United States District Court, D. Colorado
ORDER
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE.
This
matter is before the Court on the May 10, 2019,
recommendation of United States Magistrate Judge Nina Y. Wang
(ECF No. 174) on eight pending motions. As explained below,
the Court concludes the magistrate judge's analysis was
thorough and sound and that there is no clear error on the
face of the record with respect to the recommendation. The
Court accepts and adopts the recommendation except as noted
below and incorporates it herein by reference, see
28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). With her
recommendation, the magistrate judge issued an order to show
cause by May 24, 2019, why four Defendants should not be
dismissed under Fed.R.Civ.P. 4(m) because they were not
served within ninety days of when the complaint was filed.
The
recommendation advised the parties that specific written
objections were due within fourteen days after being served
with a copy of the recommendation. No. party filed an
objection, and the time to do so has expired. “In the
absence of a timely objection, the district court may review
a magistrate's report under any standard it deems
appropriate.” Summers v. State of Utah, 927
F.2d 1165, 1167 (10th Cir. 1991).
Nor has
Plaintiff responded to the order to show cause.
The
magistrate judge determined that Plaintiff failed to state a
claim against Defendant American Express National Bank
(“American Express”) under both Fed.R.Civ.P. 8(a)
and Fed.R.Civ.P. 12(b)(6) because the complaint “is
devoid of any factual allegation specific to American
Express” and “fails to plead sufficient facts,
taken as true, to suggest that [Plaintiff] is entitled to
relief against American Express for any of the asserted
claims.” (ECF No. 174 at 9.) The Court has reviewed the
underlying allegations and agrees that American Express's
motion to dismiss (ECF No. 88) should be granted.
The
magistrate judge determined that Plaintiff failed to state a
claim against Defendant LexisNexis Risk Solutions, Inc.
(“LNRS”) because the complaint “fail[s] to
articulate sufficient facts, taken as true, to state any
cognizable claim.” (Id. at 11.) The Court also
agrees that LNRS's motion to dismiss (ECF No. 89) should
be granted.
With
respect to the motion to enforce the settlement agreement
filed by Equifax Information Services LLC
(“Equifax”) (ECF No. 138), the magistrate judge
determined that Equifax is not a party to this action because
it is not named in the amended complaint (ECF No. 71).
Accordingly, the magistrate judge recommended striking the
motion. The Court discerns no error and accepts the
magistrate judge's recommendation.
With
respect to the motion to enforce the settlement filed by
Wells Fargo Bank, N.A. (“Wells Fargo”) (ECF No.
145), the magistrate judge recommended that all claims
against Wells Fargo be dismissed with prejudice. Plaintiff
has since stipulated to dismissing with prejudice his claims
against Wells Fargo. (ECF No. 176.) Therefore, the Court
disregards this aspect of the magistrate judge's
recommendation and simply denies the motion as moot.
The
magistrate judge recommended denying Plaintiff's motion
to amend the complaint (ECF No. 144), finding that amendment
would be futile because, even as amended, Plaintiff's
claims still could not survive dismissal under Fed.R.Civ.P. 8
or Fed.R.Civ.P. 12(b)(6). For the same reasons, the
magistrate judge also recommended denying Plaintiff's
pending motions to strike pleadings by Trans Union LLC and
Experian Information Solutions Inc. or, in the alternative,
for summary judgment (ECF Nos. 91, 106). The Court accepts
these unchallenged recommendations.
With
respect to “Defendant Trans Union LLC's Objections
and Motion to Strike Plaintiff's Summary Judgment
Evidence” (ECF No. 136), the magistrate judge
recommended striking an unauthenticated exhibit containing
hearsay while also finding that considering the exhibit would
not change her recommendation regarding Plaintiff's
motions for summary judgment. In light of the lack of any
objection from Plaintiff, the Court will grant the motion to
strike.
Fed. R.
Civ. P. 4(m) provides for dismissal without prejudice of a
defendant who is not served within ninety days after the
complaint is filed. Plaintiff has not responded to the
magistrate judge's order to show cause why the claims
against Defendants PayPal, Inc., First Premier Bank, and TD
Bank USA, N. A. should not be dismissed since they had not
been served.[1] The Court now dismisses the claims against
these Defendants.
The
Court ADOPTS the recommendation (ECF No. 174) as stated
herein and further ORDERS that:
(1) Defendant American Express's motion to dismiss (ECF
No. ...