United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Y. Wang United States Magistrate Judge
matter comes before this court for recommendation on
Plaintiff Brian William Wallace's
(“Plaintiff” or “Mr. Wallace”)
“Brian of the Family Wallace Motions and Orders this
Court to Dismiss No. 1:19-cv-01135-RM-NYW Without
Prejudice” (“Plaintiff's Motion to
Dismiss”), filed August 14, 2019, [#45]. The
undersigned considers the Motion pursuant to 28 U.S.C. §
636(b), Rule 72 of the Federal Rules of Civil Procedure, and
the Memorandum dated August 15, 2019. Accordingly, having
reviewed the Motion, I respectfully RECOMMEND that the Motion
to Dismiss be GRANTED IN PART AND DENIED IN PART.
court has discussed the background of this matter in its
Recommendation, see [#47], and therefore discusses
only the most salient facts to the instant Motion to Dismiss.
Plaintiff filed his pro se Complaint against Defendants Trans
Union, LLC and Equifax, Inc. (collectively,
“Defendants”) in the Denver County District Court on
or about April 2, 2019. See [#3]. In his Complaint,
Mr. Wallace asserts class and individual claims against
Defendants for alleged violations of the Fair Credit
Reporting Act (“FCRA”), 15 U.S.C. § 1681
et seq. For this reason, Defendants removed this
matter to this District pursuant to 28 U.S.C. § 1331 on
April 18, 2019. See [#1].
April 25, 2019, Defendants moved to dismiss or strike Mr.
Wallace's purported class action claim on the basis that
a pro se plaintiff may not represent a potential class of
plaintiffs. [#18 at 3; #33 at 2]. Defendants also filed
Partial Answers as to Plaintiff's individual claim.
See [#19; #20]. On August 14, 2019, Plaintiff filed
the instant Motion to Dismiss. See [#45]. Because
briefing had not been completed on Plaintiff's Motion to
Dismiss, the undersigned issued a Recommendation to grant
Defendants' Motion to Dismiss as to Plaintiff's class
claim,  and noted that it would address
Plaintiff's Motion to Dismiss by separate Recommendation.
See [#47]. Defendants have not responded to
Plaintiff's Motion to Dismiss and the time to do so has
since expired. Thus, the court proceeds with a Recommendation
on Plaintiff's Motion to Dismiss currently. See
moves the court to dismiss this action because he is
“donating his time to his favorite charity and will not
be able to continue this case.” [#45 at ¶ 6]. He
requests that dismissal be without prejudice, that the court
“waive all Pacer fees, ” and that the Parties
“go in peace.” [Id. at ¶ 9].
Defendants filed Partial Answers as to Plaintiff's
individual claim, Rule 41(a)(2) of the Federal Rules of Civil
Procedure provides, “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).
Though Plaintiff's Motion to Dismiss does not contain a
certificate of conferral and Defendants have not joined the
Motion (thereby rendering dismissal self-effectuating under
Rule 41(a)(1)(A)(ii)), this court construes the Motion as
unopposed given the lack of objection by Defendants in the
time provided by this District's Local Rules of Civil
Practice and the Federal Rules of Civil Procedure.
Augustine v. Exec. in Charge I.R.S., No. CIV.A.
06-cv-02514-MS[K], 2007 WL 247719, at *1 n.1 (D. Colo. Jan.
26, 2007). For this reason, the court believes dismissal
without prejudice is appropriate under the circumstances.
Mr. Wallace's request that the court “waive all
Pacer fees, ” both past and present, this court
respectfully RECOMMENDS that his request
that all PACER fees be DENIED, particularly
given Plaintiff's pattern of litigation conduct spanning
from 2011 to the present in this District. See Ex. 1
(List of cases filed by Plaintiff as Brian William Wallace
and Brian Edmond Bath).
reasons stated herein, this court respectfully
Plaintiff's Motion to Dismiss [#45] be GRANTED IN PART
and DENIED IN PART insofar as Plaintiff seeks waiver of PACER
fees past and present; and
This civil action be DISMISSED ...