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
1
¶ 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.
1
¶ 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.
2
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.
3
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
4
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,
5
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.
6
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.
7
¶ 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.”
8
• 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.
9
• 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
(“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.
11
¶ 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
12
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
13
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
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
14
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.
16
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
¶ 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
17
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.