Summary
holding that a civil conspiracy claim may not be based upon the violation of criminal statutes that "do not provide for private civil causes of action"
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Civil Action No. 13-cv-02411-REB-CBS
07-07-2014
KIRBY MARTENSEN, Plaintiff, v. WILLIAM KOCH, and DOES 6-25, Defendants.
Judge Robert E. Blackburn
ORDER ADOPTING RECOMMENDATION OF
THE UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matter before me is the magistrate judge's Recommendation Regarding Defendant's Motion To Dismiss [#151], filed June 12, 2014. No timely objection having been filed to the recommendation, I review it only for plain error. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005).
"[#151]" is an example of the convention I use to identify the docket number assigned to a specific paper by the court's case management and electronic case filing system (CM/ECF). I use this convention throughout this order.
Finding no such error in the magistrate judge's recommended disposition, I find and conclude that the recommendation should be approved and adopted. Although typically a motion to dismiss for failure to state a claim is without prejudice, I concur with the magistrate judge that amendment as to the claims implicated by the motion to dismiss would be futile, making dismissal with prejudice appropriate. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006).
THEREFORE, IT IS ORDERED as follows:
1. That the magistrate judge's Recommendation Regarding Defendant's Motion To Dismiss [#151], filed June 12, 2014, is APPROVED and ADOPTED as an order of this court;
2. That Defendant William I. Koch's Motion To Dismiss Revised Fourth Amended Complaint and To Strike Portions of Revised Fourth Amended Complaint (Dkt. 111, filed 4/1/14) [#116], filed is April 11, 2013, is GRANTED IN PART and DENIED AS MOOT IN PART as follows:
a. That the motion is GRANTED to the extent it seeks to dismiss plaintiff's claims for civil conspiracy and intentional infliction of emotional distress; and
b. That the motion is DENIED AS MOOT to the extent it seeks to strike portions of the Fourth Amended Complaint;
3. That the Second Cause of Action (Civil Conspiracy) and Third Cause of Action (Intentional Infliction of Emotional Distress) asserted in Plaintiff's Revised Fourth Amended Complaint for Damages [#111], filed April 1, 2014, are DISMISSED WITH PREJUDICE; and
4. That at the time judgment enters, judgment with prejudice SHALL ENTER on behalf of defendants, William Koch and Does 6-25, against plaintiff, Kirby Martensen, on the Second Cause of Action (Civil Conspiracy) and Third Cause of Action (Intentional Infliction of Emotional Distress) asserted in Plaintiff's Revised Fourth Amended Complaint for Damages [#111], filed April 1, 2014.
Dated July 7, 2014, at Denver, Colorado.
BY THE COURT:
__________
Robert E. Blackburn
United States District Judge