FILED

United States Court of Appeals

Tenth Circuit

January 16, 2015

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GERARD M. PIERRE,

Plaintiff – Appellant, No. 14-1375

v. D. Colorado

AURORA LOAN SERVICES, LLC;

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.

(D.C. No. 1:14-CV-01572-LTB)

Appellate Case: 14-1375 Document: 01019371095 Date Filed: 01/16/2015 Page: 1 
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This order and judgment is not binding precedent, except under the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 defendants1

, 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 wellpleaded 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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