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Cordova v. Melass

United States District Court, D. New Mexico

December 14, 2016

DODIE CORDOVA, in her individual capacity and as legal guardian and conservator for Manuel "Melito" Cordova, Jr., SHAWN FRANCIS, TYVON SWAIN, Plaintiffs,
v.
DAVID MELASS; QUICK FLIP, LLC; CULLEN HALLMARK; MEDRAY CARPENTER; and STEPHEN VAN HORN, Defendants.

          ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          JUDITH C. HERRERA UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Magistrate Judge's Proposed Findings and Recommended Disposition ("PFRD") (Doc. 55); Plaintiffs Dodie Cordova, Shawn Francis, and Tyvon Swain's objections thereto (Doc. 59); and Plaintiffs' Motion for Leave to File Second Amended Complaint, filed after the PFRD (Doc. 61). The PFRD recommended granting Defendant Cullen Hallmark's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(7) for failure to join an indispensable party and dismissing the case without prejudice. The Plaintiffs object to this recommendation on the basis that the Magistrate Judge failed to account for several binding mediation agreements among the heirs and inappropriately weighed the factors under Rule 19(b). The Defendants did not respond to the objections. The Plaintiffs subsequently filed a motion for leave to file a second amended complaint (Doc. 61). Having conducted a de novo review, the Court finds the objections to be without merit for the following reasons. Additionally, the Court finds that Defendant Hallmark is an indispensable party under Rule 12(b)(7), and the motion to file the second amended complaint is denied for failure to include Hallmark.

         Because the Plaintiffs proceed pro se, the Court construes their pleadings liberally and holds them to a less stringent standard than is required of a party represented by counsel. See Weinbaum v. City of Las Cruces, N.M., 541 F.3d 1017, 1029 (10th Cir. 2008) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). Liberal construction requires courts to make some allowance for pro se litigants' “failure to cite proper legal authority, [their] confusion of various legal theories, [their] poor syntax and sentence construction, or [their] unfamiliarity with pleading requirements[.]” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall, 935 F.2d at 1110). However, “the court cannot take on the responsibility of serving as the litigant's attorney in constructing arguments and searching the record.” Id. (citation omitted).

         Federal Rule of Civil Procedure 12(b)(7) allows a court to dismiss an action for failure to join a party in accordance with Rule 19. See 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1359 (3d ed. 2004). When evaluating a motion under Rule 12(b)(7), the court initially determines if the absent party (or parties) is a required party to be joined under Rule 19(a)(1). A party “who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party” if:

(A) in that person's absence, the court cannot accord complete relief among existing parties; or
(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:
(i) as a practical matter impair or impede the person's ability to protect the interest; or
(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.

Fed. R. Civ. P. 19(a)(1). If an otherwise required party cannot feasibly be joined because it is not subject to service of process or because its joinder would destroy subject-matter jurisdiction, “the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed.” Fed.R.Civ.P. 19(b). In making this determination, courts must consider:

(1) the extent to which a judgment rendered in the person's absence might prejudice that person or the existing parties;
(2) the extent to which any prejudice could be lessened or avoided by:
(A) protective provisions in the judgment;
(B) shaping the relief; ...

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