United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
KRISTEN L. MIX MAGISTRATE JUDGE
matter is before the Court on Plaintiff's Motion
to Dismiss Without Prejudice [#31] (the
“Motion”). The Motion [#31] has been referred to
the undersigned for a recommendation regarding disposition
pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.L.CivR
72.1(c). See [#32]. No. Response has been filed. For
the reasons set forth below, the Court recommends that the
Motion [#31] be GRANTED.
Motion [#31], Plaintiff seeks to dismiss this case without
prejudice pursuant to Fed. R. Civ. P 41(a)(2). That rule
provides that “an action may be dismissed at the
plaintiff's request only by court order, on terms that
the court considers proper.” Fed. R. Civ. P 41(a)(2).
Voluntary dismissals pursuant to Fed.R.Civ.P. 41(a)(2)
“are committed to the sound discretion of the
Court.” Eighth Dist. Elec. Pension Fund v. Ludvik
Elec. Co., No. 06-cv-1299-WDM-MEH, 2007 WL 496687, at *1
(D. Colo. Feb. 12, 2007). “Absent prejudice to the
defendant[s], the court normally should grant such a request
for dismissal.” Carter v. Noodles & Co.,
No. 16-CV-00319-CMA-KMT, 2016 WL 3636833, at *2 (D. Colo.
June 29, 2016) (citing Ohlander v. Larson, 114 F.3d
1531, 1537 (10th Cir. 1997)). Relevant factors to consider
when assessing legal prejudice include insufficient
explanation of the need for a dismissal; the opposing
parties' effort and expense in preparing for trial; the
present stage of the litigation; and excessive delay and lack
of diligence on the part of the movant. Id. (quoting
Ohlander, 114 F.3d at 1537).
states that he has elected to move for dismissal because
“Defendants have declined to continue participating in
this litigation.” Motion [#31] at 1. As
Plaintiff correctly observes, the Court granted
Defendants' counsel's Motion to Withdraw as Counsel
of Record [#22] on June 18, 2018. Minute Order
[#24]. In doing so, the Court ordered Defendants Ashley Fyfe
and Kenan Fyfe to confirm their mailing addresses, e-mail
addresses, and telephone numbers on or before June 25, 2018.
Id. at 2. The Court also ordered Defendants
Renaissance Memory Care, LLC and Safe at Home Residences, LLC
to comply with D.C.COLO.LAttyR 5(b) by having new counsel
enter an appearance on or before July 18, 2018. Id.
Since the date of that Minute Order [#24], Defendants have
failed to comply with either order and have not made any
other filings in this case.
indicated in Plaintiff's Status Report [#30], filed on
August 16, 2018, Plaintiff's counsel is clearly aware of
the methods available for proceeding with the litigation and
obtaining a default judgment under the Federal Rules of Civil
Procedure. Nevertheless, Plaintiff has voluntarily chosen to
request dismissal of his case and the Court finds no reason
to deny Plaintiff of this request. Despite the late stage of
this litigation, it does not appear that Plaintiff has acted
with excessive delay or with a lack of diligence. Plaintiff
filed the present Motion [#31] on August 23, 2018, shortly
after Defendants ceased participation in this case by failing
to comply with the Court's Minute Order [#24] of June 18,
2018. For these reasons, and in the absence of any argument
to the contrary, the Court concludes that dismissing this
case without prejudice would not cause legal prejudice to
Defendants. Accordingly, The Court respectfully
RECOMMENDS that Plaintiff's Motion to
Dismiss [#31] be GRANTED, and that this
action be DISMISSED without prejudice
pursuant to Fed.R.Civ.P. 41(a)(2).
COURT FURTHER RECOMMENDS that taxable costs
of this action be determined by the Clerk as provided by
D.C.COLO.LCivR 54.1, and that payment of such costs be a
condition to Plaintiff filing a future action based on or
including the same claims against the same Defendants,
pursuant to Fed.R.Civ.P. 41(d).
HEREBY ORDERED that pursuant to Fed.R.Civ.P.
72, the parties shall have fourteen (14) days after service
of this Recommendation to serve and file any written
objections in order to obtain reconsideration by the District
Judge to whom this case is assigned. A party's failure to
serve and file specific, written objections waives de novo
review of the Recommendation by the District Judge,
Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140,
147-48 (1985), and also waives appellate review of both
factual and legal questions. Makin v. Colo. Dep't of
Corr, 183 F.3d 1205, 1210 (10th Cir. 1999); Talley
v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A
party's objections to this Recommendation must be both
timely and specific to preserve an issue for de novo review
by the District Court or for appellate review. United
States v. One Parcel of Real Prop., 73 F.3d 1057, 1060
(10th Cir. 1996).
 “[#31]” is an example of
the convention the Court uses to identify the docket number
assigned to a specific paper by the Court's electronic
case filing and management system (CM/ECF). This convention
is used throughout this Recommendation.
 Attorney Michael Poindexter entered an
appearance on behalf of Defendant Kenan Frye on September 4,
2018. See [#33]. Since that time, however, the Court
has not received any filing or ...