Opinion
Civil Action No. 05-cv-00677-EWN-OES.
October 31, 2005
ORDER CONCERNING MAGISTRATE JUDGE'S RECOMMENDATION
This matter is before the court on the "Recommendation for Dismissal" filed by the magistrate judge on October 18, 2005 (#16) and the supplemental recommendation filed October 20 (#17). Plaintiff has objected to the recommendations. She thinks the dismissal should be without prejudice, not with prejudice. Reasonable minds can differ on this point. Rule 4(m) of the Federal Rules of Civil Procedure specifies that a dismissal for failure to serve defendants within 120 days of the date on which the complaint was filed is ordinarily to be without prejudice. There was more to the magistrate judge's recommendation, however. He pointed out that Plaintiff has failed to follow court rules and orders and has neglected to prosecute the case diligently. A dismissal for these reasons may be with prejudice, depending on the circumstances. See D.C.COLO.LCivR 41.1. Here, the recommendation does not analyze the factors which would justify a dismissal with prejudice as a sanction for violating court rules or orders or failing to prosecute the case. Therefore, I will dismiss the case without prejudice, for now. Accordingly, it is
ORDERED as follows:
1. The recommendation and supplemental recommendations are ACCEPTED in part and REJECTED in part.
2. The case is hereby DISMISSED without prejudice.
3. All other pending motions are DENIED as moot.