Wallace v. Trans Union, LLC

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Nina Y. Wang United States Magistrate Judge

         This 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.

         BACKGROUND

         This 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”)^[1] 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].

         On 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, ^[2] 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 D.C.COLO.LCivR 7.1(d).

         ANALYSIS

         Plaintiff 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].

         Because 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.

         As to 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).

         CONCLUSION

         For the reasons stated herein, this court respectfully RECOMMENDS that:

         (1) 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

         (2) This civil action be DISMISSED ...