’s coworkers about his

productivity numbers, Bane “had the feeling that [Stepp] was

remotely keeping an eye on him most of the time.”

• Bane heard some of his coworkers “secretly discussing about

some allegations that [Bane] may have made.”

• Bane complained to Stepp’s three managers about “Stepp

sharing his performance numbers with unauthorized team

members, a blatant violation of the company’s policy[,] and . . .

making ‘some crazy’ allegations about him.”

• Although “upper management took some corrective actions to

hide employee’s ID numbers thereafter,” Bane didn’t receive

any feedback about the investigation the managers had said

they would make into his complaints.

• Things got “wors[e]” after Bane lodged his complaints.

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• A few days afterward, Stepp assigned Bane to “a route in a

remote place in the mountains with network and connectivity

issues in Littleton as a retaliation.”

• Bane’s employment ended soon thereafter.

¶ 19 These facts, taken as true and construed in the light most

favorable to Bane, are insufficient to state a claim for negligence or

negligence per se.

¶ 20 As to negligence, the amended complaint and other pleadings

don’t explain what duty Amazon supposedly owed to Bane, how

Amazon breached that duty, what damages Bane suffered, and how

any breach caused those damages. See Leaf, ¶ 12. Although the

pleadings suggest that Stepp violated company policies, they don’t

refer to any specific policy that he supposedly violated. And even if

they did, that alone wouldn’t be sufficient to state a claim, in the

absence of facts indicating that the policy somehow created a duty

in tort, that this duty was violated, and that Bane suffered damage

from the violation. Cf. Wing v. JMB Prop. Mgmt. Corp., 714 P.2d

916, 918 (Colo. App. 1985) (rejecting argument that employer’s

personnel policies created a tort duty that could support plaintiff’s

negligence claim), superseded by statute on other grounds as stated

10

in Brooke v. Rest. Servs., Inc., 881 P.2d 409 (Colo. App. 1994), rev’d,

906 P.2d 66 (Colo. 1995).

¶ 21 And, as to negligence per se, the amended complaint and other

pleadings don’t refer to any specific statute that Amazon or Stepp

violated, don’t explain how any such violation caused Bane to suffer

damages, and don’t show either how Bane was a member of the

class of persons a statute was designed to protect or how he

suffered damages that were the kind the statute was enacted to

prevent. See Lombard, 187 P.3d at 573.

¶ 22 Indeed, rather than stating the facts necessary to satisfy the

elements of a claim, most of Bane’s allegations are vague,

conclusory, and lacking in detail. See Van Rees v. Unleaded

Software, Inc., 2016 CO 51, ¶ 26 (“bare bones” allegations were

insufficient to state a claim); Warne v. Hall, 2016 CO 50, ¶ 27

(“bare, conclusory assertions” were insufficient to state a claim).

¶ 23 Accordingly, the trial court correctly dismissed this claim.

3. Bane’s Second Claim for Relief

¶ 24 Bane also argues that the trial court erred by dismissing his

second claim for relief, which was for defamation/slander. Again,

we disagree.

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¶ 25 The trial court described this claim as being premised on

Base’s assertions that “Stepp alleged that [Bane] made certain

statements” and that “[Bane] denies that he made the statements.”

The court concluded that all of the alleged statements, whether

made by Bane, Stepp, or anyone else, couldn’t support a claim for

defamation because “[t]hey are all matters that are best

characterized as opinions of others” and “[n]one of the statements

are directed to [Bane’s] character or conduct.” Thus, the court

concluded, “[i]f the statements themselves are not defamatory[,] it

seems clear that even a false statement that someone made such

statements could not be defamatory.”

¶ 26 Again, we agree with the trial court’s analysis.

¶ 27 “Defamation is a communication that holds an individual up

to contempt or ridicule thereby causing him to incur injury or

damage.” Lawson v. Stow, 2014 COA 26, ¶ 15 (quoting Keohane v.

Stewart, 882 P.2d 1293, 1297 (Colo. 1994)). If the defamatory

communication is oral it’s considered slander, and if it’s written it’s

considered libel. Keohane, 882 P.2d at 1297 n.5.

¶ 28 To state a claim for defamation, Bane had to allege facts that,

if proven, would establish that (1) someone made a defamatory

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statement concerning him; (2) the statement was made to a third

party; (3) the person making the statement was at least negligent in

making it; and (4) the statement either caused him to suffer special

damages or was the kind of statement that doesn’t require proof of

special damages. See Lawson, ¶ 15. Bane would also have to

allege facts that could establish Amazon’s liability for statements

made by Stepp or other employees.

¶ 29 As to the first element, “[a] statement may be defamatory if it

tends so to harm the reputation of another as to lower him in the

estimation of the community or to deter third persons from

associating or dealing with him.” SG Ints. I, Ltd. v. Kolbenschlag,

2019 COA 115, ¶ 19 (quoting Sky Fun 1 v. Schuttloffel, 27 P.3d 361,

369 n.3 (Colo. 2001)). To be defamatory, a statement must be both

false and material, meaning that it is “likely to cause reasonable

people to think ‘significantly less favorably’ about the plaintiff than

they would if they knew the truth.” Id. at ¶ 22 (quoting Bustos v.

