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Brown v. Dish Network, L.L.C.

United States District Court, D. Colorado

July 18, 2017

FRANK BROWN, Plaintiff,
DISH NETWORK, L.L.C., Defendant.



         This matter is before the Court on the April 21, 2017 Recommendation of United States Magistrate Judge Kathleen M. Tafoya (“Recommendation, ” ECF No. 41) that Defendant's Motion to Dismiss (the “Motion, ” ECF No. 27) be granted. The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). Plaintiff filed an objection to the Recommendation. (“Objection, ” ECF No. 47.) For the reasons set forth below, Plaintiff's Objection is overruled, the Magistrate Judge's Recommendation is adopted, Defendant's Motion is granted, and judgment is entered in favor of Defendant on all claims in this matter.


         When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to.” An objection to a recommendation is properly made if it is both timely and specific. United States v. One Parcel of Real Property Known as 2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). An objection is sufficiently specific if it “enables the district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute.” Id. In conducting its review, “[t]he district court judge may accept, reject, or modify the recommendation; receive further evidence; or return the matter to the magistrate judge with instructions.” Id. Here, Plaintiff filed a timely objection to Judge Tafoya's Recommendation. Therefore, this Court reviews the issues before it de novo.

         Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss for “failure to state a claim upon which relief can be granted.” In evaluating such a motion, a court must “assume the truth of the plaintiff's well-pleaded factual allegations and view them in the light most favorable to the plaintiff.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). The dispositive inquiry is “whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Granting a motion to dismiss “is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice.” Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (internal quotation marks omitted). “Thus, ‘a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'” Id. (quoting Twombly, 550 U.S. at 556).

         Further, in considering Judge Tafoya's Recommendation, the Court is mindful of Plaintiff's pro se status, and accordingly reads his pleadings and filings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Trackwell v. United States Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007). The Court, however, cannot act as advocate for Plaintiff, who must still comply with the fundamental requirements of the Federal Rules of Civil Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1188 (10th Cir. 2003).[1]


         No parties object to the recitation of facts set forth by Judge Tafoya in the April 21, 2017 Recommendation. (See ECF Nos. 41, 47, 49.) Accordingly, the Court adopts and incorporates the “Statement of the Case” section of the Recommendation as if set forth herein. (ECF No. 41 at 1-3.)

         Briefly, Plaintiff worked for Defendant DISH Network between December 3, 2007 and January 22, 2008. (ECF No. 1 ¶ 5.) Plaintiff was employed as an Associate Tester and was required to report to the Defendant's location in Spartanburg, South Carolina. (Id. ¶¶ 5-6.) Following his separation from employment with Defendant, on April 21, 2008, Plaintiff was arrested and charged in a Pennsylvania state court with criminal offenses related to a robbery that occurred in Philadelphia on December 18, 2007. (Id. ¶ 7.)

         At trial, Plaintiff asserted that on the day of the robbery he was on assignment for Defendant in South Carolina. (Id. at ¶ 8.) The prosecution subpoenaed Defendant to produce employment records demonstrating Plaintiff's presence in South Carolina on December 18, 2007. (Id.) The employment records produced did not verify Plaintiff's alibi. (Id. ¶ 9 (“Despite the fact that Plaintiff was, in fact, on assignment and physically present at Defendant's South Carolina location on December 18, 2007, said employment records as disclosed by Defendant failed to reflect as much.”).) According to Plaintiff, “[a]s a consequence, and because Plaintiff was unable to establish that he was on assignment . . . Plaintiff was found guilty of the charges against him.” (Id. ¶10.) On March 18, 2010, Plaintiff was sentenced to an indefinite term of seven to fourteen years in prison, followed by fifteen years of probation. (Id.)

         Plaintiff asserts that on June 15, 2015, he obtained employment records from Defendant, which “revealed an error in Defendant's record-keeping.” (Id. ¶¶ 11-12.) Plaintiff contends that had these employment records been disclosed before his criminal trial, he would have been able to demonstrate that Defendant's record-keeping was inaccurate and that, contrary to the prosecutor's contention, Plaintiff was on assignment in South Carolina on the date of the robbery. (Id. ¶ 16.)

         Based on this course of events, Plaintiff filed the instant action asserting the following claims: (1) “negligent creation and maintenance of employment records” (i.e., negligent recordkeeping) and (2) “negligent search, retrieval, production and disclosure of employment records” (i.e., negligent misrepresentation). (ECF No. 1 at 6-13.) After Plaintiff filed his complaint, United States District Judge Lewis T. Babcock sua sponte dismissed Plaintiff's negligent misrepresentation claim, finding that such a claim was not actionable under the circumstances. (ECF No. 7 at 4-5.) Plaintiff moved for reconsideration of the dismissal of his negligent misrepresentation claim (see ECF No. 17), however this Court agreed with Judge Babcock in that Plaintiff could not state such a claim, and accordingly denied Plaintiff's motion (ECF No. 39).[2]

         III. ANALYSIS

         Judge Tafoya recommended that Defendant's Motion be granted “and that Plaintiff's claims be dismissed with prejudice for failure to state a claim upon which relief can be granted.” (ECF No. 41 at 7.) ...

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