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United States ex rel. Owen v. Duran

United States District Court, D. Colorado

June 1, 2015

UNITED STATES OF AMERICA, ex rel., HAROLD OWEN, individually, Plaintiffs,
v.
DANIEL L. DURAN, and HALEDAN CONSTRUCTORS, INC., Defendants.

ORDER CONCERNING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ROBERT E. BLACKBURN, District Judge.

This matter is before me on the following: (1) the Order and Recommendation of United States Magistrate Judge [#32][1] filed February 26, 2014; and (2) The United States of America's Objection to the Recommendation of United States Magistrate Judge (Doc. 32) [#34] filed March 4, 2014.

As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the recommendation to which the United States objects. I have considered carefully the recommendation, the objection, the other filings in this case, and the applicable case law.

Because the plaintiff is acting pro se, I have construed his pleadings and other filings more liberally and held them to a less stringent standard than formal pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

The plaintiff, Harold Owen, is acting pro se. In his complaint [#1], Mr. Owen asserts claims on behalf of the United States under the False Claims Act. 31 U.S.C. §§ 3729 - 3733. Mr. Owen was advised by the magistrate judge that he must retain counsel in order to represent the interests of the United States under the False Claims Act. However, Mr. Owen did not retain counsel. Further, Mr. Owen did not respond to the Order to Show Cause [#31] issued by the magistrate judge directing Mr. Owen to show cause why this case should not be dismissed based on his failure to prosecute and his failure to comply with the orders of this court.

In the recommendation [#32], the magistrate judge correctly considers and applies the Ehrenhaus factors, which are relevant to dismissal for failure to prosecute and failure to comply with the rules and orders of this court. Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992); see also Gripe v. City of Enid, Okl., 312 F.3d 1184, 1188 (10th Cir. 2002). Based on that analysis, the magistrate judge recommends that, subject to the consent of the United States, the complaint be dismissed with prejudice.

The United States does not object to the recommendation that the complaint be dismissed. However, the United States does object to the recommendation that the dismissal be with prejudice [#34]. The United States contends cogently that a dismissal with prejudice would run counter to the purpose of the False Claims Act, which purpose is to combat fraud. Moreover, the United States correctly contends that a dismissal with prejudice might preclude the United States from pursuing claims not only under the False Claims Act, but also under other statutes [#34].

I sustain the objection of the United States and respectfully reject the recommendation of the magistrate judge to the extent she recommends that this case be dismissed with prejudice. However, I concur with the recommendation of the magistrate judge that this case be dismissed for failure to prosecute and as a sanction for the failure of Mr. Owen to comply with the rules and orders of this court. Thus, with that one exception, I approve and adopt the recommendation [#32] of the magistrate judge.

THEREFORE, IT IS ORDERED as follows:

1. That The United States of America's Objection to the Recommendation of United States Magistrate Judge (Doc. 32) [#34] filed March 4, 2014, is sustained;

2. That with the exception of the form of dismissal, the Order and Recommendation of United States Magistrate Judge [#32] filed February 26, 2014, is approved and adopted as an order of this court;

3. That this case is dismissed as a sanction for the failure of the plaintiff to comply with the orders and rules of this court;

4. That under Fed.R.Civ.P. 41 and D.C.COLO.LCivR41.1, this case is dismissed for the failure of the plaintiff to prosecute;

5. That the dismissal is without prejudice; and

6. That this case is closed.


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