A & E Television Networks, 646 F.3d 762, 765 (10th Cir. 2011)).

¶ 30 Also, “[s]tatements of pure opinion are constitutionally

protected” and, therefore, cannot be considered defamatory.

Lawson, ¶ 30. We determine whether an alleged defamatory

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statement is protected as opinion by considering (1) whether the

statement is sufficiently factual to be susceptible of being proved

true or false and (2) whether reasonable people would conclude that

the assertion is one of fact. Id. at ¶ 31; see also Zueger v. Goss,

2014 COA 61, ¶ 16.

¶ 31 Viewing the allegations in Bane’s amended complaint and his

other pleadings in his favor, he alleges the following:

• Stepp at one point “made a ‘stunning comment’ that [Bane]

feel[s] uncomfortable to reveal.”

• Stepp made unspecified “negative comments about [Bane].”

• Stepp falsely accused Bane of making these statements:

o the “positive” statements “God bless America,” “God for

America,” “America number one,” “Amazon number

one,” and “Abraham Lincoln freed African Americans

from slavery”; and

o the “negative” statements “God destroys,” “judgment of

some Americans intelligence,” “secretly insult of

Americans,” “insult of Americans,” “insult of Abraham

Lincoln,” “100% negative (insults - judgments) self-

confidence in fictional guessing for an unspecified

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amount of time (at least 12+ and counting),” “insult of

Law Enforcement Officers at training facility in a

Municipality of Colorado,” “insult of Jeff Bezos,” “insult

of Amazon,” and “fire Amazon.”

• Bane has suffered various forms of damage, including

“misleading accounts affecting negatively his reputation and

public opinion about him.”

¶ 32 Even if these allegations could support the other elements of a

defamation claim, they fail to satisfy the first element.

¶ 33 We conclude, as the trial court did, that the “positive” and

“negative” statements Bane lists are not defamatory, regardless of

who made or was accused of making them. Even the statements he

terms as “negative,” like “judgment of some Americans intelligence”

and “insult of Abraham Lincoln,” are subjective judgments that

neither contain nor imply any verifiable fact. In other words, they

are statements of opinion, not statements of fact that can be proved

true or false and that reasonable people would consider assertions

of fact. See Lawson, ¶¶ 30-31; see also Giduck v. Niblett, 2014 COA

86, ¶ 39 (plaintiff didn’t state a defamation claim because the

alleged statements that he was a “charlatan” and had read “too

15

many Clancy novels,” leading him to exaggerate his resume, were

unactionable assertions of opinion).

¶ 34 Even if we assume that the defamatory statement capable of

being proved wrong was the statement that Bane had made the

various “positive” and “negative” remarks, that still wouldn’t

support a defamation claim. A statement that someone had made

such innocuous remarks is not the type of statement that would

tend to cause such harm to someone’s reputation that it would

lower their estimation in the community or deter others from

associating with them. See SG Ints., ¶ 19. Nor would it likely cause

reasonable people to think significantly less favorably about the

person to whom such remarks were attributed. See id. at ¶ 22.

¶ 35 And to the extent that Bane’s claim is based on any other

statements alluded to in his complaint and other pleadings, he

hasn’t specified what those statements were. Without any detail,

his vague, conclusory, and non-detailed allegations fail to state a

claim. See Van Rees, ¶ 26; Warne, ¶ 27.

¶ 36 Accordingly, the trial court correctly dismissed this claim.

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B. Denial of the Motion to Reconsider

¶ 37 Finally, we consider Bane’s challenge to the trial court’s denial

of his motion to reconsider.

¶ 38 Motions to reconsider are addressed to the sound discretion of

the trial court. W. Colo. Motors, LLC v. Gen. Motors, LLC, 2016 COA

103, ¶ 21. Accordingly, we review rulings on such motions for an

abuse of discretion. Id. at ¶ 48. A court abuses its discretion when

its decision is manifestly arbitrary, unfair, or unreasonable, or

contrary to law. 23 LTD v. Herman, 2019 COA 113, ¶ 40.

¶ 39 In its order denying reconsideration, the trial court expressed

that, “having considered the information provided,” the court “finds

that to the extent [Bane] is asking for reconsideration the request is

DENIED.” We perceive no abuse of discretion in this ruling.

¶ 40 Having reviewed the record, we conclude that Bane didn’t

proffer new grounds to justify changing the dismissal order. His

motion to reconsider didn’t offer sufficient additional factual

allegations that would save his claims from dismissal. Although we

agree that the trial court’s order didn’t reference his new factual

assertions or arguments, a court generally doesn’t abuse its

discretion by refusing to consider new facts or arguments submitted

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in a motion to reconsider. Fox v. Alfini, 2018 CO 94, ¶ 36. And to

the extent that Bane’s motion reiterated the same facts and

arguments the court had already addressed, the court didn’t abuse

its discretion by declining to readdress them. See Steele v. Law, 78

P.3d 1124, 1128 (Colo. App. 2003).

¶ 41 Accordingly, we conclude that the trial court did not abuse its

discretion by denying Bane’s motion to reconsider.

III. Conclusion

¶ 42 The judgment is affirmed.

JUDGE RICHMAN and JUDGE HARRIS concur.